VII.

REQUIREMENTS AND PRHOBITIONS APPLICABLE TO ALL LOCAL OFFICIALS AND

EMPLOYEES
[G.R. No. 102549. August 10, 1992.]
ERWIN B. JAVELLANA, Petitioner, v. DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND LUIS T.
SANTOS, SECRETARY, Respondents.
SYLLABUS
1. POLITICAL LAW; LOCAL GOVERNMENT CODE; PUBLIC OFFICERS; PROHIBITED FROM ENGAGING IN THE
PRIVATE PRACTICE OF THEIR PROFESSION IF SUCH PRACTICE WOULD REPRESENT INTERESTS ADVERSE
TO THE GOVERNMENT. In the first place, complaints against public officers and employees relating or incidental to
the performance of their duties are necessarily impressed with public interest for by express constitutional mandate, a
public office is a public trust. The complaint for illegal dismissal filed by Javiero and Catapang against City Engineer
Divinagracia is in effect a complaint against the City Government of Bago City, their real employer, of which petitioner
Javellana is a councilman. Hence, judgment against City Engineer Divinagracia would actually be a judgment against the
City Government. By serving as counsel for the complaining employees and assisting them to prosecute their claims
against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of
RA 6713) prohibiting a government official from engaging in the private practice of his profession, if such practice would
represent interests adverse to the government.
2. SECTION 90 OF THE LOCAL GOVERNMENT CODE OF 1991 AND DLG MEMORANDUM CIRCULAR NO. 90-81 DO
NOT VIOLATE ARTICLE VIII, SECTION 5 OF THE CONSTITUTION; NO DISCRIMINATION AGAINST LAWYERS AND
DOCTORS. Petitioners contention that Section 90 of the Local Government Code of 1991 and DLG Memorandum
Circular No. 90-81 violate Article VIII, Section 5 of the Constitution is completely off tangent. Neither the statute nor the
circular trenches upon the Supreme Courts power and authority to prescribe rules on the practice of law. The Local
Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid
conflicts of interest between the discharge of their public duties and the private practice of their profession, in those
instances where the law allows it. Section 90 of the Local Government Code does not discriminate against lawyers and
doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90
explicitly provides that sanggunian members "may practice their professions, engage in any occupation, or teach in
schools except during session hours." If there are some prohibitions that apply particularly to lawyers, it is because of all
the professions, the practice of law is more likely than others to relate to, or affect, the area of public service.
DECISION
This petition for review on certiorari involves the right of a public official to engage in the practice of his profession while
employed in the Government.
Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros Occidental. On October 5, 1989, City
Engineer Ernesto C. Divinagracia filed Administrative Case No. C-10-90 against Javellana for: (1) violation of Department
of Local Government (DLG) Memorandum Circular No. 80-38 dated June 10, 1980 in relation to DLG Memorandum
Circular No. 74-58 and of Section 7, paragraph b, No. 2 of Republic Act No. 6713, otherwise known as the "Code of
Conduct and Ethical Standards for Public Officials and Employees," and (2) for oppression, misconduct and abuse of
authority.
Divinagracia's complaint alleged that Javellana, an incumbent member of the City Council or Sanggunian Panglungsod of
Bago City, and a lawyer by profession, has continuously engaged in the practice of law without securing authority for that
purpose from the Regional Director, Department of Local Government, as required by DLG Memorandum Circular No. 8038 in relation to DLG Memorandum Circular No. 74-58 of the same department; that on July 8, 1989, Javellana, as
counsel for Antonio Javiero and Rolando Catapang, filed a case against City Engineer Ernesto C. Divinagracia of Bago
City for "Illegal Dismissal and Reinstatement with Damages" putting him in public ridicule; that Javellana also appeared as
counsel in several criminal and civil cases in the city, without prior authority of the DLG Regional Director, in violation of
DLG Memorandum Circular No. 80-38 which provides:
MEMORANDUM CIRCULAR NO. 80-38
TO ALL: PROVINCIAL GOVERNORS, CITY AND MUNICIPALITY MAYORS, KLGCD REGIONAL DIRECTORS AND

ALL CONCERNED
SUBJECT: AMENDING MEMORANDUM CIRCULAR NO. 80-18 ON SANGGUNIAN SESSIONS, PER DIEMS,
ALLOWANCES, STAFFING AND OTHER RELATED MATTERS
In view of the issuance or Circular No. 5-A by the Joint Commission on Local Government Personnel Administration which
affects certain provisions of MC 80-18, there is a need to amend said Memorandum Circular to substantially conform to
the pertinent provisions of Circular No. 9-A.
xxx xxx xxx
C. Practice of Profession
The Secretary (now Minister) of Justice in an Opinion No. 46 Series of 1973 stated inter alia that "members of local
legislative bodies, other than the provincial governors or the mayors, do not keep regular office hours." "They merely
attend meetings or sessions of the provincial board or the city or municipal council" and that provincial board members are
not even required "to have an office in the provincial building." Consequently, they are not therefore to required to report
daily as other regular government employees do, except when they are delegated to perform certain administrative
functions in the interest of public service by the Governor or Mayor as the case may be. For this reason, they may,
therefore, be allowed to practice their professions provided that in so doing an authority . . . first be secured from the
Regional Directors pursuant to Memorandum Circular No. 74-58, provided, however, that no government personnel,
property, equipment or supplies shall be utilized in the practice of their professions. While being authorized to practice
their professions, they should as much as possible attend regularly any and all sessions, which are not very often, of their
Sanggunians for which they were elected as members by their constituents except in very extreme cases, e.g., doctors
who are called upon to save a life. For this purpose it is desired that they always keep a calendar of the dates of the
sessions, regular or special of their Sanggunians so that conflicts of attending court cases in the case of lawyers and
Sanggunian sessions can be avoided.
As to members of the bar the authority given for them to practice their profession shall always be subject to the
restrictions provided for in Section 6 of Republic Act 5185. In all cases, the practice of any profession should be favorably
recommended by the Sanggunian concerned as a body and by the provincial governors, city or municipal mayors, as the
case may be. (Emphasis ours, pp. 28-30, Rollo.)
On August 13, 1990, a formal hearing of the complaint was held in Iloilo City in which the complainant, Engineer
Divinagracia, and the respondent, Councilor Javellana, presented their respective evidence.
Meanwhile, on September 10, 1990, Javellana requested the DLG for a permit to continue his practice of law for the
reasons stated in his letter-request. On the same date, Secretary Santos replied as follows:
1st Indorsement
September 10, 1990
Respectfully returned to Councilor Erwin B. Javellana, Bago City, his within letter dated September 10, 1990, requesting
for a permit to continue his practice of law for reasons therein stated, with this information that, as represented and
consistent with law, we interpose no objection thereto, provided that such practice will not conflict or tend to conflict with
his official functions.
LUIS T. SANTOS
Secretary.
(p. 60, Rollo.)
On September 21, 1991, Secretary Luis T. Santos issued Memorandum Circular No. 90-81 setting forth guidelines for the
practice of professions by local elective officials as follows:
TO: All Provincial Governors, City and Municipal Mayors, Regional Directors and All Concerned.

SUBJECT: Practice of Profession and Private Employment of Local Elective Officials

Section 7 of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), states,
in part, that "In addition to acts and omission of public officials . . . now prescribed in the Constitution and existing laws,
the following shall constitute prohibited acts and transactions of any public officials . . . and are hereby declared to be
unlawful: . . . (b) Public Officials . . . during their incumbency shall not: (1) . . . accept employment as officer, employee,
consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their
office unless expressly allowed by law; (2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions: . . .
xxx xxx xxx
Under Memorandum Circular No. 17 of the Office of the President dated September 4, 1986, the authority to grant any
permission, to accept private employment in any capacity and to exercise profession, to any government official shall be
granted by the head of the Ministry (Department) or agency in accordance with Section 12, Rule XVIII of the Revised Civil
Service Rules, which provides, in part, that:
No officer shall engage directly in any . . . vocation or profession . . . without a written permission from the head of the
Department: Provided, that this prohibition will be absolute in the case of those officers . . . whose duties and
responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee
is granted permission to engage in outside activities, the time so devoted outside of office should be fixed by the Chief of
the agency to the end that it will not impair in anyway the efficiency of the officer or employee . . . subject to any additional
conditions which the head of the office deems necessary in each particular case in the interest of the service, as
expressed in the various issuances of the Civil Service Commission.
Conformably with the foregoing, the following guidelines are to be observed in the grant of permission to the practice of
profession and to the acceptance of private employment of local elective officials, to wit:
1) The permission shall be granted by the Secretary of Local Government;
2) Provincial Governors, City and Municipal Mayors whose duties and responsibilities require that their entire time be at
the disposal of the government in conformity with Sections 141, 171 and 203 of the Local Government Code (BP 337), are
prohibited to engage in the practice of their profession and to accept private employment during their incumbency:
3) Other local elective officials may be allowed to practice their profession or engage in private employment on a limited
basis at the discretion of the Secretary of Local Government, subject to existing laws and to the following conditions:
a) That the time so devoted outside of office hours should be fixed by the local chief executive concerned to the end that it
will not impair in any way the efficiency of the officials concerned;
b) That no government time, personnel, funds or supplies shall be utilized in the pursuit of one's profession or private
employment;
c) That no conflict of interests between the practice of profession or engagement in private employment and the official
duties of the concerned official shall arise thereby;
d) Such other conditions that the Secretary deems necessary to impose on each particular case, in the interest of public
service. (Emphasis supplied, pp. 31-32, Rollo.)
On March 25, 1991, Javellana filed a Motion to Dismiss the administrative case against him on the ground mainly that
DLG Memorandum Circulars Nos. 80-38 and 90-81 are unconstitutional because the Supreme Court has the sole and
exclusive authority to regulate the practice of law.
In an order dated May 2, 1991, Javellana's motion to dismiss was denied by the public respondents. His motion for
reconsideration was likewise denied on June 20, 1991.
Five months later or on October 10, 1991, the Local Government Code of 1991 (RA 7160) was signed into law, Section 90
of which provides:

Sec. 90. Practice of Profession. (a) All governors, city and municipal mayors are prohibited from practicing their
profession or engaging in any occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during
session hours: Provided, That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or
instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused
of an offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an
official; and
(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the
interest of the Government.
(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency:
Provided, That the officials concerned do not derive monetary compensation therefrom. (Emphasis ours.)
Administrative Case No. C-10-90 was again set for hearing on November 26, 1991. Javellana thereupon filed this petition
for certiorari praying that DLG Memorandum Circulars Nos. 80-38 and 90-81 and Section 90 of the new Local
Government Code (RA 7160) be declared unconstitutional and null void because:
(1) they violate Article VIII, Section 5 of the 1987 Constitution, which provides:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure
in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such
rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
(2) They constitute class legislation, being discriminatory against the legal and medical professions for only sanggunian
members who are lawyers and doctors are restricted in the exercise of their profession while dentists, engineers,
architects, teachers, opticians, morticians and others are not so restricted (RA 7160, Sec. 90 [b-1]).
In due time, the Solicitor General filed his Comment on the petition and the petitioner submitted a Reply. After deliberating
on the pleadings of the parties, the Court resolved to dismiss the petition for lack of merit.
As a matter of policy, this Court accords great respect to the decisions and/or actions of administrative authorities not only
because of the doctrine of separation of powers but also for their presumed knowledgeability and expertise in the
enforcement of laws and regulations entrusted to their jurisdiction (Santiago vs. Deputy Executive Secretary, 192 SCRA
199, citing Cuerdo vs. COA, 166 SCRA 657). With respect to the present case, we find no grave abuse of discretion on
the part of the respondent, Department of Interior and Local Government (DILG), in issuing the questioned DLG Circulars
Nos. 80-30 and 90-81 and in denying petitioner's motion to dismiss the administrative charge against him.
In the first place, complaints against public officers and employees relating or incidental to the performance of their duties
are necessarily impressed with public interest for by express constitutional mandate, a public office is a public trust. The
complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint
against the City Government of Bago City, their real employer, of which petitioner Javellana is a councilman. Hence,
judgment against City Engineer Divinagracia would actually be a judgment against the City Government. By serving as
counsel for the complaining employees and assisting them to prosecute their claims against City Engineer Divinagracia,
the petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) prohibiting a government
official from engaging in the private practice of his profession, if such practice would represent interests adverse to the

government.
Petitioner's contention that Section 90 of the Local Government Code of 1991 and DLG Memorandum Circular No. 90-81
violate Article VIII, Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches
upon the Supreme Court's power and authority to prescribe rules on the practice of law. The Local Government Code and
DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest
between the discharge of their public duties and the private practice of their profession, in those instances where the law
allows it.
Section 90 of the Local Government Code does not discriminate against lawyers and doctors. It applies to all provincial
and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian
members "may practice their professions, engage in any occupation, or teach in schools expect during session hours." If
there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is
more likely than others to relate to, or affect, the area of public service.
WHEREFORE, the petition is DENIED for lack of merit. Costs against the petitioner.
SO ORDERED.

G.R. No. L-53869 March 25, 1982

RAUL A. VILLEGAS, petitioner, vs. ASSEMBLYMAN VALENTINO L. LEGASPI, COURT OF FIRST INSTANCE OF
CEBU, BRANCH 11, presided by HON. FRANCISCO P. BURGOS, District Judge; BRIGIDA VERA CRUZ, joined in
and assisted by her husband JOSE VERA CRUZ, and PRIMITIVO CANIA JR., respondents.
G.R. No. L-51928 March 25, 1982
EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P. REYES, ANTONIO G. PUYAT, JAIME R. BLANCO,
RAFAEL R. RECTO and REYNALDO L. LARDIZABAL, petitioners, vs. HON. SIXTO T. J. DE GUZMAN, JR., as
Associate Commissioner of the Securities & Exchange Commission, EUSTAQUIO T. C. ACERO, R. G. VILDZIUS
ENRIQUE M. BELO, MANUEL G. ABELLO, SERVILLANO DOLINA, JUANITO MERCADO and ESTANISLAO A.
FERNANDEZ, respondents.
MELENCIO-HERRERA, J.:
These two cases (L-53869 and L-51928) filed in May, 1980 and September, 1979, respective, involved the prohibition in
Section 11, Article VIII of the 1973 Charter, which used to read:
Sec. 11. No member of the National Assembly shall appear as counsel before any court inferior to a court with appellate
jurisdiction, ...
The antecedents facts follows:
L-53869
On September 27, 1979, a complaint for annulment of bank checks and damages was filed by Raul A. Villegas against
the Vera Cruz spouses and Primitivo Cania, Jr. (private respondents) before the Court of First Instance of Cebu, Branch
XVI, then presided by Hon. Ceferino E. Dulay (Civil Case No. 431-L). An answer, dated October 11, 1979, was filed by
private respondents through their counsel, Assemblyman Valentino 1. Legaspi, a member of the Batasang Pambansa
from the province of Cebu. Raul A. Villegas "challenged" the appearance of Assemblyman Legaspi as counsel of record
on the ground that he is barred under the Constitution from appearing before Courts of First Instance, which are
essentially trial Courts or Courts of First Instance, which are essentially trial Courts or Courts of First Instance, which are
essentially trial Courts or Courts of original jurisdiction. After the Opposition and Reply to the Opposition were filed, Judge
Dulay issued an Order inhibiting himself from the aforesaid case because Assemblyman Legaspi was likewise the lawyer
of his wife in two pending cases. The case was re-raffled and redocketed as Civil Case No. R-18857, and transferred to
Branch II, presided by Judged Francisco P. Burgos (respondent Court).
In an Order, dated February 27, 1980, Judge Burgos denied the disqualification of Assemblyman Legaspi, as well as the
Motion for Reconsideration filed thereafter. Hence, this recourse to certiorari and Prohibition.
A temporary Restraining Order was issued ex-parte by this Tribunal on May 22, 1980 enjoining respondent Court from
acting in Civil Case No. R-18857 below.
L-51928
Edgardo P. Reyes filed, on July 3, 1979, Civil Case No. 33739 before the Court of First Instance of Rizal (Pasig), Branch
XXI, against N. V. Verenigde Buinzenfabrieken Excelsior-De Maas and private respondent Eustaquio T.C. Acero to annul
the sale of Excelsior's shares in the International Pipe Industries Corporation (IPI) to Eustaquio T.C Acero, allegedly on
the ground that, prior thereto, the same shares had already been sold to him (Reyes). Assemblyman Estanislao
Fernandez entered his appearance as counsel for Excelsior. This appearance was questioned on the ground that it was
barred by Section 11, Article VIII of the 1973 Constitution, above-quoted.
Initially, this case (L-51928) was filed as a Supplemental Petition to L-51122 (Eugenio Puyat, et als. Hon. Sixto T.J. de
Guzman), but this Court ordered it docketed separately. And since the issue involved is on all fours with L-53869, the
Court opted to resolve Case No. L-51928 jointly with L-53869 instead of with L-51122 as originally directed.
The novel issue for determination is whether or not members of the Batasang Pambansa, like Attorneys Valentino L.
Legaspi and Estanislao A. Fernandez, can appear as counsel before Courts of First Instance.

A comparison of Section 11, Article VIII, of the 1973 Constitution prohibiting any Assemblyman from appearing as counsel
"before any Court inferior to a Court with appellate jurisdiction", and the "similar" provision of Section 17, Article VI, of the
1935 Charter is elucidating. The last sentence of the latter provision reads:
... No member of the Commission on Appointments shall appear as counsel before any Court inferior to a collegiate Court
of appellate jurisdiction.
A significant amendment is the deletion of the term "collegiate". Further, the limitation now comprehends all members of
the Batasang Pambansa, and is no longer confined to members of the Commissions on Appointments, a body not
provided for under the 1973 Constitution.
Under the amendment to Article VIII of the 1973 Constitution, ratified in a national plebiscite held on April 7, 1981, Section
11 now reads:
SEC. 11. No member of the Batasang Pambansa shall appear as counsel before any court without appellate jurisdiction,
...
The term 'collegiate" remains deleted , and the terminology is now "Court without appellate jurisdiction."
Although the cases at bar were filed prior to the aforesaid amendment, they should be resolved under the amended
provision. We abide by the proposition that "as a general rule, the provisions of a new Constitution take effect immediately
and become operative on pending litigation." 1
Clearly, what is prohibited to a Batasang Pambansa member is "appearance as counsel" "before any Court without
appellate jurisdiction.
"Appearance" has been defined as "voluntary submission to a court's jurisdiction". 2 "Counsel" means "an adviser, a
person professionally engaged in the trial or management of a cause in court; a legal advocate managing a case at law; a
lawyer appointed or engaged to advise and represent in legal matters a particular client, public officer, or public body". 3
Ballantine's Law Dictionary says a counsel is "counselor, an attorney at law; one or more attorneys representing parties in
an action". 4 Thus, "appearance as counsel" is a voluntary submission to a court's jurisdiction by a legal advocate or
advising lawyer professionally engaged to represent and plead the cause of another. This is the common, popular
5
connotation of this word which the Constitution must have adopted. In one case, in resolving the question of what
constitutes 'appearance as an advocate," the Court held that "advocate" the Court held that "advocate" means one who
pleads the cause of another before a tribunal or judicial court, a counselor.
Judging from the prescribed criteria, there should be no question that Assemblyman Valentino L. Legaspi, in preparing the
Answer for private respondent-spouses in Civil Case No. R-18857 before the Court of First Instance of Cebu, Branch II,
appears as their counsel. Similarly, Assemblyman Estanislao A. Fernandez appears as counsel for Excelsior in Civil Case
No. 33739 of the Court of First Instance of Rizal (Pasig), Branch XXI. They represent and plead the cause of another
before a Court of justice.
The next poser then arises: are the Courts of First Instance, where Assemblyman Legaspi and Fernandez, respectively,
appear as counsel of record, Courts with appellate jurisdiction?
There are authorities to the effect that the essential criterion of appellate jurisdiction is that it revises and corrects the
proceedings in a case already instituted and does not create that cause 6 Or, that it necessarily implies that the subjectmatter has been instated in and acted upon by some other court whose judgment or proceedings are to be reviewed. 7 In
8
an early Philippine case, it was held to mean jurisdiction to review the judgment of an inferior court. And, that it calls for
9
and demands previous legitimate jurisdiction by a court of origin.
By law, Courts of First Instance are Courts of general original jurisdiction. 10 However, under the same statute, their
11
jurisdiction has been stated to be of two kinds: (a) original and (b) appellate. They have appellate jurisdiction over all
cases arising in City and Municipal Courts in their respective provinces except over appeals from cases tried by Municipal
judges of provincial capatals or City Judges pursuants to the authority granted under the last paragraph of Section 87 of
the Judiciary Act. 12
It is rather clear that Courts of First Instance, by virtue of a specific bestowal by the Judiciary Act of 1948, as amended,
can be Courts with appellate jurisdiction. And, by the deliberate omission of the word "collegiate" in both the original and

amended Section 11, Article VIII of the 1973 Constitution, the obvious intention of the framers is that Courts of First
Instance, as appellate Tribunals, no longer fall within the ambit of the previous prohibition. They are single-Judge Courts
13
with appellate jurisdiction from decisions and orders of City and Municipal Courts. Stated otherwise, under the amended
proviso, Courts of First Instance are not Courts without appellate jurisdiction.
It is contended, however, that the Courts of First Instance in these two cases took cognizance of the suits in the exercise
of their exclusive original and not appellate jurisdiction, hence, Assemblymen Fernandez and Legaspi are still prohibited
from appearing before said Courts as counsel. There is merit to this contention.
It should be borne in mind that Courts of First Instance have dual "personality". Depending on the case before it, said
Courts can be either of appellate or original jurisdiction. The question then to be resolved is whether or not Assemblymen
can appear as counsel before Courts of First Instance in cases originally filed with them.
We are of the considered opinion that, to render effective the Constitutional provision, appearance by legislators before
Courts of First Instance should be limited to cases wherein said Courts exercise appellate jurisdiction. This is true to the
time-honored principle that whatever is necessary to render effective any provision of a Constitution, whether the same be
14
a prohibition or a restriction, must be deemed implied and intended in the provision itself.
It bears repeating that under Section 17, Article VI of the 1935 Charter, it was provided that members of the Commission
on Appointments shall not "appear as counsel before any Court inferior to a collegiate Court of appellate jurisdiction." The
intent was clear that members of the Commission on Appointments shall not "appear as counsel before any Court inferior
to a collegiate Court of appellate jurisdiction." The intent was clear that members of the Commission on Appointments
could not appear before Courts of First Instance. Uppermost in the minds of the framers was "appellate jurisdiction" more
than Court. Under Section 11, Article VIII of the 1973 Constitution, the scope of the prohibition was expanded to embrace
all members of the National Assembly who were barred from "appear(ing) as counsel before any Court without appellate
jurisdiction." Consistently, the principal criterion is "appellate jurisdiction." So that, when a legislator appears in an original
case filed with a Court with "appellate jurisdiction."
Appellate practice is all that is permitted because of the admitted predominance of lawyers in the legislature. 15 Their
office has always favored them with the influence and prestige that it carried. Today, as before, it is only "appellate
practice" that is allowed with the significant difference that, this time, the Court need not be a collegial body. This so
because with the removal of the legislative power to review appointments the source of power and influence that
members of the National Assembly could unduly exert in the exercise of the legal profession has been greatly minimized.
This is a situation where the restricted meaning must prevail over the general because the nature of the subject matter of
the context clearly indicates that the limited sense is intended. 16 In fact, the original emandement proposed by Antonio V.
Raquiza, Delegate of the First District, Ilocos Norte, in Resolution No. 345 entitled "Prohibiting Members of the National
Assembly to Use Their Office As a Means of Promoting Sel-Interest" was to bar a National Assembly member from
appearing as counsel before any Court. In the "Whereas" clauses, that proposal was believed to be an "improvement"
over Section 17, Article VI of the 1935 Constitution and the purpose of the proposed amendement was explained as
follows:
xxx xxx xxx
2. The Constitutional provision enumerates the kind of court or administrative cases where a legislator cannot appear. In
our proposal he is absolutely barred because it is feared that the practice of his profession will interfere with the
performance of his duties or that because the power of his office might influence the administration of justice.
... (Emphasis supplied) 17
The co-author of Resolution No. 345. Delegate Leocadio E. Ignacio from the lone District of Isabela, and Floor Leader of
the 1971 Constitutional Convention, elucidated further on the purpose behind the prohibition when he wrote in his Position
Paper that 'The prohibition against appearing as counsel is necessary because of the under influence which members of
Congress enjoy when they practice before the Courts and especially before administrative agencies. It is an accepted fat
that our legislature is composed of a predominance of practicing lawyers, and who are therefor expected to be naturally
not averse to exerting all influence that they can muster in the pursuit of their profession." Continuing, he said: "The
inability to practice as counsel ... should be part of the sacrifices entailed in running for the position of lawmaker. 18 The
amendement proposed by Delegate Gonzalo O. Catan, Jr. of Negros Oriental even went further: "No member of the
National Assembly shall, during his term of office, appear as counsel, directly or indirectly, in any Court or administrative
19
body ..." Delegate Emerito M. Salva from the Second District, Ilocos Norte, substituted his own amendment, thus:

Section 13. No member of the National Assembly shall, during his term of office, practice directly or indirectly any
occupation or profession or be allowed to engage directly or indirectly in any trade, business, or industry. 20
and explained:
10.2. Explaining the substitute amendment, Delegate Salva said that the assemblymen should render full-time service to
the national. He pointed out that they should be barred from the practice of their respective professions since they would
21
reasonably be compensated for devoting their time to the work of the National Assembly.
While Section 11, Article VIII, as finally adopted by the Constitutional Convention, did not carry the several amendments
proposed, they are reflective of the sentiment prevailing at the 1971 Constitutional Conventional, and reinforce the
condition that appearance as counsel by Assemblymen was meant to be confined to appellate practice and not unlimited
practice before Courts of First Instance. That sentiment has been carried over the amendment ratified in the April, 1981
plebiscite. For, there is no substantial difference between "Court inferior to a Court with appellate jurisdiction" (the original
1973 provision) and "Court without appellate jurisdiction' (the amended provision).
The objective of the prohibition, then and now, is clearly to remove any possibility of undue influence upon the
administration of justice, to eliminate the possible use of office for personal gain, to ensure impartiality in trials and thus
preserve the independence of the Judiciary. The possible influence of an Assemblyman on a signed Judge of the Court of
First Instance, though not entirely removed, is definitely diminished where the latter Court acts in the exercise of its
appellate instead of original jurisdiction. The upper hand that a party represented by an Assemblyman by virtue of his
office possesses is more felt and could be more feared in original cases than in appealed cases because the decision or
resolution appealed from the latter situation has already a presumption not only of regularity but also of correctness in its
favor.
In fine, "appellate practice" is an intended qualification dictated by principles of reason, justice and public interest.
The limited application to "appellate practice" is a view-point favored by constitutionalist of eminence, Chief Justice
Enrique M. Fernando, in his scholarly work "The Constitution of the Philippine, 22 where he said:
It is to be noted that at present he may appear as counsel in any criminal case, but he cannot do so before any
administrative body. Also, while it is only appellate practice that is allowed a member of the National Assembly, formerly,
such a limitation applied solely to a Senator or Representative who was in the Commission on Appointments, a body
abolished under the present Constitution. Those differences should be noted (Emphasis supplied) 23
Chief Justice Enrique M. Fernando also expounded on the reason behind the Constitutional prohibition, thus:
... The need for it was felt by the 1934 Constitutional Convention, a sentiment shared by the last Constitutional
Convention, because of the widespread belief that legislators found it difficult to resist, as perhaps most men, the
promptings of self-interest. Clearly, the purpose was and is to stress the fiduciary aspect of the position. There is thus
fidelity to the maxim that a public office is a public trust. ... 24
Since the respective Courts of First Instance, before which Assemblymen Legaspi and Fernandez appeared as counsel,
were acting in the exercise of original and not appellate jurisdiction, they must be held barred from appearing as counsel
before said Courts in the two cases involved herein.
WHEREFORE, granting the Writs prayed for, the Order issued on February 27, 1980 by the Court of First Instance of
Cebu, Branch II, in Civil Case No. R-18857, is hereby set aside, and Attorneys Estanislao A. Fernandez and Valentino
Legaspi hereby declared prohibited from appearing as counsel before the Court of First Instance of Rizal (Pasig), Branch
XXI, in Civil Case No. 33739, and before the Court of First Instance of Cebu, Branch II, in Civil Case No. r-18857,
respectively. The Restraining Order issued heretofore in L-53869 is hereby made permanent.
No costs in either case.
SO ORDERED.

A.M. No. 2266 October 27, 1983

HERMINIO R. NORIEGA, complainant, vs. ATTY. EMMANUEL R. SISON, respondent.
GUERRERO, J.:
This is a complaint for disbarment filed on June 3, 1981 by Herminio R. Noriega against Atty. Emmanuel R. Sison
"admitted to the Bar on March 31, 1976) on the ground of malpractice through gross misrepresentation and falsification.
Complainant Noriega alleges that respondent Sison is a regular and permanent employee of the Securities and Exchange
Commission (SEC) as a Hearing Officer and as such, "is mandated to observe strictly the civil service rules and
regulations, more particularly ... the prohibition of government employees to practice their professions"; that to circumvent
the prohibition and to evade the law, respondent assumed a different name, falsified his Identity and represented himself
to be one "Atty. Manuel Sison", with offices at No. 605 EDSA, Cubao, Quezon City, "at the times that he will handle
private cases"; that "Manuel Sison" is not listed as a member of the Bar in the records of the Supreme Court; that under
his said assumed name, respondent is representing one Juan Sacquing, the defendant in Case No. E01978 before the
Juvenile and Domestic Relations Court of Manila, submitting pleadings therein signed by him respondent) under his
assumed name, despite his full knowledge That "Manuel Sison" is not a member of the Bar and that his acts in doing so
are illegal and unlawful. 1 Xerox copies of pertinent documents, pleadings, orders and notices are annexed to the
complaint to support the material allegations therein.
As requireD, respondent filed his Answer on August 20, 1981. He attached thereto a copy of the written authorization
given by Julio A. Sulit, Jr., Associate Commissioner of the Securities and Exchange Commission, for him to appear as
counsel of Juan Sacquing, a close family friend, in the Juvenile and Domestic Relations Court JDRC of Manila,
Respondent alleges that he never held himself out to the public as a practicing lawyer; that he provided legal services to
Sacquing in view of close family friendship and for free; that he never represented himself deliberately and intentionally as
"Atty. Manuel Sison" in the Manila JDRC where, in the early stages of his appearance, he always signed the minutes as
"Atty. Emmanuel R. Sison", and in one instance, he even made the necessary correction when the court staff wrote his
name as Atty Manuel Sison"; that due to the "inept and careless work of the clerical staff of the JDRC", notices were sent
to "Atty. Manuel Sison", at 605 EDSA, Cubao, Quezon City, where respondent's parents conduct a printing office and
establishment, which notices were honored by the personnel of said office as respondent's family has called respondent
by the nickname "Manuel"; that respondent did not feel any necessity to correct this error of the JDRC since he "could use
his nickname 'Manuel' interchangeably with his original true name as a formal name, and its use was not done for a
fraudulent purpose nor to misrepresent"; and, that this administrative case is only one of the numerous baseless
complaints brought by complainant against respondent, the former being a disgruntled loser in an injunction case in the
SEC heard before respondent as Hearing Officer.
In resolving this disbarment case, We must initially emphasize the degree of integrity and respectability attached to the
law profession. There is no denying that the profession of an attorney is required after a long and laborious study. By
years of patience, zeal and ability the attorney acquires a fixed means of support for himself and his family. This is not to
say, however, that the emphasis is on the pecuniary value of this profession but rather on the social prestige and
intellectual standing necessarily arising from and attached to the same by reason of the fact that every attorney is deemed
an officer of the court.
The importance of the dual aspects of the legal profession has been wisely put by Chief Justice Marshall of the United
States Court when he said:
On one hand, the profession of an Atty. is of great importance to an individual and the prosperity of his life may depend on
its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other hand, it is
extremely desirable that the respectability of the Bar should be maintained and that its harmony with the bench should be
preserved. For these objects, some controlling power, some discretion ought to be exercised with great moderation and
judgment, but it must be exercised. 2
The purpose of disbarment, therefore, is not meant as a punishment depriving him of a source of livelihood but is rather
intended to protect the administration of justice by requiring that those who exercise this function should be competent,
honorable and reliable in order that the courts and clients may rightly repose confidence in them. 3
In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary
powers, the case against the respondent must be established by clear, convincing, and satisfactory proof. Considering the
serious consequences of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear

preponderant evidence is necessary to justify the imposition of the administrative penalty.

This Court has also held in re Atty. Felizarda M. de Guzman 5 that to be made the basis of suspension or disbarment, the
record must disclose as free from doubt a case which compels the exercise by this Court of its disciplinary powers. The
dubious character of the act done as well as the motivation thereof must be clearly demonstrated. An attorney enjoys the
legal presumption that he is innocent of the charges preferred against him until the contrary is proved; and as an officer of
the court, that he performed his duty in accordance with his oath.
Examining the facts of this case, We hold that the allegations in the complaint do not warrant disbarment of the
respondent. There is no evidence that the respondent has committed an act constituting deceit, immoral conduct, violation
of his oath as a lawyer, wilful disobedience of any lawful order of the court, or corruptly and willfully appearing as an
6
attorney to a part to a case without attorney to do so.
There is no violation of the Civil Service Rules and Regulations for his appearance as counsel for the defendant in the
JDRC Case No. E-01978 was with authority given by the Associate Commisioner Of SEC, Julio A. Sulit, Jr.
This Court also holds that under the facts complained of supported by the annexes and the answer of respondent likewise
sustained by annexes attached thereto and the reply of the complainant, the accusation that respondent with malice and
deliberate intent to evade the laws, assumed a different name, falsified his Identity and represented himself to be one
"ATTY. MANUEL SISON" with offices at No. 605 EDSA, Cubao, Quezon City at the times that he will handle private
cases, is not meritorious. Neither is the charge referred to is that pending the slantiated. The only case DRC Case No. E01978 wherein respondent appeared as counsel for the defendant. It being an isolated case, the same does not constitute
the practice of law, more so since respondent did not derive any pecuniary gain for his appearance because respondent
and defendant therein were close family friends. Such act of the respondent in going out of his way to aid as counsel to a
close family friend should not be allowed to be used as an instrument of harrassment against respondent.
The ruling in Zeta vs. Malinao (87 SCRA 303) wherein the respondent was dismissed from the service because being a
government employee, he appeared as counsel in a private case, cannot be applied in the case at bar because the
respondent in said Zeta case had appeared as counsel without permission from his superiors.
Although the complaint alleges violation of civil service rules, the complainant however states that the basis of his
complaint for disbarment is not the respondent's act of appearing as counsel but the unauthorized use of another name. 7
A perusal of the records however, reveals that whereas there is indeed a pleading entitled "Objection/Opposition to the 2
Formal Offer of Evidence" (Annex "C" to the Complaint for Disbarment, which is signed as "Manuel Sisori", counsel for
defendant, 605 EDSA, Cubao, Quezon City, p. 7 of the Records), there is, however, no showing that respondent was thus
motivated with bad faith or malice, for otherwise lie would not have corrected the spelling of his name when the court staff
misspelled it in one of the minutes of the proceeding. Moreover, We find no reason or motive for respondent to conceal
his true name when he have already given express authority by his superior to act as counsel for Juan Sacquing in the
latter's case pending before the JDRC And while it may be True that subsequent errors were made in sending notices to
him under the name "Atty. Manuel Sison, ' the errors were attributable to the JDRC clerical staff and not to the
respondent.
At most, this Court would only counsel the respondent to be more careful and cautious in signing his name so as to avoid
unnecessary confusion as regards his Identity.
At this point, We are constrained to examine the motives that prompted the complainant in filing the present case. An
examination of the records reveals that the complainant was a defendant in the Securities and Exchange Commission
(SEC) Case No. 1982 filed by the Integrated Livestock Dealers Inc. and Teofisto Jiao against seven (7) respondents
including the complainant, seeking to oust the complainant and his codefendants from acting as officers of the Integrated
Livestock Dealers lnc. then pending before respondent as Hearing Officer of the SEC, who after trial decided the case
against the herein complainant. From this antecedent fact, there is cast a grave and serious doubt as to the true
motivation of the complainant in filing the present case, considering further that other administrative charges were filed by
the complainant against respondent herein before the SEC, JDRC and the Fiscal's office in Manila.
We hold that complainant's repeated charges or accusations only indicate his resentment and bitterness in losing the SEC
case and not with the honest and sincere desire and objectives "(1) to compel the attorney to deal fairly and honestly with
his client;" (Strong vs. Munday 52 N.J. Eq. 833, 21 A. 611) and "(2) to remove from the profession a person whose
misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney."
(Ex parte Brounsal Cowp 829; 83 Reprint; 6 C.J., p. 581; see In re de los Angeles Adm. Case No. 225, Sept. 31, 1959,

cited in Moran, Comments on the Rules of Court, Vol. 6, p. 242).

In the light of the foregoing, We find no reason or necessity to refer this complaint to the Solicitor General for investigation,
report and recommendation.
WHEREFORE, this case is hereby DISMISSED for lack of merit.
SO ORDERED.

G.R. No. 154182

December 17, 2004

EDGAR Y. TEVES and TERESITA Z. TEVES, petitioners, vs. THE SANDIGANBAYAN, respondent.
DECISION
DAVIDE, JR., C.J.
The pivotal issue in this petition is whether a public official charged with violation of Section 3(h) of Republic Act No. 3019,
as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, for unlawful intervention, in his official
capacity, in the issuance of a license in favor of a business enterprise in which he has a pecuniary interest may be
convicted, together with his spouse, of violation of that same provision premised on his mere possession of such interest.
Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves seeks to annul and set aside
the 16 July 2002 Decision1 of the Sandiganbayan in Criminal Case No. 2337 convicting them of violation of Section 3(h) of
the Anti-Graft Law for possessing direct pecuniary interest in the Valencia Cockpit and Recreation Center in Valencia.
The indictment reads:2
The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y. TEVES and
TERESITA TEVES of violation of Section 3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:
That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental, Philippines, and
within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public officer, being then the Municipal Mayor
of Valencia, Negros Oriental, committing the crime-herein charged in relation to, while in the performance and taking
advantage of his official functions, and conspiring and confederating with his wife, herein accused Teresita Teves, did
then and there willfully, unlawfully and criminally cause the issuance of the appropriate business permit/license to operate
the Valencia Cockpit and Recreation Center in favor of one Daniel Teves, said accused Edgar Y. Teves having a direct
financial or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated by him
and accused Teresita Teves.
CONTRARY TO LAW.
Upon their arraignment on 12 May 1997, the petitioners pleaded "not guilty." Pre-trial and trial were thereafter set.
The petitioners and the prosecution agreed on the authenticity of the prosecutions documentary evidence. Thus, the
prosecution dispensed with the testimonies of witnesses and formally offered its documentary evidence marked as
Exhibits "A" to "V."3
On 23 February 1998, the petitioners filed their Comment/Objections to the evidence offered by the prosecution and
moved for leave of court to file a demurrer to evidence.4 On 29 July 1998, the Sandiganbayan admitted Exhibits "A" to "S"
of the prosecutions evidence but rejected Exhibits "T," "U," and "V."5 It also denied petitioners demurrer to evidence,6 as
well as their motion for reconsideration.7 This notwithstanding, the petitioners filed a Manifestation that they were,
nonetheless, dispensing with the presentation of witnesses because the evidence on record are inadequate to support
their conviction.
On 16 July 2002, the Sandiganbayan promulgated a decision8 (1) convicting petitioners Edgar and Teresita Teves of
violation of Section 3(h) of the Anti-Graft Law; (2) imposing upon them an indeterminate penalty of imprisonment of nine
years and twenty-one days as minimum to twelve years as maximum; and (3) ordering the confiscation of all their rights,
interests, and participation in the assets and properties of the Valencia Cockpit and Recreation Center in favor of the
Government, as well as perpetual disqualification from public office. 9 The conviction was anchored on the finding that the
petitioners possessed pecuniary interest in the said business enterprise on the grounds that (a) nothing on record appears
that Mayor Teves divested himself of his pecuniary interest in said cockpit; (b) as of April 1992, Teresita Teves was of
record the "owner/licensee" of the cockpit; and (c) since Mayor Teves and Teresita remained married to each other from
1983 until 1992, their property relations as husband and wife, in the absence of evidence to the contrary, was that of the
conjugal partnership of gains. Hence, the cockpit is a conjugal property over which the petitioners have pecuniary interest.
This pecuniary interest is prohibited under Section 89(2) of R.A. No. 7160, otherwise known as the Local Government
Code (LGC) of 1991, and thus falls under the prohibited acts penalized in Section 3(h) of the Anti-Graft Law.

The Sandiganbayan, however, absolved the petitioners of the charge of causing the issuance of a business permit or
license to operate the Valencia Cockpit and Recreation Center on or about 4 February 1992 for not being well-founded.
On 26 August 2002, the petitioners filed the instant petition for review on certiorari10 seeking to annul and set aside the 16
July 2002 Decision of the Sandiganbayan.
At first, we denied the petition for failure of the petitioners to sufficiently show that the Sandiganbayan committed any
reversible error in the challenged decision as to warrant the exercise by this Court of its discretionary appellate
jurisdiction.11 But upon petitioners motion for reconsideration,12 we reinstated the petition.13
The petitioners assert that the Sandiganbayan committed serious and palpable errors in convicting them. In the first place,
the charge was for alleged unlawful intervention of Mayor Teves in his official capacity in the issuance of a cockpit license
in violation of Section 3(h) of the Anti-Graft Law. But they were convicted of having a direct financial or pecuniary interest
in the Valencia Cockpit and Recreation Center prohibited under Section 89(2) of the LGC of 1991, which is essentially
different from the offense with which they were charged. Thus, the petitioners insist that their constitutional right to be
informed of the nature and cause of the accusation against them was transgressed because they were never apprised at
any stage of the proceedings in the Sandiganbayan that they were being charged with, and arraigned and tried for,
violation of the LGC of 1991. The variance doctrine invoked by the respondent is but a rule of procedural law that should
not prevail over their constitutionally-guaranteed right to be informed of the nature and cause of accusation against them.
Second, according to the petitioners, their alleged prohibited pecuniary interest in the Valencia Cockpit in 1992 was not
proved. The Sandiganbayan presumed that since Mayor Teves was the cockpit operator and licensee in 1989, said
interest continued to exist until 1992. It also presumed that the cockpit was the conjugal property of Mayor Teves and his
wife, and that their pecuniary interest thereof was direct. But under the regime of conjugal partnership of gains, any
interest thereon is at most inchoate and indirect.
Also assigned as glaring error is the conviction of Teresita Teves, who is not a public officer. In the information, only
Mayor Teves was accused of "having a direct financial or pecuniary interest in the operation of the Valencia Cockpit and
Recreation Center in Negros Oriental." His wife was merely charged as a co-conspirator of her husbands alleged act of
"while in the performance and taking advantage of his official functions, willfully, unlawfully and criminally caus[ing] the
issuance of the appropriate business permit/license to operate" the said cockpit arena. Teresita Teves could not be
convicted because conspiracy was not established. Besides, the Sandiganbayan had already absolved the petitioners of
this offense.
On the other hand, the Sandiganbayan, through the Office of the Special Prosecutor (OSP), insists that the
uncontroverted documentary evidence proved that petitioner Edgar Teves had direct pecuniary interest over the cockpit in
question as early as 26 September 1983. That interest continued even though he transferred the management thereof to
his wife Teresita Teves in 1992, since their property relations were governed by the conjugal partnership of gains. The
existence of that prohibited interest is by itself a criminal offense under Section 89(2) of the LGC of 1991. It is necessarily
included in the offense charged against the petitioners, i.e., for violation of Section 3(h) of the Anti-Graft Law, which
proscribes the possession of a direct or indirect financial or pecuniary interest in any business, contract, or transaction in
connection with which the person possessing the financial interest intervenes in his official capacity, or in which he is
prohibited by the Constitution or any law from having any interest. The use of the conjunctive word "or" demonstrates the
alternative mode or nature of the manner of execution of the final element of the violation of the provision. Although the
information may have alleged only one of the modalities of committing the offense, the other mode is deemed included in
the accusation to allow proof thereof. There was, therefore, no violation of the constitutional right of the accused to be
informed of the nature or cause of the accusation against them in view of the variance doctrine, which finds statutory
support in Sections 4 and 5 of Rule 120 of the Rules of Court.
The petition is not totally devoid of merit.
Section 3(h) of the Anti-Graft Law provides:
Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with
which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from

having any interest.

The essential elements set out in the afore-quoted legislative definition of the crime of violation of Section 3(h) of the AntiGraft Law are as follows:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction;
3. He either
a. intervenes or takes part in his official capacity in connection with such interest; or
b. is prohibited from having such interest by the Constitution or by any law.
There are, therefore, two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any
business, contract, or transaction may violate Section 3(h) of the Anti-Graft Law. The first mode is if in connection with his
pecuniary interest in any business, contract or transaction, the public officer intervenes or takes part in his official
capacity. The second mode is when he is prohibited from having such interest by the Constitution or any law.
We quote herein the Sandiganbayans declaration regarding petitioners culpability anent the first mode:
[T]hat portion of the Information which seeks to indict the spouses Teves for his causing the issuance of a
business permit/license to operate the Valencia cockpit on or about February 4, 1992 is not well-founded.
Mayor Edgar Teves could not have issued a permit to operate the cockpit in the year 1992 because as of
January 1, 1992 the license could be issued only by the Sangguniang Bayan. He may have issued the permit or license
in 1991 or even before that when he legally could, but that is not the charge. The charge is for acts committed in 1992. 14
[Emphasis supplied].
The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of the business permit or license
to operate the Valencia Cockpit and Recreation Center is "not well-founded." This it based, and rightly so, on the
additional finding that only the Sangguniang Bayan could have issued a permit to operate the Valencia Cockpit in the year
1992. Indeed, under Section 447(3)15 of the LGC of 1991, which took effect on 1 January 1992, it is the Sangguniang
Bayan that has the authority to issue a license for the establishment, operation, and maintenance of cockpits. Unlike in the
old LGC, Batas Pambansa Blg. 337, wherein the municipal mayor was the presiding officer of the Sangguniang Bayan,16
under the LGC of 1991, the mayor is not so anymore and is not even a member of the Sangguniang Bayan. Hence,
Mayor Teves could not have intervened or taken part in his official capacity in the issuance of a cockpit license during the
17
material time, as alleged in the information, because he was not a member of the Sangguniang Bayan.
A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator in the absence of a finding that Mayor
Teves himself is guilty of the offense charged. In short, the Sandiganbayan correctly absolved the petitioners of the
charge based on the first mode. And there is no need to belabor this point.
The Sandiganbayan, however, convicted the petitioners of violation of Section 3(h) of the Anti-Graft Law based on the
second mode. It reasoned that the evidence overwhelmingly evinces that Mayor Teves had a pecuniary interest in the
Valencia Cockpit, which is prohibited under Section 89(2) of the LGC of 1991.
The information accuses petitioner Edgar Teves, then Municipal Mayor of Valencia, Negros Oriental, of causing, "while in
the performance and taking advantage of his official functions, and conspiring and confederating with his wife the
issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one
Daniel Teves." The last part of the dispositive portion of the information states that "said accused Edgar Y. Teves having
a direct financial or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated
by him and accused Teresita Teves."
A careful reading of the information reveals that the afore-quoted last part thereof is merely an allegation of the second
element of the crime, which is, that he has a direct or indirect "financial or pecuniary interest in any business, contract or
transaction." Not by any stretch of imagination can it be discerned or construed that the afore-quoted last part of the
information charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law may be violated.

Hence, we agree with the petitioners that the charge was for unlawful intervention in the issuance of the license to operate
the Valencia Cockpit. There was no charge for possession of pecuniary interest prohibited by law.
However, the evidence for the prosecution has established that petitioner Edgar Teves, then mayor of Valencia, Negros
Oriental,18 owned the cockpit in question. In his sworn application for registration of cockpit filed on 26 September 198319
with the Philippine Gamefowl Commission, Cubao, Quezon City, as well as in his renewal application dated 6 January
20
1989 he stated that he is the owner and manager of the said cockpit. Absent any evidence that he divested himself of
his ownership over the cockpit, his ownership thereof is rightly to be presumed because a thing once proved to exist
continues as long as is usual with things of that nature. 21 His affidavit22 dated 27 September 1990 declaring that effective
January 1990 he "turned over the management of the cockpit to Mrs. Teresita Z. Teves for the reason that [he] could no
longer devote a full time as manager of the said entity due to other work pressure" is not sufficient proof that he divested
himself of his ownership over the cockpit. Only the management of the cockpit was transferred to Teresita Teves effective
January 1990. Being the owner of the cockpit, his interest over it was direct.
Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife, still he would have a direct
interest thereon because, as correctly held by respondent Sandiganbayan, they remained married to each other from
1983 up to 1992, and as such their property relation can be presumed to be that of conjugal partnership of gains in the
absence of evidence to the contrary. Article 160 of the Civil Code provides that all property of the marriage is presumed to
belong to the conjugal partnership unless it be proved that it pertains exclusively to the husband or to the wife. And
Section 143 of the Civil Code declares all the property of the conjugal partnership of gains to be owned in common by the
husband and wife. Hence, his interest in the Valencia Cockpit is direct and is, therefore, prohibited under Section 89(2) of
the LGC of 1991, which reads:
Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be unlawful for any local government official or
employee, directly or indirectly, to:

(2) Hold such interests in any cockpit or other games licensed by a local government unit. [Emphasis supplied].
The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-Graft Law, which is possession
of a prohibited interest. But can the petitioners be convicted thereof, considering that it was not charged in the
information?
The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120,
Rules of Criminal Procedure, which both read:
Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense
charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes
the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of
the offense charged which is included in the offense proved.
Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved
when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes
the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the
former constitute or form part of those constituting the latter.
The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license in
violation of Section 3(h) of the Anti-Graft Law, are
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction, whether or not
prohibited by law; and
3. He intervenes or takes part in his official capacity in connection with such interest.
On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in violation of
Section 3(h) of the Anti-Graft Law, are as follows:

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and
3. He is prohibited from having such interest by the Constitution or any law.
It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the offense
charged. Put differently, the first and second elements of the offense charged, as alleged in the information, constitute the
offense proved. Hence, the offense proved is necessarily included in the offense charged, or the offense charged
necessarily includes the offense proved. The variance doctrine thus finds application to this case, thereby warranting the
conviction of petitioner Edgar Teves for the offense proved.
The next question we have to grapple with is under what law should petitioner Edgar Teves be punished. It must be
observed that Section 3(h) of the Anti-Graft Law is a general provision, it being applicable to all prohibited interests; while
Section 89(2) of the LGC of 1991 is a special provision, as it specifically treats of interest in a cockpit. Notably, the two
statutes provide for different penalties. The Anti-Graft Law, particularly Section 9, provides as follows:
SEC. 9. Penalties for violations. (a) Any public official or private person committing any of the unlawful acts or omissions
enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished by imprisonment of not less than six years and one
month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the
Government of any prohibited interest.
On the other hand, Section 514 of the LGC of 1991 prescribes a lighter penalty; thus:
SECTION 514. Engaging in Prohibited Business Transactions or Possessing Illegal Pecuniary Interest. Any local official
and any person or persons dealing with him who violate the prohibitions provided in Section 89 of Book I hereof shall be
punished with imprisonment for six months and one day to six years, or a fine of not less than Three thousand pesos
(P3,000.00) nor more than Ten Thousand Pesos (P10,000.00), or both such imprisonment and fine at the discretion of the
court.
It is a rule of statutory construction that where one statute deals with a subject in general terms, and another deals with a
part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the
23
latter shall prevail regardless of whether it was passed prior to the general statute. Or where two statutes are of contrary
tenor or of different dates but are of equal theoretical application to a particular case, the one designed therefor specially
should prevail over the other.24
Conformably with these rules, the LGC of 1991, which specifically prohibits local officials from possessing pecuniary
interest in a cockpit licensed by the local government unit and which, in itself, prescribes the punishment for violation
thereof, is paramount to the Anti-Graft Law, which penalizes possession of prohibited interest in a general manner.
Moreover, the latter took effect on 17 August 1960, while the former became effective on 1 January 1991. Being the
25
earlier statute, the Anti-Graft Law has to yield to the LGC of 1991, which is the later expression of legislative will.
In the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991, we take judicial notice of the fact
that under the old LGC, mere possession of pecuniary interest in a cockpit was not among the prohibitions enumerated in
Section 4126 thereof. Such possession became unlawful or prohibited only upon the advent of the LGC of 1991, which
took effect on 1 January 1992. Petitioner Edgar Teves stands charged with an offense in connection with his prohibited
interest committed on or about 4 February 1992, shortly after the maiden appearance of the prohibition. Presumably, he
was not yet very much aware of the prohibition. Although ignorance thereof would not excuse him from criminal liability,
such would justify the imposition of the lighter penalty of a fine of P10,000 under Section 514 of the LGC of 1991.
Petitioner Teresita Teves must, however, be acquitted. The charge against her is conspiracy in causing "the issuance of
the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center." For this charge, she was
acquitted. But as discussed earlier, that charge also includes conspiracy in the possession of prohibited interest.
Conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e., proof
beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the
conduct of the accused before, during, and after the commission of the crime, all taken together, the evidence must
reasonably be strong enough to show community of criminal design.27

Certainly, there is no conspiracy in just being married to an erring spouse.28 For a spouse or any person to be a party to a
conspiracy as to be liable for the acts of the others, it is essential that there be intentional participation in the transaction
with a view to the furtherance of the common design. Except when he is the mastermind in a conspiracy, it is necessary
that a conspirator should have performed some overt act as a direct or indirect contribution in the execution of the crime
planned to be committed. The overt act must consist of active participation in the actual commission of the crime itself or
of moral assistance to his co-conspirators.29
Section 4(b) of the Anti-Graft Law, the provision which applies to private individuals, states:
SEC. 4. Prohibitions on private individuals.
(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses
defined in Section 3 hereof.
We find no sufficient evidence that petitioner Teresita Teves conspired with, or knowingly induced or caused, her husband
to commit the second mode of violation of Section 3(h) of the Anti-Graft Law.
As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then until 31 December 1991,
possession by a local official of pecuniary interest in a cockpit was not yet prohibited. It was before the effectivity of the
LGC of 1991, or on January 1990, that he transferred the management of the cockpit to his wife Teresita. In accordance
therewith it was Teresita who thereafter applied for the renewal of the cockpit registration. Thus, in her sworn applications
for renewal of the registration of the cockpit in question dated 28 January 199030 and 18 February 1991,31 she stated that
she is the Owner/Licensee and Operator/Manager of the said cockpit. In her renewal application dated 6 January 1992, 32
she referred to herself as the Owner/Licensee of the cockpit. Likewise in the separate Lists of Duly Licensed Personnel for
Calendar Years 199133 and 1992,34 which she submitted on 22 February 1991 and 17 February 1992, respectively, in
compliance with the requirement of the Philippine Gamefowl Commission for the renewal of the cockpit registration, she
signed her name as Operator/Licensee.
The acts of petitioner Teresita Teves can hardly pass as acts in furtherance of a conspiracy to commit the violation of the
Anti-Graft Law that would render her equally liable as her husband. If ever she did those acts, it was because she herself
was an owner of the cockpit. Not being a public official, she was not prohibited from holding an interest in cockpit.
Prudence, however, dictates that she too should have divested herself of her ownership over the cockpit upon the
effectivity of the LGC of 1991; otherwise, as stated earlier, considering her property relation with her husband, her
ownership would result in vesting direct prohibited interest upon her husband.
In criminal cases, conviction must rest on a moral certainty of guilt. 35 The burden of proof is upon the prosecution to
establish each and every element of the crime and that the accused is either responsible for its commission or has
conspired with the malefactor. Since no conspiracy was proved, the acquittal of petitioner Teresita Teves is, therefore, in
order.
WHEREFORE, premises considered, the 16 July 2002 Decision of the Sandiganbayan, First Division, in Criminal Case
No. 2337 is hereby MODIFIED in that (1) EDGAR Y. TEVES is convicted of violation of Section 3(h) of Republic Act No.
3019, or the Anti-Graft and Corrupt Practices Act, for possession of pecuniary or financial interest in a cockpit, which is
prohibited under Section 89(2) of the Local Government Code of 1991, and is sentenced to pay a fine of P10,000; and (2)
TERESITA Z. TEVES is hereby ACQUITTED of such offense.
Costs de oficio.
SO ORDERED.

G.R. No. 162525

September 23, 2008

*

ASEAN PACIFIC PLANNERS, APP CONSTRUCTION AND DEVELOPMENT CORPORATION AND CESAR GOCO,
petitioners, vs. CITY OF URDANETA, CEFERINO J. CAPALAD, WALDO C. DEL CASTILLO, NORBERTO M. DEL
PRADO, JESUS A. ORDONO AND AQUILINO MAGUISA, **, respondents.
DECISION
QUISUMBING, J.:
The instant petition seeks to set aside the Resolutions1 dated April 15, 2003 and February 4, 2004 of the Court of Appeals
in CA-G.R. SP No. 76170.
This case stemmed from a Complaint2 for annulment of contracts with prayer for preliminary prohibitory injunction and
temporary restraining order filed by respondent Waldo C. Del Castillo, in his capacity as taxpayer, against respondents
City of Urdaneta and Ceferino J. Capalad doing business under the name JJEFWA Builders, and petitioners Asean
Pacific Planners (APP) represented by Ronilo G. Goco and Asean Pacific Planners Construction and Development
Corporation (APPCDC) represented by Cesar D. Goco.
Del Castillo alleged that then Urdaneta City Mayor Rodolfo E. Parayno entered into five contracts for the preliminary
design, construction and management of a four-storey twin cinema commercial center and hotel involving a massive
expenditure of public funds amounting to P250 million, funded by a loan from the Philippine National Bank (PNB). For
minimal work, the contractor was allegedly paid P95 million. Del Castillo also claimed that all the contracts are void
because the object is outside the commerce of men. The object is a piece of land belonging to the public domain and
which remains devoted to a public purpose as a public elementary school. Additionally, he claimed that the contracts, from
the feasibility study to management and lease of the future building, are also void because they were all awarded solely to
the Goco family.
In their Answer,3 APP and APPCDC claimed that the contracts are valid. Urdaneta City Mayor Amadeo R. Perez, Jr., who
filed the city's Answer,4 joined in the defense and asserted that the contracts were properly executed by then Mayor
Parayno with prior authority from the Sangguniang Panlungsod. Mayor Perez also stated that Del Castillo has no legal
capacity to sue and that the complaint states no cause of action. For respondent Ceferino J. Capalad, Atty. Oscar C.
Sahagun filed an Answer5 with compulsory counterclaim and motion to dismiss on the ground that Del Castillo has no
legal standing to sue.
Respondents Norberto M. Del Prado, Jesus A. Ordono and Aquilino Maguisa became parties to the case when they jointly
filed, also in their capacity as taxpayers, a Complaint-in-Intervention6 adopting the allegations of Del Castillo.
After pre-trial, the Lazaro Law Firm entered its appearance as counsel for Urdaneta City and filed an Omnibus Motion7
with prayer to (1) withdraw Urdaneta City's Answer; (2) drop Urdaneta City as defendant and be joined as plaintiff; (3)
admit Urdaneta City's complaint; and (4) conduct a new pre-trial. Urdaneta City allegedly wanted to rectify its position and
claimed that inadequate legal representation caused its inability to file the necessary pleadings in representation of its
interests.
In its Order8 dated September 11, 2002, the Regional Trial Court (RTC) of Urdaneta City, Pangasinan, Branch 45,
admitted the entry of appearance of the Lazaro Law Firm and granted the withdrawal of appearance of the City
Prosecutor. It also granted the prayer to drop the city as defendant and admitted its complaint for consolidation with Del
Castillo's complaint, and directed the defendants to answer the city's complaint.
In its February 14, 2003 Order,9 the RTC denied reconsideration of the September 11, 2002 Order. It also granted
Capalad's motion to expunge all pleadings filed by Atty. Sahagun in his behalf. Capalad was dropped as defendant, and
his complaint filed by Atty. Jorito C. Peralta was admitted and consolidated with the complaints of Del Castillo and
Urdaneta City. The RTC also directed APP and APPCDC to answer Capalad's complaint.
Aggrieved, APP and APPCDC filed a petition for certiorari before the Court of Appeals. In its April 15, 2003 Resolution,
the Court of Appeals dismissed the petition on the following grounds: (1) defective verification and certification of nonforum shopping, (2) failure of the petitioners to submit certified true copies of the RTC's assailed orders as mere
photocopies were submitted, and (3) lack of written explanation why service of the petition to adverse parties was not
personal.10 The Court of Appeals also denied APP and APPCDC's motion for reconsideration in its February 4, 2004
11
Resolution.

Hence, this petition, which we treat as one for review on certiorari under Rule 45, the proper remedy to assail the
12
resolutions of the Court of Appeals.
Petitioners argue that:
I.
THE APPELLATE COURT PALPABLY ERRED AND GRAVELY ABUSED ITS JUDICIAL PREROGATIVES BY
SUMMARILY DISMISSING THE PETITION ON THE BASIS OF PROCEDURAL TECHNICALITIES DESPITE
SUBSTANTIAL COMPLIANCE [THEREWITH]
II.
THE TRIAL COURT PALPABLY ERRED AND GRAVELY ABUSED ITS JUDICIAL PREROGATIVES BY CAPRICIOUSLY
(a.) Entertaining the taxpayers' suits of private respondents del Castillo, del Prado, Ordono and Maguisa despite their
clear lack of legal standing to file the same.
(b.) Allowing the entry of appearance of a private law firm to represent the City of Urdaneta despite the clear statutory and
jurisprudential prohibitions thereto.
(c.) Allowing Ceferino J. Capalad and the City of Urdaneta to switch sides, by permitting the withdrawal of their respective
answers and admitting their complaints as well as allowing the appearance of Atty. Jorito C. Peralta to represent Capalad
although Atty. Oscar C. Sahagun, his counsel of record, had not withdrawn from the case, in gross violation of well settled
rules and case law on the matter.13
We first resolve whether the Court of Appeals erred in denying reconsideration of its April 15, 2003 Resolution despite
APP and APPCDC's subsequent compliance.
Petitioners argue that the Court of Appeals should not have dismissed the petition on mere technicalities since they have
attached the proper documents in their motion for reconsideration and substantially complied with the rules.
Respondent Urdaneta City maintains that the Court of Appeals correctly dismissed the petition because Cesar Goco had
no proof he was authorized to sign the certification of non-forum shopping in behalf of APPCDC.
Indeed, Cesar Goco had no proof of his authority to sign the verification and certification of non-forum shopping of the
petition for certiorari filed with the Court of Appeals.14 Thus, the Court of Appeals is allowed by the rules the discretion to
dismiss the petition since only individuals vested with authority by a valid board resolution may sign the certificate of nonforum shopping in behalf of a corporation. Proof of said authority must be attached; otherwise, the petition is subject to
dismissal.15
However, it must be pointed out that in several cases,16 this Court had considered as substantial compliance with the
procedural requirements the submission in the motion for reconsideration of the authority to sign the verification and
certification, as in this case. The Court notes that the attachments in the motion for reconsideration show that on March 5,
17
2003, the Board of Directors of APPCDC authorized Cesar Goco to institute the petition before the Court of Appeals. On
March 22, 2003, Ronilo Goco doing business under the name APP, also appointed his father, Cesar Goco, as his
attorney-in-fact to file the petition.18 When the petition was filed on March 26, 200319 before the Court of Appeals, Cesar
Goco was duly authorized to sign the verification and certification except that the proof of his authority was not submitted
together with the petition.
Similarly, petitioners submitted in the motion for reconsideration certified true copies of the assailed RTC orders and we
20
may also consider the same as substantial compliance. Petitioners also included in the motion for reconsideration their
21
explanation that copies of the petition were personally served on the Lazaro Law Firm and mailed to the RTC and Atty.
Peralta because of distance. The affidavit of service22 supported the explanation. Considering the substantial issues
involved, it was thus error for the appellate court to deny reinstatement of the petition.
Having discussed the procedural issues, we shall now proceed to address the substantive issues raised by petitioners,
rather than remand this case to the Court of Appeals. In our view, the issue, simply put, is: Did the RTC err and commit
grave abuse of discretion in (a) entertaining the taxpayers' suits; (b) allowing a private law firm to represent Urdaneta City;

(c) allowing respondents Capalad and Urdaneta City to switch from being defendants to becoming complainants; and (d)
allowing Capalad's change of attorneys?
On the first point at issue, petitioners argue that a taxpayer may only sue where the act complained of directly involves
illegal disbursement of public funds derived from taxation. The allegation of respondents Del Castillo, Del Prado, Ordono
and Maguisa that the construction of the project is funded by the PNB loan contradicts the claim regarding illegal
disbursement since the funds are not directly derived from taxation.
Respondents Del Castillo, Del Prado, Ordono and Maguisa counter that their personality to sue was not raised by
petitioners APP and APPCDC in their Answer and that this issue was not even discussed in the RTC's assailed orders.
Petitioners' contentions lack merit. The RTC properly allowed the taxpayers' suits. In Public Interest Center, Inc. v.
Roxas,23 we held:
In the case of taxpayers' suits, the party suing as a taxpayer must prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation. Thus, taxpayers have been allowed to sue where there is a claim that
public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds
are wasted through the enforcement of an invalid or unconstitutional law.
xxxx
Petitioners' allegations in their Amended Complaint that the loan contracts entered into by the Republic and NPC are
serviced or paid through a disbursement of public funds are not disputed by respondents, hence, they are invested with
personality to institute the same.24
Here, the allegation of taxpayers Del Castillo, Del Prado, Ordono and Maguisa that P95 million of the P250 million PNB
loan had already been paid for minimal work is sufficient allegation of overpayment, of illegal disbursement, that invests
them with personality to sue. Petitioners do not dispute the allegation as they merely insist, albeit erroneously, that public
funds are not involved. Under Article 195325 of the Civil Code, the city acquired ownership of the money loaned from PNB,
making the money public fund. The city will have to pay the loan by revenues raised from local taxation or by its internal
revenue allotment.
In addition, APP and APPCDC's lack of objection in their Answer on the personality to sue of the four complainants
constitutes waiver to raise the objection under Section 1, Rule 9 of the Rules of Court.26
On the second point, petitioners contend that only the City Prosecutor can represent Urdaneta City and that law and
jurisprudence prohibit the appearance of the Lazaro Law Firm as the city's counsel.
The Lazaro Law Firm, as the city's counsel, counters that the city was inutile defending its cause before the RTC for lack
of needed legal advice. The city has no legal officer and both City Prosecutor and Provincial Legal Officer are busy.
Practical considerations also dictate that the city and Mayor Perez must have the same counsel since he faces related
27
criminal cases. Citing Mancenido v. Court of Appeals, the law firm states that hiring private counsel is proper where rigid
adherence to the law on representation would deprive a party of his right to redress a valid grievance. 28
We cannot agree with the Lazaro Law Firm. Its appearance as Urdaneta City's counsel is against the law as it provides
expressly who should represent it. The City Prosecutor should continue to represent the city.
Section 481(a)29 of the Local Government Code (LGC) of 199130 mandates the appointment of a city legal officer. Under
Section 481(b)(3)(i)31 of the LGC, the city legal officer is supposed to represent the city in all civil actions, as in this case,
32
and special proceedings wherein the city or any of its officials is a party. In Ramos v. Court of Appeals, we cited that
33
34
under Section 19 of Republic Act No. 5185, city governments may already create the position of city legal officer to
whom the function of the city fiscal (now prosecutor) as legal adviser and officer for civil cases of the city shall be
transferred.35 In the case of Urdaneta City, however, the position of city legal officer is still vacant, although its charter36
was enacted way back in 1998.
Because of such vacancy, the City Prosecutor's appearance as counsel of Urdaneta City is proper. The City Prosecutor
remains as the city's legal adviser and officer for civil cases, a function that could not yet be transferred to the city legal
officer. Under the circumstances, the RTC should not have allowed the entry of appearance of the Lazaro Law Firm vice
the City Prosecutor. Notably, the city's Answer was sworn to before the City Prosecutor by Mayor Perez. The City

Prosecutor prepared the city's pre-trial brief and represented the city in the pre-trial conference. No question was raised
against the City Prosecutor's actions until the Lazaro Law Firm entered its appearance and claimed that the city lacked
adequate legal representation.
Moreover, the appearance of the Lazaro Law Firm as counsel for Urdaneta City is against the law. Section 481(b)(3)(i) of
the LGC provides when a special legal officer may be employed, that is, in actions or proceedings where a component city
or municipality is a party adverse to the provincial government. But this case is not between Urdaneta City and the
Province of Pangasinan. And we have consistently held that a local government unit cannot be represented by private
counsel37 as only public officers may act for and in behalf of public entities and public funds should not be spent to hire
38
private lawyers. Pro bono representation in collaboration with the municipal attorney and prosecutor has not even been
39
allowed.
Neither is the law firm's appearance justified under the instances listed in Mancenido when local government officials can
be represented by private counsel, such as when a claim for damages could result in personal liability. No such claim
against said officials was made in this case. Note that before it joined the complainants, the city was the one sued, not its
officials. That the firm represents Mayor Perez in criminal cases, suits in his personal capacity, 40 is of no moment.
On the third point, petitioners claim that Urdaneta City is estopped to reverse admissions in its Answer that the contracts
are valid and, in its pre-trial brief, that the execution of the contracts was in good faith.
We disagree. The court may allow amendment of pleadings.
Section 5,41 Rule 10 of the Rules of Court pertinently provides that if evidence is objected to at the trial on the ground that
it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby.
Objections need not even arise in this case since the Pre-trial Order42 dated April 1, 2002 already defined as an issue
whether the contracts are valid. Thus, what is needed is presentation of the parties' evidence on the issue. Any evidence
of the city for or against the validity of the contracts will be relevant and admissible. Note also that under Section 5, Rule
10, necessary amendments to pleadings may be made to cause them to conform to the evidence.
In addition, despite Urdaneta City's judicial admissions, the trial court is still given leeway to consider other evidence to be
presented for said admissions may not necessarily prevail over documentary evidence,43 e.g., the contracts assailed. A
party's testimony in open court may also override admissions in the Answer.44
As regards the RTC's order admitting Capalad's complaint and dropping him as defendant, we find the same in order.
Capalad insists that Atty. Sahagun has no authority to represent him. Atty. Sahagun claims otherwise. We note, however,
that Atty. Sahagun represents petitioners who claim that the contracts are valid. On the other hand, Capalad filed a
complaint for annulment of the contracts. Certainly, Atty. Sahagun cannot represent totally conflicting interests. Thus, we
should expunge all pleadings filed by Atty. Sahagun in behalf of Capalad.
Relatedly, we affirm the order of the RTC in allowing Capalad's change of attorneys, if we can properly call it as such,
considering Capalad's claim that Atty. Sahagun was never his attorney.
Before we close, notice is taken of the offensive language used by Attys. Oscar C. Sahagun and Antonio B. Escalante in
their pleadings before us and the Court of Appeals. They unfairly called the Court of Appeals a "court of technicalities" 45
for validly dismissing their defectively prepared petition. They also accused the Court of Appeals of protecting, in their
46
view, "an incompetent judge." In explaining the "concededly strong language," Atty. Sahagun further indicted himself. He
said that the Court of Appeals' dismissal of the case shows its "impatience and readiness to punish petitioners for a
perceived slight on its dignity" and such dismissal "smacks of retaliation and does not augur for the cold neutrality and
impartiality demanded of the appellate court."47
48

Accordingly, we impose upon Attys. Oscar C. Sahagun and Antonio B. Escalante a fine of P2,000 each payable to this
Court within ten days from notice and we remind them that they should observe and maintain the respect due to the Court
of Appeals and judicial officers;49 abstain from offensive language before the courts;50 and not attribute to a Judge motives
51
not supported by the record. Similar acts in the future will be dealt with more severely.
WHEREFORE, we (1) GRANT the petition; (2) SET ASIDE the Resolutions dated April 15, 2003 and February 4, 2004 of
the Court of Appeals in CA-G.R. SP No. 76170; (3) DENY the entry of appearance of the Lazaro Law Firm in Civil Case
No. U-7388 and EXPUNGE all pleadings it filed as counsel of Urdaneta City; (4) ORDER the City Prosecutor to represent
Urdaneta City in Civil Case No. U-7388; (5) AFFIRM the RTC in admitting the complaint of Capalad; and (6) PROHIBIT

Atty. Oscar C. Sahagun from representing Capalad and EXPUNGE all pleadings that he filed in behalf of Capalad.
Let the records of Civil Case No. U-7388 be remanded to the trial court for further proceedings.
Finally, we IMPOSE a fine of P2,000 each on Attys. Oscar C. Sahagun and Antonio B. Escalante for their use of offensive
language, payable to this Court within ten (10) days from receipt of this Decision.
SO ORDERED.

G.R. No. 160031

December 18, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner, vs. HON. JOSE D. LINA, in his capacity as Secretary of the
Department of Interior and Local Government (DILG), Lipa City Mayor HON. VILMA SANTOS-RECTO, Pampanga
Provincial Governor HON. LITO LAPID, and Paraaque City Mayor HON. JOEY MARQUEZ, respondents.
DECISION
NACHURA, J.:
Assailed in this Rule 45 petition are the June 30, 20031 and the September 12, 20032 Orders of the Regional Trial Court
(RTC) of Manila, Branch 14 in Civil Case No. 02-104585.
Filed with the trial court on September 12, 2002, by petitioner Social Justice Society, a registered political party, with the
trial court was a petition for declaratory relief against the then Secretary of the Department of Interior and Local
Government (DILG), respondent Jose D. Lina,.3 praying for Presented for resolution in its petition is the proper
construction of Section 90 of Republic Act (R.A.) No. 7160, which provides that:
SEC. 90. Practice of Profession.
(a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation
other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during
session hours: Provided, That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or
instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused
of an offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an
official; and
(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the
interest of the Government.
(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency:
Provided, That the officials concerned do not derive monetary compensation therefrom. [Underscoring supplied.]
Based on the said provision, specifically paragraph (a) thereof, petitioner posited that actors who were elected as
governors, city and municipal mayors were disallowed by law to appear in movies and television programs as one of the
characters therein, for this would give them undue advantage over their political opponents, and would considerably
4
reduce the time that they must devote to their constituents.
To strengthen its point, petitioner later amended its petition to implead as additional respondents then Lipa City Mayor
5
Vilma Santos, then Pampanga Provincial Governor Lito Lapid, and then Paraaque City Mayor Joey Marquez.
Summing up the arguments of the other respondents in their respective pleadings, the DILG, through the Office of the
Solicitor General (OSG), moved for the dismissal of the petition on the grounds that: (1) petitioner has no legal standing to
file the petition, because it is not a "person whose rights are affected" by the statute; (2) it is not the real party-in-interest;
(3) there is no judicial controversy; (4) there is no need for construction of the subject provision; (5) there is already a
breach of the statute as alleged in the petition itself; and (6) declaratory relief is not the proper remedy. 6
7

In the assailed June 30, 2003 Order, the trial court, sustaining the arguments of the DILG, dismissed the petition for
declaratory relief. It further denied, in the September 12, 2003 Order,8 petitioners motion for reconsideration.

Dissatisfied, petitioner filed the instant petition for review on certiorari before this Court on the following grounds:
I.
THE REGIONAL TRIAL COURT SERIOUSLY ERRED IN DISMISSING PETITIONERS PETITION FOR DECLARATORY
RELIEF ON PURELY TECHNICAL GROUNDS.
II.
THE REGIONAL TRIAL COURT SERIOUSLY ERRED IN NOT RESOLVING THE ISSUE RAISED IN THE PETITION
FOR DECLARATORY RELIEF.9
Petitioner contends that it, a registered political party composed of citizens, established to relentlessly pursue social
justice in the Philippines, and allowed to field candidates in the elections, has the legal interest and the right to be
informed and enlightened, on whether or not their public officials, who are paid out of public funds, can, during their
tenure, lawfully appear as heroes or villains in movies, or comedians in television shows, and flaunt their disdain for legal
and ethical standards. The determination further of a partys legal standing in actions for declaratory relief involving laws
10
should not be as rigid as when such action involves a deed, will or contract.
It also argues that a partys legal standing is a procedural technicality which may be set aside where the issues raised are
of paramount public interest. In the instant case, the importance of the issue can never be minimized or discounted. The
appearance of incumbent city or municipal mayors and provincial governors, who are actors, in movies and television
programs enhances their income but reduces considerably the time that they should devote to their constituents. This is in
violation of Section 90 of R.A. No. 7160 and Section 7 of R.A. No. 6713 or the Code of Conduct and Ethical Standards for
Public Officials and Employees. Their appearance further gives them undue advantage in future elections over their
opponents who are not actors.11
Petitioner likewise contends that the petition for declaratory relief should have been converted by the trial court into an
action for prohibition, considering that, in their pleadings, Governor Lapid and Mayor Marquez offered justifications for
their actionsfinancial constraints and freedom of expression.12 Petitioner therefore prays that should the Court declares
the respondents local chief executives as unable to lawfully engage in their professions as actors, it must also prohibit
them from pursuing the same during their incumbency.13
The Court agrees with petitioners contentions on locus standi considering the liberal attitude it has taken in recent
decisions.
However, following rules of procedure, we find as proper the trial courts dismissal of the petition for declaratory relief in
Civil Case No. 02-104585., the petition for declaratory relief. Readily discernable is that the same is an inappropriate
remedy to enforce compliance with Section 90 of R.A. 7160, and to prevent local chief executives Santos-Recto, Lapid
and Marquez from taking roles in movies and television shows. The Court, thus, finds grants as apt the OSGs move to
dismiss the case.
Indeed, an action for declaratory relief should be filed by a person interested under a deed, a will, a contract or other
written instrument, and whose rights are affected by a statute, an executive order, a regulation or an ordinance. The
purpose of the remedy is to interpret or to determine the validity of the written instrument and to seek a judicial declaration
14
of the parties rights or duties thereunder. For the action to prosper, it must be shown that (1) there is a justiciable
controversy; (2) the controversy is between persons whose interests are adverse; (3) the party seeking the relief has a
legal interest in the controversy; and (4) the issue is ripe for judicial determination. 15 Suffice it to state that, in the petition
filed with the trial court, petitioner failed to allege the ultimate facts which satisfy these requisites. Not only that, as
admitted by the petitioner, the provision the interpretation of which is being sought has already been breached by the
respondents. Declaratory relief cannot thus be availed of.16
WHEREFORE, premises considered, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.

G.R. Nos. 147706-07

February 16, 2005

PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE SANDIGANBAYAN (Fifth Division) and EFREN L.
ALAS, respondents.
CORONA, J.:
Does the Sandiganbayan have jurisdiction over presidents, directors or trustees, or managers of government-owned or
controlled corporations organized and incorporated under the Corporation Code for purposes of the provisions of RA
3019, otherwise known as the Anti-Graft and Corrupt Practices Act? The petitioner, represented by the Office of the
Special Prosecutor (OSP), takes the affirmative position in this petition for certiorari under Rule 65 of the Rules of Court.
Respondent Efren L. Alas contends otherwise, together with the respondent court.
Pursuant to a resolution dated September 30, 1999 of the Office of the Ombudsman, two separate informations1 for
violation of Section 3(e) of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, were filed with the
Sandiganbayan on November 17, 1999 against Efren L. Alas. The charges emanated from the alleged anomalous
advertising contracts entered into by Alas, in his capacity as President and Chief Operating Officer of the Philippine Postal
Savings Bank (PPSB), with Bagong Buhay Publishing Company which purportedly caused damage and prejudice to the
government.
On October 30, 2002, Alas filed a motion to quash the informations for lack of jurisdiction, which motion was vehemently
opposed by the prosecution. After considering the arguments of both parties, the respondent court ruled that PPSB was a
private corporation and that its officers, particularly herein respondent Alas, did not fall under Sandiganbayan jurisdiction.
According to the Sandiganbayan:
After a careful consideration of the arguments of the accused-movant as well as of that of the prosecution, we are of the
considered opinion that the instant motion of the accused is well taken. Indeed, it is the basic thrust of Republic Act as
well as (sic) Presidential Decree No. 1606 as amended by President Decree No. 1486 and Republic Act No. 7975 and
Republic Act No. 8249 that the Sandiganbayan has jurisdiction only over public officers unless private persons are
charged with them in the commission of the offenses.
The records disclosed that while Philippine Postal Savings Bank is a subsidiary of the Philippine Postal Corporation which
is a government owned corporation, the same is not created by a special law. It was organized and incorporated under
the Corporation Code which is Batas Pambansa Blg. 68. It was registered with the Securities and Exchange Commission
under SEC No. AS094-005593 on June 22, 1994 with a lifetime of fifty (50) years. Under its Articles of Incorporation the
purpose for which said entity is formed was primarily for business, xxx
Likewise, a scrutiny of the seven (7) secondary purposes of the corporation points to the conclusion that it exists for
business.l^vvphi1.net Obviously, it is not involved in the performance of a particular function in the exercise of government
power. Thus, its officers and employees are not covered by the GSIS and are under the SSS law, and actions for
reinstatement and backwages are not within the jurisdiction of the Civil Service Commission but by the National Labor
Relations Commission (NLRC).
The Supreme Court, in the case of Trade Unions of the Philippines and Allied Services vs. National Housing Corp., 173
SCRA 33, held that the Civil Service now covers only government owned or controlled corporations with original or
legislative charters, those created by an act of Congress or by special law, and not those incorporated under and pursuant
to a general legislation. The Highest Court categorically ruled that the Civil Service does not include government-owned or
controlled corporation which are organized as subsidiaries of government-owned or controlled corporation under the
general corporation law.
In Philippine National Oil Company Energy Development Corporation vs. Leogardo, 175 SCRA 26, the Supreme Court
emphasized that:
The test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the
manner of its creation such that government corporation created by special charter are subject to its provision while those
incorporated under the general corporation law are not within its coverage.
Likewise in Davao City Water District vs. Civil Service Commission, 201 SCRA 601 it was held that "by governmentowned or controlled corporation with original charter we mean government-owned or controlled corporation created by a
special law and not under the Corporation Code of the Philippines" while in Llenes vs. Dicdican, et al., 260 SCRA 207, a

public officer has been ruled, as a person whose duties involve the exercise of discretion in the performance of the
function of government.
Clearly, on the basis of the foregoing pronouncements of the Supreme Court, the accused herein cannot be considered a
public officer. Thus, this Court may not exercise jurisdiction over his act. 2
3

Dissatisfied, the People, through the Office of the Special Prosecutor (OSP), filed this petition arguing, in essence, that
the PPSB was a government-owned or controlled corporation as the term was defined under Section 2(13) of the
Administrative Code of 1987.4 Likewise, in further defining the jurisdiction of the Sandiganbayan, RA 8249 did not make a
distinction as to the manner of creation of the government-owned or controlled corporations for their officers to fall under
its jurisdiction. Hence, being President and Chief Operating Officer of the PPSB at the time of commission of the crimes
charged, respondent Alas came under the jurisdiction of the Sandiganbayan.1awphi1.nt
Quoting at length from the assailed resolution dated February 15, 2001, respondent Alas, on the other hand, practically
reiterated the pronouncements made by the respondent court in support of his conclusion that the PPSB was not created
by special law, hence, its officers did not fall within the jurisdiction of the Sandiganbayan. 5
We find merit in the petition.
Section 2(13) of EO 2926 defines government-owned or controlled corporations as follows:
Sec. 2. General Terms Defined Unless the specific words of the text or the context as a whole or a particular statute,
shall require a different meaning:
xxx xxx xxx
(13) government owned or controlled corporations refer to any agency organized as a stock or non-stock corporation
vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the
government directly or indirectly or through its instrumentalities either wholly, or where applicable as in the case of stock
corporations to the extent of at least 51% of its capital stock: provided, that government owned or controlled corporations
maybe further categorized by the department of the budget, the civil service commission and the commission on audit for
the purpose of the exercise and discharge of their respective powers, functions and responsibilities with respect to such
corporations.
From the foregoing, PPSB fits the bill as a government-owned or controlled corporation, and organized and incorporated
under the Corporation Code as a subsidiary of the Philippine Postal Corporation (PHILPOST). More than 99% of the
authorized capital stock of PPSB belongs to the government while the rest is nominally held by its incorporators who
are/were themselves officers of PHILPOST. The creation of PPSB was expressly sanctioned by Section 32 of RA 7354,
otherwise known as the Postal Service Act of 1992, for purposes of, among others, "to encourage and promote the virtue
of thrift and the habit of savings among the general public, especially the youth and the marginalized sector in the
countryside xxx" and to facilitate postal service by "receiving collections and making payments, including postal money
orders."7
It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors or trustees, or managers of
government-owned or controlled corporations with original charters whenever charges of graft and corruption are
involved. However, a question arises whether the Sandiganbayan has jurisdiction over the same officers in governmentowned or controlled corporations organized and incorporated under the Corporation Code in view of the delimitation
provided for in Article IX-B Section 2(1) of the 1987 Constitution which states that:
SEC. 2. (1) The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government,
including government-owned or controlled corporations with original charters.
It should be pointed out however, that the jurisdiction of the Sandiganbayan is separate and distinct from the Civil Service
Commission. The same is governed by Article XI, Section 4 of the 1987 Constitution which provides that "the present antigraft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be
provided by law." This provision, in effect, retained the jurisdiction of the anti-graft court as defined under Article XIII,
Section 5 of the 1973 Constitution which mandated its creation, thus:
Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have
jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offense committed by public
officers and employees, including those in government-owned or controlled corporations, in relation to their office as may

be determined by law. (Italics ours)

On March 30, 1995, Congress, pursuant to its authority vested under the 1987 Constitution, enacted RA 79758
maintaining the jurisdiction of the Sandiganbayan over presidents, directors or trustees, or managers of governmentowned or controlled corporations without any distinction whatsoever. Thereafter, on February 5, 1997, Congress enacted
9
RA 8249 which preserved the subject provision:
Section 4, Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section, Title VII, Book II of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense,
(1) Officials of the executive branch occupying the positions of regional director, and higher, otherwise classified as grade
"27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758) specifically
including:
xxx xxx xxx
(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or
educational institutions or foundations. (Italics ours)
The legislature, in mandating the inclusion of "presidents, directors or trustees, or managers of government-owned or
controlled corporations" within the jurisdiction of the Sandiganbayan, has consistently refrained from making any
distinction with respect to the manner of their creation.
The deliberate omission, in our view, clearly reveals the intention of the legislature to include the presidents, directors or
trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan whenever they are
involved in graft and corruption. Had it been otherwise, it could have simply made the necessary distinction. But it did not.
It is a basic principle of statutory construction that when the law does not distinguish, we should not distinguish. Ubi lex
non distinguit nec nos distinguere debemos. Corollarily, Article XI Section 12 of the 1987 Constitution, on the jurisdiction
of the Ombudsman (the governments prosecutory arm against persons charged with graft and corruption), includes
officers and employees of government-owned or controlled corporations, likewise without any distinction.1awphi1.nt
In Quimpo v. Tanodbayan,10 this Court, already mindful of the pertinent provisions of the 1987 Constitution, ruled that the
concerned officers of government-owned or controlled corporations, whether created by special law or formed under the
Corporation Code, come under the jurisdiction of the Sandiganbayan for purposes of the provisions of the Anti-Graft and
Corrupt Practices Act. Otherwise, as we emphasized therein, a major policy of Government, which is to eradicate, or at
the very least minimize, the graft and corruption that has permeated the fabric of the public service like a malignant social
cancer, would be seriously undermined. In fact, Section 1 of the Anti-Graft and Corrupt Practices Act embodies this policy
of the government, that is, to repress certain acts not only of public officers but also of private persons constituting graft or
corrupt practices or which may lead thereto.
The foregoing pronouncement has not outlived its usefulness. On the contrary, it has become even more relevant today
due to the rampant cases of graft and corruption that erode the peoples faith in government. For indeed, a governmentowned or controlled corporation can conceivably create as many subsidiary corporations under the Corporation Code as it
might wish, use public funds, disclaim public accountability and escape the liabilities and responsibilities provided by law.
By including the concerned officers of government-owned or controlled corporations organized and incorporated under the
Corporation Code within the jurisdiction of the Sandiganbayan, the legislature evidently seeks to avoid just that.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the assailed resolution dated February 15,
2001 of the respondent court is hereby REVERSED and SET ASIDE.
SO ORDERED.

ELECTIVE OFFICIALS
A. Qualifications and election
G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of
Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was
twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have
re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should
be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally,
he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but
who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a
"permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence
on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review
and annul a Resolution of the respondent Commission on Elections (Comelec), First Division, 1 promulgated on December
19, 1995 2 and another Resolution of the Comelec en banc promulgated February 23, 1996 3 denying petitioner's motion
for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of
Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition 4
with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public
office or position by reason of not yet being a citizen of the Philippines", and that his Certificate of Candidacy be canceled.
On May 1, 1995, the Second Division of the Comelec promulgated a Resolution 5 granting the petition with the following
6
disposition :
WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the
Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's
certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his
candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc
7
affirmed the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8 dated May
27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon:

Antonio H. Escudero, Jr. 51,060

Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
9

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition praying for his proclamation as the dulyelected Governor of Sorsogon.
In an order 10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en
banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate
Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30
in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.
11

On July 6, 1995, Frivaldo filed with the Comelec a new petition, docketed as SPC No. 95-317, praying for the annulment
of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the
afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725
which he filed with the Special Committee on Naturalization in September 1994 had been granted". As such, when "the
said order (dated June 21, 1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30
o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the
alternative, he averred that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor - not Lee - should
occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 holding that Lee, "not
having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that
Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential
Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby
ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to
immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly
elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino
citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to
hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to
notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province
of Sorsogon of this resolution immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution
14
promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to
maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions" 15:
First -- The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC
of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and
deciding said petition;

Second -- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to
run for, to be elected to and to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his
ineligibility and qualify him to hold the Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly
elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No.
123755, as follows:
1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of
Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines";
1

2. Resolution 7 of the Comelec en banc, promulgated on May 11, 1995; and

3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the proclamation of, among
others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the abovementioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced
hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by
law" i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the
period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions
null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related
in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of
governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously
their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to
be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for,
be elected to or hold the governorship of Sorsogon?

3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said
petition is not "a pre-proclamation case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of
which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within
the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other
matters raised are secondary to this.
The Local Government Code of 1991 19 expressly requires Philippine citizenship as a qualification for elective local
officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of
age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent upon him to show that
he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation.
Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that he tried to resume his
citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the
endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his
political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional,
substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon,
with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul
Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular
mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from
the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last
mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who
was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing
the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance
under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at
8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections
and since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino
exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by
Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the
present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first
Congress under the 1987 Constitution", adding that in her memorandum dated March 27, 1987 to the members of the
Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed

them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as
defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23
This memorandum dated March 27, 1987 24 cannot by any stretch of legal hermeneutics be construed as a law
sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be
express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum -based on the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725 was being repealed or
was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the
other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not
be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and
patently inconsistent that they cannot co-exist". 26
The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every
pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be
regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the
Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the
first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but
left it to the first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she should
have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential
issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound
discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential
Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon
statutory construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that
Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . .
.", which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application
for repatriation with the Office of the President in Malacaang Palace on August 17, 1994. This is confirmed by the
Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said
Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the
Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of
his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the
personal interest of respondent," 27 the Solicitor General explained during the oral argument on March 19, 1996 that such
allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom
was submitted by him to this Court, through a Manifestation 28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official
duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere
fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily
tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious
and cumbersome. In fact, P.D.
29

725 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to
the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time
entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to
reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and
faithfully served his country and his province prior to his naturalization in the United States -- a naturalization he insists
was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace
-- and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his
country of birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues
convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest
on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the
Office of the President, pursuant to the doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at
2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on

the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 104654 30 which held
that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to
public office." Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid,
then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which
question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess
citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the purpose of the
citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall
govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his
functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo reassumed his citizenship on June 30, 1995 -- the very day 32 the term of office of governor (and other elective officials)
began -- he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and
responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This
is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose
for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted
that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates.
Why then should such qualification be required at the time of election or at the time of the filing of the certificates of
candidacies, as Lee insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age
and residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs.
Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do
not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be
thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the
elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship
qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter.
After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he
be a "registered voter". And, under the law 35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not
have been a voter -- much less a validly registered one -- if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship
qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not
have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the
law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a
citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from
"citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA
OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or
province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an
elective official to be a registered voter. It does not require him to vote actually. Hence, registration -- not the actual voting
-- is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the
prospective official is actually registered in the area he seeks to govern -- and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a registered
voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast
36
his vote in his precinct on May 8, 1995."
So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter
of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was
questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the
3
previous elections including on May 8, 1995." 7
It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not
necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code
38
gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the
disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the
Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning
candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And
since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably
a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the
candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections
and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer
ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date
of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is
provided." But there are settled exceptions 40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in
nature or when it CREATES NEW RIGHTS.
According to Tolentino, 41 curative statutes are those which undertake to cure errors and irregularities, thereby validating
judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not
produce their intended consequences by reason of some statutory disability or failure to comply with some technical
requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo, 42 on the
other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply
defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are
retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and effective
attempted acts which would be otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do
not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights,
ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective
operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling
certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who)
had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63, as
amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who
could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to
retain her Philippine citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women
who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these women -- the
right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the
other hand, said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had)
lost their Philippine citizenship but now desire to re-acquire Philippine citizenship", because prior to the promulgation of
P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but
with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of
repatriation.

The Solicitor General

44

argues:

By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply
defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and
curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.A. No. 63
wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos
who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A.
63 for reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are
considered essentially remedial and curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was
precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where
the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof."
45
It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not
otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and
civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches and
seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective
operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so
construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to
past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so
direct, unless to do so would impair some vested right or violate some constitutional guaranty." 46 This is all the more true
of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said
law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied
for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is
not only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to
Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The
reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past
events -- i.e., situations and transactions existing even before the law came into being -- in order to benefit the greatest
number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of
citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason
to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the
passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect
as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary
intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything
unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the
impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws
and whatever defects there were in his nationality should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not
to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications
for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo -- having already renounced
his American citizenship -- was, may be prejudiced for causes outside their control. This should not be. In case of doubt in
the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail.
4
7
And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation
48
within relatively short spans of time after the same were filed. The fact that such interregna were relatively insignificant
minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the
mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of
wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing

only during the interregnum between application and approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the
circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the
date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality
qualification -- whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing
his certificate of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled.
Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994,
his previous registration as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not
effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from
running for any elective local position?" 49 We answer this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and renounced
his US citizenship but before he was repatriated to his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated December 19, 1995: 51
By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to
the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy
contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been
effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court,
absent any showing of capriciousness or arbitrariness or
abuse. 52
The Second Issue: Is Lack of Citizenshipa Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by
Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17, 1995,
no restraining order having been issued by this Honorable Court. 54 Hence, before Lee "was proclaimed as the elected
governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this
Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become
final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an
American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the
Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988
elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such
elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its
55
assailed Resolution:
The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus
disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any "final judgment" of the
disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June
21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino
citizen "having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines."
This declaration of the Supreme Court, however, was in connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This
is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes

recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration, 56 we held:
Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the
corresponding court or administrative authority decides therein as to such citizenship is generally not considered res
judicata, hence it has to be threshed out again and again, as the occasion demands.
The Third Issue: Comelec's JurisdictionOver The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only
"possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest
or a quo warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No.
95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence,
according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise exclusive original
jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials."
Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may
entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions
58
59
for annulment of proclamations -- of which SPC No. 95-317 obviously is one. Thus, in Mentang vs. COMELEC, we
ruled:
The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable.
Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the
COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs.
COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption
that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the
COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs.
COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the
proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question
that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that he (Lee) was not the choice of the
sovereign will," and in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo 62
case, as follows:
The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to
bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate.
In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying
their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of
votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner
Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the
contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be
voted for the office of the city Payor as its resolution dated May 9, 1992 denying due course to petitioner Labo's certificate
of candidacy had not yet become final and subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in
1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not

yet final on election day as there was in both cases a pending motion for reconsideration, for which reason Comelec
issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the
May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in
fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety;" in other
words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If
Labo has any relevance at all, it is that the vice-governor -- and not Lee -- should be pro- claimed, since in losing the
election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic
teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate
receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed
elected to the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained
the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was
patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of theElection Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995
and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled
because they were rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code
which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones
issued by the Commission (First Division) on December 19, 1995, affirmed en banc 63 on February 23, 1996; which both
upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes
the Commission to try and decide petitions for disqualifications even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. (emphasis supplied)
Refutation ofMr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum
dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it
decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can
amend or abrogate an existing law.
64

The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;
viz., "(u)nder CA No. 63 as
amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also contends
that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a
"mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The
retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration
as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992,
which were the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing
the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy
on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his
disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo
was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995
were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In
dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because
"Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his
disagreement with us on this point, i.e., that Section 78 "is merely directory", we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the dissent, teaches that a
petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case
however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided
even after the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even
after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no
inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo,
repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo
case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring
citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his
qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political
status -- not in 1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal
renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged only with the
duty of determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not
Americans. It is basic in international law that a State determines ONLY those who are its own citizens -- not who are the
citizens of other countries. 65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such
finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding
and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections,
should be declared winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is
absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post
facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his
nationality before, during and after the 1995 elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of elective local
officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must
be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it
differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the
qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have
said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the
citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail,
the same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others,
that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have
reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision
should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine
citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his
application therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the
Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest nonretroactivity, were already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree -we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and
applied in this case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws
relating to elections: literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal syllogism or
substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious
choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but
little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at
the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further
hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor
impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and
effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political
status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship
and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as
of the date of his application therefor, during the pendency of which he was stateless, he having given up his U.S.
nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the
term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of
citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of
said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship
requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we
emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for
annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the
manifest will of our people, 66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular
mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of
the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections (citations omitted). 67
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular
will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the
survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court
must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely
sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully
challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic 68 to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the
apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to grant
retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time
he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he
was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running
for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate
development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with
Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American
citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his
loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once
more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic
every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his
demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal set-backs speak
more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to reembrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as
nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After
all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted,

nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore
deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above
Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are
AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit.
No costs.
SO ORDERED.

A.M. No. RTJ-92-897. November 24, 1998

QUITERIO HERMO, petitioner, vs. HON. ROSALIO G. DELA ROSA, Judge, RTC-Branch 28, Manila, respondent.
RESOLUTION
QUISUMBING, J.:
The administrative case now before us stemmed from the petition for naturalization filed by Sorsogon governor Juan G.
Frivaldo on September 20, 1991 and heard before the sala of herein respondent, Hon. Rosalio G. dela Rosa, then
presiding judge of Branch 28, Regional Trial Court of Manila. That case was docketed as SP Proc. No. 91-58645.
Respondent judge set Frivaldo's petition for hearing on March 16, 1992 in an order dated October 7, 1991.[1] He directed
publication of the order and of Frivaldo's petition in the Official Gazette and in a newspaper of general circulation once a
week for three consecutive weeks, the last publication of which should be at least six months before the date of hearing.
Judge de la Rosa likewise required the posting of the order and of the petition in a public and conspicuous place in the
office of the Clerk of Court of the Manila RTC. Frivaldo caused the publication of respondent's order in the Philippine Star.
On January 20, 1992, Frivaldo filed a motion[2] to set the hearing of his petition ahead of schedule since he was planning
to run in the elections of May 11, 1992 and he had to file his certificate of candidacy before March 15, 1992, just a day
before the scheduled hearing. Respondent judge granted the motion and reset the hearing of February 21, 1992. It does
not appear that the order granting the motion was published or posted. On February 27, 1992, respondent judge rendered
his decision[3] granting Frivaldo's petition and on the same day, Frivaldo took his oath of allegiance.[4]
Quiterio Hermo, of Sorsogon, Sorsogon, learned of the above proceedings when a friend of his, through his secretary
Alma Catu, sought information about the progress of the case from the Clerk of Court of Branch 28. Catu went to the
office of the branch clerk on March 9, 1992 and was informed that the hearing of the petition was reset to an earlier date
and that it was still awaiting resolution. Later, Catu discovered that the petition had already been favorably decided in
favor of Frivaldo as early as February 27, 1992, or 11 days before she went to the office of the branch clerk.[5]
In a letter dated March 16, 1992, Hermo complained to Justice Ernani Cruz Pao, then the Court Administrator, and
charged respondent judge with gross ignorance of the law and malfeasance in the performance of his official duties.
Attached to his letter was a complaint-affidavit outlining the alleged irregularities committed by respondent judge in the
proceedings held before his sala in connection with Frivaldo's petition.[6]
Specifically, Hermo is questioning the following steps taken by respondent in connection with Frivaldo's petition:
1. Non-publication of respondent's order of publication in the Official Gazette;
2. Resetting of the hearing to an earlier date, which date is within six months from the date of the petition's last publication
which was November 21, 1991;
3. Allowance of the petition and of Frivaldo's taking his oath of allegiance on the same date the petition was heard;
4. Allowing Frivaldo to take his oath of allegiance before two years had elapsed from the date of the decision;
5. Non-submission by Frivaldo of the affidavit of two disinterested persons to "testify on (his) wherewithals";
6. Allowance of Frivaldo's petition despite the fact that he was convicted of libel in a case filed in Sorsogon; and
7. An apparent attempt to cover up the proceedings as shown by Alma Catu's experience when she tried to inquire into
the progress of the case.
Aside from this administrative case, three other petitions were filed before this Court in connection with Frivaldo's petition
and his reacquisition of his Filipino citizenship: G.R. No. 104654, G.R. No. 105715, and G.R. No. 105735. Essentially,
these petitions dealt with the following issues: (1)whether or not Frivaldo, then a naturalized American citizen, validly
reacquired his Filipino citizenship in SP Proc. 91-58645, and (2)whether or not Frivaldo was qualified to run in the 1992
elections and serve as governor of Sorsogon. These petitions were consolidated and were decided by this Court on June
6, 1994 in the case of Republic v. De la Rosa.[7]

On June 15, 1993, this Court resolved to hold in abeyance action on the complaint filed by Hermo pending the
determination of the main case. On July 26, 1994, Hermo filed an urgent motion to resolve his complaint, in view of our
decision in Republic v. De la Rosa.
On February 18, 1997, we referred this case to the Office of the Court Administrator, already under Justice Alfredo
Benipayo, for evaluation, report, and recommendation. The OCA submitted its report on April 16, 1997.[8]
In Republic v. De la Rosa, this Court remarked on the proceedings before respondent judge:
The naturalization proceedings in SP Proc. No. 91-58645 was full of procedural flaws, rendering the decision an
anomaly.
...
The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings
conducted, the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the
publication and posting requirements under the Revised Naturalization Law.
...
The proceedings of the trial court was marred by the following irregularities: (1)the hearing of the petition was set ahead of
the scheduled date of hearing, without a publication of the order advancing the date of hearing, and the petition itself;
(2)the petition was heard within six months from the last publication of the petition, (3)petitioner was allowed to take his
oath of allegiance before the finality of judgment; and (4)petitioner took his oath of allegiance without observing the twoyear waiting period.
A decision in a petition for naturalization becomes final only after 30 days from its promulgation and, insofar as the
Solicitor General is concerned, that period is counted from the date of his receipt of the copy of the decision (Republic v.
Court of First Instance of Albay, 60 SCRA 195 [1974]).
Section 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization proceedings shall be executory
until after two years from its promulgation in order to be able to observe if: (1)the applicant has left the country; (2)the
applicant has dedicated himself continuously to a lawful calling or profession; (3)the applicant has not been convicted of
any offense or violation of government promulgated rules; and (4)the applicant has committed any act prejudicial to the
interest of the country or contrary to government announced policies.
Even discounting the provision of R.A. No. 530, the courts cannot implement any decision granting the petition for
naturalization before its finality.[9]
We do not see any substantial reason now to disturb the foregoing findings.
However, the duty to publish the petition and to post the same as well as the general notice of hearing belongs to the clerk
of court. Failure of the clerk of court to fulfill this duty might not necessarily be imputable to respondent judge.
But, the failure to observe the procedure required by law as regards the date of hearing the petition and granting the same
is clearly attributable to respondent judge. Section 1 of Republic Act No. 530 clearly provides that
no petition for Philippine citizenship shall be heard by the courts until after six months from the publication of the
application required by law, nor shall any decision granting the application become executory until after two years from its
promulgation
Under Section 2 of the same law, the applicant may only take his oath of allegiance after the Solicitor General finds that
within the period of two years from the date the decision granting citizenship is promulgated, the applicant
has (1)not left the Philippines, (2)has dedicated himself continuously to a lawful calling or profession, (3)has not been
convicted of any offense or violation of Government promulgated rules, (4)or committed any act prejudicial to the interest
of the nation or contrary to any Government announced policies.

As earlier stated, respondent judge heard Frivaldo's petition before the lapse of six months from the date the petition was
published in a newspaper of general circulation.[10] He allowed Frivaldo to take his oath of allegiance on the same day
the petition was granted, disregarding the requisite two-year waiting period.
Needless to say, observance of the law he is bound to know is required of respondent judge. The procedure he followed
is clearly erroneous, thus precluding any inference that they were due only to some mistake or mere inadvertence.
As observed in the report submitted by the Office of the Court Administrator:
The errors committed by respondent Judge in the instant case are very patent
The actuations of respondent Judge in outrightly granting the Petition of Mr. Juan G. Frivaldo despite the clear provisions
of the Revised Naturalization Law (CA No. 63 as amended by CA No. 473) is highly irregular.
Under Section 9 of the aforesaid law, a petition for naturalization and the order setting the same for hearing must be
published once a week for three consecutive weeks in the Official Gazette and a newspaper of general circulation.[11]
Compliance therewith is jurisdictional (Po Yo Bi v. Republic, 205 SCRA 400 [1992]). In the case at bar, respondent
allowed the hearing of the petition way ahead of the scheduled hearing, without publishing the order advancing the date of
the hearing and the petition itself. Respondent should have known that publication and posting of the petition and order in
its full text are jurisdictional requirements and absent thereof the court cannot acquire jurisdiction over the petition (Sy v.
Republic, 55 SCRA 724 [1974]). Moreover, the petition was within the six months period from the last publication of the
petition. What the law provides is that the new petition must be heard till after 6 months from the last day of publication.
But this respondent Judge did not observe.
What made the matter more questionable is the fact that six (6) days after the hearing of the petition was scheduled, a
decision was rendered by respondent Judge on February 27, 1992. On that very same day it was rendered, Mr. Frivaldo
was allowed to take his oath of allegiance despite the fact that the decision has not yet become final.[12]
WHEREFORE, we find respondent judge liable for serious procedural lapses with regard to the proceedings in SP Proc.
No. 91-58645, and order him to pay a FINE of P5,000.00 to be deducted from benefits previously withheld from him
pending the determination of this administrative case.
SO ORDERED.

G.R. No. 168550 August 10, 2006

URBANO M. MORENO, Petitioner, vs.COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO,
Respondents.
DECISION
TINGA, J.:
In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the Commission on Elections
(Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of the Comelec First Division dated November 15, 2002
which, in turn, disqualified him from running for the elective office of Punong Barangay of Barangay Cabugao, Daram,
Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.
The following are the undisputed facts:
Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the
latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of
Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of
Catbalogan, Samar on August 27, 1998.
Moreno filed an answer averring that the petition states no cause of action because he was already granted probation.
Allegedly, following the case of Baclayon v. Mutia, 4 the imposition of the sentence of imprisonment, as well as the
accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976
(Probation Law), the final discharge of the probation shall operate to restore to him all civil rights lost or suspended as a
result of his conviction and to fully discharge his liability for any fine imposed. The order of the trial court dated December
18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a result of his conviction,
including the right to vote and be voted for in the July 15, 2002 elections.
The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing. After due
proceedings, the Investigating Officer recommended that Moreno be disqualified from running for Punong Barangay.
The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the Comelec en banc,
the Resolution of the First Division was affirmed. According to the Comelec en banc, Sec. 40(a) of the Local Government
Code provides that those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence, are disqualified from
running for any elective local position. 5 Since Moreno was released from probation on December 20, 2000,
disqualification shall commence on this date and end two (2) years thence. The grant of probation to Moreno merely
suspended the execution of his sentence but did not affect his disqualification from running for an elective local office.
Further, the Comelec en banc held that the provisions of the Local Government Code take precedence over the case of
Baclayon v. Mutia cited by Moreno and the Probation Law because it is a much later enactment and a special law setting
forth the qualifications and disqualifications of elective local officials.
In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those who have
served their sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law
should allegedly be read as an exception to the Local Government Code because it is a special law which applies only to
probationers. Further, even assuming that he is disqualified, his subsequent election as Punong Barangay allegedly
constitutes an implied pardon of his previous misconduct.
6

In its Comment dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues that this
Court in Dela Torre v. Comelec 7 definitively settled a similar controversy by ruling that conviction for an offense involving
moral turpitude stands even if the candidate was granted probation. The disqualification under Sec. 40(a) of the Local
Government Code subsists and remains totally unaffected notwithstanding the grant of probation.
Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out material differences
between his case and Dela Torre v. Comelec which allegedly warrant a conclusion favorable to him. According to Moreno,
Dela Torre v. Comelec involves a conviction for violation of the Anti-Fencing Law, an offense involving moral turpitude
covered by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for
probation nearly four (4) years after his conviction and only after appealing his conviction, such that he could not have

been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor. He never
served a day of his sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local Government Code does
not apply to him.
The resolution of the present controversy depends on the application of the phrase "within two (2) years after serving
sentence" found in Sec. 40(a) of the Local Government Code, which reads:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence; [Emphasis supplied.]
....
We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of which Moreno
was convicted by final judgment, involves moral turpitude falling under the first part of the above-quoted provision. The
question of whether Arbitrary Detention is a crime involving moral turpitude was never raised in the petition for
disqualification because the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his
alleged disqualification from running for a local elective office within two (2) years from his discharge from probation after
having been convicted by final judgment for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years
and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude is not
decisive of this case, the crucial issue being whether Morenos sentence was in fact served.
In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of probation
does not affect the disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding
that the crime of fencing of which petitioner was convicted involves moral turpitude, a circumstance which does not obtain
in this case. At any rate, the phrase "within two (2) years after serving sentence" should have been interpreted and
understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude
and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of
imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of
the Local Government Code.
The Courts declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add, ought to
be considered an obiter in view of the fact that Dela Torre was not even entitled to probation because he appealed his
conviction to the Regional Trial Court which, however, affirmed his conviction. It has been held that the perfection of an
appeal is a relinquishment of the alternative remedy of availing of the Probation Law, the purpose of which is to prevent
speculation or opportunism on the part of an accused who, although already eligible, did not at once apply for probation,
9
but did so only after failing in his appeal.
Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase "service of sentence,"
understood in its general and common sense, means the confinement of a convicted
person in a penal facility for the period adjudged by the court. 10 This seemingly clear and unambiguous provision,
however, has spawned a controversy worthy of this Courts attention because the Comelec, in the assailed resolutions, is
alleged to have broadened the coverage of the law to include even those who did not serve a day of their sentence
because they were granted probation.
Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve the adjudged
sentence having been granted probation and finally discharged by the trial court.
In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in
effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the
imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office
and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage.
We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing
with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow
a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of
11
arresto mayor in its maximum period to prision correccional in its minimum period imposed upon Moreno were similarly
suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is not even disqualified from running for a public office
because the accessory penalty of suspension from public office is put on hold for the duration of the probation.
Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged.
Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence.
12
During the period of probation, the probationer does not serve the penalty imposed upon him by the court but is merely
required to comply with all the conditions prescribed in the probation order. 13
It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused on the fact
that Morenos judgment of conviction attained finality upon his application for probation instead of the question of whether
his sentence had been served.
The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the Local
Government Code unequivocally disqualifies only those who have been sentenced by final judgment for an offense
punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence.
This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation
which, we reiterate, should not be equated with service of sentence, should not likewise be disqualified from running for a
local elective office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does
not even begin to run.
The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of the
Probation Law provides that "[t]he final discharge of the probationer shall operate to restore to him all civil rights lost or
suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which
probation was granted." Thus, when Moreno was finally discharged upon the courts finding that he has fulfilled the terms
and conditions of his probation, his case was deemed terminated and all civil rights lost or suspended as a result of his
conviction were restored to him, including the right to run for public office.
Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for judicial
interpretation, 14 our conclusion will remain the same.
It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the intended meaning of the
phrase "service of sentence," i.e., whether the legislature also meant to disqualify those who have been granted
probation. The Courts function, in the face of this seeming dissonance, is to interpret and harmonize the Probation Law
and the Local Government Code. Interpretare et concordare legis legibus est optimus interpretandi.
Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the
state, which is granted to a deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law
for the offense of which he was convicted. 15 Thus, the Probation Law lays out rather stringent standards regarding who
are qualified for probation. For instance, it provides that the benefits of probation shall not be extended to those sentenced
to serve a maximum term of imprisonment of more than six (6) years; convicted of any offense against the security of the
State; those who have previously been convicted by final judgment of an offense punished by imprisonment of not less
than one (1) month and one (1) day and/or a fine of not less than P200.00; those who have been once on probation; and
those who are already serving sentence at the time the substantive provisions of the Probation Law became applicable. 16
It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses punishable
by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision
does not specifically disqualify probationers from running for a local elective office. This omission is significant because it
offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not covered by the
disqualification.
Further, it should be mentioned that the present Local Government Code was enacted in 1991, some seven (7) years
after Baclayon v. Mutia was decided. When the legislature approved the enumerated disqualifications under Sec. 40(a) of
the Local Government Code, it is presumed to have knowledge of our ruling in Baclayon v. Mutia on the effect of
probation on the disqualification from holding public office. That it chose not to include probationers within the purview of

the provision is a clear expression of the legislative will not to disqualify probationers.
On this score, we agree with Moreno that the Probation Law should be construed as an exception to the Local
Government Code. While the Local Government Code is a later law which sets forth the qualifications and
disqualifications of local elective officials, the Probation Law is a special legislation which applies only to probationers. It is
a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special
17
statute, will ordinarily not affect the special provisions of such earlier statute.
In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification to include
Moreno, the Comelec committed an egregious error which we here correct. We rule that Moreno was not disqualified to
run for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and
Sangguniang Kabataan Elections.
Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary
Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July
15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief Justice Artemio Panganiban in
18
Frivaldo v. Comelec where he said that "it would be far better to err in favor of popular sovereignty than to be right in
complex but little understood legalisms."
WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June 1, 2005
and the Resolution of its First Division dated November 15, 2002, as well as all other actions and orders issued pursuant
thereto, are ANNULLED and SET ASIDE. The Commission on Elections is directed to proceed in accordance with this
Decision. No pronouncement as to costs.
SO ORDERED.

[G.R. No. 81816. January 26, 1989.]

NATIVIDAD Q. SALOMON, Petitioner, v. NATIONAL ELECTRIFICATION ADMINISTRATION, represented by
ADMINISTRATOR RODRIGO CABRERA; LA UNION ELECTRIC COOPERATIVE, INC. represented by its directors,
namely: MANUEL MANGASER, LEANDRO MUPAS JR., RAMON POSADAS, LUIS FONTANILLA and EDUARDO P.
MARZAN; and ACTING DEPUTY SECRETARY SAMILO N. BARLONGAY, Respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; INELIGIBILITY OF ELECTIVE OFFICIALS TO HOLD POSITIONS IN COOPERATIVE; LAW
APPLIES TO AN APPOINTED MEMBER OF THE SANGGUNIANG PANLALAWIGAN. Although the disqualification
mandated by the provisions pertains to elective officers of the government, except barrio captains and councilors, the
same is equally applicable to an appointed member of the Sangguniang Panlalawigan which is an elective office. The
prohibition should be construed to refer to a person holding an office, the assumption to which, while generally determined
by an election, is not precluded by appointment. The purpose of the disqualification is to prevent incumbents of elective
offices from exerting political influence and pressure on the management of the affairs of the cooperative. This purpose
cannot be fully achieved if one who is appointed to an elective office is not made subject to the same disqualification.
DECISION
PARAS, J.:
The petitioner, Natividad Q. Solomon, seeks among others her reinstatement or Director for District II of respondent La
Union Electric Cooperative, Inc., (LUELCO) by filing the instant petition for certiorari assailing the ruling of respondent
National Electrification Administration (NEA) dated May 7, 1987, denying petitioner's request to annul Resolution No.
150487 dated April 26, 1987 of respondent La Union Electric Cooperative, Inc., as well as the ruling of the Office of the
President dated January 21, 1988, sustaining the NEA Ruling dated May 7, 1987.
The antecedent facts, as narrated in public respondents' Comment dated May 13, 1988 were affirmed by petitioner in her
Reply dated May 26, 1988 except for the term of the petitioner as the elected Director for District II of respondent
LUELCO which according to her would expire in April 1989 as sworn to by the petitioner in her Reply ("Rejoinder") dated
May 26 1988.
On July 20, 1986, petitioner Natividad Q. Solomon was elected Director of District II of respondent LUELCO for a term to
expire in April 1988. However, Eduardo P. Marzan, who garnered the second highest number of votes in the election, filed
an election protest with respondent National Electrification Administration (NEA).
On the basis of a finding that petitioner was not a bona fide member of the LUELCO at the time of her election, NEA
decided the election protest against petitioner.
Petitioner filed a letter-appeal dated February 25, 1987, which was in the nature of a motion for reconsideration of the
NEA ruling.
On February 27, 1987, being the Barangay Captain of Natividad (Poblacion), Naguilian, La Union, petitioner was
appointed by the then Minister of Local Government Jaime N. Ferrer as member of the Sangguniang Panlalawigan of La
Union, representing the barangay officials of the province. And on March 18, 1987, petitioner took her oath of office and
thereafter assumed her duties as such.
In April 1987, respondent administrator Rodrigo Cabrera, in his capacity then as Deputy Administrator, ruled on behalf of
the NEA that the designation of the petitioner to the Sangguniang Panlalawigan of La Union disqualified her from further
acting as LUELCO Director and that the Board of Directors could appoint her successor for the unexpired portion of her
term.
The ruling of the then NEA Deputy Administrator Rodrigo Cabrera was grounded on the provision of Section 21 of
Presidential Decree No. 269 to the effect that "elective officers of the government; except barrio captain and councilors,
shall be ineligible to become officers and/or directors of any (electric cooperative)." (Section 21 P.D. No. 269). That the
said legal proviso is also incorporated in section 3, Article IV, of the LUELCO's by-laws which runs: "No person shall be
eligible to become or to remain a board member of the cooperative who holds an elective office in the government above
the level of a barangay captain.' (Rollo, p. 3)

Respondent NEA Deputy Administrator Rodrigo Cabrera, ruling on petitioner's Motion for Reconsideration, sent a radio
message to the LUELCO Board of Directors stating that the letter appeal of the petitioner to the NEA dated February 25,
1987 had been rendered moot and academic and the Board may now avail of Article IV, Section 12 of the By-laws in filling
up the vacancy in District II and pursuant to the said radio message, the LUELCO Board of Directors passed Resolution
No. 15-04-87 on April 26, 1987 which provides:
NOW THEREFORE, on Motion of Director Manuel Mangaser duly seconded by Director Ramon Posadas, be it:
RESOLVED, as it is hereby resolved to appoint Mr. Eduardo P. Marzan as a member of the Board of this cooperative
(LUELCO) to serve the unexpired portion of the term of Mrs. Natividad Salomon;
RESOLVED, further, to notify NEA of the said appointment of Mr. Eduardo P. Marzan.' (P. 68, Rollo)
On April 28, 1987, petitioner filed with NEA another letter appeal dated April 26, 1987 addressed to NEA Administrator
Ernesto Tabios requesting that Resolution No. 15-04-87 be declared null and void.
In reply thereto, Editha S. Bueno, NEA Director for Cooperative Development, in a letter dated May 7, 1987, furnished the
petitioner with a copy of the Memorandum dated October 7, 1980 of Atty. Manuel P. Senar, Chief Corporate Legal
Counsel of NEA, which reads:
In view of the above, it is the considered opinion of this off- ice that a Barangay Captain who had been appointed to the
Sangguniang Bayan, a position higher than Barangay Captain, is disqualified to run for Director and if already elected,
ceases to be a Director from the time he qualifies and assumes office.' (Rollo, p. 69)
Said letter dated May 7, 1987 was in effect a denial of the request to annul Resolution No. 15-04-87.
On August 25, 1987, the petitioner wrote the President of the Philippines thru the Honorable Executive Secretary praying
that she be reinstated as Director of LUELCO. (Petition, Annex "A"). The said letter appeal is in pursuance of Section 13
of P.D. No. 269 which provides that "all orders, rules and regulations promulgated by the NEA shall be subject to the
approval of the Office of the President." (Rollo, p. 4)
On January 21, 1987, the office of the President, thru respondent acting Deputy Executive Secretary Samilo M.
Barlongay, in its letter sustained the NEA ruling dated May 7, 1987.
Hence, this petition.
Petitioner interposes her lone issue of whether or not she was legally disqualified from continuing as a duly elected
Director for District II of respondent, La Union Electric Cooperative, Inc., (LUELCO) on account of her designation as a
member of the Sangguniang Panlalawigan of La Union as the representative of the Barangay officials of the province.
What the petitioner would like to emphasize to this Court is that, her designation as a member of the Sangguniang
Panlalawigan falls under the other kind of membership in the Sangguniang Panlalawigan, which is definitely an appointive
and not elective position as it is filled up by appointment (or designation) extended by the President of the Philippines (or
by his or her alter ego), as provided for in Section 205(2) of the Local Government Code.
Petitioner adopts the view that since she is an appointed public official, having been designated by the then Minister of
Local Government Jaime N. Ferrer as member of the Sangguniang Panlalawigan of La Union, the prohibition on elective
officers of the government above the rank of Barangay Captain provided by the above quoted Section 21 of P.D. No. 269,
as amended, and Section 3(c) Article IV of the By-laws of Electric Cooperative is not applicable to her.
This Court finds petitioner's contention untenable.
Although the disqualification mandated by the provisions pertains to elective officers of the government, except barrio
captains and councilors, the same is equally applicable to an appointed member of the Sangguniang Panlalawigan which
is an elective office. The prohibition should be construed to refer to a person holding an office, the assumption to which,
while generally determined by an election, is not precluded by appointment. The purpose of the disqualification is to
prevent incumbents of elective offices from exerting political influence and pressure on the management of the affairs of
the cooperative. This purpose cannot be fully achieved if one who is appointed to an elective office is not made subject to
the same disqualification.

A person appointed to an elective office can exercise all powers and prerogatives attached to said office. Thus, an
appointed members of a Sangguniang Panlalawigan, like petitioner, can wield as much pressure and influence on an
electric cooperative, as an elected member thereof.
Petitioner, having been appointed as member of the Sangguniang Panlalawigan of La Union, a position decidedly above
the rank of Barangay Captain, cannot remain as Director of LUELCO without violating the spirit and intent of Section 21
P.D. No. 269, as amended, and Section 3(c) Article IV of the By-laws of Electric Cooperatives.
As aptly held in the case of Matabuena vs. Cervantes 38 SCRA 284 (1971). ... What is within the spirit of the law is as
much a part of what is written ... (p. 73, Rollo)
WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit.
SO ORDERED.

G.R. Nos. 154796-97

October 23, 2003

RAYMUNDO A. BAUTISTA @ "OCA", petitioner, vs. HONORABLE COMMISSION ON ELECTIONS, JOSEFINA P.

JAREO, HON. MAYOR RAYMUND M. APACIBLE, FRANCISCA C. RODRIGUEZ, AGRIPINA B. ANTIG, MARIA G.
CANOVAS, and DIVINA ALCOREZA, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order to nullify
Resolution Nos. 5404 and 5584 of the Commission on Elections ("COMELEC") en banc. Resolution No. 54041 dated 23
July 2002 ordered the deletion of Raymundo A. Bautista's ("Bautista") name from the official list of candidates for the
position of Punong Barangay of Barangay Lumbangan, Nasugbu, Batangas ("Lumbangan") in the 15 July 2002 elections.
Resolution No. 55842 dated 10 August 2002 provided for the policy of the COMELEC regarding proclaimed candidates
found to be ineligible for not being registered voters in the place where they ran for office.
The Facts
On 10 June 2002, Bautista filed his certificate of candidacy for Punong Barangay in Lumbangan for the 15 July 2002
barangay elections. Election Officer Josefina P. Jareo ("Election Officer Jareo") refused to accept Bautista's certificate
of candidacy because he was not a registered voter in Lumbangan. On 11 June 2002, Bautista filed an action for
mandamus against Election Officer Jareo with the Regional Trial Court of Batangas, Branch 14 ("trial court").3 On 1 July
2002, the trial court ordered Election Officer Jareo to accept Bautista's certificate of candidacy and to include his name in
the certified list of candidates for Punong Barangay. The trial court ruled that Section 7 (g) of COMELEC Resolution No.
48014 mandates Election Officer Jareo to include the name of Bautista in the certified list of candidates until the
COMELEC directs otherwise.5 In compliance with the trial court's order, Election Officer Jareo included Bautista in the
certified list of candidates for Punong Barangay. At the same time, Election Officer Jareo referred the matter of Bautista's
inclusion in the certified list of candidates with the COMELEC Law Department on 5 July 2002. 6 On 11 July 2002, the
COMELEC Law Department recommended the cancellation of Bautista's certificate of candidacy since he was not
registered as a voter in Lumbangan. The COMELEC en banc failed to act on the COMELEC Law Department's
recommendation before the barangay elections on 15 July 2002.
During the 15 July 2002 barangay elections, Bautista and private respondent Divina Alcoreza ("Alcoreza") were
candidates for the position of Punong Barangay in Lumbangan. Bautista obtained the highest number of votes (719) while
Alcoreza came in second with 522 votes, or a margin of 197 votes. Thus, the Lumbangan Board of Canvassers ("Board of
Canvassers")7 proclaimed Bautista as the elected Punong Barangay8 on 15 July 2002. On 8 August 2002, Bautista took
his oath of office as Punong Barangay before Congresswoman Eileen Ermita-Buhain of the First District of Batangas. On
16 August 2002, Bautista again took his oath of office during a mass oath-taking ceremony administered by Nasugbu
Municipal Mayor Raymund Apacible.
Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No. 5584 on 10 August 2002
("COMELEC Resolutions"). In Resolution No. 5404, the COMELEC en banc resolved to cancel Bautista's certificate of
candidacy. The COMELEC en banc directed the Election Officer to delete Bautista's name from the official list of
candidates. The dispositive portion of Resolution No. 5404 reads:
Considering the foregoing, the Commission, RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation, as
follows:
1. To DENY due course to/or cancel the certificates of candidacy of the following:
A. For Barangay Officials:
1. CONRADO S. PEDRAZA - Navotas
2. PIO B. MALIGAYA - Sampaga

3. PATERNO H. MENDOZA - Sampaga

all of Balayan, Batangas.
B. a. RAY OCA A. BAUTISTA, candidate for Punong Barangay of Brgy. Lumbangan, Nasugbu, Batangas, for not being
registered voters of barangays where they are running for an office;
2. To DIRECT the Election Officers of Balayan, Batangas and Nasugbu, Batangas, to delete their names in the official list
of candidates in their respective Barangays without prejudice to the filing of complaint against them for misrepresentation
under Section 74 of the Omnibus Election Code if the evidence so warrants.
Let the Law Department implement this resolution.
On the other hand, Resolution No. 5584 expressed COMELEC's policy regarding proclaimed candidates found to be
ineligible for not being registered voters in the place of their election, thus:
ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE
PLACE WHERE THEY WERE ELECTED.
(a) For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled by virtue of a
Resolution of the Commission En Banc albeit such Resolution did not arrive on time.
1. To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting the name of the
candidate whose certificate of candidacy was denied due course;
2. To DIRECT the candidate whose name was ordered deleted to cease and desist from taking his oath of office or from
assuming the position to which he was elected, unless a temporary restraining order was issued by the Supreme Court;
and
3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting
the Certificate of Canvass of Proclamation.
(b) For a proclaimed candidate who is subsequently declared disqualified by the Commission in the disqualification case
filed against him prior to his proclamation.
1. To DIRECT the proclaimed disqualified candidate to cease and desist from taking his oath of office or from assuming
the position to which he was elected, unless a temporary restraining order was issued by the Supreme Court; and
2. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates and correcting
the Certificate of Canvass of Proclamation.
(c) For a proclaimed candidate who is found to be ineligible only after his proclamation (i.e., There is no Resolution
denying due course to or canceling his certificate of candidacy and there is no petition for disqualification pending against
him before his proclamation.)
1. To DISMISS any and all cases questioning the eligibility of such candidate for LACK OF JURISDICTION, the proper
remedy being a quo warranto case before the metropolitan or municipal trial court.
In a letter dated 19 August 2002,9 COMELEC Commissioner Luzviminda Tancangco directed Election Officer Jareo to
(1) delete the name of Bautista from the official list of candidates for Punong Barangay of Barangay Lumbangan; (2) order
the Board of Canvassers of Lumbangan to reconvene for the purpose of proclaiming the elected Punong Barangay with
due notice to all candidates concerned; and (3) direct the proclaimed disqualified candidate Bautista to cease and desist
from taking his oath of office or from assuming the position which he won in the elections, citing COMELEC Resolution
Nos. 5404 and 5584. Consequently, Election Officer Jareo issued on 20 August 2002 an Order10 deleting the name of
Bautista from the list of candidates for Punong Barangay. The Order also prohibited Bautista from assuming the position
and discharging the functions of Punong Barangay of Lumbangan pursuant to the COMELEC Resolutions. The Board of
Canvassers reconvened on 23 August 2002 and after making the necessary corrections in the Certificate of Canvass of
Votes, proclaimed Alcoreza as the winning Punong Barangay.11 Alcoreza thus assumed the post of Punong Barangay of
Lumbangan.

On 26 August 2002, Bautista wrote a letter to COMELEC requesting the latter for reconsideration of the COMELEC
Resolutions.
On 9 September 2002, while his letter for reconsideration was still pending with the COMELEC, Bautista filed this petition
for certiorari and prohibition with a prayer for the issuance of a temporary restraining order.
The Issues
The issues raised are:
1. Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of jurisdiction when
it issued Resolution Nos. 5404 and 5584;
2. Whether the COMELEC deprived Bautista of due process when the COMELEC en banc issued Resolution Nos. 5404
and 5584; and
3. Whether it was proper to proclaim Alcoreza as Punong Barangay in view of the alleged disqualification of the winning
candidate Bautista.
The Court's Ruling
Before considering the merits of the case, we shall first resolve the procedural questions raised by respondents.
Respondents contend that a motion for reconsideration of the assailed COMELEC Resolutions is a prerequisite to the
filing of a petition for certiorari and prohibition. Absent any extraordinary circumstances, a party who has filed a motion for
reconsideration should wait for the resolution of the motion before filing the petition for certiorari. Respondents allege that
the instant petition is premature because Bautista has a pending motion for reconsideration of the COMELEC
Resolutions. Respondents claim that Bautista filed the instant petition barely two weeks after filing the motion for
reconsideration with the COMELEC en banc without waiting for the resolution of his motion.12
The contention of respondents is wrong. The case13 cited by respondents refers to a motion for reconsideration pending
before the COMELEC en banc seeking the reconsideration of a resolution rendered by a COMELEC division. Rule 19 of
the 1993 COMELEC Rules of Procedure allows a motion to reconsider a decision, resolution, order, or ruling of a division.
However, Section 1 (d), Rule 13 of the 1993 COMELEC Rules of Procedure prohibits a motion to reconsider a resolution
of the COMELEC en banc except in cases involving election offenses. As held in Angelia v. Commission on Elections: 14
We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question is
not subject to reconsideration and, therefore, any party who disagreed with it only had one recourse, and that was to file a
petition for certiorari under Rule 65 of the Rules of Civil Procedure. Rule 13, 1 of the COMELEC Rules of Procedure
provides:
What Pleadings are Not Allowed. - The following pleadings are not allowed:
...
d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;
...
As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution was
not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. For
him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a petition for
certiorari with this Court to run and expire.
The instant controversy involves resolutions issued by the COMELEC en banc which do not pertain to election offenses.
15
Hence, a special civil action for certiorari is the proper remedy in accordance with Section 2, Rule 64 of the Rules of
Court which provides:
SEC. 2. Mode of review. - A judgment or final order or resolution of the Commission on Elections and the Commission on

Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 except as hereinafter
provided. (Emphasis supplied)
Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of jurisdiction in
issuing Resolution Nos. 5404 and 5584
Bautista argues that without any disqualification case formally filed against him, the COMELEC has no jurisdiction to take
cognizance of his case. The COMELEC cannot motu proprio act on the issue of his alleged lack of qualification. Even
assuming that there was a disqualification case filed against him, it is the COMELEC sitting in division which has
16
jurisdiction and not the COMELEC en banc.
On the other hand, respondents allege that the Constitution vests the COMELEC with the power to enforce and
administer all laws and regulations relative to the conduct of elections. The Constitution thus empowers the COMELEC to
pass upon the qualification of candidates for elective office. Furthermore, respondents submit that the COMELEC's
17
jurisdiction to cancel the certificate of candidacy of disqualified candidates is already settled jurisprudence.
Respondents cited cases to support their claim that the COMELEC has jurisdiction to cancel the certificates of candidacy
of disqualified candidates. However, the COMELEC heard these cases first in division and not en banc in the first
instance.
In Garvida v. Sales, Jr.,18 the Court held that it is the COMELEC sitting in division and not the COMELEC en banc which
has jurisdiction over petitions to cancel a certificate of candidacy. The Court held:
x x x The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a
certificate of candidacy, viz:
"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel
a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that
the candidate has made a false material representation in his certificate. The petition may be heard and evidence
received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself.
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the
COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc
when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division.
Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved
by the COMELEC en banc.
It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of
the said Rules thus:
"Sec. 3. The Commission in Sitting in Divisions. - The Commission shall sit in two (2) Divisions to hear and decide
protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens' arms of the Commission."
In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It
therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order
of May 2, 1996. (Emphasis supplied)
In this case, Election Officer Jareo reported to the COMELEC Law Department Bautista's ineligibility for being a nonregistered voter. The COMELEC Law Department recommended to the COMELEC en banc to deny due course or to
cancel Bautista's certificate of candidacy. The COMELEC en banc approved the recommendation in Resolution No. 5404
dated 23 July 2002.

A division of the COMELEC should have first heard this case. The COMELEC en banc can only act on the case if there is
a motion for reconsideration of the decision of the COMELEC division. Hence, the COMELEC en banc acted without
jurisdiction when it ordered the cancellation of Bautista's certificate of candidacy without first referring the case to a
division for summary hearing.
The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of
the COMELEC. Cancellation proceedings involve the COMELEC's quasi-judicial functions. The Court discussed the
difference between administrative and quasi-judicial functions in Villarosa v. Commission on Elections:19
In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that
(t)he term "administrative" connotes, or pertains, to "administration, especially management, as by managing or
conducting, directing or superintending, the execution, application, or conduct of persons or things." It does not entail an
opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.
While a "quasi-judicial function" is
A term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their
official action and to exercise discretion of a judicial nature. (Emphasis supplied)
In the exercise of its adjudicatory or quasi-judicial powers, the Constitution mandates the COMELEC to hear and decide
cases first by division and upon motion for reconsideration, by the COMELEC en banc. 20 In Baytan v. COMELEC,21 the
Court expounded on the administrative and quasi-judicial powers of the COMELEC. The Court explained:
Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial
powers. The COMELEC's administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C.
The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc
or in division. The Constitution merely vests the COMELEC's administrative powers in the "Commission on Elections,"
while providing that the COMELEC "may sit en banc or in two divisions." Clearly, the COMELEC en banc can act directly
on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the
1973 and 1987 Constitutions.
On the other hand, the COMELEC's quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit:
"Section 2. The Commission on Elections shall exercise the following powers and functions:
xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable."
The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that
all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the motion
for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa, that the
COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the
COMELEC exercises its quasi-judicial powers. (Emphasis supplied)
Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a
certificate of candidacy must be heard summarily after due notice. It is thus clear that cancellation proceedings involve the
exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide. More so in
this case where the cancellation proceedings originated not from a petition but from a report of the election officer
regarding the lack of qualification of the candidate in the barangay election. The COMELEC en banc cannot short cut the
proceedings by acting on the case without a prior action by a division because it denies due process to the candidate.

Whether the COMELEC deprived Bautista of due

process when it issued Resolution Nos. 5404 and 5584
Bautista alleges that the COMELEC denied him due process because there was no notice and hearing prior to the
issuance of Resolution Nos. 5404 and 5584. He became aware of the issuance of the COMELEC Resolutions only when
he received a copy of Election Officer Jareo's Order dated 20 August 2002 ordering him to cease and desist from
assuming the position of Punong Barangay.22
The Solicitor General submits that the COMELEC did not deprive Bautista of due process. Bautista had the chance to be
heard and to present his side when he filed a letter to the COMELEC en banc requesting reconsideration of the
Resolutions.23
This Court has explained the nature of due process in Stayfast Philippines Corporation v. NLRC:24
The essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of.
A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the
parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon
is absolute lack of notice and hearing. x x x (Emphasis supplied)
The opportunity to be heard does not only refer to the right to present verbal arguments in court during a formal hearing. 25
There is due process when a party is able to present evidence in the form of pleadings. 26 However, the COMELEC did not
give Bautista such opportunity to explain his side. The COMELEC en banc issued Resolution Nos. 5404 and 5584 without
prior notice and hearing.
We cannot ignore the importance of prior notice and hearing. Severe consequences attach to the COMELEC Resolutions
which not only ordered the cancellation of the certificate of candidacy of Bautista but also the annulment of his
proclamation as Punong Barangay. What is involved here is not just the right to be voted for public office but the right to
hold public office. As held in Sandoval v. Commission on Elections:27
x x x Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98-143 and SPC
No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the
proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process
demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence
to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to
support his side of the case and that the evidence should be considered in the adjudication of the case. The facts show
that COMELEC set aside the proclamation of petitioner without benefit of prior notice and hearing and it rendered the
questioned order based solely on private respondent's allegations. We held in Bince, Jr. vs. COMELEC:
"Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section
1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a
protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires due
notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or
suspend the proclamation of any candidate, we had ruled in Farinas vs. Commission on Elections, Reyes vs. Commission
on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a
proclamation or suspend the effects of a proclamation without notice and hearing." (Emphasis supplied)
The fact that Bautista was able to file a letter with the COMELEC en banc requesting for reconsideration of the
Resolutions is beside the point. To reiterate, the 1993 COMELEC Rules of Procedure prohibit a motion for reconsideration
of a COMELEC en banc resolution except in cases involving election offenses.
Respondents likewise submit that there was no need for presentation and evaluation of evidence since the issue of
whether Bautista was a registered voter is easily resolved by looking at the COMELEC registration records. 28 This
reasoning fails to consider the instances where a voter may be excluded through inadvertence or registered with an
erroneous or misspelled name.29 Indeed, if it was just a simple matter of looking at the record of registered voters, then
the COMELEC would not have included Section 7 (g)30 in its Resolution No. 4801. This Section allows candidates who
are not registered voters to be included in the certified list of candidates until the COMELEC directs otherwise.

Rule 23 of the 1993 COMELEC Rules of Procedure provides for the twin requirements of prior notice and hearing, as
follows:
Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy
Section 1. Grounds for Denial of Certificate of Candidacy. - A petition to deny due course to or cancel, a certificate of
candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or
a duly registered political party, organization, or coalition of political parties on the exclusive ground that any material
representation contained therein as required by law is false.
Sec. 2. Period to File Petition. - The petition must be filed within five (5) days following the last day for the filing of
certificates of candidacy.
Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due notice.
Sec. 4. Delegation of Reception of Evidence. - The Commission may designate any of its officials who are members of the
Philippine Bar to hear the case and receive evidence. (Emphasis supplied)
A summary proceeding does not mean that the COMELEC could do away with the requirements of notice and hearing.
The COMELEC should have at least given notice to Bautista to give him the chance to adduce evidence to explain his
side in the cancellation proceeding. The COMELEC en banc deprived Bautista of procedural due process of law when it
approved the report and recommendation of the Law Department without notice and hearing. 31
Whether Bautista was a registered voter of Barangay
Lumbangan when he filed his certificate of candidacy
The events32 that transpired after the 15 July 2002 elections necessitate the early resolution of this case. The Court
deems it proper not to remand the case to the COMELEC to avoid further delay. The Court will resolve this case based on
the pleadings submitted by the parties.
Under the Revised Administrative Code,33 one of the qualifications of an elective municipal officer is that he must be a
"qualified voter" in his municipality. Section 2174 of the Revised Administrative Code reads:
Section 2174. Qualifications of elective municipal officer. - An elective municipal officer must, at the time of the election,
be a qualified voter in his municipality and must have been resident therein for at least one year, and must not be less
than twenty-three years of age. He must also be able to read and write intelligently either English, Spanish, or the local
dialect. (Emphasis supplied)
On the other hand, under the Republic Act No. 2370,34 otherwise known as the Barrio Charter, a candidate for the barrio
35
council must be a "qualified elector." Section 8 of the Barrio Charter reads:
Section 8. Qualifications for election to the barrio council. - Candidates for election to the barrio council:
(a) Must be a qualified elector and must have been a resident of the barrio for at least six months prior to the election; and
(b) Must not have been convicted of a crime involving moral turpitude or of a crime which carries a penalty of at least one
year imprisonment. (Emphasis supplied)
Thus, in the 1958 case of Rocha v. Cordis,36 the Court held that a candidate for an elective municipal office did not have
to be a registered voter in the municipality to qualify to run for an elective municipal office. Citing the earlier case of Yra v.
Abao,37 the Court ruled that the words "qualified elector" meant a person who had all the qualifications provided by law to
be a voter and not a person registered in the electoral list. In the same vein, the term "qualified" when applied to a voter
does not necessarily mean that a person must be a registered voter.
38

However, under the Local Government Code of 1991, which took effect on 1 January 1992, an elective local official,
including a Punong Barangay, must not only be a "qualified elector" or a "qualified voter," he must also be a "registered
voter."39 Section 39 of the Local Government Code provides:

SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write Filpino or any other local language or dialect.
xxx
(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen
(18) years of age on election day.
xxx
These qualifications were reiterated in Section 2 of COMELEC Resolution No. 4801 dated 23 May 2002 which prescribed
the guidelines on the filing of certificates of candidacy in connection with the 15 July 2002 elections. Section 2 reads:
Sec. 2. Qualifications. - (a) Candidates for Punong Barangay and Sangguniang Barangay Kagawad must be:
(1) Filipino citizens;
(2) At least 18 years old on election day;
(3) Able to read and write Pilipino or any local language or dialect; and
(4) Registered voters of the barangay where they intend to run for office and residents thereof for at least one (1) year
immediately preceding the day of the election. (Emphasis supplied)
Section 7 of COMELEC Resolution No. 4801 likewise requires the Election Officer to verify whether the candidates are
registered voters and possess all the qualifications of a candidate. Thus, Section 7 (f) and (g) read:
(f) Before the preparation of the certified lists of candidates it shall be the duty of the Election Officer to: (1) verify whether
all candidates for barangay and sangguniang kabataan positions are registered voters of the barangay where they file
their certificates of candidacy; and (2) examine the entries of the certificates of candidacy and determine on the basis of
said entries whether the candidate concerned possesses all the qualifications of a candidate.
(g) If there are candidates who are not registered voters in the barangay where they run for barangay or sangguniang
kabataan positions or do not possess all the other qualifications of a candidate, he shall make the corresponding report by
REGISTERED MAIL and by RUSH TELEGRAM to the Law Department of the Commission within three (3) days from the
last day for filing the certificates of candidacy, copy furnished the Provincial Election Supervisor and the Regional Election
Director. The names of said candidates, however, shall still be included in the certified lists of candidates until the
Commission directs otherwise. (Emphasis supplied)
It is thus clear that the law as it now stands requires a candidate for Punong Barangay to be a registered voter of the
barangay where he intends to run for office.
Bautista admitted in his affidavit40 dated 24 August 2002 that he was not a registered voter of Barangay Lumbangan, thus:
AFFIDAVIT
That I, RAYMUNDO A. @ OCA BAUTISTA, of legal age, married, Mechanical Engineer by profession, Filipino citizen and
have been residing at Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas, after being duly sworn according
to law depose and say:
1. That I was born at Barangay Tumalim, Nasugbu, Batangas, on March 15, 1954 and upon reaching the age of four (4)
our family transferred to Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas and I have been permanently
residing thereat since that time up to the present, and this fact can be attested to by our immediate neighbors.
2. That since the time I reached the age of majority, I have participated both in the National and Local Elections up to the
year 1995 and as matter of fact I ran for the Office of member of the Municipal Council in the year 1992 Elections.

3. Sometime during the late part of the year 1995, I went to the United States of America scounting (sic) for a good job but
I was not able to find one so I went home in the year 2000 but again believing that I could land a job in the United States, I
again went there but I was not able to get a job therein and so I went back to the Philippines in the year 2001 but I found
out that my name was no longer included in the list of registered voters at Barangay Lumbangan, Nasugbu, Batangas.
4. Sometime in the year 2002, I personally went to the Office of the Local Election Registrar particularly talking to Miss
Josefina P. Jareo in order to register because as I know, to run for the Office of Barangay Chairman, I have to be a
registered voter in our Barangay.
5. However, I was denied registration because according to her, her Office is not open for registration at any time and I
should wait for the General Registration and for that reason I was not able to register.
xxx
11. That had I known that there is a provision in Section 52, under paragraph (k) A, when Miss Josefina P. Jareo denied
my request for registration as a voter, I would have filed a Petition for Mandamus with the proper Court so that she can be
ordered to register me as a voter in Barangay Lumbangan, Nasugbu, Batangas so that any and all technicality may be
avoided."(Emphasis supplied)
According to Bautista's affidavit, he was practically out of the country from 1995 until 2001. When the certified list of voters
ceased to be effective and operative after the barangay elections in 1997, qualified voters had to register again to vote in
any election. Apparently, Bautista failed to register during the general registration of voters conducted by the COMELEC
in 1997 since he was still out of the country during that time. Republic Act No. 8189 ("The Voter's Registration Act of
1996") provides for a system of continuing registration of voters. Thus, Bautista should have registered anew in the office
of the Election Officer when he came back to the Philippines in 2001 and learned that his name was no longer included in
the roster of registered voters. The pertinent provisions of RA No. 8189 read:
SEC. 7. General Registration of Voters. - Immediately after the barangay elections in 1997, the existing certified list of
voters shall cease to be effective and operative. For purposes of the May 1998 elections and all elections, plebiscites,
referenda, initiatives, and recall subsequent thereto, the Commission shall undertake a general registration of voters
before the Board of Election Inspectors on June 14, 15, 21 and 22 and, subject to the discretion of the Commission, on
June 28 and 29, 1997 in accordance with this Act.
SEC. 8. System of Continuing Registration of Voters. - The personal filing of application of registration of voters shall be
conducted daily in the office of the Election Officer during regular office hours. No registration shall, however be
conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before
a special election.
xxx
SEC. 10. Registration of Voters. - A qualified voter shall be registered in the permanent list of voters in a precinct of the
city or municipality where he resides to be able to vote in any election. To register as a voter, he shall personally
accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election
Officer on any date during office hours after having acquired the qualifications of a voter. (Emphasis supplied)
xxx
It is thus clear that Bautista was remiss in his duty to ensure his right to vote and to be voted for public office. As early as
2001, he was already aware that his name was no longer included in the roster of registered voters. Yet, Bautista chose
not to register anew that year despite his knowledge that he needed to register as a voter in the barangay to run for the
office of Punong Barangay.
Bautista alleges that his non-registration as a voter of Barangay Lumbangan was due to the refusal of Election Officer
41
Jareo to register him sometime in January 2002. Aside from his bare allegation that he tried to register in January
2002, Bautista did not proffer any other proof like a duly accomplished application form for registration to substantiate his
claim that he indeed attempted to register anew. On the other hand, Election Officer Jareo denies Bautista's allegations
in her comment filed on 10 October 2002, thus:
COMMENT

COMES NOW Respondent JOSEPINA P. JAREO (sic) and to this Honorable Supreme Court by way of comment to the
Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order, filed by herein
Petitioner, most respectfully states that:
1. Respondent JOSEPINA P. JAREO (sic) is the Election Officer of Nasugbu, Batangas, while petitioner, RAYMUNDO
A. BAUTISTA was one of the candidates for the Barangay Chairman of Barangay Lumbangan, Nasugbu, Batangas, in the
recently concluded barangay elections;
2. Based on the records in our files, petitioner was not and is not a registered voter of Barangay Lumbangan or any other
barangays in Nasugbu, Batangas;
3. There was never an instance during the period starting June 1997 up to December 26, 2001 when registration of voters
for the updating of the Voter's Registration Record had been undertaken by the Commission on Elections on an "on
again/off again" system, did petitioner RAYMUNDO BAUTISTA come to our office to check or ensure that he is still in the
active list of voters of Barangay Lumbangan, i.e., assuming that he was registered as a voter thereof, in the first place;
4. The last day of registration of voters (new or transferee) had been last December 26, 2001 and registration shall
resume again, this coming September 16, 2002. In the meantime, no general registration nor special registration had
been mandated by the Commission on Election (COMELEC, for brevity) between the period December 27, 2001 until
September 15, 2002;
5. I only met petitioner RAYMUNDO BAUTISTA for the first time when he came to our office to file his Certificate of
Candidacy last June 10, 2002, which was the last day set by the COMELEC for the filing of Certificates of Candidacy;
xxx
Bautista was aware when he filed his certificate of candidacy for the office of Punong Barangay that he lacked one of the
qualifications - that of being a registered voter in the barangay where he ran for office. He therefore made a
misrepresentation of a material fact when he made a false statement in his certificate of candidacy that he was a
registered voter in Barangay Lumbangan.42 An elective office is a public trust. He who aspires for elective office should
not make a mockery of the electoral process by falsely representing himself. The importance of a valid certificate of
candidacy rests at the very core of the electoral process.43 Under Section 78 of the Omnibus Election Code, false
representation of a material fact in the certificate of candidacy is a ground for the denial or cancellation of the certificate of
candidacy. The material misrepresentation contemplated by Section 78 refers to qualifications for elective office. A
candidate guilty of misrepresentation may be (1) prevented from running, or (2) if elected, from serving, or (3) prosecuted
for violation of the election laws.44
Invoking salus populi est suprema lex, Bautista argues that the people's choice expressed in the local elections deserves
respect. Bautista's invocation of the liberal interpretation of election laws is unavailing. As held in Aquino v. Commission
45
on Elections:
In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for the
elective position as Representative of Makati City's Second District on the basis of respondent commission's finding that
petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is
necessarily a government of laws. In a republican government those laws are themselves ordained by the people.
Through their representatives, they dictate the qualifications necessary for service in government positions. And as
petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not
even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement
mandated by the fundamental law itself.
Indeed, the electorate cannot amend or waive the qualifications prescribed by law for elective office. The will of the people
46
as expressed through the ballot cannot cure the vice of ineligibility. The fact that Bautista, a non-registered voter, was
elected to the office of Punong Barangay does not erase the fact that he lacks one of the qualifications for Punong
Barangay.
Whether it was proper to proclaim Alcoreza as Punong
Barangay in view of ineligibility of the winning candidate

Bautista subscribes to the view of the Solicitor General that under the law and jurisprudence, the COMELEC cannot
proclaim as winner the second placer in case of ineligibility of the winning candidate.
The Solicitor General submits that the disqualification of the winning candidate Bautista does not result in the
proclamation of Alcoreza who obtained the second highest number of votes because Alcoreza was obviously not the
choice of the electorate. The Solicitor General emphasized that the COMELEC declared Bautista ineligible for the post of
Punong Barangay only after his election and proclamation as the winning candidate.
Respondent Alcoreza, however, alleges that her proclamation as the elected Punong Barangay was legal and valid.
Alcoreza claims her case falls under the exception to the rule that the disqualification of the winning candidate does not
47
entitle the candidate with the next higher number of votes to be proclaimed winner. Alcoreza cites Grego v. COMELEC
which held that the exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the
highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor
of the ineligible candidate.
This Court agrees with the view of the Solicitor General. It is now settled doctrine that the COMELEC cannot proclaim as
winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or
48
49
disqualified. The exception to this well-settled rule was mentioned in Labo, Jr. v. Commission on Elections and
50
reiterated in Grego v. COMELEC. However, the facts warranting the exception to the rule do not obtain in the present
case.
Although the COMELEC Law Department recommended to deny due course or to cancel the certificate of candidacy of
Bautista on 11 July 2002, the COMELEC en banc failed to act on it before the 15 July 2002 barangay elections. It was
only on 23 July 2002 that the COMELEC en banc issued Resolution No. 5404, adopting the recommendation of the
COMELEC Law Department and directing the Election Officer to delete Bautista's name from the official list of candidates.
Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was under the belief that he was
qualified. There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of
Bautista's disqualification.51 The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of
Bautista are stray votes.52 A subsequent finding by the COMELEC en banc that Bautista is ineligible cannot retroact to the
date of elections so as to invalidate the votes cast for him. 53 As held in Domino v. COMELEC:54
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate.
Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not
yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that
allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring
him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere
belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not be
treated as stray, void, or meaningless.
The Local Government Code provides for the rule regarding permanent vacancy in the Office of the Punong Barangay,
thus:
SEC. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a permanent
vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the
governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the
highest ranking sanggunian member or, in the case of his permanent inability, the second highest ranking sanggunian
member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in
the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay member, the highest ranking sangguniang
barangay member, or in the case of his permanent disability, the second highest ranking sanggunian member, shall
become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,

refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the
proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the
immediately preceding local election. (Emphasis supplied)
Since Bautista failed to qualify for the position of Punong Barangay, the highest ranking sangguniang barangay member,
or in the case of his permanent disability, the second highest ranking sangguniang member, shall become the Punong
55
Barangay.
WHEREFORE, we DISMISS the petition. Petitioner Raymundo A. Bautista is ineligible for the position of Punong
Barangay of Barangay Lumbangan for not being a registered voter of Barangay Lumbangan. The proclamation of the
second placer Divina Alcoreza as winner in lieu of Bautista is void. Instead, the highest ranking sangguniang barangay
member of Barangay Lumbangan shall assume the office of Punong Barangay of Lumbangan for the unexpired portion of
the term.
SO ORDERED.

G.R. No. 163776

April 24, 2007

REV. FR. NARDO B. CAYAT, Petitioner, vs. COMMISSION ON ELECTIONS (FIRST DIVISION), COMMISSION ON
ELECTIONS (EN BANC), and THOMAS R. PALILENG, SR., Respondents.
G.R. No. 165736

April 24, 2007

REV. FR. NARDO B. CAYAT, Petitioner, vs. COMMISSION ON ELECTIONS (FIRST DIVISION), COMMISSION ON
ELECTIONS (EN BANC), and THOMAS R. PALILENG, SR., Respondents.
DECISION
CARPIO, J.:
The Case
For our resolution are two petitions for certiorari filed by Rev. Fr. Nardo B. Cayat (Cayat). G.R. No. 163776 is a petition for
certiorari1 of the Resolution dated 12 April 20042 and of the Order dated 9 May 20043 of the First Division of the
Commission on Elections (COMELEC First Division) in SPA Case No. 04-152. The 12 April 2004 Resolution cancelled the
certificate of candidacy of Cayat as mayoralty candidate of Buguias, Benguet in the 10 May 2004 local elections. The 9
May 2004 Order denied Cayats motion for reconsideration for failure to pay the required filing fee.
G.R. No. 165736 is a petition for certiorari 4 of the Order dated 25 October 20045 of the COMELEC First Division also in
SPA Case No. 04-152. The 25 October 2004 Order granted the motion for execution of judgment filed by Thomas R.
Palileng, Sr. (Palileng) and annulled Cayats proclamation. The 25 October 2004 Order also directed (1) the COMELEC
Law Department to implement the dispositive portion of the 12 April 2004 Resolution; (2) the Regional Election Director of
the Cordillera Autonomous Region (CAR) to create a new Municipal Board of Canvassers (MBOC); (3) the new MBOC to
convene and prepare a new Certificate of Canvass for Mayor of Buguias, Benguet by deleting Cayats name and to
proclaim Palileng as the duly elected Mayor of Buguias, Benguet. Feliseo K. Bayacsan (Bayacsan), duly elected ViceMayor of Buguias, Benguet, filed a petition-in-intervention in G.R. No. 165736.
The Facts
Cayat and Palileng were the only candidates for the mayoralty post in Buguias, Benguet in the 10 May 2004 local
elections. Cayat filed his certificate of candidacy on 5 January 2004. On 26 January 2004, Palileng filed a petition for
disqualification against Cayat before the COMELEC Regional Election Office in Baguio City. Docketed as SPA (PES) No.
C04-001, Palilengs petition alleged that:
3. On January 05, 2004, [Cayat] filed his Certificate [of] Candidacy for Mayor for the Municipality of Buguias, Benguet,
Philippines alleging among others as follows:
"I AM ELIGIBLE for the office [I] seek to [be] elected, x x x. I hereby certify that the facts stated herein are true
and correct of my own personal knowledge."
x x x (Underscoring supplied).
Copy of his Certificate of Candidacy is hereto attached and marked as ANNEX "A";
4. The truth of the matter being that [Cayat] is not eligible to run as Mayor having been convicted by final judgment for a
criminal offense by the Municipal Trial Court of Baguio City, Philippines, Branch 2, for the Crime of Forcible Acts of
Lasciviousness docketed as Criminal Case Number 110490. Copies of the Information and the Order of conviction dated
October 03, 2003 is [sic] hereto attached and marked as ANNEX "B" and "C";
5. In fact, [Cayat] is still under probation at the time he filed his Certificate of Candidacy on January 05, 2004 after the
Honorable Court granted his application for probation on November 06, 2003. Copies of the Application for probation
date[d] October 07, 2003 and the Order granting the probation is [sic] hereto attached and marked as ANNEXES "D" and
"E";
6. Despite assumption of obligation imposed by this oath that the facts stated in his Certificate of Candidacy are true to

the best of his knowledge, [Cayat] made misrepresentations and committed acts of perjury when he declared that he is
eligible for the said office while in truth and in fact, Respondent was convicted in the above-mentioned Criminal
Complaint;
7. At the time of filing his Certificate of Candidacy, [Cayat] is disqualified to [sic] said office as Mayor as he is still serving
6
his sentence and/or disqualification was not yet removed or cured[.] (Emphasis in the original)
Atty. Julius D. Torres (Atty. Torres), COMELEC Provincial Election Supervisor for Baguio-Benguet, served summons on
Cayat by telegram through the Telecommunications Office on 26 January 2004. However, Cayat did not personally
receive the telegram. The Telecommunications Office of Abatan, Buguias delivered the telegram to Ferdinand Guinid
(Guinid). Atty. Torres also instructed Mr. Francis Likigan, Election Officer of Buguias, Benguet, to personally inform Cayat
to file his answer within three days from receipt of notice. Cayat did not file an answer.
The Ruling of the COMELEC
Despite Cayats non-participation, Atty. Torres proceeded with SPA (PES) No. C04-001. Palileng filed his position paper
on 16 February 2004. Atty. Torres then resolved the issues based on available records. Atty. Torres also submitted the
entire record of the case together with his findings and recommendation to the Office of the Clerk of the COMELEC on 24
February 2004. Pertinent portions of Atty. Torres report read:
It is important to note that based on the petition, [Palileng] seeks to disqualify [Cayat] for material misrepresentation in his
certificate of candidacy. This can be deduced from the fact that the petitioner cited in his petition that the respondent
declared that he is eligible for the office he is seeking to be elected where in fact, [Cayat] is not eligible due to his
conviction of a criminal offense. This being [the case,] the petition should have been a petition to deny due course or to
cancel certificate of candidacy which should have been filed within five (5) days from the last day of filing certificates of
candidacy. Obviously, a petition to deny due course could no longer be filed at the time the petition was received.
However, it is important that the petition alleged the disqualification of the respondent by reason of his conviction of a
criminal offense, which is the main reason why the petitioner filed this case. On this note, the applicable provision of law is
now Sec. 40(a) of R.A. 7160 otherwise known as the Local Government Code. Said provision of law reads:
Sec. 40. Disqualifications. The following persons are disqualified from running fro [sic] any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude for an offense punishable by one (1) year
or more of imprisonment within [two] (2) years after serving sentence;
(b) xxx xxx xxx
With this, the issue of disqualification rests on Sec. 40(a) of the Local Government Code and not on the material
misrepresentation in the certificate of candidacy.
The issue now to be resolved is whether or not the crime of Forcible Acts of Lasciviousness, to which [Cayat] was
convicted by final judgment, is a crime involving moral turpitude so as to bring the issue within the coverage of Section
40(a) of the Local Government Code.
The conviction of [Cayat] was never questioned. In fact [Cayat] accepted his conviction by applying for probation which
was granted on November 6, 2003. It is already well settled that a judgment of conviction in a criminal case ipso facto
attains finality when the accused applies for probation. This brings us to the issue of moral turpitude.
Based on the Information filed, [Cayat] was convicted of Forcible Acts of Lasciviousness when he, with lewd desire and/or
with intention to obtain sexual gratification, did then and there willfully, unlawfully and feloniously hold the complainants
[AAA] arm which he placed on his crotch, grab[bed] and embraced her, as well as kiss[ed] her on the lips and mashed her
breasts and performed similar acts of indecency, with force and intimidation and against the will of complainant.
Moral turpitude had been defined as everything which is done contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general,
contrary to justice, honesty, modesty or good morals. (IRRI vs[.] NLRC, May 12, 1993)
Moral turpitude implies something immoral in itself, regardless of the fact that it is punishable by law or not. It is not merely

mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute
fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but those
initially lies in their being positively prohibited (Dela Torre vs[.] COMELEC and Marcial Villanueva, G.R. No. 121592, July
5, 1996).
From the definition of moral turpitude, it can be determined that the acts of [Cayat] involved moral turpitude. His acts fell
short of his inherent duty of respecting his fellowmen and the society. This was aggravated by the fact that [Cayat] is a
priest. The crime of acts of lasciviousness clearly involves moral turpitude.
Therefore, the respondent is convicted of a crime involving moral turpitude. Applying Sec. 40(a) of the Local Government
7
Code, it is recommended that [Cayat] be disqualified from running as Mayor of the Municipality of Buguias, Benguet.
In its Resolution of 12 April 2004 of the case docketed as SPA Case No. 04-152, the COMELEC First Division found no
compelling reason to disturb Atty. Torres findings and consequently cancelled Cayats certificate of candidacy. The
dispositive portion of the COMELEC First Divisions Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES to CANCEL the Certificate of
Candidacy of Respondent REV. FATHER NARDO B. CAYAT.
The Law Department is directed to CANCEL the Certificate of Candidacy of REV. FR. NARDO B. CAYAT as mayoralty
candidate in Buguias, Benguet in connection with the May 10, 2004 Elections.
SO ORDERED.8
On 13 April 2004, Cayat received a telegram from the Telecommunications Office through an unnamed person.
Apparently, the Telecommunications Office asked the unnamed person to deliver the telegram to Cayat. In his affidavit,
Cayat stated that on 13 April 2004, someone gave "me a telegram which I received. Said telegram which I read later,
informed me that the COMELEC will promulgate its decision on April 12, 2004, at the Comelec Session Hall in Intramuros,
Manila."9
The officer in charge of the Telecommunications Office in Buguias, Benguet, Mr. Rufino G. Cabato, certified that he
delivered the telegram to Guinid. He further stated that Guinid, Cayats cousin, voluntarily accepted to deliver the telegram
to Cayat.
Cayat filed a motion for reconsideration before the COMELEC En Banc on 16 April 2004. Cayat argued that the
COMELEC First Division Resolution of 12 April 2004 is void because the COMELEC did not acquire jurisdiction over him.
Cayat also argued that Section 5 of COMELEC Resolution No. 6452 (Resolution No. 6452) allowing service of summons
by telegram is void.
In an order dated 9 May 2004, the COMELEC First Division dismissed Cayats motion for reconsideration for failure to pay
the required filing fee. In the local elections held on 10 May 2004, Cayats name remained on the COMELECs list of
10
candidates. In the Certificate of Canvass of Votes dated 12 May 2004, Cayat received 8,164 votes. Palileng, on the
11
other hand, received 5,292 votes. Cayat was thus proclaimed the duly elected Mayor of Buguias, Benguet. Cayat took
his oath of office on 17 May 2004.
Meanwhile, on 13 May 2004, Cayat received a photocopy of the 9 May 2004 order of the COMELEC First Division
denying his motion for reconsideration for his failure to pay the filing fee. On 26 May 2004, Cayat filed the petition
docketed as G.R. No. 163776 before this Court.
On 29 July 2004, pending the resolution of G.R. No. 163776, Palileng filed a petition for annulment of proclamation with a
prayer for the issuance of an injunctive relief, docketed as SPC No. 04-043, against the MBOC of Buguias and Cayat
before the COMELEC Second Division. On 28 August 2004, the COMELEC Second Division dismissed Palilengs petition
pursuant to COMELEC Omnibus Resolution No. 7257 (Resolution No. 7257). Resolution No. 7257 enumerated the cases
which survived from among those filed before the Clerk of the COMELEC in the 10 May 2004 elections and which
required proceedings beyond 30 June 2004.12
On 29 July 2004, pending resolution by the COMELEC of SPC No. 04-043, Palileng also filed a motion for execution of
judgment in SPA Case No. 04-152. On 10 August 2004, the COMELEC First Division issued an order setting on 18
August 2004 the hearing on the motion for execution. Only Palilengs counsel appeared during the hearing. The parties

were instructed to file their respective memoranda within five days. In an order dated 25 October 2004, the COMELEC
First Division granted the motion for execution and disposed of the case as follows:
WHEREFORE, premises considered, the Commission (First Division) hereby GRANTS the instant Motion for Execution of
Judgment and ANNULS the proclamation of Respondent Rev. Fr. Nardo B. Cayat. Accordingly, it directs as follows:
1. For the Law Department to implement the disposition of this Commission (First Division) in its Resolution promulgated
last April 12, 2004 and affirmed when it denied Respondents Motion for Reconsideration in its Order of May 9, 2004, for it
to "CANCEL the Certificate of Candidacy of Rev. Father Nardo B. Cayat as mayoralty candidate in Buguias, Benguet in
connection with the May 10, 2004 Elections["];
2. For the Regional Election Director of Cordillera Autonomous Region (CAR) to create a new Municipal Board of
Canvassers;
3. After due notice to the parties, for the Board to convene and prepare a new Certificate of Canvass for mayor of
Buguias, Benguet deleting therefrom the name of disqualified candidate Rev. Fr. Nardo B. Cayat and immediately
proclaim petitioner Thomas R. Palileng, Sr. as the duly elected mayor of Buguias, Benguet. 13
Cayat filed an omnibus motion before the COMELEC First Division on 3 November 2004.1vvphi1.nt Cayat prayed for
the recall of the 25 October 2004 order and for the suspension of further proceedings while the resolution of G.R. No.
163776 remains pending before this Court. The hearing on the motion was set for 12 November 2004.14
However, on 4 November 2004, Atty. Armando Velasco, Regional Director for the CAR, sent a notice that the new MBOC
would convene on 12 November 2004 for the implementation of the COMELEC First Divisions 25 October 2004 order. On
10 November 2004, Cayat filed a petition for certiorari before this Court which was docketed as G.R. No. 165736. Cayat
prayed that (1) a temporary restraining order or a writ of preliminary injunction be issued to enjoin COMELEC and its
agents from enforcing the 25 October 2004 order and the 4 November 2004 notice; (2) an order be issued reversing and
setting aside the 25 October 2004 order and the 4 November 2004 notice; and (3) an order be issued directing the
COMELEC to suspend proceedings in SPA Case No. 04-152 until G.R. No. 163776 is resolved by this Court with finality.
On 12 November 2004, the new MBOC executed the COMELEC First Divisions order of 25 October 2004 and proclaimed
Palileng as Mayor of Buguias, Benguet. Palileng took his oath of office on the same day.
Bayacsan, elected Vice-Mayor of Buguias, Benguet, filed his petition-in-intervention in G.R. No. 165736 on 17 November
2004 before this Court. For his part, Bayacsan prayed that the 25 October 2004 order and the 12 November 2004
proclamation be nullified and that he be declared as the rightful Mayor of Buguias, Benguet.
The Issues
The present petition seeks to determine the legality of the orders cancelling Cayats Certificate of Candidacy, nullifying
Cayats proclamation as Mayor of Buguias, Benguet, and declaring Palileng as Mayor of Buguias, Benguet.
The Ruling of the Court
The petition has no merit.
On the Late Filing of Cayats Motion for Reconsideration
Cayat learned about the promulgation of the COMELEC First Division Resolution of 12 April 2004 and its contents through
two separate telegrams. He narrates the circumstances of his receipt of these telegrams as follows:
10. On April 13, 2004, I took a jeepney ride to Loo, Buguias, to attend a farmers congress. When the jeep I was riding in
made a stop in front of the Linos Grocery in Abatan, somebody (who was not an employee of the Telecom Office) came
rushing to give me a telegram which I received. Said telegram, which I read later, informed me that the Comelec will
promulgate its decision on April 12, 2004, at the Comelec Session Hall in Intramuros, Manila;
11. I could not make a trip to my lawyer in Baguio City until April 15, 2004, because he was appearing with Attorneys
Samson Alcantara and Rene Gorospe before the Supreme Court which was holding oral arguments in Baguio City;

12. On April 15, 2004, at about 3:00 oclock, I received a text message in the office of my lawyer that a telegram was
served to Mr. Simon Guinid. The message was forwarded. It gave information that my Certificate of Candidacy (COC) had
been canceled by the First Division of the Comelec;
xxxx

15

On 16 April 2004, Cayat filed a motion for reconsideration of the Resolution of 12 April 2004 before the COMELEC en
banc. Cayat alleged that although the Resolution was promulgated on 12 April 2004, he was notified by telegram only on
13 April 2004. Hence, Cayat posits, he had until 16 April 2004 to move for reconsideration.
Cayat claims that he was not served the advance notice of promulgation required in Section 7 of Resolution No. 6452,16
stating:
Promulgation. The promulgation of a decision or resolution of the Commission or a Division shall be made on a date
previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered
mail or by telegram or fax.
17

The three-day period from promulgation of the resolution in Section 8 of Resolution No. 6452, within which to file a
motion for reconsideration, presupposes that the advance notice in Section 7 was served on Cayat.
The COMELEC sent the advance notice to Cayat by telegram to "Bayoyo, Buguias, Benguet," the address Cayat wrote on
the blank space provided beside "RESIDENCE" in the Certificate of Candidacy he filed with the COMELEC. 18 The
COMELEC sent the telegram to Cayat before the date of promulgation. Cayat, who was traveling throughout Buguias at
the time, admitted in his affidavit that on 13 April 2004, someone gave "me a telegram which I received. Said telegram
which I read later, informed me that the COMELEC will promulgate its decision on April 12, 2004, at the Comelec Session
Hall in Intramuros, Manila."19
Clearly, by the wordings of the telegram, the COMELEC sent the telegram to the residence address of Cayat before 12
April 2004, the date of promulgation. It is immaterial if Cayat personally received the telegram after 12 April 2004 as long
as the telegram was sent and delivered before 12 April 2004 to the residence address Cayat indicated in his Certificate of
Candidacy.
However, there is no point belaboring this issue, which need not even be resolved. Whether the telegram reached the
residence address of Cayat before or after the date of promulgation will not affect the outcome of this case. Cayat failed to
pay the prescribed filing fee when he filed his motion for reconsideration on 16 April 2004. There is no dispute that the
failure to pay the filing fee made the motion for reconsideration a mere scrap of paper, as if Cayat did not file any motion
for reconsideration at all.
Thus, the disqualification of Cayat became final three days after 13 April 2004, based on Cayats own allegation that he
received the telegram only on 13 April 2004 and that he had until 16 April 2004 to file a motion for reconsideration.
Clearly, the COMELEC First Divisions Resolution of 12 April 2004 cancelling Cayats Certificate of Candidacy due to
disqualification became final on 17 April 2004, or 23 days before the 10 May 2004 elections.
On Cayats Failure to Pay the Filing Fee
for His Motion for Reconsideration
In an order dated 9 May 2004, the COMELEC First Division denied Cayats motion for reconsideration for failure to pay
the required filing fee. Cayat made a fatal error: he failed to pay the required filing fee for his motion for reconsideration.
Although there is nothing in Resolution No. 6452 which mentions the need to pay a fee for filing a motion for
reconsideration, Section 7 of Rule 40 of the 1993 COMELEC Rules of Procedure imposes a fee of P300 for filing a motion
for reconsideration of a decision, order, or resolution. The succeeding section further provides that the COMELEC may
refuse to take action until it is paid.
Cayats motion for reconsideration is merely pro forma because Cayat failed to pay the prescribed filing fee within the
20
prescribed period. This brings us to the conclusion that it is as if no motion for reconsideration had been filed, resulting
in the 12 April 2004 Resolution of the COMELECs First Division attaining finality. The COMELEC First Divisions 12 April
2004 Resolution declaring Cayats disqualification became final on 17 April 2004, long before the 10 May 2004 local

elections.
On Palilengs Proclamation
There is no doubt as to the propriety of Palilengs proclamation for two basic reasons.
First, the COMELEC First Divisions Resolution of 12 April 2004 cancelling Cayats certificate of candidacy due to
21
disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed filing fee. Thus,
Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twentythree days before
election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only
candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The
doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case
because Palileng is not a second-placer but the only placer. Consequently, Palilengs proclamation as Mayor of Buguias,
Benguet is beyond question.
Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The
doctrine will apply in Bayacsans favor, regardless of his intervention in the present case, if two conditions concur: (1) the
decision on Cayats disqualification remained pending on election day, 10 May 2004, resulting in the presence of two
mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayats disqualification became final
only after the elections.
Labo, Jr. v. COMELEC,22 which enunciates the doctrine on the rejection of the second placer, does not apply to the
present case because in Labo there was no final judgment of disqualification before the elections. The doctrine on the
rejection of the second placer was applied in Labo and a host of other cases23 because the judgment declaring the
candidates disqualification in Labo and the other cases24 had not become final before the elections. To repeat, Labo and
the other cases applying the doctrine on the rejection of the second placer have one common essential condition the
disqualification of the candidate had not become final before the elections. This essential condition does not exist in the
present case.
Thus, in Labo, Labos disqualification became final only on 14 May 1992, three days after the 11 May 1992 elections. On
election day itself, Labo was still legally a candidate. In the present case, Cayat was disqualified by final judgment 23 days
before the 10 May 2004 elections. On election day, Cayat was no longer legally a candidate for mayor. In short, Cayats
candidacy for Mayor of Buguias, Benguet was legally non-existent in the 10 May 2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and
votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The
Electoral Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. (Emphasis added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final
before the elections, which is the situation covered in the first sentence of Section 6. The second is when the
disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is
categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall
not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections.
Therefore, all the 8,164 votes cast in Cayats favor are stray. Cayat was never a candidate in the 10 May 2004 elections.
Palilengs proclamation is proper because he was the sole and only candidate, second to none.
Labo involved the second situation covered in the second sentence of Section 6 of the Electoral Reforms Law. In Labo,
the Court applied the second sentence of Section 6, and even italicized the second sentence for emphasis, thus:
x x x In the first place, Sec. 72 of the Omnibus Election Code has already been repealed by Sec. 6 of RA No. 6646, to wit:

"Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong."
A perusal of the above provision would readily disclose that the Comelec can legally suspend the proclamation of
petitioner Labo, his reception of the winning number of votes notwithstanding, especially so where, as in this case, Labo
25
failed to present any evidence before the Comelec to support his claim of reacquisition of Philippine citizenship.
(Italicization in the original)
Cayats proclamation on 12 May 2004 is void because the decision disqualifying Cayat had already become final on 17
April 2004. There is no longer any need to ascertain whether there was actual knowledge by the voters of Cayats
disqualification when they cast their votes on election day because the law mandates that Cayats votes "shall not be
counted." There is no disenfranchisement of the 8,164 voters. Rather, the 8,164 voters are deemed by law to have
deliberately voted for a non-candidate, and thus their votes are stray and "shall not be counted."
To allow a candidate disqualified by final judgment 23 days before the elections to be voted for and have his votes
counted is a blatant violation of a mandatory provision of the election law. It creates confusion in the results of the
elections and invites needless new litigations from a candidate whose disqualification had long become final before the
elections. The doctrine on the rejection of the second placer was never meant to apply to a situation where a candidates
disqualification had become final before the elections.
In short, the COMELEC First Division Resolution of 12 April 2004 cancelling Cayats certificate of candidacy, on the
ground that he is disqualified for having been sentenced by final judgment for an offense involving moral turpitude,
became final on 17 April 2004. This constrains us to rule against Cayats proclamation as Mayor of Buguias, Benguet. We
also rule against Bayacsans petition-in-intervention because the doctrine on the rejection of the second placer does not
apply to this case.
WHEREFORE, we DISMISS Rev. Fr. Nardo B. Cayats petitions and Feliseo K. Bayacsans petition-in-intervention. We
AFFIRM the Resolution of the First Division of the Commission on Elections dated 12 April 2004 and the Orders dated 9
May 2004 and 25 October 2004.
SO ORDERED.

G.R. No. 167591

May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners, vs. COMELEC and MARINO
"BOKING" MORALES, Respondents.
G.R. No. 170577

May 9, 2007

ANTHONY D. DEE, Petitioner, vs. COMELEC and MARINO "BOKING" MORALES, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc.
G.R. No. 167591
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO "BOKING"
MORALES
In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for
mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5,
2004, he filed his Certificate of Candidacy.
On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division
of the Commission on Elections (COMELEC) a petition to cancel respondent Morales Certificate of Candidacy on the
ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that
his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also
known as the Local Government Code.
In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term
commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the
second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the
following reasons:
a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the
Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC)
No. 98-131. The Decision became final and executory on August 6, 2001; and
b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999.
On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run
for the position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his
Certificate of Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for
reconsideration.
On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales motion for reconsideration
and setting aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of
the RTC, Branch 57, Angeles City declared respondent Morales proclamation void, his discharge of the duties in the
Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for
three consecutive terms has been severed.
Hence, this petition for certiorari.
G.R. No. 170577
ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES

On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term
commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC,
Branch 61, Angeles City a petition for quo warranto against the said respondent. Petitioner alleged that respondent
Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. The case
was docketed as Civil Case No. 11503.
In his answer, respondent Morales raised the following defenses:
a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision
that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and
b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an
interruption in the continuity of his service as municipal mayor of Mabalacat. 1
In its Decision dated November 22, 2004, the RTC dismissed petitioner Dees petition for quo warranto on the ground that
respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner
Dee in the May 1998 elections for the term 1998 to 2001, thus:
Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the
term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal
Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner,
Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2,
2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided
by RTC, Br. 57, Angeles City. x x x.
Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the threeterm limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as
such should be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution
dismissing the appeal. It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during
the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He only
served as a caretaker, thus, his service during that term should not be counted.
On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated
November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division.
Hence, petitioner Dees instant petition for certiorari.
Both cases may be decided based on the same facts and issues.
It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive
terms:
a) July 1, 1995 to June 30, 1998
b) July 1, 1998 to June 30, 2001
c) July 1, 2001 to June 30, 2004
d) July 1, 2004 to June 30, 2007
THE PRINCIPAL ISSUE.
Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because
his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he served, may not be counted since
his proclamation was declared void by the RTC, Branch 57 of Angeles City.
Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v.
Alegre2 with identical facts, thus:

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San
Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre
subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet,
Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the
decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact
already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente.
xxx
A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis assumption of office
as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for
the purpose of the three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He
argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive
terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision
of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v.
Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the
strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election
protest.
xxx
For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1)
that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2)
that he has fully served three (3) consecutive terms.
With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner
Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute
about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May
2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein
controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor
of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a
proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be
addressed, therefore, is whether or not Francis assumption of office as Mayor of San Vicente, Camarines Norte from July
1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit
rule.
We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full
term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra,
barring local elective officials from being elected and serving for more than three consecutive terms for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis opponent
(Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However,
that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the
term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998
mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation
by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by
his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally
be taken as service for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that
Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless
electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an
election.
Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in Lonzanida v. Comelec, citing Borja v.
Comelec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio,
Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and
discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before

the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was a failure of elections and
declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate
the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998
elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed
and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to
the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of
involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served
the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the
term."
The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the
mayoralty elections was declared a nullity for the stated reason of "failure of election," and, as a consequence thereof, the
proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was
actually no interruption or break in the continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida,
Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as
mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.
It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San
Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was
declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service
for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason
why this ruling should not also apply to respondent Morales who is similarly situated.
Here, respondent Morales invoked not only Lonzanida v. COMELEC,3 but also Borja, Jr. v. Commission on Elections4
which is likewise inapplicable. The facts in Borja are:
Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term ending June 30,
1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On
May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995,
he was reelected mayor for another term of three years ending June 30, 1998.
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11,
1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on
the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would
therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private
respondent Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private
respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the
May 11, 1998 elections. x x x
This Court held that Capcos assumption of the office of mayor upon the death of the incumbent may not be regarded as a
"term" under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code).
He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not
elected to that position.
Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a recall election for the
remaining term is not the "term" contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No.
7160 (the Local Government Code). As the Court observed, there was a "break" in the service of private respondent
Ramon T. Talanga as mayor. He was a "private citizen" for a time before running for mayor in the recall elections.
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served
as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the
electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, 6
such circumstance does not constitute an interruption in serving the full term.

Section 8, Article X of the Constitution can not be more clear and explicit
The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than
three consecutive terms. x x x
Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:
No local official shall serve for more than three consecutive terms in the same position. x x x
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break
since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12)
continuous years.
In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus:
The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive
accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections,
officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to
accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members
of their families in a subsequent election. x x x
xxx
It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official.
In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in
Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months
respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and
ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.
This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very
intent of the framers when they wrote this exception. Should he be allowed another three consecutive term as mayor of
the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction
and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the
Constitution, if not abhorred by it.
This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to
2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its
purpose defeated when an official serves in the same position for three consecutive terms. Whether as "caretaker" or "de
facto" officer, he exercises the powers and enjoys the prerequisites of the office which enables him "to stay on
indefinitely".
Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.
G.R. No. 167591
Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled.
The effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus:
SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of guilt is strong.

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
in relation to Section 211 of the Omnibus Election Code, which provides:
SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be
presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall
observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters will:
xxx
19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for
which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.
xxx
In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being
a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes.
G.R. No. 170577
Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo
warranto has become moot.
Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the
remaining portion of the 2004 to 2007 term.
In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner,
thus:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate
receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed
elected to the office.
xxx
It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified
candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom
sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide,
without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to
whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be
disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority
or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger
number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109;
GR No. 105111).
xxx
As a consequence of petitioners ineligibility, a permanent vacancy in the contested office has occurred. This should now
be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit:
Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor. (a) If a permanent
vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the
governor or mayor. x x x

WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of Candidacy dated
December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vicemayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared
mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R.
No. 170577 is DISMISSED for being moot.
This Decision is immediately executory.
SO ORDERED.

G.R. No. 191970

April 24, 2012

ROMMEL APOLINARIO JALOSJOS, Petitioner, vs. THE COMMISSION ON ELECTIONS and DAN ERASMO, SR.,
ABAD, J.:
This case is about the proof required to establish the domicile of a reinstated Filipino citizen who seeks election as
governor of a province.
The Facts and the Case
Petitioner Rommel Jalosjos was born in Quezon City on October 26, 1973. He migrated to Australia in 1981 when he was
eight years old and there acquired Australian citizenship. On November 22, 2008, at age 35, he decided to return to the
Philippines and lived with his brother, Romeo, Jr., in Barangay Veterans Village, Ipil, Zamboanga Sibugay. Four days
upon his return, he took an oath of allegiance to the Republic of the Philippines, resulting in his being issued a Certificate
of Reacquisition of Philippine Citizenship by the Bureau of Immigration. 1 On September 1, 2009 he renounced his
Australian citizenship, executing a sworn renunciation of the same2 in compliance with Republic Act (R.A.) 9225.3
From the time of his return, Jalosjos acquired a residential property in the same village where he lived and a fishpond in
San Isidro, Naga, Zamboanga Sibugay. He applied for registration as a voter in the Municipality of Ipil but respondent Dan
Erasmo, Sr., the Barangay Captain of Barangay Veterans Village, opposed the same. Acting on the application, the
Election Registration Board approved it and included Jalosjos name in the Commission on Elections (COMELECs)
voters list for Precinct 0051F of Barangay Veterans Village, Ipil, Zamboanga Sibugay. 4
Undaunted, Erasmo filed before the 1st Municipal Circuit Trial Court (MCTC) of Ipil-Tungawan-R.T. Lim in Ipil a petition for
the exclusion of Jalosjos name from the official voters list. After hearing, the MCTC rendered a decision, denying the
petition.5 On appeal,6 the Regional Trial Court (RTC) affirmed the MCTC decision. The RTC decision became final and
executory.
On November 28, 2009 Jalosjos filed his Certificate of Candidacy (COC) for Governor of Zamboanga Sibugay Province
for the May 10, 2010 elections. Erasmo promptly filed a petition to deny due course or to cancel Jalosjos COC 7 on the
ground that the latter made material misrepresentation in the same since he failed to comply with (1) the requirements of
R.A. 9225 and (2) the one-year residency requirement of the Local Government Code.
After hearing, the Second Division of the COMELEC ruled that, while Jalosjos had regained Philippine citizenship by
complying with the requirements of R.A. 9225, he failed to prove the residency requirement for a gubernatorial candidate.
He failed to present ample proof of a bona fide intention to establish his domicile in Ipil, Zamboanga Sibugay. On motion
for reconsideration, the COMELEC En Banc affirmed the Second Divisions decision, ruling that Jalosjos had been a mere
guest or transient visitor in his brothers house and, for this reason, he cannot claim Ipil as his domicile.
Acting on Jalosjos prayer for the issuance of a temporary restraining order, the Court resolved on May 7, 2010 to issue a
status quo ante order, enjoining the COMELEC from enforcing its February 11, 2010 decision pending further orders.
Meanwhile, Jolosjos won the election and was proclaimed winner of the 2010 gubernatorial race in the Province of
Zamboanga Sibugay.8
The Issue Presented
The sole issue presented in this case is whether or not the COMELEC acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in ruling that Jalosjos failed to present ample proof of a bona fide intention to establish his
domicile in Ipil, Zamboanga Sibugay.
The Courts Ruling
The Local Government Code requires a candidate seeking the position of provincial governor to be a resident of the
province for at least one year before the election.9 For purposes of the election laws, the requirement of residence is
synonymous with domicile,10 meaning that a person must not only intend to reside in a particular place but must also have
personal presence in such place coupled with conduct indicative of such intention.11
There is no hard and fast rule to determine a candidates compliance with residency requirement since the question of

12

residence is a question of intention. Still, jurisprudence has laid down the following guidelines: (a) every person has a
domicile or residence somewhere; (b) where once established, that domicile remains until he acquires a new one; and (c)
a person can have but one domicile at a time.13
It is inevitable under these guidelines and the precedents applying them that Jalosjos has met the residency requirement
for provincial governor of Zamboanga Sibugay.
One. The COMELEC appears hasty in concluding that Jalosjos failed to prove that he successfully changed his domicile
to Zamboanga Sibugay. The COMELEC points out that, since he was unable to discharge the burden of proving
Zamboanga Sibugay to be his rightful domicile, it must be assumed that his domicile is either Quezon City or Australia.
But it is clear from the facts that Quezon City was Jalosjos domicile of origin, the place of his birth. It may be taken for
granted that he effectively changed his domicile from Quezon City to Australia when he migrated there at the age of eight,
acquired Australian citizenship, and lived in that country for 26 years. Australia became his domicile by operation of law
14
and by choice.
On the other hand, when he came to the Philippines in November 2008 to live with his brother in Zamboanga Sibugay, it
is evident that Jalosjos did so with intent to change his domicile for good. He left Australia, gave up his Australian
citizenship, and renounced his allegiance to that country. In addition, he reacquired his old citizenship by taking an oath of
allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine
Citizenship by the Bureau of Immigration. By his acts, Jalosjos forfeited his legal right to live in Australia, clearly proving
that he gave up his domicile there. And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.
To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the loss of his domicile of origin
(Quezon City) and his domicile of choice and by operation of law (Australia) would violate the settled maxim that a man
must have a domicile or residence somewhere.
Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil since he has merely been staying
at his brothers house. But this circumstance alone cannot support such conclusion. Indeed, the Court has repeatedly held
that a candidate is not required to have a house in a community to establish his residence or domicile in a particular place.
It is sufficient that he should live there even if it be in a rented house or in the house of a friend or relative. 15 To insist that
the candidate own the house where he lives would make property a qualification for public office. What matters is that
Jalosjos has proved two things: actual physical presence in Ipil and an intention of making it his domicile.
Jalosjos presented the affidavits of next-door neighbors, attesting to his physical presence at his residence in Ipil. These
adjoining neighbors are no doubt more credible since they have a better chance of noting his presence or absence than
his other neighbors, whose affidavits Erasmo presented, who just sporadically passed by the subject residence. Further, it
is not disputed that Jalosjos bought a residential lot in the same village where he lived and a fish pond in San Isidro,
Naga, Zamboanga Sibugay. He showed correspondences with political leaders, including local and national party-mates,
from where he lived. Moreover, Jalosjos is a registered voter of Ipil by final judgment of the Regional Trial Court of
Zamboanga Sibugay.1wphi1
Three. While the Court ordinarily respects the factual findings of administrative bodies like the COMELEC, this does not
prevent it from exercising its review powers to correct palpable misappreciation of evidence or wrong or irrelevant
considerations.16 The evidence Jalosjos presented is sufficient to establish Ipil, Zamboanga Sibugay, as his domicile. The
COMELEC gravely abused its discretion in holding otherwise.
Four. Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for Zamboanga Sibugay. The Court will
respect the decision of the people of that province and resolve all doubts regarding his qualification in his favor to breathe
life to their manifest will.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the Resolution of the COMELEC Second Division dated
February 11, 2010 and the Resolution of the COMELEC En Banc dated May 4, 2010 that disqualified petitioner Rommel
Jalosjos from seeking election as Governor of Zamboanga Sibugay.
SO ORDERED.

G.R. No. 209286

September 23, 2014

LINA DELA PENA JALOVER, GEORGIE A. HUISO and VELVET BARQUIN ZAMORA, Petitioners, vs. JOHN HENRY
R. OSMEA and COMMISSION ON ELECTIONS (COMELEC), Respondents.
DECISION
BRION, J.:
The minimum requirement under our Constitution1 and election laws2 for the candidates' residency in the political unit they
seek to represent has never been intended to be an empty formalistic condition; it carries with it a very specific purpose:
to prevent "stranger[s] or newcomer[s] unacquainted with the conditions and needs of a community" from seeking elective
offices in that community.3
The requirement is rooted in the recognition that officials of districts or localities should not only be acquainted with the
metes and bounds of their constituencies; more importantly, they should know their constituencies and the unique
circumstances of their constituents - their needs, difficulties, aspirations, potentials for growth and development, and all
matters vital to their common welfare.4 Familiarity or the opportunity to be familiar with these circumstances can only
5
come with residency in the constituency to be represented.
The Case
Before us is the Petition for Certiorari 6 under Rule 64 inrelation with Rule 65 of the Rules of Court, seeking to annul the
Resolutions dated April 3, 2013,7 and August 8, 2013,8 of the Commission on Elections (COMELEC) in SPA No. 13-079.
The COMELEC resolutions denied the petitioners Petition to Cancel Certificate of Candidacy of the private respondent
John Henry R. Osmea.
This review, based on the nature of the petition and the petitioners objective, is based on a very limited ground - the
jurisdictional issue of whether the COMELEC acted without or in excess of itsjurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction.9
Factual Antecedents
On October 3, 2012, Osmea filed his Certificate of Candidacy (COC) for the position of mayor, Toledo City, Cebu. 10 In
his COC, Osmea indicated that he had been a resident of Toledo City for fifteen (15) years prior to the May 2013
elections. Before running for the mayoralty position, Osmea also served as the representative of the 3rd Congressional
District of the Province of Cebu from 1995-1998, which incidentally includes the City of Toledo.11
Soon thereafter, the petitioners filed before the COMELEC a "Petition to Deny Due Course and to Cancel Certificate of
Candidacy and to Disqualify a Candidate for Possessing Some Grounds for Disqualification," 12 docketed as SPA No. 13079.
The Parties Claims and Evidence
13

14

Citing Section 78 in relation with Section 74 of the Omnibus Election Code,the petitioners alleged beforethe
COMELEC that Osmea made material misrepresentations of fact in the latters COC and likewise failed to comply with
the residency requirement under Section 39 of the Local Government Code. 15 In particular, the petitioners claimed that
Osmea falsely declared under oath in his COC that he had already been a resident of Toledo City fifteen (15) years prior
to the scheduled May 13, 2013 local elections.16
In support of their petition, the petitioners submitted the following: a) a certification from the Toledo City Assessors Office,
dated October 5, 2012, showing that Osmea does not own any real property in Toledo City;17 b) a tax declaration of
18
Osmeas alleged residence at Ibo, Toledo City showing that it is owned by Osmeas son; c) photographs of Osmeas
alleged dilapidated residence in BarangayIbo, Toledo City, which the petitioners claim is not in keeping with Osmeas
prominence, wealth and stature in society;19 d) a certification from the Business Permit and Licensing Office, that Osmea
never applied nor has he been issued any business permit by Toledo City; 20 and e) several affidavits,21 including that of
the barangaycaptain of Ibo, Toledo City,22 attesting that Osmea was never a resident of Toledo City and that he has only
been seenin the city in September 2012 to conduct political meetings.

Osmea denied the petitioners allegations. In his defense, Osmea argued that even prior to his actual transfer of
residence to Ibo, Toledo City, in 2004, he had been able to establish ties with Toledo City in view of his familys business
interests and his political linkages.23 According to Osmea, in 1995, he bought a piece of land in Ibo, Toledo City, where
he built two (2) houses from 1998 to 200224 and became a permanent resident thereof in 2004.25 Osmea further averred
thathe became a registered voter of Toledo City in 200626 and that he leased at least two (2) properties in Toledo City for
his headquarters.27 In addition, he claimed that in December 2011, he bought a five (5) hectare parcel of land in Das,
Toledo City.28
In support of his allegations, Osmea submitted the following pieces of evidence: a) certification from the House of
Representatives that Osmea was the duly elected representative of the 3rd District of Cebu in the 10th Congress from
29
30
1995 to 1998; b) Tax Declaration No. 2001-149019-01028 and Deed of Absolute Sale between Dr. James Gaite and
31
Osmeas son concerning the Ibo, Toledo City property; c) photographs of the exterior and interior of the Ibo, Toledo
32
33
City property; d) application for transfer of voters registration record, dated April 24, 2006; e) a certification from
34
Mantuhac Construction stating that it was Osmea who paid for the construction of the Ibo, Toledo City property; f) utility
35
bills to prove that the house in Ibo, Toledo City, has continually been occupied by Osmea; g) Contract of Lease
36
covering a house and lot in Poblacion, Toledo City; h) a Deed of Extrajudicial Settlement with Sale covering the 5
37
38
hectare property in Das, Toledo City; and i) several affidavits attesting to the fact that Osmea actually resides and has
39
profound socio-civic and political linkages in Toledo City.
The Ruling of the COMELEC's Second Division
The COMELEC Second Division dismissed the petition on the ground that Osmea did not commit any material
misrepresentation in his COC.40 Citing Velasco v. COMELEC,41 the Second Division found that Osmea was able to
explain why he indicated in his COC that the period of his residence in Toledo City prior to the May 23, 2013 elections is
15 years.42 This was his belief, as according to him, he has ties with Toledo City since childhood and that even as a
Senator,he continued to bring projects to Toledo City.43 The Second Division further found that Osmea complied with the
residency requirement.44
The petitioners timely moved for a reconsideration of the April 3, 2013 Resolution of the COMELEC.45 Before the
COMELEC resolved the motion, however, the Board of Canvassers of Toledo City proclaimed Osmea as the winning
candidate for the mayoralty seat.46
The COMELEC En Banc Ruling
The COMELEC en bancsubsequently denied the petitioners motion for reconsideration.47 Citing Sabili v. COMELEC and
Librea,48 the COMELEC en bancstated that it is not required that a candidate should have his own house in order to
establish his residence or domicile in a place.49 It is enough that he should live in the locality even in a rented house or
that of a friend or a relative.50
The Petition and Comments
The petition is based on the following grounds/arguments:51
1. The August 8, 2013 Resolution of the COMELEC en banc, which affirmed its Second Divisions Resolution finding that
Osmea had not committed any false material representation in his COC, is null and void since Osmea is not a resident
of Toledo City, contrary to what he stated in his COC;
2. Osmea has not established by substantial evidence that he is a resident of Barangay Ibo of Toledo City and thus,
should not be allowed to serve as Mayor of Toledo City;
3. Osmeas Certificate of Candidacy should have been cancelled and it is as if there was no one who challenged the
candidacy of then incumbent Toledo City Mayor Aurelio P. Espinosa;
4. The fact that Osmea prevailed during the May 13, 2013 elections does not make him eligible for the position. To rule
in favor of the apparent will of the people would ultimately create greater prejudice to democratic institutions and juristic
traditions of the Constitution;
5. The petitioners evidence of Osmeas lack of residence is not inconclusive. The purpose ofthe election law would be
thwarted by upholding Osmeas right to the office;

6. The COMELEC showed partiality to Osmea by admitting his belatedly filed Answer to the Petition, and his Amended
Memorandum and Supplemental Amended Memorandum.
In his Comment, Osmea asserts that: 1) the COMELECs findings of fact are supported by substantial evidence, and as
such, are final and nonreviewable; 2) there was no material misrepresentation in his COC; 3) there was no deliberate
attempt to mislead, misinform or hide a fact on the part of Osmea; 4) the purpose of the minimum residency requirement
is served because Osmea has a significant relationship with, and intimate knowledge of, the City of Toledo; and 5)
Osmea has the mandate of the City of Toledo.52
The Office of the Solicitor General (OSG) likewise filed a Comment on behalf of the COMELEC. The OSG argues that the
COMELEC did not commit any grave abuse of discretion since Osmea was able to adduce substantial evidence to prove
that he was a resident of Toledo City at least one (1) year before the May 2013 elections.
The Courts Ruling
We dismiss the petition for lack of merit.
Limited Review in Certiorari Petitions
"Grave abuse of discretion" defies exact definition; generally, it refers to "capricious or whimsical exercise of judgment as
is equivalent to lack of jurisdiction;" the abuse of discretion must be patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or to actat all in contemplation oflaw, as where the
power is exercised in an arbitrary and despotic manner by reason of passion and hostility.53 Mere abuse of discretion is
not enough; it must be grave.54 We have held, too, that the use of wrong or irrelevant considerations in deciding an issue
is sufficient to taint a decision-maker's action with grave abuse of discretion.55
Closely related with the limited focus of the present petition is the condition, under Section 5, Rule 64 of the Rules of
Court, that findings of fact of the COMELEC, supported by substantial evidence, shall be final and non-reviewable.
Substantial evidence is that degree of evidence that a reasonable mindmight accept to support a conclusion. 56 In light of
our limited authority to review findings of fact, we do not ordinarily review in a certioraricase the COMELEC's appreciation
and evaluation of evidence. Any misstep by the COMELEC in this regard generally involves an error of judgment, not of
jurisdiction.
In exceptional cases, however, when the COMELEC's action on the appreciation and evaluation of evidence oversteps
the limits of its discretion to the point of being grossly unreasonable, the Court is not only obliged, but has the
constitutional duty to intervene.57 When grave abuse of discretion is present, resulting errors arising from the grave abuse
mutatefrom error of judgment to one of jurisdiction.58
Nature of the Case Subject of the Petition
The present petition arose from a petition to deny due course or to cancel Osmeas COC. Section 74, in relation with
Section 78 of the Omnibus Election Code governs the cancellation of, and grant or denial of due course to, the COCs.
The combined application of these sections requires that the facts stated in the COC by the would-be candidate be true,
as any false representation of a material fact is a ground for the COCs cancellation or the withholding of due course. To
quote these provisions:
SEC. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the personfiling it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed
by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge. (Emphasis ours)
xxxx
SEC. 78. Petition to deny due course toor cancel a certificate of candidacy. - A verified petition seeking todeny due course

or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election.
The false representation that these provisions mention pertains to a material fact, not to a mere innocuous mistake. 59 This
is emphasized by the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs
and is elected, cannot serve; in both cases, he or she can be prosecuted for violation of the election laws. 60 Obviously,
these facts are those that refer to a candidates qualifications for elective office, such as his or her citizenship and
61
residence.
Separate from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt
to mislead, misinform, or hide a fact, which would otherwise render a candidate ineligible." 62 In other words, it must be
made with the intention to deceive the electorate as to the would-be candidate's qualifications for public office. In Mitra v.
63
COMELEC, we held that the misrepresentation that Section 78 addresses cannot be the result of a mere innocuous
mistake, and cannot exist in a situation where the intent to deceive is patently absent, or where no deception of the
electorate results. The deliberate character of the misrepresentation necessarily follows from a consideration of the
consequences of any material falsity: a candidate who falsifies a material fact cannot run. 64
No grave abuse of discretion on the part of COMELEC
To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of this
intention. It requires not only such bodily presence in that placebut also a declared and probable intent to make it ones
fixed and permanent place of abode.65
The critical issue, however, pertainsto Osmeas bodily presence in Toledo City and the declaration he made in his COC
on this point. The petitioners claim that Osmea was only seen in Toledo City in the month of September 2012 to conduct
political meetings. They also stress that the dilapidated property in Ibo, Toledo City is not even owned by Osmea, and is
not in keeping with the latters stature a former Senator and a member of a political clan.
In support of their contention,the petitioners submitted various affidavits of Toledo City residents claiming that Osmea
was never seen in Toledo66 and pictures of the dilapidated Ibo, Toledo City property. Osmea, meanwhile submitted
photographs of the Ibo, Toledo City property, and various affidavits confirming his residence for more than one year in
Toledo City.67 Under these seemingly directly contradictory evidence, we find that the COMELEC did not commit any
grave abuse of discretion in upholding the residency of Osmea.
As the COMELEC aptly found, Osmea had sufficiently established by substantial evidence his residence in Toledo City,
Cebu.68 As early as April 24, 2006,69 Osmea applied for the transfer of his voters registration record to Toledo City,
which was granted on April 24, 2012.70 Osmea likewise purchased a parcel of land in Ibo, Toledo City in 1995 and
71
commenced the construction of an improvement, which would eventually serve as his residence since 2004. Osmea
72
73
even acquired another parcel of land in Das, Toledo City in December 2011 and transferred his headquarters to
74
Poblacion and Bato, Toledo City as early as 2011. The existence of Osmeas headquarters in Bato, Toledo City, was
75
even confirmed by the Mr. Orlando PamaCasia, witness for the petitioners. Finally, Osmea has always maintained
profound political and socio-civic linkages in Toledo Citya fact thatthe petitioners never disputed.
The petitioners, in the present case, largely rely on statements that Osmea was "hardly seen" in Toledo City, Cebu to
support their claim of error of jurisdiction. These affidavits, however, deserve little consideration and loudly speak of their
inherent weakness as evidence.
The law does not require a person to be in his home twenty-four (24) hours a day, seven (7) days a week, tofulfill the
residency requirement.76 In Fernandez v. House Electoral Tribunal,77 we ruled that the "fact that a few barangay health
workers attested that they had failed to see petitioner whenever they allegedly made the rounds in Villa de Toledo is of no
moment, especially considering thatthere were witnesses (including petitioner's neighbors in Villa de Toledo) that were in
turn presented by petitioner to prove that he was actually a resident of Villa de Toledo, in the address he stated in his
COC. x x x It may be that whenever these health workers do their rounds petitioner was out of the house to attend to his
own employment or business."
Under the circumstances, the evidence submitted by the petitioners do not conclusively prove that Osmea did not in fact
reside in Toledo City for at least the year before election day; most especially since the sworn statements of some Toledo
City residents attesting that they never saw Osmea inToledo City were controverted by similar sworn statements by

other ToledoCity residents who claimed that Osmea resided in Toledo City.
Similarly, the fact that Osmea has no registered property under his name does not belie his actual residence in Toledo
City because property ownership is not among the qualifications required of candidates for local election. 78 It is enough
that he should livein the locality, even in a rented house or that of a friend or relative. 79 To use ownership of property in
the district as the determinative indicium of permanence of domicile or residence implies that only the landed can
80
81
establish compliance with the residency requirement. In Perez v. COMELEC, we sustained the COMELEC when it
considered as evidence tending to establish a candidates domicile of choice the mere lease (rather than ownership) of an
apartment by a candidate in the same province where he ran for the position of governor.
We cannot accord credence either to the petitioners contention that the dilapidated house in Ibo, Toledo City, could not
serve as Osmeas residence in view of the latters stature. At the outset, the photographs submitted by Osmea in
evidence show that the house is modestly furnished and contains the comforts of a simple abode.Moreover, the
petitioners speculation involves the use of subjective non-legal standards, which we previously condemnedin the case of
82
83
Mitra v. Commission on Elections. In Mitra, we pronounced:
The respondents significantly ask usin this case to adopt the same faulty approach of using subjective norms, as they now
argue that given his stature as a member of the prominent Mitra clan of Palawan, and as a three term congressman, it is
highly incredible that a small room in a feed mill has served as his residence since 2008.
We reject this suggested approach outright for the same reason we condemned the COMELEC's use of subjective nonlegal standards. Mitra's feed mill dwelling cannot be considered in isolation and separately from the circumstancesof his
transfer of residence, specifically, his expressed intent totransfer to a residence outside of Puerto Princesa City to make
him eligible to run for a provincial position; his preparatory moves starting in early 2008; his initial transfer through a
leased dwelling; the purchase of a lot for his permanent home; and the construction of a house in this lot that,
parenthetically, is adjacent to the premises he leased pending the completion of his house. These incremental moves do
not offend reason at all, in the way that the COMELEC's highly subjective non-legal standards do. (Emphasis ours)
Osmeas actual physical presence in Toledo City is established not only by the presence of a place (Ibo, Toledo City,
house and lot) he can actually live in, but also the affidavitsof various persons in Toledo City. Osmeas substantial and
real interest in establishing his domicile of choice in Toledo City is also sufficiently shown not only by the acquisition of
additional property in the area and the transfer of his voter registration and headquarters, but also his participation in the
communitys socio-civic and political activities.
Osmea has been proclaimed winner in the electoral contest and has therefore the mandate of the electorate
Before his transfer of residence, Osmea already had intimate knowledge of Toledo City, particularly ofthe whole 3rd
legislative district that he represented for one term. Thus, he manifests a significant level of knowledge of and sensitivity
to the needs of the said community. Moreover, Osmea won the mayoralty position as the choice of the people of Toledo
City.
We find it apt to reiterate in this regard the principle enunciated in the case of Frivaldo v. Comelec, 84 that "[i]n any action
involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the
issuesin a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority."85
To successfully challenge a winning candidates qualifications, the petitioner must clearly demonstrate thatthe ineligibility
is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effectto
the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote.86 The reason for such liberality stems from the
recognition that laws governing election contests must be construed to the end that the will of the people in the choice of
87
public officials may not be defeated by mere technical objections.
Nonetheless, we wish to remind that COC defects beyond matters of formand that involve material misrepresentations
cannot avail of the benefit of our ruling that COC mandatory requirements before elections are considered merely
88
directory after the people shall have spoken. Where a material COC misrepresentation under oathis made, thereby
violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the
Philippines as expressed in our laws.89 In a choice between provisions on material qualifications of elected officials, on the
one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose
90
the electorates will.

With the conclusion that Osmeadid not commit any material misrepresentation in his COC, we see no reason in this case
to appeal to the primacy of the electorates will. Wecannot deny, however, that the people of Toledo City have spoken in
an election where residency qualification had been squarely raised and their voice has erased any doubt about their
verdict on Osmeas qualifications.
The petitioners failed to substantiate their claim of partiality on the part of the COMELEC in admitting Osmeas Answer,
Amended Memorandum
Lastly, the petitioners insist that the COMELEC committed grave abuse of discretion in admitting Osmeas belatedly filed
Answer, Amended Memorandum and Supplemental Memorandum. The petitioners, however, failed to substantiate this
allegation in their petition.In fact, the petitioners admitted that they do not exactly know when Osmea was served with
summons by the clerk or commission.91 They only speculated that Osmeas Answer was filed one day delayed. Similarly,
we do not find any error on the part of the COMELEC in allowing the filing of Osmeas amended memorandum, after
obtaining leave from the COMELEC. As Osmea aptly pleaded in his motion for leave, the amendments consisted of
92
mere technical errors; the lower portions and the most crucial parts of the Memorandum were omitted in its final printing
because the printer was inadvertently configured to use an incorrect paper size.
Moreover, amendments are actually favored in order to allow the complete presentation of the real controversies.1wphi1
93
We had this to say in this regard in Contech Construction Technology and Devt Corp. v. Court of Appeals:
"It is a recognized rule of procedure that pleadings shall be construed liberally so as to render substantial justice to the
parties and in order that actual merits ofthe controversy may speedily be determined without regard to technicalities and in
the most expeditious and inexpensive manner. The judicial attitude has always been favorable and liberal in allowing
amendments to a pleading. The rationale behind the rule is to avoid multiplicity of suits and in order that the real
controversies between the parties are presented, their rights are determined and the case decided on the merits without
unnecessary delay. When the situation is such that if the proposed amendment is not allowed, another action would be
instituted, thus making two actions, two trials, and two appeals possible and probable, the said amendment should be
admitted. Hence, should the trial court find the allegations in the pleadings to be inadequate, it should allow the party
concerned to file proper amendments to pleadings in accordance with the mandate of the Rules of Court that
amendments to pleadings are favored and should be liberally allowed."
In these lights, we can only conclude, in the context of the cancellation proceeding before us, that the petitioners have not
presented a convincing case sufficient to show that the COMELEC committed an error of jurisdiction in upholding the
residency of Osmeiia in Toledo City and the validity of his representation on this point in his COC.
WHEREFORE, premises considered, we hereby DISMISS the petition for lack of merit. No costs.
SO ORDERED.

B. Disqualifications
G.R. No. 121592 July 5, 1996
ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA,
respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; DISQUALIFICATIONS FROM RUNNING FOR ANY
ELECTIVE POSITION; MORAL TURPITUDE AS A GROUND, DEFINED. The Court has consistently adopted the
definition in Blacks Law Dictionary of "moral turpitude" as: ". . . an act of baseness, vileness, or depravity in the private
duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and
duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals."
2. ID.; ID.; ID.; WHETHER OR NOT A CRIME INVOLVES MORAL TURPITUDE IS ULTIMATELY A QUESTION OF
FACT AND DEPENDS ON ALL THE CIRCUMSTANCES SURROUNDING THE VIOLATION OF THE STATUTE. Not
every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is
for the Supreme Court to determine." In resolving the foregoing question, the Court is guided by one of the general rules
that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in
"Zari v. Flores," to wit: "It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable
by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself,
and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not
of themselves immoral but whose illegality lies in their being positively prohibited." This guideline nonetheless proved
short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC, the Court admitted that it
cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in
se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are
crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves
moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation
of the statute.
3. ID.; ID.; ID.; CONVICTION FOR AN OFFENSE INVOLVING MORAL TURPITUDE STANDS EVEN IF THE
CANDIDATE WAS GRANTED PROBATION FOR THE SAME CRIME. Anent the second issue where petitioner
contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code,
suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioners conviction of
fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the
disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In
fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although
it is not executory pending resolution of the application for probation. Clearly then, petitioners theory has no merit.
4. CRIMINAL LAW; ANTI-FENCING LAW (PD 1612); FENCING; DEFINED. Fencing is defined in Section 2 of P.D.
1612 (Anti-Fencing Law) as: "a. . . the act of any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article,
item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of
the crime of robbery or theft."
5. ID.; ID.; ID.; ELEMENTS. From the foregoing definition may be gleaned the elements of the crime of fencing which
are: "1. A crime of robbery or theft has been committed; "2. The accused who is not a principal or accomplice in the crime
of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any
manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said
crime. "3. The accused knows or should have known that the said article, item, object or anything of value has been
derived from the proceeds of the crime of robbery or theft; and "4. There is, on the part of the accused, intent to gain for
himself or for another."
6. ID.; ID.; ID.; IS A CRIME INVOLVING MORAL TURPITUDE. Moral turpitude is deducible from the third element.
Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious
deprivation of ones rightful property as that which animated the robbery or theft, which, by their very nature, are crimes of
moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree,
both the "fence" and the actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for gain thus
deliberately reneging in the process "private duties" they owe their "fellowmen" or "society" in the manner "contrary to . . .

accepted and customary rule of right and duty . . ., justice, honesty . . . or good morals." The same underlying reason
holds even if the "fence" did not have actual knowledge, but merely "should have known" the origin of the property
received. In this regard, the Court held: "When knowledge of the existence of a particular fact is an element of the offense,
such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that
it does not exist. On the other hand, the words should know denote the fact that a person of reasonable prudence and
intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon
assumption that such fact exists." Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant
buyer that the object of the same may have been derived from the proceeds of robbery or theft. Such circumstances
include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The
nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling
goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the
presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, . . ., object or anything of value
which has been the subject of robbery or thievery shall be prima facie evidence of fencing" a presumption that is,
according to the Court, "reasonable for no other natural or logical inference can arise from the established fact of . . .
possession of the proceeds of the crime of robbery or theft."
FRANCISCO, J.:p
Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by
the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in
1
SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC.
The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from running for the position of Mayor
of Cavinti, Laguna in the last May 8, 1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160
(the Local Government Code of 1991) 2 which provides as follows:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment within two (2) years after serving sentence;
(b) xxx xxx xxx.
In disqualifying the petitioner, the COMELEC held that:
Documentary evidence . . . established that herein respondent (petitioner in this case) was found guilty by the Municipal
Trial Court, . . . in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a
Decision dated June 1, 1990. Respondent appealed the said conviction with the Regional Trial Court . . . , which however,
affirmed respondent's conviction in a Decision dated November 14, 1990. Respondent's conviction became final on
January 18, 1991.
xxx xxx xxx
. . . , there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections.
Although there is "dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D. 1612" . . . , the
3
nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude . . . .
The second assailed resolution, dated August 28, 1995, denied petitioner's motion for reconsideration. In said motion,
petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the
probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction
and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well. 4
The two (2) issues to be resolved are:
1. Whether or not the crime of fencing involves moral turpitude.
2. Whether or not a grant of probation affects Section 40 (a)'s applicability.
Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a

crime becomes a ground for disqualification i.e., "when the conviction by final judgment is for an offense involving
moral turpitude." And in this connection, the Court has consistently adopted the definition in Black's Law Dictionary of
"moral turpitude" as:
. . . an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in
general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to
justice, honesty, modesty, or good morals. 5
Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral
turpitude, is for the Supreme Court to determine". 6 In resolving the foregoing question, the Court is guided by one of the
general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not 7, the rationale of which
8
was set forth in "Zari v. Flores," to wit:
It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not
be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by
statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral
9
but whose illegality lies in their being positively prohibited.
This guidelines nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v.
NLRC, 10 the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by
merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but
rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final
analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statue. 11
The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the
commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all
the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can
likewise be achieved by analyzing the elements alone.
Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as:
a. . . . the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value
which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. 12
From the foregoing definition may be gleaned the elements of the crime of fencing which are:
1. A crime of robbery or theft has been committed;
2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of
value, which have been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or anything of value has been derived from
the proceeds of the crime of robbery or theft; and [Emphasis supplied.]
4. There is, on the part of the accused, intent to gain for himself or for another. 13
Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that property received is
stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or
theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful
taking differs in point in time and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded
one's peaceful dominion for gain thus deliberately reneging in the process "private duties" they owe their "fellowmen" or
"society" in a manner "contrary to . . . accepted and customary rule of right andduty . . . , justice, honesty . . . or good
morals." The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds
expression in some key provisions of the Civil Code on "Human Relations" and "Solutio Indebiti", to wit:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give

everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for
the same.
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.
Art. 22. Everyone person who through an act of performance by another, or any other means, acquires or comes into
possession of something at the expense of the latter without just or legal ground, shall return the same to him.
Art. 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the
obligation to return it arises.
The same underlying reason holds even if the "fence" did not have actual knowledge, but merely "should have known" the
origin of the property received. In this regard, the Court held:
When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a
person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand,
the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in
the performance of his duty to another or would govern his conduct upon assumption that such fact exists. 14 [Emphasis
supplied.]
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may
have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both
of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the
fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their
source, and therefor should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that
"mere possession of any goods, . . . , object or anything of value which has been the subject of robbery or thievery shall
be prima facie evidence of fencing" a presumption that is, according to the Court, "reasonable for no other natural or
logical inference can arise from the established fact of . . . possession of the proceeds of the crime of robbery or theft." 15
All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had
been previously convicted by final judgment was one involving moral turpitude.
Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of
Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the
execution of the sentence. 16 Petitioner's conviction of fencing which we have heretofore declared as a crime of moral
turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally
unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains
finality when the accused applies for probation, although it is not executory pending resolution of the application for
probation. 17 Clearly then, petitioner's theory has no merit.
ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC
dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto.
SO ORDERED.

G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS,
respondents.
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of
Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
1
Gabriel V. Daza III 54,275
The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain
Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the petition of Mamaril and ordered
the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under
40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position.
The COMELEC's Second Division said:
What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for
the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the
respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a
natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the
Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because
he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco,
California, September 14, 1955, and is considered in American citizen under US Laws. But notwithstanding his
registration as an American citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent Manzano is born a Filipino and a US citizen. In other
words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of
candidacy. Is he eligible for the office he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any
elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate
for Vice-Mayor of Makati City.
3

On May 8, 1998, private respondent filed a motion for reconsideration. The motion remained pending even until after the
election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers
tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for disqualification.
private respondent.

Petitioner's motion was opposed by

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1,
with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private
5
respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. The pertinent portions of
the resolution of the COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US
citizenship by operation of the United States Constitution and laws under the principle of jus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were
Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American
passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He
was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he
did not renounce Philippine citizenship and did not take an oath of allegiance to the United States.
It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in
the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under
Philippine law, he no longer had U.S. citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet
final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S.
Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand
nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy
five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled
in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo
vs. Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7,
1998, ordering the cancellation of the respondent's certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of
Makati City in the May 11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to
reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati
City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998,
proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare
private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992,
1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet
final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for
and hold the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano whether petitioner Mercado his
personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto
Mamaril nor was petitioner's motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his

claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his
motion for intervention:
Sec. 1. When proper and when may be permitted to intervene. Any person allowed to initiate an action or proceeding
may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in
such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an
interest against both, or when he is so situated as to be adversely affected by such action or proceeding.
xxx xxx xxx
Sec. 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the Division,
in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a
separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect
because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the ViceMayor of Makati City if the private respondent be ultimately disqualified by final and executory judgment."
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the
COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had
been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from
the race at the time he sought to intervene. The rule in Labo v. COMELEC, 6 reiterated in several cases, 7 only applies to
cases in which the election of the respondent is contested, and the question is whether one who placed second to the
disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for Leave to
File Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was precisely
to have private respondent disqualified "from running for [an] elective local position" under 40(d) of R.A. No. 7160. If
Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was
competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20,
1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for
vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private
respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reform Law of 1987, which provides:
Any candidate who his been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is
strong.
Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet
been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a denial of the
motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits
of the case, the present petition properly deals not only with the denial of petitioner's motion for intervention but also with
the substantive issues respecting private respondent's alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so,
whether he is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991
(R.A. No. 7160), which declares as "disqualified from running for any elective local position: . . . (d) Those with dual
8
citizenship." This provision is incorporated in the Charter of the City of Makati.

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends
that through 40(d) of the Local Government Code, Congress has "command[ed] in explicit terms the ineligibility of
persons possessing dual allegiance to hold local elective office."
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent
application of the different laws of two or more states, a person is simultaneously considered a national by the said states.
9
For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the
principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any
voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of
our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father's' country such children
are citizens of that country;
(3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or
omission they are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of
another state; but the above cases are clearly possible given the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act,
loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: "Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law." This provision was included in the 1987 Constitution at the instance of
Commissioner Blas F. Ople who explained its necessity as follows: 10
. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the
Bernas Committee according to which a dual allegiance and I reiterate a dual allegiance is larger and more
threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a
function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all.
What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For
example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of
Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket.
Not widely known is the fact chat the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of
China in Taiwan. And until recently, sponsor might recall, in Mainland China in the People's Republic of China, they have
the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and
Latin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the
Filipino-Chinese were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are
already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I
also took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta,
who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion
who has always been worried about minority claims on our natural resources.
Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already
happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it
is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which
also means economic stagnation, worsening unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider incorporating a new section, probably Section 5,
in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL
BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus:

11

. . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a
double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would

be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a uniqueness and
which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that citizenship including, of
course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is,
of course, the concern for national security. In the course of those debates, I think some noted the fact that as a result of
the wave of naturalizations since the decision to establish diplomatic relations with the People's Republic of China was
made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted
that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the
occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and
deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty
and national security. I appreciate what the Committee said that this could be left to the determination of a future
legislature. But considering the scale of the problem, the real impact on the security of this country, arising from, let us
say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed
amendment at the proper time that will prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens
per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.
Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring
to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for
candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable
consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether she is considered a
citizen of another country is something completely beyond our control." 12
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they
are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign
state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the
following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: 13
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is
disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is
a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country of his or her father and one
belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government
position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public
office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father
claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his
desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a
person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not
renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one
citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges

other citizenships, then he will probably fall under this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and fidelity to any
14
foreign prince, potentate, state, or sovereignty" of which at the time he is a subject or citizen before he can be issued a
certificate of naturalization as a citizen of the Philippines. In Parado v. Republic, 15 it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he renounce, his loyalty to any other country
or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition
imposed by law is satisfied and compiled with. The determination whether such renunciation is valid or fully complies with
the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter
should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere
with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our
Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a
foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all
cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino
parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus
soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However,
the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent
"effectively renounced his U.S. citizenship under American law," so that now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of
renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years
old, it was ineffective as it should have been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC
must have in mind 349 of the Immigration and Nationality Act of the United States, which provided that "A person who is
a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political
election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory." To
be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as beyond the
power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran
for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship.
Private respondent's certificate of candidacy, filed on March 27, 1998, contained the following statements made under
oath:
6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN
xxx xxx xxx
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF
MAKATI, PROVINCE OF NCR.
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE
CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I
WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF
VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE
FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any
disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: 17
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not
effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from

running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenship long before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and
renounced his US citizenship but before he was repatriated to his Filipino citizenship."
On this point, we quote from the assailed Resolution dated December 19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to
the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy
contains an oath of allegiance to the Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been
effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court,
absent any showing of capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private respondent's
certificate of candidacy is insufficient to constitute renunciation that, to be effective, such renunciation should have been
made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to
be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the
Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the
United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998,
he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality
before the termination of his American citizenship. What this Court said in Aznar v. COMELEC 18 applies mutatis mundatis
to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a
Certificate staring he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an
American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed,
there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said
citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to
reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied."
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident
or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and
allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this
country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a
dual citizen.
On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has
spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past
elections in this country, leaves no doubt of his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust,
there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate
19
proceedings. In Yu v. Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground
that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any
one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting
renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.1wphi1.nt
SO ORDERED.

G.R. No. 195649

April 16, 2013

CASAN MACODE MAQUILING, Petitioner, vs. COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO,
LINOG G. BALUA, Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to review the Resolutions of
1
the Commission on Elections (COMELEC). The Resolution in SPA No. 10-1 09(DC) of the COMELEC First Division
dated 5 October 201 0 is being assailed for applying Section 44 of the Local Government Code while the Resolution 2 of
the COMELEC En Banc dated 2 February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco
(respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his continued use of a U.S.
passport.
FACTS
Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent naturalization as a
citizen of the United States of America, he lost his Filipino citizenship. Arnado applied for repatriation under Republic Act
(R.A.) No. 9225 before the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to
the Republic of the Philippines on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and
Re-acquisition was issued in his favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines and I
hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and
allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of
6
evasion.
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his
foreign citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance and fidelity to the
UNITED STATES OF AMERICA of which I am a citizen, and I divest myself of full employment of all civil and political
rights and privileges of the United States of America.
I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and belief. 7
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte, which
contains, among others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance
thereto. I will obey the laws, legal orders and decrees promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado

and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10
9
May 2010 local and national elections.
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner,
attaching thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of
10
Arnado as "USA-American." To further bolster his claim of Arnados US citizenship, Balua presented in his Memorandum
11
a computer-generated travel record dated 03 December 2009 indicating that Arnado has been using his US Passport
No. 057782700 in entering and departing the Philippines. The said record shows that Arnado left the country on 14 April
2009 and returned on 25 June 2009, and again departed on 29 July 2009, arriving back in the Philippines on 24
November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying that the name
"Arnado, Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21
April 2010, with the following pertinent travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
12

PASSPORT : 057782700

On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to personally file his answer
and memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered the highest number
of votes and was subsequently proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following documents as evidence: 14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all
neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and
continuously residing in his familys ancestral house in Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June 2010 stating that
Arnado is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to
the Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr.
Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to
15 April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of
Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on misrepresentation, 15
the COMELEC First Division considered it as one for disqualification. Baluas contention that Arnado is a resident of the

16

United States was dismissed upon the finding that "Balua failed to present any evidence to support his contention,"
whereas the First Division still could "not conclude that Arnado failed to meet the one-year residency requirement under
the Local Government Code."17
In the matter of the issue of citizenship, however, the First Division disagreed with Arnados claim that he is a Filipino
18
citizen.
We find that although Arnado appears to have substantially complied with the requirements of R.A. No. 9225, Arnados
act of consistently using his US passport after renouncing his US citizenship on 03 April 2009 effectively negated his
Affidavit of Renunciation.
xxxx

Arnados continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US
citizenship and that he only executed an Affidavit of Renunciation to enable him to run for office. We cannot turn a blind
eye to the glaring inconsistency between Arnados unexplained use of a US passport six times and his claim that he reacquired his Philippine citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a
passport is defined as an official document of identity and nationality issued to a person intending to travel or sojourn in
foreign countries." Surely, one who truly divested himself of US citizenship would not continue to avail of privileges
19
reserved solely for US nationals.
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of candidacy of
Rommel C. Arnado is hereby GRANTED. Rommel C. Arnados proclamation as the winning candidate for Municipal
Mayor of Kauswagan, Lanao del Nore is hereby ANNULLED. Let the order of succession under Section 44 of the Local
Government Code of 1991 take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that "the evidence is
insufficient to justify the Resolution and that the said Resolution is contrary to law." 21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath of Allegiance and the
Affidavit of Renunciation, which show that he has substantially complied with the requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his renunciation of his American citizenship is not tantamount to a
repudiation of his Filipino citizenship, as he did not perform any act to swear allegiance to a country other than the
Philippines;
3. He used his US passport only because he was not informed of the issuance of his Philippine passport, and that he
used his Philippine passport after he obtained it;
4. Baluas petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First Divisions treatment
23
of the petition as one for disqualification constitutes grave abuse of discretion amounting to excess of jurisdiction;
5. He is undoubtedly the peoples choice as indicated by his winning the elections;
6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case; and
7. The proper remedy to question his citizenship is through a petition for quo warranto, which should have been filed
within ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the

second highest number of votes in the 2010 elections, intervened in the case and filed before the COMELEC En Banc a
Motion for Reconsideration together with an Opposition to Arnados Amended Motion for Reconsideration. Maquiling
argued that while the First Division correctly disqualified Arnado, the order of succession under Section 44 of the Local
Government Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnados candidacy
and the nullification of his proclamation, Maquiling, as the legitimate candidate who obtained the highest number of lawful
votes, should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for Reconsideration.
Arnado opposed all motions filed by Maquiling, claiming that intervention is prohibited after a decision has already been
rendered, and that as a second-placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced
or benefitted by the final adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the
Commission "shall continue with the trial and hearing of the action, inquiry or protest even after the proclamation of the
candidate whose qualifications for office is questioned."
As to Maquilings intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows intervention in
proceedings for disqualification even after elections if no final judgment has been rendered, but went on further to say that
Maquiling, as the second placer, would not be prejudiced by the outcome of the case as it agrees with the dispositive
portion of the Resolution of the First Division allowing the order of succession under Section 44 of the Local Government
Code to take effect.
The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for disqualification, and
ruled that the petition was filed well within the period prescribed by law, 24 having been filed on 28 April 2010, which is not
later than 11 May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted Arnados Motion for
Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine citizenship as
though he never became a citizen of another country. It was at that time, April 3, 2009, that the respondent became a
pure Philippine Citizen again.
xxxx
The use of a US passport does not operate to revert back his status as a dual citizen prior to his renunciation as there
is no law saying such. More succinctly, the use of a US passport does not operate to "un-renounce" what he has earlier
on renounced. The First Divisions reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. DefensorSantiago, et al. is misplaced. The petitioner in the said case is a naturalized citizen who, after taking his oath as a
naturalized Filipino, applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of
citizens who are not natural born, who acquire their citizenship by choice, thus discarding their original citizenship. The
Philippine State expects strict conduct of allegiance to those who choose to be its citizens. In the present case,
respondent is not a naturalized citizen but a natural born citizen who chose greener pastures by working abroad and then
decided to repatriate to supposedly help in the progress of Kauswagan. He did not apply for a US passport after his
renunciation. Thus the mentioned case is not on all fours with the case at bar.
xxxx
The respondent presented a plausible explanation as to the use of his US passport. Although he applied for a Philippine
passport, the passport was only issued on June 18, 2009. However, he was not notified of the issuance of his Philippine
passport so that he was actually able to get it about three (3) months later. Yet as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad. This fact is proven by the
respondents submission of a certified true copy of his passport showing that he used the same for his travels on the
following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010.
This then shows that the use of the US passport was because to his knowledge, his Philippine passport was not yet
issued to him for his use. As probably pressing needs might be undertaken, the respondent used whatever is within his

control during that time.

25

In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign passport is not one
of the grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be
lost.
"The application of the more assimilative principle of continuity of citizenship is more appropriate in this case. Under said
principle, once a person becomes a citizen, either by birth or naturalization, it is assumed that he desires to continue to be
a citizen, and this assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the instant case
respondent after reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his use of
his American passport in the absence of clear, unequivocal and competent proof of expatriation. Accordingly, all doubts
should be resolved in favor of retention of citizenship."26
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:
Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the United States. The
latters continued use of his US passport and enjoyment of all the privileges of a US citizen despite his previous
renunciation of the afore-mentioned citizenship runs contrary to his declaration that he chose to retain only his Philippine
citizenship. Respondents submission with the twin requirements was obviously only for the purpose of complying with the
requirements for running for the mayoralty post in connection with the May 10, 2010 Automated National and Local
Elections.
Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is lost during his
incumbency, title to the office itself is deemed forfeited. If a candidate is not a citizen at the time he ran for office or if he
lost his citizenship after his election to office, he is disqualified to serve as such. Neither does the fact that respondent
obtained the plurality of votes for the mayoralty post cure the latters failure to comply with the qualification requirements
regarding his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest number of
votes does not validate his election. It has been held that where a petition for disqualification was filed before election
against a candidate but was adversely resolved against him after election, his having obtained the highest number of
votes did not make his election valid. His ouster from office does not violate the principle of vox populi suprema est lex
because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. To
apply it is to breath[e] life to the sovereign will of the people who expressed it when they ratified the Constitution and when
they elected their representatives who enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office despite his
continued use of a US passport, and praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in
Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for ruling that Arnado
is a Filipino citizen despite his continued use of a US passport, Maquiling now seeks to reverse the finding of the
COMELEC En Banc that Arnado is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Divisions disqualification of
Arnado, Maquiling also seeks the review of the applicability of Section 44 of the Local Government Code, claiming that the
COMELEC committed reversible error in ruling that "the succession of the vice mayor in case the respondent is
disqualified is in order."

There are three questions posed by the parties before this Court which will be addressed seriatim as the subsequent
questions hinge on the result of the first.
The first question is whether or not intervention is allowed in a disqualification case.
The second question is whether or not the use of a foreign passport after renouncing foreign citizenship amounts to

undoing a renunciation earlier made.

A better framing of the question though should be whether or not the use of a foreign passport after renouncing foreign
citizenship affects ones qualifications to run for public office.
The third question is whether or not the rule on succession in the Local Government Code is applicable to this case.
OUR RULING
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for Reconsideration of
the First Division Resolution before the COMELEC En Banc. As the candidate who garnered the second highest number
of votes, Maquiling contends that he has an interest in the disqualification case filed against Arnado, considering that in
the event the latter is disqualified, the votes cast for him should be considered stray and the second-placer should be
proclaimed as the winner in the elections.
It must be emphasized that while the original petition before the COMELEC is one for cancellation of the certificate of
candidacy and / or disqualification, the COMELEC First Division and the COMELEC En Banc correctly treated the petition
as one for disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:
Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent
is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any
candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is
strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has
29
yet been no final judgment rendered.
Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that
Maquiling has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v.
COMELEC30 are present and therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of
the right to elevate the matter before this Court.
Arnados claim that the main case has attained finality as the original petitioner and respondents therein have not
appealed the decision of the COMELEC En Banc, cannot be sustained. The elevation of the case by the intervenor
prevents it from attaining finality. It is only after this Court has ruled upon the issues raised in this instant petition that the
disqualification case originally filed by Balua against Arnado will attain finality.

The use of foreign passport after renouncing ones foreign citizenship is a positive and voluntary act of
representation as to ones nationality and citizenship; it does not divest Filipino citizenship regained by
repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject
to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by
the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign before any public officer authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and
renounced his foreign citizenship. There is no question that after performing these twin requirements required under
Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for
public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for
repatriation before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009
simultaneous with the execution of his Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado
re-acquired his Philippine citizenship. At the time, however, he likewise possessed American citizenship. Arnado had
therefore become a dual citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of
Renunciation, thus completing the requirements for eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such
32
renunciation under the laws of the foreign country.
However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign
citizenship, the citizen performs positive acts showing his continued possession of a foreign citizenship. 33
Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued
to use his US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009.
The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his
certificate of candidacy, thereby rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC,
he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By
using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring
before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges
granted by the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated
the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil
and political rights granted by the foreign country which granted the citizenship.
34

Mercado v. Manzano already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust,
there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground that,
after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against

anyone who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting
renunciation and loss of Philippine citizenship,35 it is nevertheless an act which repudiates the very oath of renunciation
required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective
position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he
36
recanted his Oath of Renunciation that he "absolutely and perpetually renounce(s) all allegiance and fidelity to the
37
UNITED STATES OF AMERICA" and that he "divest(s) himself of full employment of all civil and political rights and
privileges of the United States of America."38
We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino
citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado
voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place
the instant Arnado represented himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing ones foreign citizenship is fatal to Arnados bid for public office, as it
effectively imposed on him a disqualification to run for an elective local position.
Arnados category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the
oath of renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of
foreign citizenship.39 Dual citizens by naturalization, on the other hand, are required to take not only the Oath of
Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a
candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and
privileges of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section
40(d) of the Local Government Code,40 he was not qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14
April 2009, on which date he first used his American passport after renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title
41
may be seasonably challenged. x x x.
The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the
renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the
citizenship issue to attack.
We agree with the pronouncement of the COMELEC First Division that "Arnados act of consistently using his US
passport effectively negated his "Affidavit of Renunciation."42 This does not mean, that he failed to comply with the twin
requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively disqualified him from
running for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would
be thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently
represents himself as a foreign citizen, to hold any public office.
Arnado justifies the continued use of his US passport with the explanation that he was not notified of the issuance of his
Philippine passport on 18 June 2009, as a result of which he was only able to obtain his Philippine passport three (3)
43
months later.

The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought naturalization as a
Filipino citizen and later applied for the renewal of his Portuguese passport. That Arnado did not apply for a US passport
after his renunciation does not make his use of a US passport less of an act that violated the Oath of Renunciation he
took. It was still a positive act of representation as a US citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his Philippine passport,
44
the respondent already used the same in his subsequent travels abroad." We cannot agree with the COMELEC. Three
months from June is September. If indeed, Arnado used his Philippine passport as soon as he was in possession of it, he
would not have used his US passport on 24 November 2009.
Besides, Arnados subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign
citizenship and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his
foreign passport does not undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his
earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights
accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to ones flag and
country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or
appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding
public office demands full and undivided allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the
same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is
disqualified not only from holding the public office but even from becoming a candidate in the May 2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential spring of the principle
that a second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be re-examined and its
soundness once again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible
candidate cannot be proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of municipal
president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing candidates for that office.
Topacio received 430 votes, and Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible
in that he was reelected the second time to the office of the municipal president on June 4, 1912, without the four years
required by Act No. 2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a second re-election
absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast
47
ballots."
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the effect of a decision
that a candidate is not entitled to the office because of fraud or irregularities in the elections x x x with that produced by
declaring a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison and contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections
is quite different from that produced by declaring a person ineligible to hold such an office. In the former case the court,
after an examination of the ballots may find that some other person than the candidate declared to have received a
plurality by the board of canvassers actually received the greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns accordingly; or it may find that the manner of holding the
election and the returns are so tainted with fraud or illegality that it cannot be determined who received a plurality of the

legally cast ballots. In the latter case, no question as to the correctness of the returns or the manner of casting and
counting the ballots is before the deciding power, and generally the only result can be that the election fails entirely. In the
former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy. If it
be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner,
and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not,
strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one case
the question is as to who received a plurality of the legally cast ballots; in the other, the question is confined to the
personal character and circumstances of a single individual.48 (Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly speaking, a contest" in
contrast to the earlier statement, "In the former, we have a contest in the strict sense of the word, because of the opposing
parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the
legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to
try a disqualification case based on the eligibility of the person who obtained the highest number of votes in the election,
its jurisdiction being confined "to determine which of the contestants has been duly elected" the judge exceeded his
jurisdiction when he "declared that no one had been legally elected president of the municipality of Imus at the general
election held in that town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be
elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his
stead. The Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in
declaring in those proceedings that no one was elected municipal president of the municipality of Imus at the last general
election; and that said order and all subsequent proceedings based thereon are null and void and of no effect; and,
although this decision is rendered on respondents' answer to the order to show cause, unless respondents raised some
new and additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a
mere pronouncement of the Court comparing one process with another and explaining the effects thereof. As an
independent statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots
and ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the
next highest number of votes as the winner and bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he
could not even have been a candidate in the first place, but by virtue of the lack of material time or any other intervening
circumstances, his ineligibility might not have been passed upon prior to election date. Consequently, he may have had
the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding
the outcome of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his
qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor
cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office.
The popular vote does not cure the

ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of
candidates. When the law requires certain qualifications to be possessed or that certain disqualifications be not
possessed by persons desiring to serve as elective public officials, those qualifications must be met before one even
becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest number of
votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the
candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and
disqualifications of candidates. We might as well write off our election laws if the voice of the electorate is the sole
determinant of who should be proclaimed worthy to occupy elective positions in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule
limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office
cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly
believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty
to this country only, abjuring and renouncing all fealty and fidelity to any other state. 51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled that the ruling in
Quizon and Saya-ang cannot be interpreted without qualifications lest "Election victory x x x becomes a magic formula to
bypass election eligibility requirements."53
We have ruled in the past that a candidates victory in the election may be considered a sufficient basis to rule in favor of
the candidate sought to be disqualified if the main issue involves defects in the candidates certificate of candidacy. We
said that while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of
interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be
construed as directory after the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and
Saya-ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the
realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance
for the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around
the law that effectively negates election requirements aimed at providing the electorate with the basic information to make
an informed choice about a candidates eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic
qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that
sets out what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the
petition to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC
data wins. To state the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory
will cure any defect that their COCs may have. Election victory then becomes a magic formula to bypass election eligibility
requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and
employing every strategy to delay any disqualification case filed against him so he can submit himself to the electorate
and win, if winning the election will guarantee a disregard of constitutional and statutory provisions on qualifications and
disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects
the rule of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on
qualifications and disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules
are disregarded and only the electorates voice spoken through the ballot is made to matter in the end, it precisely serves
as an open invitation for electoral anarchy to set in.1wphi1
Maquiling is not a second-placer as

he obtained the highest number of

votes from among the qualified
candidates.
With Arnados disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of
votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void COC cannot produce
any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even
more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign
voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are
allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the
laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications
set in the rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware within the realm of
notoriety of a candidates disqualification and still cast their votes in favor said candidate, then the eligible candidate
obtaining the next higher number of votes may be deemed elected. That rule is also a mere obiter that further complicated
the rules affecting qualified candidates who placed second to ineligible ones.
The electorates awareness of the candidates disqualification is not a prerequisite for the disqualification to attach to the
candidate. The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the
electorate of a candidates disqualification is not necessary before a qualified candidate who placed second to a
disqualified one can be proclaimed as the winner. The second-placer in the vote count is actually the first-placer among
the qualified candidates.
That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent
disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only
the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong.
There was no chance for Arnados proclamation to be suspended under this rule because Arnado failed to file his answer
to the petition seeking his disqualification. Arnado only filed his Answer on 15 June 2010, long after the elections and after
he was already proclaimed as the winner.
The disqualifying circumstance surrounding Arnados candidacy involves his citizenship. It does not involve the
commission of election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the
effect of which is to disqualify the individual from continuing as a candidate, or if he has already been elected, from
holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both a Filipino and an
American citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based
on Section 40(d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any elective local position."
The prohibition serves as a bar against the individuals who fall under any of the enumeration from participating as
candidates in the election.
With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the
beginning. It could not have produced any other legal effect except that Arnado rendered it impossible to effect his
disqualification prior to the elections because he filed his answer to the petition when the elections were conducted
already and he was already proclaimed the winner.
To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado
possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado's disqualification, although
made long after the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a
candidate at all in the May 201 0 elections.
Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the
qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local
Government Code will not apply.
WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En Bane dated 2
February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO is disqualified from
running for any local elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of
Kauswagan, Lanao del Norte in the 10 May 2010 elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the parties and the Commission on Elections.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 179848

November 27, 2008

NESTOR A. JACOT, petitioner, vs. ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents.
DECISION
CHICO-NAZARIO, J.:
1

Petitioner Nestor A. Jacot assails the Resolution dated 28 September 2007 of the Commission on Elections (COMELEC)
En Banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division2
disqualifying him from running for the position of Vice-Mayor of Catarman, Camiguin, in the 14 May 2007 National and
Local Elections, on the ground that he failed to make a personal renouncement of his United States (US) citizenship.
Petitioner was a natural born citizen of the Philippines, who became a naturalized citizen of the US on 13 December 1989.
3

Petitioner sought to reacquire his Philippine citizenship under Republic Act No. 9225, otherwise known as the Citizenship
Retention and Re-Acquisition Act. He filed a request for the administration of his Oath of Allegiance to the Republic of the
Philippines with the Philippine Consulate General (PCG) of Los Angeles, California. The Los Angeles PCG issued on 19
4
June 2006 an Order of Approval of petitioners request, and on the same day, petitioner took his Oath of Allegiance to the
Republic of the Philippines before Vice Consul Edward C. Yulo. 5 On 27 September 2006, the Bureau of Immigration
issued Identification Certificate No. 06-12019 recognizing petitioner as a citizen of the Philippines.6
Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for the Position of Vice-Mayor of the
Municipality of Catarman, Camiguin. 7
On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification8 before the COMELEC Provincial Office in
Camiguin against petitioner, arguing that the latter failed to renounce his US citizenship, as required under Section 5(2) of
Republic Act No. 9225, which reads as follows:
Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.
In his Answer9 dated 6 May 2007 and Position Paper10 dated 8 May 2007, petitioner countered that his Oath of Allegiance
to the Republic of the Philippines made before the Los Angeles PCG and the oath contained in his Certificate of
Candidacy operated as an effective renunciation of his foreign citizenship.
In the meantime, the 14 May 2007 National and Local Elections were held. Petitioner garnered the highest number of
votes for the position of Vice Mayor.
11

On 12 June 2007, the COMELEC Second Division finally issued its Resolution disqualifying the petitioner from running
for the position of Vice-Mayor of Catarman, Camiguin, for failure to make the requisite renunciation of his US citizenship.
The COMELEC Second Division explained that the reacquisition of Philippine citizenship under Republic Act No. 9225
does not automatically bestow upon any person the privilege to run for any elective public office. It additionally ruled that
the filing of a Certificate of Candidacy cannot be considered as a renunciation of foreign citizenship. The COMELEC
12
13
Second Division did not consider Valles v. COMELEC and Mercado v. Manzano applicable to the instant case, since
Valles and Mercado were dual citizens since birth, unlike the petitioner who lost his Filipino citizenship by means of
naturalization. The COMELEC, thus, decreed in the aforementioned Resolution that:
ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin
for the May 14, 2007 National and Local Elections. If proclaimed, respondent cannot thus assume the Office of Vice14
Mayor of said municipality by virtue of such disqualification.

Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his position that his Oath of Allegiance to the
Republic of the Philippines before the Los Angeles PCG and his oath in his Certificate of Candidacy sufficed as an
effective renunciation of his US citizenship. Attached to the said Motion was an "Oath of Renunciation of Allegiance to the
United States and Renunciation of Any and All Foreign Citizenship" dated 27 June 2007, wherein petitioner explicitly
renounced his US citizenship.15 The COMELEC en banc dismissed petitioners Motion in a Resolution16 dated 28
September 2007 for lack of merit.
Petitioner sought remedy from this Court via the present Special Civil Action for Certiorari under Rule 65 of the Revised
Rules of Court, where he presented for the first time an "Affidavit of Renunciation of Allegiance to the United States and
17
Any and All Foreign Citizenship" dated 7 February 2007. He avers that he executed an act of renunciation of his US
citizenship, separate from the Oath of Allegiance to the Republic of the Philippines he took before the Los Angeles PCG
and his filing of his Certificate of Candidacy, thereby changing his theory of the case during the appeal. He attributes the
delay in the presentation of the affidavit to his former counsel, Atty. Marciano Aparte, who allegedly advised him that said
piece of evidence was unnecessary but who, nevertheless, made him execute an identical document entitled "Oath of
Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" on 27 June 2007
18
after he had already filed his Certificate of Candidacy.
Petitioner raises the following issues for resolution of this Court:
I
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT
PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF R.A. 9225, OTHERWISE KNOWN AS THE
"CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF 2003," SPECIFICALLY SECTION 5(2) AS TO THE
REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC OFFICE;
II
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT
PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF THE COMELEC RULES OF PROCEDURE AS
REGARDS THE PAYMENT OF THE NECESSARY MOTION FEES; AND
III
WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT WOULD RESULT IN THE
FRUSTRATION OF THE WILL OF THE PEOPLE OF CATARMAN, CAMIGUIN. 19
The Court determines that the only fundamental issue in this case is whether petitioner is disqualified from running as a
candidate in the 14 May 2007 local elections for his failure to make a personal and sworn renunciation of his US
citizenship.
This Court finds that petitioner should indeed be disqualified.
Contrary to the assertions made by petitioner, his oath of allegiance to the Republic of the Philippines made before the
Los Angeles PCG and his Certificate of Candidacy do not substantially comply with the requirement of a personal and
sworn renunciation of foreign citizenship because these are distinct requirements to be complied with for different
purposes.
Section 3 of Republic Act No. 9225 requires that natural-born citizens of the Philippines, who are already naturalized
citizens of a foreign country, must take the following oath of allegiance to the Republic of the Philippines to reacquire or
retain their Philippine citizenship:
SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrary notwithstanding, natural-born citizens of
the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country
are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic:
"I __________ solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines
and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance

thereto; and that I impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall
retain their Philippine citizenship upon taking the aforesaid oath.
By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to the Philippines, but there is nothing
therein on his renunciation of foreign citizenship. Precisely, a situation might arise under Republic Act No. 9225 wherein
said Filipino has dual citizenship by also reacquiring or retaining his Philippine citizenship, despite his foreign citizenship.
The afore-quoted oath of allegiance is substantially similar to the one contained in the Certificate of Candidacy which
must be executed by any person who wishes to run for public office in Philippine elections. Such an oath reads:
I am eligible for the office I seek to be elected. I will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities of the Republic of the Philippines; and that I impose this obligation upon myself voluntarily, without
mental reservation or purpose of evasion. I hereby certify that the facts stated herein are true and correct of my own
personal knowledge.
Now, Section 5(2) of Republic Act No. 9225 specifically provides that:
Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or
those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public
20
officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as
citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of
allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the
Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an
authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in
Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign
citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking
other than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of
the Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions
of House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where
the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel
Javier that the oath of allegiance is different from the renunciation of foreign citizenship:
CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of
the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath." I think its very good, ha? No problem?
REP. JAVIER. I think its already covered by the oath.
CHAIRMAN DRILON. Renouncing foreign citizenship.
REP. JAVIER. Ah but he has taken his oath already.

CHAIRMAN DRILON. Nono, renouncing foreign citizenship.

xxxx
CHAIRMAN DRILON. Can I go back to No. 2. Whats your problem, Boy? Those seeking elective office in the
Philippines.
REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano
CHAIRMAN DRILON. His American citizenship.
REP. JAVIER. To discourage him from running?
CHAIRMAN DRILON. No.
REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs for office, he will have
only one. (Emphasis ours.)
There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring or retaining their
Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but
also to explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a
candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the
one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn renunciation sought
under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of allegiance is a general
requirement for all those who wish to run as candidates in Philippine elections; while the renunciation of foreign citizenship
is an additional requisite only for those who have retained or reacquired Philippine citizenship under Republic Act No.
9225 and who seek elective public posts, considering their special circumstance of having more than one citizenship.
Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22 wherein the filing by a person with dual citizenship
of a certificate of candidacy, containing an oath of allegiance, was already considered a renunciation of foreign
citizenship. The ruling of this Court in Valles and Mercado is not applicable to the present case, which is now specially
governed by Republic Act No. 9225, promulgated on 29 August 2003.
In Mercado, which was cited in Valles, the disqualification of therein private respondent Manzano was sought under
another law, Section 40(d) of the Local Government Code, which reads:
SECTION 40. Disqualifications. The following persons are disqualified from running for any elective local position:
xxxx
(d) Those with dual citizenship.
The Court in the aforesaid cases sought to define the term "dual citizenship" vis--vis the concept of "dual allegiance." At
the time this Court decided the cases of Valles and Mercado on 26 May 1999 and 9 August 2000, respectively, the more
23
explicitly worded requirements of Section 5(2) of Republic Act No. 9225 were not yet enacted by our legislature.
Lopez v. Commission on Elections24 is the more fitting precedent for this case since they both share the same factual
milieu. In Lopez, therein petitioner Lopez was a natural-born Filipino who lost his Philippine citizenship after he became a
naturalized US citizen. He later reacquired his Philippine citizenship by virtue of Republic Act No. 9225. Thereafter, Lopez
filed his candidacy for a local elective position, but failed to make a personal and sworn renunciation of his foreign
citizenship. This Court unequivocally declared that despite having garnered the highest number of votes in the election,
Lopez is nonetheless disqualified as a candidate for a local elective position due to his failure to comply with the
requirements of Section 5(2) of Republic Act No. 9225.
Petitioner presents before this Court for the first time, in the instant Petition for Certiorari, an "Affidavit of Renunciation of
Allegiance to the United States and Any and All Foreign Citizenship,"25 which he supposedly executed on 7 February

2007, even before he filed his Certificate of Candidacy on 26 March 2007. With the said Affidavit, petitioner puts forward
in the Petition at bar a new theory of his casethat he complied with the requirement of making a personal and sworn
renunciation of his foreign citizenship before filing his Certificate of Candidacy. This new theory constitutes a radical
change from the earlier position he took before the COMELECthat he complied with the requirement of renunciation by
his oaths of allegiance to the Republic of the Philippines made before the Los Angeles PCG and in his Certificate of
Candidacy, and that there was no more need for a separate act of renunciation.
As a rule, no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law,
theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body
need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic
26
considerations of fairness and due process impel this rule. Courts have neither the time nor the resources to
27
accommodate parties who chose to go to trial haphazardly.
Likewise, this Court does not countenance the late submission of evidence.
dated 7 February 2007 during the proceedings before the COMELEC.

28

Petitioner should have offered the Affidavit

Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the absence of any applicable provisions of
these Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in
suppletory character and effect." Section 34 of Rule 132 of the Revised Rules of Court categorically enjoins the admission
of evidence not formally presented:
SEC. 34. Offer of evidence. - The court shall consider no evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.
Since the said Affidavit was not formally offered before the COMELEC, respondent had no opportunity to examine and
controvert it. To admit this document would be contrary to due process. 29 Additionally, the piecemeal presentation of
30
evidence is not in accord with orderly justice.
The Court further notes that petitioner had already presented before the COMELEC an identical document, "Oath of
Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" executed on 27
June 2007, subsequent to his filing of his Certificate of Candidacy on 26 March 2007. Petitioner attached the said Oath of
27 June 2007 to his Motion for Reconsideration with the COMELEC en banc. The COMELEC en banc eventually refused
to reconsider said document for being belatedly executed. What was extremely perplexing, not to mention suspect, was
that petitioner did not submit the Affidavit of 7 February 2007 or mention it at all in the proceedings before the COMELEC,
considering that it could have easily won his case if it was actually executed on and in existence before the filing of his
Certificate of Candidacy, in compliance with law.
The justification offered by petitioner, that his counsel had advised him against presenting this crucial piece of evidence, is
lame and unconvincing. If the Affidavit of 7 February 2007 was in existence all along, petitioners counsel, and even
petitioner himself, could have easily adduced it to be a crucial piece of evidence to prove compliance with the
requirements of Section 5(2) of Republic Act No. 9225. There was no apparent danger for petitioner to submit as much
evidence as possible in support of his case, than the risk of presenting too little for which he could lose.
And even if it were true, petitioners excuse for the late presentation of the Affidavit of 7 February 2007 will not change the
outcome of petitioners case.
It is a well-settled rule that a client is bound by his counsels conduct, negligence, and mistakes in handling the case, and
31
the client cannot be heard to complain that the result might have been different had his lawyer proceeded differently.
The only exceptions to the general rule -- that a client is bound by the mistakes of his counsel -- which this Court finds
acceptable are when the reckless or gross negligence of counsel deprives the client of due process of law, or when the
application of the rule results in the outright deprivation of ones property through a technicality. 32 These exceptions are
not attendant in this case.
The Court cannot sustain petitioners averment that his counsel was grossly negligent in deciding against the presentation
of the Affidavit of 7 February 2007 during the proceedings before the COMELEC. Mistakes of attorneys as to the
competency of a witness; the sufficiency, relevancy or irrelevancy of certain evidence; the proper defense or the burden of
proof, failure to introduce evidence, to summon witnesses and to argue the case -- unless they prejudice the client and
prevent him from properly presenting his case -- do not constitute gross incompetence or negligence, such that clients
may no longer be bound by the acts of their counsel.33

Also belying petitioners claim that his former counsel was grossly negligent was the fact that petitioner continuously used
his former counsels theory of the case. Even when the COMELEC already rendered an adverse decision, he persistently
argues even to this Court that his oaths of allegiance to the Republic of the Philippines before the Los Angeles PCG and
in his Certificate of Candidacy amount to the renunciation of foreign citizenship which the law requires. Having asserted
the same defense in the instant Petition, petitioner only demonstrates his continued reliance on and complete belief in the
position taken by his former counsel, despite the formers incongruous allegations that the latter has been grossly
negligent.
Petitioner himself is also guilty of negligence. If indeed he believed that his counsel was inept, petitioner should have
promptly taken action, such as discharging his counsel earlier and/or insisting on the submission of his Affidavit of 7
February 2007 to the COMELEC, instead of waiting until a decision was rendered disqualifying him and a resolution
issued dismissing his motion for reconsideration; and, thereupon, he could have heaped the blame on his former counsel.
Petitioner could not be so easily allowed to escape the consequences of his former counsels acts, because, otherwise, it
would render court proceedings indefinite, tentative, and subject to reopening at any time by the mere subterfuge of
replacing counsel. 34
35

Petitioner cites De Guzman v. Sandiganbayan, where therein petitioner De Guzman was unable to present a piece of
evidence because his lawyer proceeded to file a demurrer to evidence, despite the Sandiganbayans denial of his prior
leave to do so. The wrongful insistence of the lawyer in filing a demurrer to evidence had totally deprived De Guzman of
any chance to present documentary evidence in his defense. This was certainly not the case in the Petition at bar.
Herein, petitioner was in no way deprived of due process. His counsel actively defended his suit by attending the
hearings, filing the pleadings, and presenting evidence on petitioners behalf. Moreover, petitioners cause was not
defeated by a mere technicality, but because of a mistaken reliance on a doctrine which is not applicable to his case. A
case lost due to an untenable legal position does not justify a deviation from the rule that clients are bound by the acts
and mistakes of their counsel.36
Petitioner also makes much of the fact that he received the highest number of votes for the position of Vice-Mayor of
Catarman during the 2007 local elections. The fact that a candidate, who must comply with the election requirements
applicable to dual citizens and failed to do so, received the highest number of votes for an elective position does not
dispense with, or amount to a waiver of, such requirement.37 The will of the people as expressed through the ballot cannot
cure the vice of ineligibility, especially if they mistakenly believed that the candidate was qualified. The rules on citizenship
qualifications of a candidate must be strictly applied. If a person seeks to serve the Republic of the Philippines, he must
38
owe his loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. The application of
39
the constitutional and statutory provisions on disqualification is not a matter of popularity.
WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 September 2007 of the COMELEC en banc in
SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division, is AFFIRMED.
Petitioner is DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin in the 14 May 2007 National and
Local Elections, and if proclaimed, cannot assume the Office of Vice-Mayor of said municipality by virtue of such
disqualification. Costs against petitioner.
SO ORDERED.

G.R. No. 180048

June 19, 2009

ROSELLER DE GUZMAN, Petitioner, vs. COMMISSION ON ELECTIONS and ANGELINA DG. DELA CRUZ,
Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition1 for certiorari with prayer for preliminary injunction and temporary restraining order assails the June 15, 2007
2
Resolution of the First Division of the Commission on Elections (COMELEC) in SPA No. 07-211, disqualifying petitioner
Roseller De Guzman from running as vice-mayor in the May 14, 2007 Synchronized National and Local Elections. Also
assailed is the October 9, 2007 Resolution3 of the COMELEC En Banc denying petitioners motion for reconsideration.
Petitioner De Guzman and private respondent Angelina DG. Dela Cruz were candidates for vice-mayor of Guimba, Nueva
Ecija in the May 14, 2007 elections. On April 3, 2007, private respondent filed against petitioner a petition4 for
disqualification docketed as SPA No. 07-211, alleging that petitioner is not a citizen of the Philippines, but an immigrant
and resident of the United States of America.
In his answer, petitioner admitted that he was a naturalized American. However, on January 25, 2006, he applied for dual
citizenship under Republic Act No. 9225 (R.A. No. 9225), otherwise known as the Citizenship Retention and ReAcquisition Act of 2003.5 Upon approval of his application, he took his oath of allegiance to the Republic of the Philippines
on September 6, 2006. He argued that, having re-acquired Philippine citizenship, he is entitled to exercise full civil and
political rights. As such, he is qualified to run as vice-mayor of Guimba, Nueva Ecija.
During the May 14, 2007 elections, private respondent won as vice-mayor. Petitioner filed an election protest on grounds
of irregularities and massive cheating. The case was filed before Branch 31 of the Regional Trial Court of Guimba, Nueva
Ecija and was docketed as Election Protest No. 07-01.
Meanwhile, in SPA No. 07-211, the COMELEC First Division rendered its June 15, 2007 Resolution disqualifying
petitioner, which reads as follows:
Section 3 of R.A. No. 9225 states:
"Retention of Philippine Citizenship. Natural-born citizens of the Philippines who have lost their Philippine citizenship by
reason of their naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship
upon taking the following oath of allegiance to the Republic: x x x"
Hence, under the provisions of the aforementioned law, respondent has validly reacquired Filipino citizenship. By taking
this Oath of Allegiance to the Republic of the Philippines on September 6, 2006 before Mary Jo Bernardo Aragon, Deputy
Consul General at the Philippine Consulate General, Los Angeles, California respondent was deemed a dual citizen,
possessing both Filipino and American citizenship.
However, subparagraph (2), Section 5 of the aforementioned Act also provides:
Section 5. Civil and Political Rights and Liabilities -- Those who retain or re-acquire Philippine Citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.
As can be gleaned from the above cited provision, respondent [herein petitioner] should have renounced his American
citizenship before he can run for any public elective position. This respondent did not do. The Oath of Allegiance taken by
respondent was for the purpose of re-acquiring Philippine citizenship. It did not, at the same time, mean that respondent
has renounced his American citizenship. Thus, at the time respondent filed his certificate of candidacy for the position of

Vice-Mayor of Guimba, Nueva Ecija he was, and still is, a dual citizen, possessing both Philippine and American
citizenship. For this reason alone, respondent is disqualified to run for the abovementioned elective position.
WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it hereby RESOLVES, to GRANT
the instant petition finding it IMBUED WITH MERIT. Hence, respondent (petitioner herein) Roseller T. De Guzman is
disqualified to run as Vice-Mayor of Guimba, Nueva Ecija in the May 14, 2007 Synchronized National and Local
6
Elections.
Petitioner filed a motion for reconsideration but it was dismissed on October 9, 2007 by the COMELEC En Banc for
having been rendered moot in view of private respondents victory.
Thereafter, the trial court in Election Protest No. 07-01 rendered a Decision,7 dated November 26, 2007, declaring
petitioner as the winner for the Vice-Mayoralty position. It held:
WHEREFORE, judgment is hereby rendered declaring protestant ROSELLER T. DE GUZMAN, as the winner for the
Vice-Mayoralty position with a plurality of 776 votes over the protestee, ANGELINA D.G. DELA CRUZ, in the May 14,
2007 Local Elections in Guimba, Nueva Ecija. With costs against the protestee.
There being no evidence presented as to the damages by both parties, the same are hereby denied.
SO ORDERED.8
Petitioner filed the instant petition for certiorari, alleging that the COMELEC acted with grave abuse of discretion in
disqualifying him from running as Vice-Mayor because of his failure to renounce his American citizenship, and in
dismissing the motion for reconsideration for being moot.
Petitioner invokes the rulings in Frivaldo v. Commission on Elections9 and Mercado v. Manzano,10 that the filing by a
person with dual citizenship of a certificate of candidacy, containing an oath of allegiance, constituted as a renunciation of
his foreign citizenship. Moreover, he claims that the COMELEC En Banc prematurely dismissed the motion for
reconsideration because at that time, there was a pending election protest which was later decided in his favor.
Meanwhile, private respondent claims that the passage of R.A. No. 9225 effectively abandoned the Courts rulings in
Frivaldo and Mercado; that the current law requires a personal and sworn renunciation of any and all foreign citizenship;
and that petitioner, having failed to renounce his American citizenship, remains a dual citizen and is therefore disqualified
from running for an elective public position under Section 4011 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991 (LGC).
The issues for resolution are: 1) whether the COMELEC gravely abused its discretion in dismissing petitioners motion for
reconsideration for being moot; and 2) whether petitioner is disqualified from running for vice-mayor of Guimba, Nueva
Ecija in the May 14, 2007 elections for having failed to renounce his American citizenship in accordance with R.A. No.
9225.
An issue becomes moot when it ceases to present a justifiable controversy so that a determination thereof would be
without practical use and value.12 In this case, the pendency of petitioners election protest assailing the results of the
election did not render moot the motion for reconsideration which he filed assailing his disqualification. Stated otherwise,
the issue of petitioners citizenship did not become moot; the resolution of the issue remained relevant because it could
significantly affect the outcome of the election protest. Philippine citizenship is an indispensable requirement for holding
an elective office. As mandated by law: "An elective local official must be a citizen of the Philippines." 13 It bears stressing
that the Regional Trial Court later ruled in favor of petitioner in the election protest and declared him the winner. In view
thereof, a definitive ruling on the issue of petitioners citizenship was clearly necessary. Hence, the COMELEC committed
grave abuse of discretion in dismissing petitioners motion for reconsideration solely on the ground that the same was
rendered moot because he lost to private respondent.
Anent the second issue, we find that petitioner is disqualified from running for public office in view of his failure to
renounce his American citizenship.
R.A. No. 9225 was enacted to allow re-acquisition and retention of Philippine citizenship for: 1) natural-born citizens who
have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country; and 2) natural-born
citizens of the Philippines who, after the effectivity of the law, become citizens of a foreign country. The law provides that

they are deemed to have re-acquired or retained their Philippine citizenship upon taking the oath of allegiance.

14

Petitioner falls under the first category, being a natural-born citizen who lost his Philippine citizenship upon his
naturalization as an American citizen. In the instant case, there is no question that petitioner re-acquired his Philippine
citizenship after taking the oath of allegiance on September 6, 2006. However, it must be emphasized that R.A. No. 9225
imposes an additional requirement on those who wish to seek elective public office, as follows:
Section 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine Citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.
Contrary to petitioners claims, the filing of a certificate of candidacy does not ipso facto amount to a renunciation of his
foreign citizenship under R.A. No. 9225. Our rulings in the cases of Frivaldo and Mercado are not applicable to the instant
case because R.A. No. 9225 provides for more requirements.
Thus, in Japzon v. COMELEC,15 the Court held that Section 5(2) of R.A. No. 9225 requires the twin requirements of
swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship, viz:
Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his Philippine citizenship
under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as
required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign
citizenships before any public officer authorized to administer an oath.1awphi1
Further, in Jacot v. Dal and COMELEC,16 the Court ruled that a candidates oath of allegiance to the Republic of the
Philippines and his Certificate of Candidacy do not substantially comply with the requirement of a personal and sworn
renunciation of foreign citizenship. Thus:
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or
those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public
officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a
foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section
3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a
personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous
to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign
citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking
other than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of
the Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions
of House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where
the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel
Javier that the oath of allegiance is different from the renunciation of foreign citizenship:
CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of
the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath." I think its very good, ha? No problem?
REP. JAVIER. I think its already covered by the oath.
CHAIRMAN DRILON. Renouncing foreign citizenship.

REP. JAVIER. Ah but he has taken his oath already.

CHAIRMAN DRILON. Nono, renouncing foreign citizenship.
xxxx
CHAIRMAN DRILON. Can I go back to No. 2. Whats your problem, Boy? Those seeking elective office in the Philippines.
REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano
CHAIRMAN DRILON. His American citizenship.
REP. JAVIER. To discourage him from running?
CHAIRMAN DRILON. No.
REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs for office, he will have only
one. (Emphasis ours.)
There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring or retaining their
Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but
also to explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a
candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the
one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn renunciation sought
under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of allegiance is a general
requirement for all those who wish to run as candidates in Philippine elections; while the renunciation of foreign citizenship
is an additional requisite only for those who have retained or reacquired Philippine citizenship under Republic Act No.
9225 and who seek elective public posts, considering their special circumstance of having more than one citizenship.
In the instant case, petitioners Oath of Allegiance and Certificate of Candidacy did not comply with Section 5(2) of R.A.
No. 9225 which further requires those seeking elective public office in the Philippines to make a personal and sworn
renunciation of foreign citizenship. Petitioner failed to renounce his American citizenship; as such, he is disqualified from
running for vice-mayor of Guimba, Nueva Ecija in the May 14, 2007 elections.
WHEREFORE, the petition is DISMISSED. Petitioner is declared DISQUALIFIED from running for Vice-Mayor of Guimba,
Nueva Ecija in the May 14, 2007 elections because of his failure to renounce his foreign citizenship pursuant to Section
5(2) of R.A. No. 9225.
SO ORDERED.

CIRILO R. VALLES, Petitioner, v. COMMISSION ON ELECTIONS and ROSALIND YBASCO LOPEZ, Respondents.
DECISION
PURISIMA, J.:
This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64 of the 1997 Rules of Civil Procedure,
assailing Resolutions dated July 17, 1998 and January 15, 1999, respectively, of the Commission on Elections in SPA No.
98-336, dismissing the petition for disqualification filed by the herein petitioner, Cirilo R. Valles, against private respondent
Rosalind Ybasco Lopez, in the May 1998 elections for governor of Davao Oriental.
Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses,
Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In 1949, at
the age of fifteen, she left Australia and came to settle in the Philippines.
On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at the Malate Catholic Church in Manila. Since
then, she has continuously participated in the electoral process not only as a voter but as a candidate, as well. She served
as Provincial Board Member of the Sangguniang Panlalawigan of Davao Oriental. In 1992, she ran for and was elected
governor of Davao Oriental. Her election was contested by her opponent, Gil Taojo, Jr., in a petition for quo warranto,
docketed as EPC No. 92-54, alleging as ground therefor her alleged Australian citizenship. However, finding no sufficient
proof that respondent had renounced her Philippine citizenship, the Commission on Elections en banc dismissed the
petition, ratiocinating thus:
"A cursory reading of the records of this case vis-a-vis the impugned resolution shows that respondent was able to
produce documentary proofs of the Filipino citizenship of her late father . . . and consequently, prove her own citizenship
and filiation by virtue of the Principle of Jus Sanguinis, the perorations of the petitioner to the contrary notwithstanding.
On the other hand, except for the three (3) alleged important documents . . . no other evidence substantial in nature
surfaced to confirm the allegations of petitioner that respondent is an Australian citizen and not a Filipino. Express
renunciation of citizenship as a mode of losing citizenship under Commonwealth Act No. 63 is an equivocal and deliberate
act with full awareness of its significance and consequence. The evidence adduced by petitioner are inadequate, nay
meager, to prove that respondent contemplated renunciation of her Filipino citizenship." 1
In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-election as governor of Davao Oriental. Her
opponent, Francisco Rabat, filed a petition for disqualification, docketed as SPA No. 95-066 before the COMELEC, First
Division, contesting her Filipino citizenship but the said petition was likewise dismissed by the COMELEC, reiterating
substantially its decision in EPC 92-54.
The citizenship of private respondent was once again raised as an issue when she ran for re-election as governor of
Davao Oriental in the May 11, 1998 elections. Her candidacy was questioned by the herein petitioner, Cirilo Valles, in
SPA No. 98-336.
On July 17, 1998, the COMELECs First Division came out with a Resolution dismissing the petition, and disposing as
follows:
"Assuming arguendo that res judicata does not apply and We are to dispose the instant case on the merits trying it de
novo, the above table definitely shows that petitioner herein has presented no new evidence to disturb the Resolution of
this Commission in SPA No. 95-066. The present petition merely restates the same matters and incidents already passed
upon by this Commission not just in 1995 Resolution but likewise in the Resolution of EPC No. 92-54. Not having put forth
any new evidence and matter substantial in nature, persuasive in character or sufficiently provocative to compel reversal
of such Resolutions, the dismissal of the present petition follows as a matter of course.
x
x
x
"WHEREFORE, premises considered and there being no new matters and issues tendered, We find no convincing reason
or impressive explanation to disturb and reverse the Resolutions promulgated by this Commission in EPC 92-54 and SPA.
95-066. This Commission RESOLVES as it hereby RESOLVES to DISMISS the present petition.
SO ORDERED." 2
Petitioner interposed a motion for reconsideration of the aforesaid Resolution but to no avail. The same was denied by the
COMELEC in its en banc Resolution of January 15, 1999.

Undaunted, petitioner found his way to this Court via the present petition; questioning the citizenship of private respondent
Rosalind Ybasco Lopez.
The Commission on Elections ruled that private respondent Rosalind Ybasco Lopez is a Filipino citizen and therefore,
qualified to run for a public office because (1) her father, Telesforo Ybasco, is a Filipino citizen, and by virtue of the
principle of jus sanguinis she was a Filipino citizen under the 1987 Philippine Constitution; (2) she was married to a
Filipino, thereby making her also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473; (3) and that, she
renounced her Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs of
Australia and her Australian passport was accordingly cancelled as certified to by the Australian Embassy in Manila; and
(4) furthermore, there are the COMELEC Resolutions in EPC No. 92-54 and SPA Case No. 95-066, declaring her a
Filipino citizen duly qualified to run for the elective position of Davao Oriental governor.
Petitioner, on the other hand, maintains that the private respondent is an Australian citizen, placing reliance on the
admitted facts that:
a) In 1988, private respondent registered herself with the Bureau of Immigration as an Australian national and was issued
Alien Certificate of Registration No. 404695 dated September 19, 1988;
b) On even date, she applied for the issuance of an Immigrant Certificate of Residence (ICR); and
c) She was issued Australian Passport No. H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts and circumstances, the private respondent had renounced her Filipino
citizenship. He contends that in her application for alien certificate of registration and immigrant certificate of residence,
private respondent expressly declared under oath that she was a citizen or subject of Australia; and said declaration
forfeited her Philippine citizenship, and operated to disqualify her to run for elective office.
As regards the COMELECs finding that private respondent had renounced her Australian citizenship on January 15, 1992
before the Department of Immigration and Ethnic Affairs of Australia and had her Australian passport cancelled on
February 11, 1992, as certified to by the Australian Embassy here in Manila, petitioner argues that the said acts did not
automatically restore the status of private respondent as a Filipino citizen. According to petitioner, for the private
respondent to reacquire Philippine citizenship she must comply with the mandatory requirements for repatriation under
Republic Act 8171; and the election of private respondent to public office did not mean the restoration of her Filipino
citizenship since the private respondent was not legally repatriated. Coupled with her alleged renunciation of Australian
citizenship, private respondent has effectively become a stateless person and as such, is disqualified to run for a public
office in the Philippines; petitioner concluded.
Petitioner theorizes further that the Commission on Elections erred in applying the principle of res judicata to the case
under consideration; citing the ruling in Moy Ya Lim Yao v. Commissioner of Immigration, 3 that:
". . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the
corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res
adjudicata, hence it has to be threshed out again and again as the occasion may demand. . . ."
The petition is unmeritorious.
The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or
citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines
nationality or citizenship on the basis of place of birth.chanrob1es virtua1 1aw 1ibrary
Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to
the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an
Australian. Historically, this was a year before the 1935 Constitution took into effect and at that time, what served as the
Constitution of the Philippines were the principal organic acts by which the United States governed the country. These
were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones
Law.
Among others, these laws defined who were deemed to be citizens of the Philippine islands. The Philippine Bill of 1902
defined Philippine citizens as:
SEC. 4. . . . all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in the Philippine Islands, and their children born
subsequent thereto. shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the

protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December
tenth, eighteen hundred and ninety-eight. (Emphasis ours)
The Jones Law, on the other hand, provides:
SEC. 2. That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April. eighteen
hundred and ninety-nine. and then resided in said Islands. and their children born subsequent thereto. shall be deemed
and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at
Paris December tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of some
other country: Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who cannot come within the foregoing
provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine
Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the
United States if residing therein. (Emphasis ours)
Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided
therein including their children are deemed to be Philippine citizens. Private respondents father, Telesforo Ybasco, was
born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the
Registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a
Philippine citizen. By virtue of the same laws, which were the laws in force at the time of her birth, Telesforos daughter,
herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines.
The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for the
acquisition of Philippine citizenship, to wit:
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.
(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution had been elected
to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine
citizenship.
(5) Those who are naturalized in accordance with law.
So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was subsequently retained
under the 1973 4 and 1987 5 Constitutions. Thus, the herein private respondent, Rosalind Ybasco Lopez, is a Filipino
citizen, having been born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her
Philippine citizenship. If Australia follows the principle of jus soli, then at most, private respondent can also claim
Australian citizenship resulting to her possession of dual citizenship.
Petitioner also contends that even on the assumption that the private respondent is a Filipino citizen, she has nonetheless
renounced her Philippine citizenship. To buttress this contention, petitioner cited private respondents application for an
Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence (ICR), on September 19, 1988, and the
issuance to her of an Australian passport on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign county upon attaining twentyone years of age or more;
(4) By accepting commission in the military, naval or air service of a foreign country;
(5) By cancellation of the certificate of naturalization;

(6) By having been declared by competent authority, a deserter of the Philippine Armed forces in time of war, unless
subsequently, a plenary pardon or amnesty has been granted; and
(7) In case of a woman, upon her manage, to a foreigner if, by virtue of the laws in force in her husbands country, she
acquires his nationality.
In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioners contention that the
application of private respondent for an alien certificate of registration, and her Australian passport, is bereft of merit. This
issue was put to rest in the case of Aznar v. COMELEC 6 and in the more recent case of Mercado v. Manzano and
COMELEC. 7
In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that
he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration
was not tantamount to renunciation of his Philippine citizenship.
And, in Mercado v. Manzano and COMELEC, it was held that the fact that respondent Manzano was registered as an
American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997,
only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American
nationality before the termination of his American citizenship.
Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an
alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against
her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express.
8 As held by this court in the aforecited case of Aznar, an application for an alien certificate of registration does not
amount to an express renunciation or repudiation of ones citizenship. The application of the herein private respondent for
an alien certificate of registration, and her holding of an Australian passport, as in the case of Mercado v. Manzano, were
mere acts of assertion of her Australian citizenship before she effectively renounced the same. Thus, at the most, private
respondent had dual citizenship she was an Australian and a Filipino, as well.
Moreover, under Commonwealth Act 63, the fact that a child of Filipino parents was born in another country has not been
included as a ground for losing ones Philippine citizenship. Since private respondent did not lose or renounce her
Philippine citizenship, petitioners claim that respondent must go through the process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private respondent had dual citizenship, still, she is
disqualified to run for governor of Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local
Government Code of 1991, which states:
"SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
x

(d) Those with dual citizenship;

x
x
x
Again, petitioners contention is untenable.
In the aforecited case of Mercado v. Manzano, the Court clarified "dual citizenship" as used in the Local Government
Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution on dual allegiance. 9 Recognizing
situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting
laws of different countries, be also a citizen of another state, the Court explained that dual citizenship as a disqualification
must refer to citizens with dual allegiance. The Court succinctly pronounced:
". . . the phrase dual citizenship in R.A. No. 7160, ... 40 (d) and in R.A. No. 7854, . . . 20 must be understood as referring
to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification."
Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public
office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship
upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship. 10 The filing of a
certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen.
11 This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will
support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration,
which is under oath, operates as an effective renunciation of foreign citizenship. Therefore, when the herein private
respondent filed her certificate of candidacy in 1992, such fact alone terminated her Australian citizenship.

Then, too, it is significant to note that on January 15, 1992, private respondent executed a Declaration of Renunciation of
Australian Citizenship, duly registered in the Department of Immigration and Ethnic Affairs of Australia on May 12, 1992.
And, as a result, on February 11, 1992, the Australian passport of private respondent was cancelled, as certified to by
Second Secretary Richard F. Munro of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC, the
aforesaid acts were enough to settle the issue of the alleged dual citizenship of Rosalind Ybasco Lopez. Since her
renunciation was effective, petitioners claim that private respondent must go through the whole process of repatriation
holds no water.
Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative proceedings, the
resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the
same; citing the case of Moy Ya Lim Yao v. Commissioner of Immigration. 12 He insists that the same issue of citizenship
may be threshed out anew.
Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res judicata generally does not apply in
cases hinging on the issue of citizenship. However, in the case of Burca v. Republic, 13 an exception to this general rule
was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of
citizenship, the following must be present:
1) a persons citizenship be raised as a material issue in a controversy where said person is a party;
2) the Solicitor General or his authorized representative took active part in the resolution thereof; and
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose the weight of prior
rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though not
really binding, to make the effort easier or simpler. 14 Indeed, there appears sufficient basis to rely on the prior rulings of
the Commission on Elections in SPA.-No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the
herein private Respondent. The evidence adduced by petitioner is substantially the same evidence presented in these two
prior cases. Petitioner failed to show any new evidence or supervening event to warrant a reversal of such prior
resolutions. However, the procedural issue notwithstanding, considered on the merits, the petition cannot prosper.
WHEREFORE, the petition is hereby DISMISSED and the COMELEC Resolutions, dated July 17, 1998 and January 15,
1999, respectively, in SPA No. 98-336 AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run for governor of Davao Oriental. No
pronouncement as to costs.
SO ORDERED.

G.R. No. 151914

July 31, 2002

TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON ELECTIONS and MR. NEIL M. ALVAREZ,
respondents.
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution,1 dated July 19, 2001, of the Second Division of the Commission
on Elections (COMELEC), ordering the cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the
position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30, 2002, of the
COMELEC en banc denying petitioners motion for reconsideration.
The facts are as follows:
Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern Samar. He grew up and resided
there until 1965, when he joined the United States Navy. He was subsequently naturalized as a U.S. citizen.2 From 1970
to 1973, petitioner thrice visited the Philippines while on leave from the U.S. Navy.3 Otherwise, even after his retirement
from the U.S. Navy in 1985, he remained in the United States.
On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he continued
making several trips to the United States, the last of which took place on July 6, 2000 and lasted until August 5, 2000.4
Subsequently, petitioner applied for repatriation under R.A. No. 81715 to the Special Committee on Naturalization. His
application was approved on November 7, 2000, and, on November 10, 2000, he took his oath as a citizen of the
Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of
Immigration Identification Certificate No. 115123 on November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras, Eastern Samar. His application was
approved by the Election Registration Board on January 12, 2001.6 On February 27, 2001, he filed his certificate of
candidacy stating therein that he had been a resident of Oras, Eastern Samar for "two (2) years."7
On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras and who was running for
reelection, sought the cancellation of petitioners certificate of candidacy on the ground that the latter had made a material
misrepresentation in his certificate of candidacy by stating that he had been a resident of Oras for two years when in truth
he had resided therein for only about six months since November 10, 2000, when he took his oath as a citizen of the
Philippines.
The COMELEC was unable to render judgment on the case before the elections on May 14, 2001. Meanwhile, petitioner
was voted for and received the highest number of votes (6,131) against private respondents 5,752 votes, or a margin of
379 votes. On May 17, 2001, petitioner was proclaimed mayor of Oras by the Municipal Board of Canvassers.8 He
subsequently took his oath of office.
On July 19, 2001, the Second Division of the COMELEC granted private respondents petition and ordered the
cancellation of petitioners certificate of candidacy on the basis of the following findings:
Respondents frequent or regular trips to the Philippines and stay in Oras, Eastern Samar after his retirement from the
U.S. Navy in 1985 cannot be considered as a waiver of his status as a permanent resident or immigrant . . . of the U.S.A.
prior to November 10, 2000 as would qualify him to acquire the status of residency for purposes of compliance with the
one-year residency requirement of Section 39(a) of the Local Government Code of 1991 in relation to Sections 65 and 68
of the Omnibus Election Code. The one (1) year residency requirement contemplates of the actual residence of a Filipino
citizen in the constituency where he seeks to be elected.
All things considered, the number of years he claimed to have resided or stayed in Oras, Eastern Samar since 1985 as an
American citizen and permanent resident of the U.S.A. before November 10, 2000 when he reacquired his Philippine
citizenship by [repatriation] cannot be added to his actual residence thereat after November 10, 2000 until May 14, 2001
to cure his deficiency in days, months, and year to allow or render him eligible to run for an elective office in the
Philippines. Under such circumstances, by whatever formula of computation used, respondent is short of the one-year
residence requirement before the May 14, 2001 elections.9
Petitioner filed a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002.
Hence this petition.
I.
Two questions must first be resolved before considering the merits of this case: (a) whether the 30-day period for
appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by petitioner and
(b) whether the COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner.
A.
With respect to the first question, private respondent contends that the petition in this case should be dismissed
because it was filed late; that the COMELEC en banc had denied petitioners motion for reconsideration for being pro
forma; and that, pursuant to Rule 19, 4 of the COMELEC Rules of Procedure, the said motion did not suspend the
running of the 30-day period for filing this petition. He points out that petitioner received a copy of the resolution, dated
July 19, 2001, of the COMELECs Second Division on July 28, 2001, so that he had only until August 27, 2001 within
which to file this petition. Since the petition in this case was filed on February 11, 2002, the same should be considered as
having been filed late and should be dismissed.
Private respondents contention has no merit.
Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:

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 days from the promulgation thereof. Such motion, if not pro-forma, suspends the
execution for implementation of the decision, resolution, order, or ruling.
Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A motion to reconsider a decision, resolution, order, or
ruling, when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court.
The five-day period for filing a motion for reconsideration under Rule 19, 2 should be counted from the receipt of the
decision, resolution, order, or ruling of the COMELEC Division.10 In this case, petitioner received a copy of the resolution
of July 19, 2001 of the COMELECs Second Division on July 28, 2001. Five days later, on August 2, 2001, he filed his
motion for reconsideration. On February 6, 2002, he received a copy of the order, dated January 30, 2002, of the
COMELEC en banc denying his motion for reconsideration. Five days later, on February 11, 2002, he filed this petition for
certiorari. There is no question, therefore, that petitioners motion for reconsideration of the resolution of the COMELEC
Second Division, as well as his petition for certiorari to set aside of the order of the COMELEC en banc, was filed within
the period provided for in Rule 19, 2 of the COMELEC Rules of Procedure and in Art. IX(A), 7 of the Constitution.
It is contended, however, that petitioners motion for reconsideration before the COMELEC en banc did not suspend the
running of the period for filing this petition because the motion was pro forma and, consequently, this petition should have
been filed on or before August 27, 2001. It was actually filed, however, only on February 11, 2002. Private respondent
cites the finding of the COMELEC en banc that
An incisive examination of the allegations in the Motion for Reconsideration shows that the same [are] a mere rehash of
his averments contained in his Verified Answer and Memorandum. Neither did respondent raise new matters that would
sufficiently warrant a reversal of the assailed resolution of the Second Division. This makes the said Motion pro forma.11
We do not think this contention is correct. The motion for reconsideration was not pro forma and its filing did suspend the
period for filing the petition for certiorari in this case. The mere reiteration in a motion for reconsideration of the issues
raised by the parties and passed upon by the court does not make a motion pro forma; otherwise, the movants remedy
would not be a reconsideration of the decision but a new trial or some other remedy.12 But, as we have held in another
case:13
Among the ends to which a motion for reconsideration is addressed, one is precisely to convince the court that its ruling is
erroneous and improper, contrary to the law or the evidence; and in doing so, the movant has to dwell of necessity upon
the issues passed upon by the court. If a motion for reconsideration may not discuss these issues, the consequence
would be that after a decision is rendered, the losing party would be confined to filing only motions for reopening and new
trial.
Indeed, in the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it
was a second motion for reconsideration,14 or (2) it did not comply with the rule that the motion must specify the findings
and conclusions alleged to be contrary to law or not supported by the evidence,15 or (3) it failed to substantiate the
alleged errors,15 or (4) it merely alleged that the decision in question was contrary to law,17 or (5) the adverse party was
not given notice thereof.18 The 16-page motion for reconsideration filed by petitioner in the COMELEC en banc suffers
from none of the foregoing defects, and it was error for the COMELEC en banc to rule that petitioners motion for
reconsideration was pro forma because the allegations raised therein are a mere "rehash" of his earlier pleadings or did
not raise "new matters." Hence, the filing of the motion suspended the running of the 30-day period to file the petition in
this case, which, as earlier shown, was done within the reglementary period provided by law.
B. As stated before, the COMELEC failed to resolve private respondents petition for cancellation of petitioners certificate
of candidacy before the elections on May 14, 2001. In the meantime, the votes were canvassed and petitioner was
proclaimed elected with a margin of 379 votes over private respondent. Did the COMELEC thereby lose authority to act
on the petition filed by private respondent?
R.A. No. 6646 provides:
SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. (Emphasis added)
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the
votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered
may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation
because the grounds for their disqualification or cancellation of their certificates of candidacy are strong. Meanwhile, the
proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have
been begun before the elections, should continue even after such elections and proclamation of the winners. In Abella v.
COMELEC19 and Salcedo II v. COMELEC,20 the candidates whose certificates of candidacy were the subject of petitions
for cancellation were voted for and, having received the highest number of votes, were duly proclaimed winners. This
Court, in the first case, affirmed and, in the second, reversed the decisions of the COMELEC rendered after the

proclamation of candidates, not on the ground that the latter had been divested of jurisdiction upon the candidates
proclamation but on the merits.
II.
On the merits, the question is whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year before
the elections held on May 14, 2001 as he represented in his certificate of candidacy. We find that he had not.
First, 39(a) of the Local Government Code (R.A No. 7160) provides:
Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis
added)
The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation,"21 but
rather to "domicile" or legal residence,22 that is, "the place where a party actually or constructively has his permanent
home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus
manendi)."23 A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents
reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).24
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in
1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien
without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as
a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United
States Code provides:
Requirements of naturalization. Residence
(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1)
immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States for at least five years and during the five years immediately
preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time,
and who has resided within the State or within the district of the Service in the United States in which the applicant filed
the application for at least three months, (2) has resided continuously within the United States from the date of the
application up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been
and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well
disposed to the good order and happiness of the United States. (Emphasis added)
In Caasi v. Court of Appeals,25 this Court ruled that immigration to the United States by virtue of a "greencard," which
entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more
reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines.
Nor can petitioner contend that he was "compelled to adopt American citizenship" only by reason of his service in the U.S.
armed forces.26 It is noteworthy that petitioner was repatriated not under R.A. No. 2630, which applies to the repatriation
of those who lost their Philippine citizenship by accepting commission in the Armed Forces of the United States, but under
R.A. No. 8171, which, as earlier mentioned, provides for the repatriation of, among others, natural-born Filipinos who lost
their citizenship on account of political or economic necessity. In any event, the fact is that, by having been naturalized
abroad, he lost his Philippine citizenship and with it his residence in the Philippines. Until his reacquisition of Philippine
citizenship on November 10, 2000, petitioner did not reacquire his legal residence in this country.
Second, it is not true, as petitioner contends, that he reestablished residence in this country in 1998 when he came back
to prepare for the mayoralty elections of Oras by securing a Community Tax Certificate in that year and by "constantly
declaring" to his townmates of his intention to seek repatriation and run for mayor in the May 14, 2001 elections.27 The
status of being an alien and a non-resident can be waived either separately, when one acquires the status of a resident
alien before acquiring Philippine citizenship, or at the same time when one acquires Philippine citizenship. As an alien, an
individual may obtain an immigrant visa under 1328 of the Philippine Immigration Act of 1948 and an Immigrant
Certificate of Residence (ICR)29 and thus waive his status as a non-resident. On the other hand, he may acquire
Philippine citizenship by naturalization under C.A. No. 473, as amended, or, if he is a former Philippine national, he may
reacquire Philippine citizenship by repatriation or by an act of Congress,30 in which case he waives not only his status as
an alien but also his status as a non-resident alien.
In the case at bar, the only evidence of petitioners status when he entered the country on October 15, 1998, December
20, 1998, October 16, 1999, and June 23, 2000 is the statement "Philippine Immigration [] Balikbayan" in his 1998-2008
U.S. passport. As for his entry on August 5, 2000, the stamp bore the added inscription "good for one year stay."31 Under
2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the term balikbayan includes a former Filipino citizen who
had been naturalized in a foreign country and comes or returns to the Philippines and, if so, he is entitled, among others,
to a "visa-free entry to the Philippines for a period of one (1) year" (3(c)). It would appear then that when petitioner
entered the country on the dates in question, he did so as a visa-free balikbayan visitor whose stay as such was valid for
one year only. Hence, petitioner can only be held to have waived his status as an alien and as a non-resident only on
November 10, 2000 upon taking his oath as a citizen of the Philippines under R.A. No. 8171.32 He lacked the requisite
residency to qualify him for the mayorship of Oras, Eastern, Samar.

Petitioner invokes the ruling in Frivaldo v. Commission on Elections33 in support of his contention that the residency
requirement in 39(a) of the Local Government Code includes the residency of one who is not a citizen of the Philippines.
Residency, however, was not an issue in that case and this Court did not make any ruling on the issue now at bar. The
question in Frivaldo was whether petitioner, who took his oath of repatriation on the same day that his term as governor of
Sorsogon began on June 30, 1995, complied with the citizenship requirement under 39(a). It was held that he had,
because citizenship may be possessed even on the day the candidate assumes office. But in the case of residency, as
already noted, 39(a) of the Local Government Code requires that the candidate must have been a resident of the
municipality "for at least one (1) year immediately preceding the day of the election."
Nor can petitioner invoke this Courts ruling in Bengzon III v. House of Representatives Electoral Tribunal.34 What the
Court held in that case was that, upon repatriation, a former natural-born Filipino is deemed to have recovered his original
status as a natural-born citizen.
Third, petitioner nonetheless says that his registration as a voter of Butnga, Oras, Eastern Samar in January 2001 is
conclusive of his residency as a candidate because 117 of the Omnibus Election Code requires that a voter must have
resided in the Philippines for at least one year and in the city or municipality wherein he proposes to vote for at least six
months immediately preceding the election. As held in Nuval v. Guray,35 however, registration as a voter does not bar the
filing of a subsequent case questioning a candidates lack of residency.
Petitioners invocation of the liberal interpretation of election laws cannot avail him any. As held in Aquino v. Commission
on Elections:36
A democratic government is necessarily a government of laws. In a republican government those laws are themselves
ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of
Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would
substitute for a requirement mandated by the fundamental law itself.
Fourth, petitioner was not denied due process because the COMELEC failed to act on his motion to be allowed to present
evidence. Under 5(d), in relation to 7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial or
cancellation of a certificate of candidacy are summary in nature. The holding of a formal hearing is thus not de rigeur. In
any event, petitioner cannot claim denial of the right to be heard since he filed a Verified Answer, a Memorandum and a
Manifestation, all dated March 19, 2001, before the COMELEC in which he submitted documents relied by him in this
petition, which, contrary to petitioners claim, are complete and intact in the records.
III.
The statement in petitioners certificate of candidacy that he had been a resident of Oras, Eastern Samar for "two years"
at the time he filed such certificate is not true. The question is whether the COMELEC was justified in ordering the
cancellation of his certificate of candidacy for this reason. We hold that it was. Petitioner made a false representation of a
material fact in his certificate of candidacy, thus rendering such certificate liable to cancellation. The Omnibus Election
Code provides:
SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed
by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election.
Indeed, it has been held that a candidates statement in her certificate of candidacy for the position of governor of Leyte
that she was a resident of Kananga, Leyte when this was not so37 or that the candidate was a "natural-born" Filipino
when in fact he had become an Australian citizen38 constitutes a ground for the cancellation of a certificate of candidacy.
On the other hand, we held in Salcedo II v. COMELEC39 that a candidate who used her husbands family name even
though their marriage was void was not guilty of misrepresentation concerning a material fact. In the case at bar, what is
involved is a false statement concerning a candidates qualification for an office for which he filed the certificate of
candidacy. This is a misrepresentation of a material fact justifying the cancellation of petitioners certificate of candidacy.
The cancellation of petitioners certificate of candidacy in this case is thus fully justified.
WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of the Commission on Elections,
dated July 19, 2001, and the order, dated January 30, 2002 of the Commission on Elections en banc are AFFIRMED.
SO ORDERED.

G.R. No. 179413

November 28, 2008
PRISCILA R. JUSTIMBASTE, petitioner, vs. COMMISSION ON ELECTIONS and RUSTICO B. BALDERIAN,
respondents.
DECISION
CARPIO MORALES, J.:
On challenge via Certiorari and Prohibition is the Commission on Elections (COMELEC) en banc Resolution of August 21,
20071 affirming the May 28, 20072 Resolution of its Second Division dismissing the petition for disqualification filed by
Priscila R. Justimbaste (petitioner) against Rustico B. Balderian (private respondent).
Gathered from the records of the case are the following antecedent facts:
On April 3, 2007, petitioner filed with the Office of the Leyte Provincial Election Supervisor a petition to disqualify private
respondent as a candidate for mayor of Tabontabon, Leyte during the May 14, 2007 elections. In the main, petitioner
alleged:
2.3. That the Respondent committed falsification and misinterpretation in his application for candidacy for mayor as
follows;
a. That while Respondent stated in the application [that] his name is Rustico Besa Balderian, his real name is CHU TECK
SIAO as shown in the Certificate of Birth issued by the National Statistic Office, copy of which is hereto attached as
"Annex B". (sic)
b. That the Respondent had been using as his middle name BESA, while his brother Bienvenido is using the middle name
SIAO, as shown by "Annexes C and D", a copy of which [is] hereto attached, thereby confusing the public as to his
identity.
c. That the Respondent is reportedly a U.S. citizen or Permanent resident of the United States and has not reportedly
relinquished his allegiance or residence to that foreign country, thus disqualified from filing his application for Candidacy
for mayor. (Emphasis and underscoring supplied)3
Private respondent denied petitioners allegations, he asserting that he is a Filipino citizen.
In her Position Paper filed before the COMELEC, petitioner attached a record of private respondents travels from 1998 to
2006, as certified by the Bureau of Immigration;4 a photocopy of private respondents Philippine Passport5 issued on
November 6, 2002 by the Philippine Consulate in Los Angeles which shows his nationality as a Filipino; a Certification
from the National Statistics Office dated April 4, 2007 for one Rustico S. Balderian6 and another for one Rustico B.
Balderian;7 a Certification from the Office of the Civil Registrar of Tabontabon dated March 30, 2007 as to the fact of birth
of one Chu Teck Siao to Peter Siao and Zosima Balderian;8 and a Certification from the Office of the Clerk of Court of the
Regional Trial Court, Tacloban City that the records of the Petition for Change of Name of private respondent "is (sic) not
available in the records of this office."9
In the meantime, private respondent won and was proclaimed as mayor of Tabontabon.
By Resolution of May 28, 2007, the Second Division of the COMELEC denied the petition for disqualification, disposing as
follows:
WHEREFORE, premises considered the instant petition for disqualification is denied and the respondent Rustico B.
Balderian is considered a Filipino, having elected to be and is thus qualified to run as Mayor of the Municipality of
Tabontabon, Leyte. (Emphasis and underscoring supplied)
As reflected early on, petitioners Motion for Reconsideration of the COMELEC Second Division Resolution was denied by
the banc, hence, the present petition.
The issue in the main is whether private respondent committed material misrepresentation and falsification in his
certificate of candidacy.
Section 74 of the Omnibus Election Code (OEC) provides that the contents of the certificate of candidacy must be true to
the best of the candidates knowledge, thus:
SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to

represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed
by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge. (Emphasis and underscoring supplied)
If the certificate contains a material representation which is false, Section 78 provides the procedure to challenge the
same, thus:
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing not later than fifteen days before the election. (Emphasis and underscoring supplied)
Material misrepresentation as a ground to deny due course or cancel a certificate of candidacy refers to the falsity of a
statement required to be entered therein, as enumerated in above-quoted Section 74 of the Omnibus Election Code.
Concurrent with materiality is a deliberate intention to deceive the electorate as to ones qualifications. Thus Salcedo II v.
Commission on Elections10 reiterates:
As stated in law, in order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the
false representation mentioned therein pertained to a material matter for the sanction imposed by this provision would
affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of
candidacy.11
xxxx
Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refers to the
qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a
candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate
from running or, if elected, from serving, or to prosecute him for violation of election laws. It could not have been the
intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon
just any innocuous mistake.12
xxxx
Aside from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made
with an intention to deceive the electorate as to ones qualifications for public office. x x x13 (Emphasis and underscoring
supplied)
The pertinent provision of Republic Act No. 7160 or the Local Government Code (LGC) governing qualifications for
elective municipal officials14 reads:
SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city or province or in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write Filipino or any local language or dialect.
(b) Candidates for the position of governor, vice-governor or member of the sangguniang panlalawigan or mayor, vice
mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty three (23) years of
age on election day."
x x x x (Emphasis in the original; underscoring supplied)
Petitioner asserts that private respondent committed material misrepresentation when he stated in his certificate of
candidacy that he is a Filipino citizen and that his name is Rustico Besa Balderian, instead of Chu Teck Siao. Further,
petitioner asserts that the immigration records of private respondent who frequently went to the United States from 1998
up to 2006 reflected the acronyms "BB" and "RP" which petitioner takes to STAND FOR "Balikbayan" and "Re-entry
Permit," thus showing that private respondent either harbors dual citizenship or is a permanent resident of a foreign
country in contravention of Section 40 of the LGC:

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted of final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis in the original and supplied)
Upon the other hand, private respondent insists on his Filipino citizenship.
Republic Act 676815 provides that a balikbayan is
1. A Filipino citizen who has been continuously out of the Philippines for a period of at least one year;
2. A Filipino overseas worker; or
3. A former Filipino citizen and his or her family, who had been naturalized in a foreign country and comes or returns to
the Philippines.
Re-entry permits are, under the Philippine Immigration Act, issued to lawful resident aliens who depart temporarily from
the Philippines. 16
The record of the case yields no concrete proof to show that private respondent, who holds a Philippine passport, falls
under the third category of a balikbayan (former Filipino citizen).
As noted by public respondent:
[T]he Commission (Second Division) dismissed the instant petition since the same was based on mere conjectures and
surmises. Petitioner never presented clear and convincing evidence that respondent is indeed an American citizen and a
permanent resident of the United States of America. (Emphasis and underscoring supplied)
As in petitioners petition before the COMELEC, as alleged above, she, in her present Petition, is uncertain of private
respondents citizenship or resident status, viz:
c. That the Respondent is reportedly a US citizen or Permanent resident of the United States and has not reportedly
relinquished his allegiance or residence to that foreign country, thus disqualified from filing his application for Candidacy
for mayor. (Emphasis, italics, and underscoring supplied)17
Private respondents notarized photocopy of his Philippine Passport18 issued in 2002, the genuineness and authenticity
of which is not disputed by petitioner, shows that he is a Filipino.
Petitioner insists, however, that private respondent is a Chinese national, following the nationality of his father, Peter Siao.
There are, however, conflicting documentary records bearing on the citizenship of private respondents father. Thus, in the
Certificate of Live Birth of private respondent on file at the Local Civil Registrar of Tabontabon,19 the father is registered
as a Filipino. But in the Certificate of Live Birth of private respondents older brother Bienvenido Balderian,20 the father is
registered as a Chinese.
In private respondents Certificate of Live Birth, the entry on the date, as well as the place of marriage of private
respondents parents, reads "no data available." In his brothers Certificate of Live Birth, the entry on the same desired
information is left blank. In light of these, absent any proof that private respondents parents Peter Siao and Zosima
Balderian21 contracted marriage, private respondent is presumed to be illegitimate, hence, he follows the citizenship of

his mother who is a Filipino.22 As will be reflected shortly, private respondent was, in a certified true copy of a decision
dated August 26, 1976 rendered by then Juvenile and Domestic Relations Court (JDRC) of Leyte and Southern Leyte,
therein noted, as gathered by the said court from the evidence presented, to be an illegitimate child.
Petitioner goes on to bring attention to private respondents filing of a petition for change of name from Chu Teck Siao to
Rustico B. Balderian, which petition, petitioner alleges, is not reflected in the records of the National Statistics Office as
shown by two Certifications from the said agency.
Responding, private respondent confirms that he indeed filed a verified petition for change of name in 1976, docketed as
SP Proc. JP-0121, with the then JDRC of Leyte and Southern Leyte which rendered a decision in his favor in the same
year. He adds that his previous counsel, Atty. Rufino Reyes, sought in 1986 to secure a certified true copy of the decision
but no court records thereof could be found, hence, Branch 7 of the Regional Trial Court (RTC) of Palo, Leyte,
"reconstituted the records" from the file copies of his counsel by Order of November 7, 1986.23
The Court notes that by Order of November 21, 1986, Branch 7 of the Palo RTC, after conducting a hearing, directed the
issuance of a certified true copy of the judgment24 rendered by the JDRC on August 26, 1976. The Order states:
"When this case came on [sic] hearing this morning, Assistant Provincial Fiscal Teresita S. Lopez of Leyte who was then
Clerk of Court of the JDRC of Leyte confirmed the genuineness of the file copy of the aforesaid judgment of Judge Zoila
M. Redoa of the JDRC of Leyte in SP Proc. JP-0121.
WHEREFORE, it is ordered that the clerk of this court issue a certified true copy of the aforesaid judgment in SP Proc. JP0121 dated August 26, 1986 (sic) the dispositive parts of which reads
"Premises considered, the court hereby allows the petitioner (sic) for Change of Name. The petitioner henceforth shall
carry the name of Rustico Balderian as prayed for."
Let a copy of this decision be furnished the Civil Registrar of McArthur, Leyte, for him to make of record this judgment in
his Civil Registry." (Emphasis and underscoring supplied)25
In the certified true copy of the judgment of the JDRC, the following were noted:
At the hearing petitioner presented the following exhibits: "B" the order of the court setting the case for hearing and
ordering its publication; ordering also that a copy be served upon the Office of the Sol. Gen. which was acknowledged
having been received by said office on Nov. 11, 1975 as per return Registry Receipt of the court attached to page 7 of the
record; "C" the Affidavit of Publication of the Asst. Publisher of the "The Reporter" the newspaper of general circulation
which the order was published, "D" the issue of "The Reporter" dated November 12, 1975 and "D-1" the page carried
the order; "E" issue of same newspaper dated November 19, 1975 and "E-1" the column carrying the order; "F" the
issue of said newspaper dated November 26, 1975, and the "F-1", the column carrying the order; "G" the certification of
the Local Civil Registrar; G-1, the place of birth of petitioner; G-2, his date of birth,; G-3, the name of petitioners father
Peter Siao; G-4, and his mothers name Zosima Balderian and G-5, the entry that petitioner is an illegitimate child; which
certification was issued on May 5, 1975 by said public official; "H" petitioners Baptismal Certificate; "H-1" his date of
birth; "H-2" his place of birth; "H-3" that his parents are Peter Siao and Zosima Balderian. Exhibit "I" petitioners
diploma from the Manila Central University where he earned his degree of Optometry on April 6, 1975 and the name of
Rustico Balderian; "J" petitioners official rating issued by the Commissioner of Professional Regulation Commission
under the Board of Optometry issued January 13, 1976 under the name of Rustico B. Balderian; "K" petitioners
registration License No. 3374 with the Professional Regulation Commission for the practice of Optometry; "L"
petitioners Registration Card with the Manila Central University being enrolled in Pre-Medicine Course as of June 1976;
Exhibit "M" his registration card in the University of the East when he cross-enrolled in the College of Law for the second
year 1976-1977; Exhibit "N" Student Pilots License No. 758109 issued by the CAA to fly fixed wings; Exhibit "O" his
Student Pilots License No. 75SH224 issued by Civil Aeronautics Administration allowing him to fly a helicopter.
To the above school records which he earned under the name of Rustico Balderian, the name under which he was
baptized and hereon known to all since he can remember, he never used the alien name of Chua Teck Siao by which he
was registered. He has not been charged with any offense either criminally, civilly or administratively.
His intention in filing the petition is to avoid undergoing the same difficulty and ordeal when he takes the BAR examination
and the Board examination in Medicine as he did when he took the Board Examination in Optometry. After the latter
Board allowed him to take the examination upon the submission of an affidavit of two disinterested persons attesting to
the fact that Chu Teck Siao and Rustico Balderian is one and the same person, he was advised to petition for Change of
Name to avoid confusion.26 (Emphasis and underscoring supplied)

That the records of the Tabontabon Civil Registry still show, by petitioners allegation, that private respondents name is
Chu Teck Siao does not necessarily mean that there was no such petition for change of name and that the certified true
copy of judgment thereon is spurious, especially given that, as highlighted in the above-quoted dispositive portion of the
JDRC decision, it was the Civil Registrar of McArthur, not Tabontabon, which was ordered to be copy-furnished the
decision and "to make of record [its] judgment in his Civil Registry."
AT ALL EVENTS, the use of a name other than that stated in the certificate of birth is not a material misrepresentation,27
as "material misrepresentation" under the earlier-quoted Section 78 of the Omnibus Election Code refers to "qualifications
for elective office." It need not be emphasized that there is no showing that there was an intent to deceive the electorate
as to private respondents identity, nor that by using his Filipino name the voting public was thereby deceived.
Petitioners compilation of online articles/data on private respondent puts on view his profile as Rustico B. Balderian.
Petitioner in fact has not claimed that the electorate did not know who they were voting for when they cast their ballots in
favor of private respondent or that they were deceived into voting for someone else other than him. Given that private
respondent and his family are members of the Colegio de Sta. Lourdes of Leyte Foundation, Inc. which operates a
nursing school in Tabontabon, it may safely be assumed that the electorate had been fully acquainted with him.
Petitioner finally assails the failure of public respondent to conduct hearings on her petition, citing Dayo v. Commission on
Elections28 which held that "an election protest may not be disposed of by summary judgment."29
Section 5 vis--vis Section 7 of Republic Act 664630 provides that the procedure in cases involving nuisance candidates
shall apply to petitions for cancellation of certificate of candidacy.
SECTION 5. Procedure in Cases of Nuisance Candidates.
(a) A Verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas
Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any
registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy.
Filing by mail not be allowed.
(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate
together with a copy of the petition and its enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a
motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised
as a affirmative defenses.
(d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The
proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers
together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit
to the Commission his findings, reports, and recommendations within five (5) days from the completion of such
submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties,
be final and executory unless stayed by the Supreme Court.
(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the
decision of the Supreme Court to the city or municipal election registrars, boards of election inspectors and the general
public in the political subdivision concerned. (Underscoring supplied)
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881. (Emphasis in the original, underscoring supplied)
Petitioner is reminded that a petition for disqualification based on material misrepresentation in the certificate of candidacy
is different from an election protest. The purpose of an election protest is to ascertain whether the candidate proclaimed
elected by the board of canvassers is really the lawful choice of the electorate.31
In fine, petitioner has not shown that public respondent, in issuing the assailed Resolution, committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. NO. 157526. April 28, 2004

EMILIANA TORAL KARE, Petitioner, v. COMMISSION ON ELECTIONS, R espondent.
G.R. NO. 157527. April 28, 2004
SALVADOR K. MOLL, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.
DECISION
PANGANIBAN, J.:
When a mayoral candidate who gathered the highest number of votes is disqualified after the election is held, a
permanent vacancy is created, and the vice mayor succeeds to the position.
The Case
Before us are two Petitions for Certiorari under Rules 64 and 65 of the Rules of Court, seeking the nullification of the
March 19, 2003 En Banc Resolution issued by the Commission on Elections (Comelec) in SPA No. 01-272. The Comelec
resolved therein to disqualify Salvador K. Moll from the mayoralty of Malinao, Albay, and to proclaim Avelino Ceriola as
the mayor-elect of the said municipality. The decretal portion of the Resolution reads:chanroblesvirtua1awlibrary
WHEREFORE, premises considered, the petition is hereby GRANTED. It is affirmed that private respondent Salvador K.
Moll is DISQUALIFIED from holding the office of the Mayor of Malinao, Albay. His proclamation as the winning candidate
for such office is declared VOID AB INITIO. Consequently, the Provincial Election Supervisor of Albay is directed to
immediately convene the municipal board of canvassers of Malinao, Albay and PROCLAIM petitioner Avelino Ceriola as
the Mayor-Elect of the municipality.1 cralawred
In GR No. 157526, Petitioner Emiliana Toral Kare seeks the nullification of the March 19, 2003 Resolution insofar as it
authorized the proclamation of Ceriola as the mayor-elect of Malinao. In GR No. 157527, Petitioner Moll prays for the
annulment of the entire Resolution.
The Facts
Petitioner Moll and Private Respondent Ceriola were candidates for mayor of the Municipality of Malinao, Albay, during
the elections of May 14, 2001.
Moll obtained the highest number of votes cast for the position while Ceriola came in second, with a total of nine hundred
eighty-seven (987) votes separating the two. Kare was elected vice mayor in the same election.
On May 18, 2001, Ceriola filed a Petition to Confirm the Disqualification and/or Ineligibility of Dindo K. Moll to Run for Any
Elective Position. The Petition alleged that the latter had been sentenced by final judgment to suffer the penalty of six (6)
months of arresto mayor to one (1) year and nine (9) months of prision correccional, for the crime of usurpation of
authority or official functions under Article 177 of the Revised Penal Code.
In its May 28, 2001 Resolution,2 the Comelec First Division dismissed the Petition.Ceriola filed his Motion for
Reconsideration with the Comelec en banc which, on August 31, 2001, set aside the said Resolution. It thereafter directed
the clerk of the Comelec to remand the Petition to the provincial election supervisor of Albay for hearing and reception of
evidence.
Ruling of the Comelec En Banc
On March 19, 2003, after the provincial election supervisor of Albay submitted the report and recommendation, the
Comelec en banc issued the questioned Resolution affirming Molls disqualification and proclaiming Ceriola as the mayorelect of the municipality.
As earlier adverted to, the Comelec ruled that Moll had indeed been disqualified from being a mayoral candidate in the
May 14, 2001 local election, and that his subsequent proclamation as mayor was void ab initio. Consequently, he was
disqualified from holding that office.
The Comelec further ruled that the trial courts final judgment of conviction of Moll disqualified him from filing his certificate
of candidacy and continued to disqualify him from holding office.Accordingly, the votes cast in his favor were stray or
invalid votes, and Ceriola -- the candidate who had obtained the second highest number of votes -- was adjudged the
winner. Thus, the Comelec ordered the Municipal Board of Canvassers to proclaim him as the mayor-elect of the
municipality.

Before Ceriolas actual proclamation, Kare filed a Petition before this Court with a prayer for a Status Quo Order, which
was granted on April 1, 2003.3 In this Order, the Comelec, the provincial election supervisor of Albay, and the municipal
canvassers of Malinao (Albay) were required to observe the status quo prevailing before the filing of the Petition.
The other Petition was filed by Moll.4
The Issues
After going through the Memoranda submitted by the parties, the Court has determined that the following are the two
issues that have to be resolved:chanroblesvirtua1awlibrary
1.Should Moll be disqualified from running and/or holding the position of mayor?chanroblesvirtualawlibrary
2.) If the first issue is answered in the affirmative, who should become the mayor -- Ceriola, the second placer in the
mayoral election? Or Kare, the elected vice mayor?
The Courts Ruling
The Petition in GR No. 157526 is partly meritorious, but the Petition in GR No. 157527 has no merit.
First Issue:
Disqualification
Moll argues that he cannot be disqualified from running for mayor, since his judgement of conviction5 -- the basis of his
disqualification -- has allegedly not yet attained finality. He contends that while the said judgment promulgated on May 11,
1999 was not appealed by filing the Notice of Appeal in the ordinary course of the proceedings, he still filed a Motion for
Reconsideration dated May 28, 1999 within the reglementary period.6 Thus, according to him, the filing of such Motion
stayed the finality of his conviction.
We disagree. Section 7 of Rule 120 of the 2000 Rules of Criminal Procedure reads thus:chanroblesvirtua1awlibrary
Sec. 7. Modification of judgment. -- A judgment of conviction may, upon motion of the accused, be modified or set aside
before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment in a criminal
case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or
totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.
(Italics supplied)cralawlibrary
In turn, Section 6 of Rule 122 provides:chanroblesvirtua1awlibrary
Sec. 6. When appeal to be taken. - An appeal must be taken within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from. This period for perfecting an appeal shall be interrupted from the time a
motion for new trial or reconsideration is filed until notice of the order overruling the motion shall have been served upon
the accused or his counsel at which time the balance of the period begins to run. (Italics supplied)cralawlibrary
It is clear that the period for appeal is interrupted by the filing of either a motion for reconsideration or a motion for a new
trial. Moll makes it appear that his filing of a motion for reconsideration should have stayed the running of the period for
filing an appeal. What he did file, however, was a Motion to Quash the Information; and when it was denied, he filed a
Motion for Reconsideration of the denial.
The Rules of Court mandates that an appeal should be filed within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from. It necessarily follows that this period is interrupted only by the filing of a
motion for reconsideration of the judgment or of the final order being appealed.
Neither Molls Motion to Quash Information nor his Motion for Reconsideration was directed at the judgment of conviction.
Rather, they both attacked a matter extraneous to the judgment. Hence, they cannot affect the period of appeal granted
by the Rules of Court in relation to the conviction.
Moll himself admitted that no regular appeal was filed because he was still questioning the propriety of the denial of his
Motion to Quash the Information and the propriety of the conduct of the promulgation of his sentence despite his absence
x x x.7 Aside from not interrupting his judgment of conviction, the motion to quash was even belatedly filed. Such a motion

may be filed by the accused at any time before entering a plea8 and certainly not on the day of the promulgation, as Moll
did.
As to his contention that the promulgation of judgment was not valid because it was done in his absence, we agree with
the Office of the Solicitor General, which argues as follows:chanroblesvirtua1awlibrary
It was not contested that Moll received a notice of the promulgation, in fact his counsel was present on the day of the
promulgation - to file a motion to quash. Hence, because of Molls unexplained absence, the promulgation of the judgment
could be validly made by recording the judgment in the criminal docket and serving him a copy thereof to his last known
address or thru his counsel (Section 6, Rule 120, Rules of Court). 9 cralawred
Indubitably, since no appeal of the conviction was seasonably filed by Moll, the judgment against him has become final.10
Thus, the Comelec en banc correctly ruled that he was disqualified from running for mayor, under Section 40(a) of the
Local Government Code (RA No. 7160), which provides:chanroblesvirtua1awlibrary
Section 40. Disqualifications. The following persons are disqualified from running for any elective local
position:chanroblesvirtua1awlibrary
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;
x x xx x xx x x.
Moll was sentenced to suffer the penalty of six (6) months of arresto mayor to one (1) year and nine (9) months of prision
correccional, a penalty that clearly disqualified him from running for any elective local position.
Second Issue:
The Lawful Mayor
In allowing Ceriola -- the second placer in the mayoralty race -- to be proclaimed mayor-elect after the disqualification of
Moll,
the
Comelec
applied
Section
211(24)
of
the
Omnibus
Election
Code
(OEC),
which
provides:chanroblesvirtua1awlibrary
Sec. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be presumed
to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the
following rules, bearing in mind that the object of the election is to obtain the expression of the voters will:
x x xx x xx x x
24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and
shall not be counted but it shall not invalidate the ballot.
The poll body interpreted the phrase disqualified by final judgment to mean disqualification by a final judgment of
conviction, which was the ground upon which Moll was disqualified.It ruled:chanroblesvirtua1awlibrary
In this case, the disqualification is based specifically on the final judgment of conviction by a court against private
respondent. This final judgment disqualified private respondent from filing his certificate of candidacy in the first instance,
and continues to disqualify private respondent from holding office. Accordingly, the votes cast in his favor were stray or
invalid votes and the general rule in the Sunga Case does not apply. Consequently, Petitioner, having obtained the
highest number of valid votes, is entitled to be proclaimed the winning mayoralty candidate.11 cralawred
Further, it said:chanroblesvirtua1awlibrary
x x x As such, this instance constitutes an exception to the general rule enunciated in the Sunga Case. In the language of
the said case, the foregoing provision of law is a statute which clearly asserts a legislative policy contrary to the rule that
the candidate with the second highest number of votes cannot be declared the winner, given that the votes for the
disqualified candidate, though of highest number, are deemed stray and invalid. Consequently, the so-called second
placer shall be declared the winner because he or she in fact obtained the highest number of valid votes.12 cralawred
Such arguments do not persuade.

In every election, the choice of the people is the paramount consideration, and their expressed will must at all times be
given effect.13 When the majority speaks by giving a candidate the highest number of votes in the election for an office,
no one else can be declared elected in place of the former.14 In a long line of cases, this Court has definitively ruled that
the Comelec cannot proclaim as winner the candidate who obtained the second highest number of votes, should the
winning candidate be declared ineligible or disqualified.15 cralawred
The Comelec, however, asserts that this case falls under the exception declared by the Court in Sunga v. Comelec,16
from which we quote:chanroblesvirtua1awlibrary
x x x The votes cast for a disqualified person may not be valid to install the winner into office or maintain him there.But in
the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were
cast in the sincere belief that the candidate was qualified, they should not be treated as stray, void or meaningless.17
cralawred
According to the Comelec, Section 211(24) of the OEC is a clear legislative policy that is contrary to the rule that the
second placer cannot be declared winner.
We disagree.
The provision that served as the basis of Comelecs Decision to declare the second placer as winner in the mayoral race
should be read in relation with other provisions of the OEC. Section 72 thereof, as amended by RA 6646, provides as
follows:chanroblesvirtua1awlibrary
Sec. 72.Effects of disqualification cases and priority. The Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days
before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for
him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation and assumption to office." (Italics
supplied)cralawlibrary
When read together, these provisions are understood to mean that any vote cast in favor of a candidate, whose
disqualification has already been declared final regardless of the ground therefor, shall be considered stray. The Comelec
misconstrued this provision by limiting it only to disqualification by conviction in a final judgment.
Obviously, the disqualification of a candidate is not only by conviction in a final judgment; the law lists other grounds for
disqualification.18 It escapes us why the Comelec insists that Section 211(24) of the OEC is strictly for those convicted by
a final judgment.Such an interpretation is clearly inconsistent with the other provisions of the election code.
More important, it is clear that it was only on March 19, 2003, that the Comelec en banc issued Resolution No. SPA No.
01-272. The Resolution adopted the recommendation of the provincial election supervisor of Albay to disqualify Moll from
running as a mayoral candidate in Malinao, Albay. Thus, on May 14, 2001, when the electorate voted for him as mayor,
they were under the belief that he was qualified. There is no presumption that they agreed to the subsequent invalidation
of their votes as stray votes, in case of his disqualification.
A subsequent finding by the Comelec en banc that Moll was ineligible cannot retroact to the date of the election and
thereby invalidate the votes cast for him.19 cralawred
Moreover, Moll was not notoriously known to the public as an ineligible candidate. As discussed above, the Resolution
declaring him as such was rendered long after the election. Thus, on the part of those who voted for him, their votes are
presumed to have been cast with a sincere belief that he was a qualified candidate, and without any intention to misapply
their franchise. Thus, their votes cannot be treated as stray, void, or meaningless.20 cralawred
The Comelecs interpretation of a section in the OEC cannot supplant an accepted doctrine laid down by this Court. In
Aquino v. Comelec,21 we said:chanroblesvirtua1awlibrary
x x x To simplistically assume that the second placer would have received the other votes would be to substitute our
judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates

because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not
prepared to extrapolate the results under such circumstances.22 cralawred
To allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to
disenfranchise them through no fault on their part, and to undermine the importance and the meaning of democracy and
the right of the people to elect officials of their choice.23 cralawred
Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the totally
repudiated candidate as the voters choice. Moreover, there are instances in which the votes received by the second
placer may not be considered numerically insignificant. In such situations, if the equation changes because of the
disqualification of an ineligible candidate, voters preferences would nonetheless be so volatile and unpredictable that the
results for qualified candidates would not be self-evident.24 The absence of the apparent though ineligible winner among
the choices could lead to a shifting of votes to candidates other than the second placer.25 Where an ineligible candidate
has garnered either a majority or a plurality of the votes, by no mathematical formulation can the runnerup in the election
be construed to have obtained the majority or the plurality of votes cast.26 cralawred
We reiterate that this Court has no authority under any law to impose upon and compel the people of Malinao, Albay, to
accept Ceriola as their mayor.27 The law on succession under Section 44 of Republic Act 7160, otherwise known as the
Local Government Code, would then apply. This provision relevantly states:chanroblesvirtua1awlibrary
SECTION 44.Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor.
(a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall
become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or
vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking
sanggunian member, shall become governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as
defined herein.
x x xx x xx x x.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
The language of the law is clear, explicit and unequivocal. Thus, it admits no room for interpretation, but merely for
application.28 Accordingly, when Moll was adjudged to be disqualified, a permanent vacancy was created for failure of the
elected mayor to qualify for the office.29 In such eventuality, the duly elected vice mayor shall succeed as provided by
law.30 cralawred
For violating the law and the clear jurisprudence on this matter, the Comelec committed grave abuse of discretion.31
cralawred
WHEREFORE, the Petition in GR No 157526 is PARTLY GRANTED ,and the assailed Resolution MODIFIED.Petitioner
Salvador K. Moll is DECLAREDineligible for the position of municipal mayor of Malinao, Albay. In view of the vacancy
created in that office, Petitioner Emiliana Toral Kare, the duly elected vice mayor, shall succeed as mayor, following the
rule on succession.The status quo order of this Court dated April 1, 2003, is made permanent. Petitioner Kare shall
continue discharging the duties and powers of the mayor of Malinao, Albay. The Petition in GR 157527 is DISMISSEDfor
lack of merit.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 203974

April 22, 2014

AURELIO M. UMALI, Petitioner, vs.COMMISSION ON ELECTIONS, JULIUS CESAR V. VERGARA, and THE CITY
GOVERNMENT OF CABANATUAN, Respondents.
x-----------------------x
G.R. No. 204371
J.V. BAUTISTA, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent.
DECISION
VELASCO, JR., J.:
Before the Court is the consolidated case for Petition for Certiorari and Prohibition with prayer for injunctive relief, docket
as G.R. No. 203974, assailing Minute Resolution No. 12-07971 and Minute Resolution No. 12-09252 dated September
11, 2012 and October 16, 2012, respectively, both promulgated by public respondent Commission on Elections
(COMELEC), and Petition for Mandamus, docketed G.R. No. 204371, seeking to compel public respondent to implement
the same.
The Facts
On July 11, 2011, the Sangguniang Panglungsod of Cabanatuan City passed Resolution No. 183-2011, requesting the
President to declare the conversion of Cabanatuan City from a component city of the province of Nueva Ecija into a highly
urbanized city (HUC). Acceding to the request, the President issued Presidential Proclamation No. 418, Series of 2012,
proclaiming the City of Cabanatuan as an HUC subject to "ratification in a plebiscite by the qualified voters therein, as
provided for in Section 453 of the Local Government Code of 1991."
Respondent COMELEC, acting on the proclamation, issued the assailed Minute Resolution No. 12-0797 which reads:
WHEREFORE, the Commission RESOLVED, as it hereby RESOLVES, that for purposes of the plebiscite for the
conversion of Cabanatuan City from component city to highly-urbanized city, only those registered residents of
Cabanatuan City should participate in the said plebiscite.
The COMELEC based this resolution on Sec. 453 of the Local Government Code of 1991 (LGC), citing conversion cases
involving Puerto Princesa City in Palawan, Tacloban City in Southern Leyte, and Lapu-Lapu City in Cebu, where only the
residents of the city proposed to be converted were allowed to vote in the corresponding plebiscite.
In due time, petitioner Aurelio M. Umali, Governor of Nueva Ecija, filed a Verified Motion for Reconsideration, maintaining
that the proposed conversion in question will necessarily and directly affect the mother province of Nueva Ecija. His main
argument is that Section 453 of the LGC should be interpreted in conjunction with Sec. 10, Art. X of the Constitution. He
argues that while the conversion in question does not involve the creation of a new or the dissolution of an existing city,
the spirit of the Constitutional provision calls for the people of the local government unit (LGU) directly affected to vote in a
plebiscite whenever there is a material change in their rights and responsibilities. The phrase "qualified voters therein"
used in Sec. 453 of the LGC should then be interpreted to refer to the qualified voters of the units directly affected by the
conversion and not just those in the component city proposed to be upgraded. Petitioner Umali justified his position by
enumerating the various adverse effects of the Cabanatuan Citys conversion and how it will cause material change not
only in the political and economic rights of the city and its residents but also of the province as a whole.
To the Verified Motion for Reconsideration, private respondent Julius Cesar Vergara, city mayor of Cabanatuan,
interposed an opposition on the ground that Sec. 10, Art. X does not apply to conversions, which is the meat of the matter.
He likewise argues that a specific provision of the LGC, Sec. 453, as couched, allows only the qualified voters of
Cabanatuan City to vote in the plebiscite. Lastly, private respondent pointed out that when Santiago City was converted in
1994 from a municipality to an independent component city pursuant to Republic Act No. (RA) 7720, the plebiscite held
was limited to the registered voters of the then municipality of Santiago.
Following a hearing conducted on October 4, 2012,3 the COMELEC En Banc on October 16, 2012, in E.M No. 12-045
(PLEB), by a vote of 5-24 ruled in favor of respondent Vergara through the assailed Minute Resolution 12-0925. The
dispositive portion reads:
The Commission, taking into consideration the arguments of counsels including the Reply-memorandum of Oppositor,
after due deliberation, RESOLVED, as it hereby RESOLVES, as follows:
1) To DENY the Motion for Reconsideration of oppositor Governor Aurelio M. Umali; and

2) To SCHEDULE the conduct of Plebiscite for the conversion of Cabanatuan City from component city into highlyurbanized city with registered residents only of Cabanatuan City to participate in said plebiscite.
Let the Deputy Executive Director for Operations implement this resolution.
SO ORDERED.
Hence, the Petition for Certiorari with prayer for injunctive relief, docketed as G.R. No. 203974, on substantially the same
arguments earlier taken by petitioner Umali before the poll body. On the other hand, public respondent COMELEC,
through the Office of the Solicitor General, maintained in its Comment that Cabanatuan City is merely being converted
from a component city into an HUC and that the political unit directly affected by the conversion will only be the city itself.
It argues that in this instance, no political unit will be created, merged with another, or will be removed from another LGU,
and that no boundaries will be altered. The conversion would merely reinforce the powers and prerogatives already being
exercised by the city, with the political units probable elevation to that of an HUC as demanded by its compliance with the
criteria established under the LGC. Thus, the participation of the voters of the entire province in the plebiscite will not be
necessary.
Private respondent will later manifest that it is adopting the Comment of the COMELEC.
Meanwhile, on October 25, 2012, respondent COMELEC promulgated Resolution No. 9543, which adopted a calendar of
activities and periods of prohibited acts in connection with the conversion of Cabanatuan City into an HUC. The
Resolution set the conduct of the plebiscite on December 1, 2012. Thereafter, a certain Dr. Rodolfo B. Punzalan filed a
Petition for Declaratory Relief which was raffled to the Regional Trial Court (RTC), Branch 40 in Palayan City. In the said
case, Punzalan prayed that Minute Resolution No. 12-0797 be declared unconstitutional, that the trial court decree that all
qualified voters of the province of Nueva Ecija be included in the plebiscite, and that a Temporary Restraining Order
(TRO) be issued enjoining public respondent from implementing the questioned resolution. On October 19, 2012, the RTC
granted the prayer for a TRO.
On November 6, 2012, public respondent through Minute Resolution No. 12-0989 suspended the preparations for the
event in view of the TRO issued by the RTC. On November 27, 2012, the plebiscite was once again rescheduled to give
way to the May 13, 2013 national, local and ARMM regional elections as per Resolution No. 9563.
After this development, petitioner J.V. Bautista, on December 3, 2012, filed a case before this Court for Mandamus,
docketed as G.R. No. 204371, praying that public respondent be ordered to schedule the plebiscite either on December
15 or 22, 2012. Petitioner Bautista argued that since the TRO issued by the RTC has already expired, the duty of the
public respondent to hold the plebiscite has become mandatory and ministerial. Petitioner Bautista also alleged that the
delay in holding the plebiscite is inexcusable given the requirement that it should be held within a period of 120 days form
the date of the Presidents declaration.
In its Comment to the Bautista petition, public respondent justified its position by arguing that mandamus will not issue to
enforce a right which is in substantial dispute. With all the legal conflicts surrounding the case, it cannot be said that there
is a clear showing of petitioner Bautistas entitlement to the relief sought. Respondent COMELEC likewise relied on Sec. 5
of the Omnibus Election Code to justify the postponements, citing incidents of violence that ensued in the locality during
the plebiscite period.
After the conclusion of the 2013 elections, public respondent issued Resolution No. 1353 scheduling the plebiscite to
January 25, 2014. However, a TRO was issued by this Court on January 15, 2014 in G.R. No. 203974 to suspend the
conduct of the plebiscite for Cabanatuan Citys conversion. Given the intertwining factual milieu of the two petitions before
the Court, both cases were consolidated on March 18, 2014.
The Issue
The bone of contention in the present controversy boils down to whether the qualified registered voters of the entire
province of Nueva Ecija or only those in Cabanatuan City can participate in the plebiscite called for the conversion of
Cabanatuan City from a component city into an HUC.
Resolving the Petition for Certiorari either way will necessarily render the Petition for Mandamus moot and academic for
ultimately, the public respondent will be ordered to hold the plebiscite. The only variation will be as regards its participants.
The Courts Ruling
The Petition for Certiorari is meritorious.

Sec. 453 of the LGC should be interpreted in accordance with Sec. 10, Art. X of the Constitution
Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution should be the basis for determining the qualified
voters who will participate in the plebiscite to resolve the issue. Sec. 10, Art. X reads:
Section 10, Article X. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (emphasis supplied)
Petitioner Umali elucidates that the phrase "political units directly affected" necessarily encompasses not only
Cabanatuan City but the entire province of Nueva Ecija. Hence, all the registered voters in the province are qualified to
cast their votes in resolving the proposed conversion of Cabanatuan City.
On the other hand, respondents invoke Sec. 453 of the LGC to support their claim that only the City of Cabanatuan should
be allowed to take part in the voting. Sec. 453 states:
Section 453. Duty to Declare Highly Urbanized Status. It shall be the duty of the President to declare a city as highly
urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding
Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein. (emphasis
supplied)
Respondents take the phrase "registered voters therein" in Sec. 453 as referring only to the registered voters in the city
being converted, excluding in the process the voters in the remaining towns and cities of Nueva Ecija.
Before proceeding to unravel the seeming conflict between the two provisions, it is but proper that we ascertain first the
relationship between Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC.
First of all, we have to restate the general principle that legislative power cannot be delegated. Nonetheless, the general
rule barring delegation is subject to certain exceptions allowed in the Constitution, namely:
(1) Delegation by Congress to the President of the power to fix "tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development program of the
Government" under Section 28(2) of Article VI of the Constitution; and
(2) Delegation of emergency powers by Congress to the President "to exercise powers necessary and proper to carry out
a declared national policy" in times of war and other national emergency under Section 23(2) of Article VI of the
Constitution.
The power to create, divide, merge, abolish or substantially alter boundaries of provinces, cities, municipalities or
barangays, which is pertinent in the case at bar, is essentially legislative in nature.5 The framers of the Constitution have,
however, allowed for the delegation of such power in Sec. 10, Art. X of the Constitution as long as (1) the criteria
prescribed in the LGC is met and (2) the creation, division, merger, abolition or the substantial alteration of the boundaries
is subject to the approval by a majority vote in a plebiscite.
True enough, Congress delegated such power to the Sangguniang Panlalawigan or Sangguniang Panlungsod to create
barangays pursuant to Sec. 6 of the LGC, which provides:
Section 6. Authority to Create Local Government Units. - A local government unit may be created, divided, merged,
abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city,
municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang
panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code." (emphasis supplied)
The guidelines for the exercise of this authority have sufficiently been outlined by the various LGC provisions detailing the
requirements for the creation of barangays6, municipalities7, cities8, and provinces9. Moreover, compliance with the
plebiscite requirement under the Constitution has also been directed by the LGC under its Sec. 10, which reads:
Section 10. Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of boundaries of
local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the
purpose in the political unit or units directly affected." (emphasis supplied)

With the twin criteria of standard and plebiscite satisfied, the delegation to LGUs of the power to create, divide, merge,
abolish or substantially alter boundaries has become a recognized exception to the doctrine of non-delegation of
legislative powers.

Likewise, legislative power was delegated to the President under Sec. 453 of the LGC quoted earlier, which states:
Section 453. Duty to Declare Highly Urbanized Status. It shall be the duty of the President to declare a city as highly
urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding
Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein.
In this case, the provision merely authorized the President to make a determination on whether or not the requirements
under Sec. 45210 of the LGC are complied with. The provision makes it ministerial for the President, upon proper
application, to declare a component city as highly urbanized once the minimum requirements, which are based on
certifiable and measurable indices under Sec. 452, are satisfied. The mandatory language "shall" used in the provision
leaves the President with no room for discretion.
In so doing, Sec. 453, in effect, automatically calls for the conduct of a plebiscite for purposes of conversions once the
requirements are met. No further legislation is necessary before the city proposed to be converted becomes eligible to
become an HUC through ratification, as the basis for the delegation of the legislative authority is the very LGC.
In view of the foregoing considerations, the Court concludes that the source of the delegation of power to the LGUs under
Sec. 6 of the LGC and to the President under Sec. 453 of the same code is none other than Sec. 10, Art. X of the
Constitution.
Respondents, however, posit that Sec. 453 of the LGC is actually outside the ambit of Sec. 10, Art. X of the Constitution,
considering that the conversion of a component city to an HUC is not "creation, division, merge, abolition or substantial
alternation of boundaries" encompassed by the said constitutional provision.
This proposition is bereft of merit.
First, the Courts pronouncement in Miranda vs. Aguirre11 is apropos and may be applied by analogy. While Miranda
involves the downgrading, instead of upgrading, as here, of an independent component city into a component city, its
application to the case at bar is nonetheless material in ascertaining the proper treatment of conversions. In that seminal
case, the Court held that the downgrading of an independent component city into a component city comes within the
purview of Sec. 10, Art. X of the Constitution.
In Miranda, the rationale behind the afore-quoted constitutional provision and its application to cases of conversion were
discussed thusly:
A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial
alteration of boundaries of local government units involve a common denominator - - - material change in the political and
economic rights of the local government units directly affected as well as the people therein. It is precisely for this reason
that the Constitution requires the approval of the people "in the political units directly affected." It is not difficult to
appreciate the rationale of this constitutional requirement. The 1987 Constitution, more than any of our previous
Constitutions, gave more reality to the sovereignty of our people for it was borne out of the people power in the 1986
EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government units
were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people.
Thus, the consent of the people of the local government unit directly affected was required to serve as a checking
mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local
government units. It is one instance where the people in their sovereign capacity decide on a matter that affects them - - direct democracy of the people as opposed to democracy thru peoples representatives. This plebiscite requirement is
also in accord with the philosophy of the Constitution granting more autonomy to local government units.12
It was determined in the case that the changes that will result from the conversion are too substantial that there is a
necessity for the plurality of those that will be affected to approve it. Similar to the enumerated acts in the constitutional
provision, conversions were found to result in material changes in the economic and political rights of the people and
LGUs affected. Given the far-reaching ramifications of converting the status of a city, we held that the plebiscite
requirement under the constitutional provision should equally apply to conversions as well. Thus, RA 852813 was
declared unconstitutional in Miranda on the ground that the law downgraded Santiago City in Isabela without submitting it
for ratification in a plebiscite, in contravention of Sec. 10, Art. X of the Constitution.

Second, while conversion to an HUC is not explicitly provided in Sec. 10, Art. X of the Constitution we nevertheless
observe that the conversion of a component city into an HUC is substantial alteration of boundaries.
As the phrase implies, "substantial alteration of boundaries" involves and necessarily entails a change in the geographical
configuration of a local government unit or units. However, the phrase "boundaries" should not be limited to the mere
physical one, referring to the metes and bounds of the LGU, but also to its political boundaries. It also connotes a
modification of the demarcation lines between political subdivisions, where the LGUs exercise of corporate power ends
and that of the other begins. And as a qualifier, the alteration must be "substantial" for it to be within the ambit of the
constitutional provision.
Pertinent is Art. 12(c) of the LGCs Implementing Rules and Regulations, which reads:
Art. 12. Conversion of a Component City into a Highly Urbanized City.
xxxx
(c) Effect of Conversion The conversion of a component city into a highly-urbanized city shall make it independent of the
province where it is geographically located. (emphasis added)
Verily, the upward conversion of a component city, in this case Cabanatuan City, into an HUC will come at a steep price. It
can be gleaned from the above-cited rule that the province will inevitably suffer a corresponding decrease in territory
brought about by Cabanatuan Citys gain of independence. With the citys newfound autonomy, it will be free from the
oversight powers of the province, which, in effect, reduces the territorial jurisdiction of the latter. What once formed part of
Nueva Ecija will no longer be subject to supervision by the province. In more concrete terms, Nueva Ecija stands to lose
282.75 sq. km. of its territorial jurisdiction with Cabanatuan Citys severance from its mother province. This is equivalent to
carving out almost 5% of Nueva Ecijas 5,751.3 sq. km. area. This sufficiently satisfies the requirement that the alteration
be "substantial."
Needless to stress, the alteration of boundaries would necessarily follow Cabanatuan Citys conversion in the same way
that creations, divisions, mergers, and abolitions generally cannot take place without entailing the alteration. The
enumerated acts, after all, are not mutually exclusive, and more often than not, a combination of these acts attends the
reconfiguration of LGUs.
In light of the foregoing disquisitions, the Court rules that conversion to an HUC is substantial alternation of boundaries
governed by Sec. 10, Art. X and resultantly, said provision applies, governs and prevails over Sec. 453 of the LGC.
Moreover, the rules of statutory construction dictate that a particular provision should be interpreted with the other relevant
provisions in the law The Court finds that it is actually Sec. 10 of the LGC which is undeniably the applicable provision on
the conduct of plebiscites. The title of the provision itself, "Plebiscite Requirement", makes this obvious. It requires a
majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. On the other
hand, Sec. 453 of the LGC, entitled "Duty to Declare Highly Urbanized Status", is only on the duty to declare a city as
highly urbanized. It mandates the Office of the President to make the declaration after the city has met the requirements
under Sec. 452, and upon proper application and ratification in a plebiscite. The conduct of a plebiscite is then a
requirement before a declaration can be made. Thus, the Court finds that Sec. 10 of the LGC prevails over Sec. 453 of
the LGC on the plebiscite requirement.
We now take the bull by the horns and resolve the issue whether Sec. 453 of the LGC trenches on Sec. 10, Art. X of the
Constitution.
Hornbook doctrine is that neither the legislative, the executive, nor the judiciary has the power to act beyond the
Constitutions mandate. The Constitution is supreme; any exercise of power beyond what is circumscribed by the
Constitution is ultra vires and a nullity. As elucidated by former Chief Justice Enrique Fernando in Fernandez v. Cuerva:14
Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and
void. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern." Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. The above provision of the civil Code reflects the orthodox view that
an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties, and affords no
protection. x x x

Applying this orthodox view, a law should be construed in harmony with and not in violation of the Constitution.15 In a
long line of cases, the cardinal principle of construction established is that a statute should be interpreted to assure its
being in consonance with, rather than repugnant to, any constitutional command or prescription.16 If there is doubt or
uncertainty as to the meaning of the legislative, if the words or provisions are obscure or if the enactment is fairly
susceptible of two or more constitution, that interpretation which will avoid the effect of unconstitutionality will be adopted,
even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language
used.17
Pursuant to established jurisprudence, the phrase "by the qualified voters therein" in Sec. 453 should be construed in a
manner that will avoid conflict with the Constitution. If one takes the plain meaning of the phrase in relation to the
declaration by the President that a city is an HUC, then, Sec. 453 of the LGC will clash with the explicit provision under
Sec. 10, Art. X that the voters in the "political units directly affected" shall participate in the plebiscite. Such construction
should be avoided in view of the supremacy of the Constitution. Thus, the Court treats the phrase "by the qualified voters
therein" in Sec. 453 to mean the qualified voters not only in the city proposed to be converted to an HUC but also the
voters of the political units directly affected by such conversion in order to harmonize Sec. 453 with Sec. 10, Art. X of the
Constitution.
The Court finds that respondents are mistaken in construing Sec. 453 in a vacuum. Their interpretation of Sec. 453 of the
LGC runs afoul of Sec. 10, Art. X of the Constitution which explicitly requires that all residents in the "political units directly
affected" should be made to vote.
Respondents make much of the plebiscites conducted in connection with the conversion of Puerto Princesa City,
Tacloban City and Lapu-Lapu City where the ratification was made by the registered voters in said cities alone. It is clear,
however, that the issue of who are entitled to vote in said plebiscites was not properly raised or brought up in an actual
controversy. The issue on who will vote in a plebiscite involving a conversion into an HUC is a novel issue, and this is the
first time that the Court is asked to resolve the question. As such, the past plebiscites in the aforementioned cities have no
materiality or relevance to the instant petition. Suffice it to say that conversion of said cities prior to this judicial declaration
will not be affected or prejudiced in any manner following the operative fact doctrinethat the actual existence of a
statute prior to such a determination is an operative fact and may have consequences which cannot always be erased by
a new judicial declaration.18
The entire province of Nueva Ecija will be directly
affected by Cabanatuan Citys conversion
After the Court has resolved the seeming irreconcilability of Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC, it
is now time to elucidate the meaning of the phrase "political units directly affected" under Sec. 10, Art. X.
a. "Political units directly affected" defined
In identifying the LGU or LGUs that should be allowed to take part in the plebiscite, what should primarily be determined is
whether or not the unit or units that desire to participate will be "directly affected" by the change. To interpret the phrase,
Tan v. COMELEC19 and Padilla v. COMELEC20 are worth revisiting.
We have ruled in Tan, involving the division of Negros Occidental for the creation of the new province of Negros del Norte,
that the LGUs whose boundaries are to be altered and whose economy would be affected are entitled to participate in the
plebiscite. As held:
It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the
approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or
merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the
existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries
in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected.
The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The
other affected entity would be composed of those in the area subtracted from the mother province to constitute the
proposed province of Negros del Norte.21
xxxx
To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the
parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the

land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize
that the consequent effects of the division of the parent province necessarily will affect all the people living in the separate
areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well
as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either
or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article
XI of the Constitution which must be included in the plebiscite contemplated therein.22 (emphasis added)
Sec. 3, Art. XI of the 1973 Constitution, as invoked in Tan, states:
SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary substantially
altered, except in accordance with the criteria established in the local government code, and subject to the approval by a
majority of the votes in a plebiscite in the unit or units affected. (emphasis added)
Despite the change in phraseology compared to what is now Sec. 10, Art. X, we affirmed our ruling in Tan in the latter
case of Padilla. As held, the removal of the phrase "unit or" only served to sustain the earlier finding that what is
contemplated by the phase "political units directly affected" is the plurality of political units which would participate in the
plebiscite. As reflected in the journal of the Constitutional Commission:23
Mr. Maambong: While we have already approved the deletion of "unit or," I would like to inform the Committee that under
the formulation in the present Local Government Code, the words used are actually "political unit or units." However, I do
not know the implication of the use of these words. Maybe there will be no substantial difference, but I just want to inform
the Committee about this.
Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be no objection on the part of the two Gentlemen
from the floor?
Mr. Davide: I would object. I precisely asked for the deletion of the words "unit or" because in the plebiscite to be
conducted, it must involve all the units affected. If it is the creation of a barangay plebiscite because it is affected. It would
mean a loss of a territory. (emphasis added)
The same sentiment was shared by the Senate during its deliberations on Senate Bill No. 155the predecessor of the
LGCthus:
Senator Guingona. Can we make that clearer by example? Let us assume that a province has municipalities and there is
a merger of two municipalities. Would this therefore mean that the plebiscite will be conducted within the two merged
municipalities and not in the eight other municipalities?
Senator Pimentel. The whole province, Mr. President, will be affected, and that is the reason we probably have to involve
the entire province.
Senator Guingona. So the plebiscite will not be held only in the two municipalities which are being merged, but the entire
province will now have to undergo.
Senator Pimentel. I suppose that was the ruling in the Negros del Norte case.
Senator Guingona. Supposing it refers to barangays, will the entire municipality have to vote? There are two barangays
being merged, say, out of 100 barangays. Would the entire municipality have to participate in the plebiscite?
Senator Pimentel. Yes, Mr. President, because the municipality is affected directly by the merger of two of its barangay.
Senator Guingona. And, if, out of 100 barangay, 51 are being merged, abolished, whatever, would the rest of the
municipality not participate in the plebiscite?
Senator Pimentel. Do all the 51 barangay that the Gentleman mentioned, Mr. President, belong to one municipality?
Senator Guingona. Yes.
Senator Pimentel. Then it will only involve the municipality where the 51 barangays belong.
Senator Guingona. Yes. So, the entire municipality will now have to undergo a plebiscite.
Senator Pimentel. That is correct, Mr. President.

Senator Guingona. In the earlier example, if it is only a merger of two municipalities, let us say, in a province with 10
municipalities the entire province will the other municipalities although not affected also have to participate in the
plebiscite?
Senator Pimentel. Yes. The reason is that the municipalities are within the territorial boundaries of the province itself, it will
have to be altered as a result of the two municipalities that the Gentleman mentioned.24
In the more recent case of Miranda, the interpretation in Tan and Padilla was modified to include not only changes in
economic but also political rights in the criteria for determining whether or not an LGU shall be considered "directly
affected." Nevertheless, the requirement that the plebiscite be participated in by the plurality of political units directly
affected remained.
b. Impact on Economic Rights
To recall, it was held in Miranda that the changes that will result in the downgrading of an LGU from an independent
component city to a component city cannot be categorized as insubstantial, thereby necessitating the conduct of a
plebiscite for its ratification. In a similar fashion, herein petitioner Umali itemized the adverse effects of Cabanatuan Citys
conversion to the province of Nueva Ecija to justify the provinces participation in the plebiscite to be conducted.
Often raised is that Cabanatuan Citys conversion into an HUC and its severance from Nueva Ecija will result in the
reduction of the Internal Revenue Allotment (IRA) to the province based on Sec. 285 of the LGC. The law states:
Section 285. Allocation to Local Government Units. - The share of local government units in the internal revenue allotment
shall be collected in the following manner:
(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%);
(c) Municipalities - Thirty-four percent (34%); and
(d) Barangays - Twenty percent (20%)
Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the
following formula:
(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%); and
(c) Equal sharing - Twenty-five percent (25%)

In our earlier disquisitions, we have explained that the conversion into an HUC carries the accessory of substantial
alteration of boundaries and that the province of Nueva Ecija will, without a doubt, suffer a reduction in territory because of
the severance of Cabanatuan City. The residents of the city will cease to be political constituencies of the province,
effectively reducing the latters population. Taking this decrease in territory and population in connection with the above
formula, it is conceded that Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its multipliers values.
As assessed by the Regional Director of the Department of Budget and Management (DBM) for Region III:25
Basis for IRA
Computation

Province of
Nueva Ecija

Cabanatuan
City

Province of
Nueva Ecija Net
of Cabanatuan
City

No. of Population
CY 2007 Census

1,843,853

259,267

259,267

Land Area
(sq. km.)

5,751.33

282.75

5,468.58

IRA Share of
Nueva Ecija

Actual IRA
Share

Estimated IRA
share excluding
Cabanatuan
City

Reduction

Based on
Population

P800,772,618.45

P688,174,751.66

P112,597,866.79

Based on Land
Area

P263,470,472.62

P250,517,594.56

P 12,952,878.06

Total

P125,550,744.85

Clear as crystal is that the province of Nueva Ecija will suffer a substantial reduction of its share in IRA once Cabanatuan
City attains autonomy. In view of the economic impact of Cabanatuan Citys conversion, petitioner Umalis contention, that
its effect on the province is not only direct but also adverse, deserves merit.
Moreover, his claim that the province will lose shares in provincial taxes imposed in Cabanatuan City is well-founded. This
is based on Sec. 151 of the LGC, which states:
SECTION 151. Scope of Taxing Powers. Except as otherwise provided in this Code, the city, may levy the taxes, fees,
and charges which the province or municipality may impose: Provided, however, That the taxes, fees and charges levied
and collected by highly urbanized and independent component cities shall accrue to them and distributed in accordance
with the provisions of this Code. (emphasis added)
Once converted, the taxes imposed by the HUC will accrue to itself. Prior to this, the province enjoys the prerogative to
impose and collect taxes such as those on sand, gravel and other quarry resources,26 professional taxes,27 and
amusement taxes28 over the component city. While, it may be argued that this is not a derogation of the provinces taxing
power because it is in no way deprived of its right to collect the mentioned taxes from the rest of its territory, the
conversion will still reduce the provinces taxing jurisdiction, and corollary to this, it will experience a corresponding
decrease in shares in local tax collections. This reduction in both taxing jurisdiction and shares poses a material and
substantial change to the provinces economic rights, warranting its participation in the plebiscite.
To further exemplify the impact of these changes, a perusal of Secs. 452(a) and 461(a) of the LGC is in order, viz:
Section 452. Highly Urbanized Cities.
(a) Cities with a minimum population of two hundred thousand (200,000) inhabitants as certified by the National Statistics
Office, and within the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices,
as certified by the city treasurer, shall be classified as highly urbanized cities.
Section 461. Requisites for Creation.
(a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less
than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management
Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics
Office:
Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at
the time of said creation to less than the minimum requirements prescribed herein.
A component citys conversion into an HUC and its resultant autonomy from the province is a threat to the latters
economic viability. Noteworthy is that the income criterion for a component city to be converted into an HUC is higher than
the income requirement for the creation of a province. The ensuing reduction in income upon separation would clearly
leave a crippling effect on the provinces operations as there would be less funding to finance infrastructure projects and
to defray overhead costs. Moreover, the quality of services being offered by the province may suffer because of looming
austerity measures. These are but a few of the social costs of the decline in the provinces economic performance, which
Nueva Ecija is bound to experience once its most progressive city of Cabanatuan attains independence.

c. Impact on Political Rights

Aside from the alteration of economic rights, the political rights of Nueva Ecija and those of its residents will also be
affected by Cabanatuans conversion into an HUC. Notably, the administrative supervision of the province over the city
will effectively be revoked upon conversion. Secs. 4 and 12, Art. X of the Constitution read:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect
to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure
that the acts of their component units are within the scope of their prescribed powers and functions.
Sec 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters
from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a
province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial
officials.
Duties, privileges and obligations appertaining to HUCs will attach to Cabanatuan City if it is converted into an HUC. This
includes the right to be outside the general supervision of the province and be under the direct supervision of the
President. An HUC is not subject to provincial oversight because the complex and varied problems in an HUC due to a
bigger population and greater economic activity require greater autonomy.29 The provincial government stands to lose
the power to ensure that the local government officials of Cabanatuan City act within the scope of its prescribed powers
and functions,30 to review executive orders issued by the city mayor, and to approve resolutions and ordinances enacted
by the city council.31 The province will also be divested of jurisdiction over disciplinary cases concerning the elected city
officials of the new HUC, and the appeal process for administrative case decisions against barangay officials of the city
will also be modified accordingly.32 Likewise, the registered voters of the city will no longer be entitled to vote for and be
voted upon as provincial officials.33
In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija, the city will be separated from the
territorial jurisdiction of the province, as earlier explained. The provincial government will no longer be responsible for
delivering basic services for the city residents benefit. Ordinances and resolutions passed by the provincial council will no
longer cover the city. Projects queued by the provincial government to be executed in the city will also be suspended if not
scrapped to prevent the LGU from performing functions outside the bounds of its territorial jurisdiction, and from
expending its limited resources for ventures that do not cater to its constituents.1wphi1
In view of these changes in the economic and political rights of the province of Nueva Ecija and its residents, the entire
province certainly stands to be directly affected by the conversion of Cabanatuan City into an HUC. Following the
doctrines in Tan and Padilla, all the qualified registered voters of Nueva Ecija should then be allowed to participate in the
plebiscite called for that purpose.
Respondents apprehension that requiring the entire province to participate in the plebiscite will set a dangerous
precedent leading to the failure of cities to convert is unfounded. Their fear that provinces will always be expected to
oppose the conversion in order to retain the citys dependence is speculative at best. In any event, any vote of disapproval
cast by those directly affected by the conversion is a valid exercise of their right to suffrage, and our democratic processes
are designed to uphold the decision of the majority, regardless of the motive behind the vote. It is unfathomable how the
province can be deprived of the opportunity to exercise the right of suffrage in a matter that is potentially deleterious to its
economic viability and could diminish the rights of its constituents. To limit the plebiscite to only the voters of the areas to
be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.34
WHEREFORE, premises considered, the Petition for Certiorari, docketed as G.R. No. 203974, is hereby GRANTED.
COMELEC Minute Resolution No. 12-0797 dated September 11, 2012 and Minute Resolution No. 12-0925 dated October
16, 2012 are hereby declared NULL and VOID. Public respondent COMELEC is hereby enjoined from implementing the
said Resolutions. Additionally, COMELEC is hereby ordered to conduct a plebiscite for the purpose of converting
Cabanatuan City into a Highly Urbanized City to be participated in by the qualified registered voters of Nueva Ecij a within
120 days from the finality of this Decision. The Petition for Mandamus, docketed as G.R. No. 204371, is hereby
DISMISSED.
SO ORDERED.

G.R. No. 192280

January 25, 2011

SERGIO G. AMORA, JR., Petitioner, vs. COMMISSION ON ELECTIONS and ARNIELO S. OLANDRIA, Respondents.
DECISION
NACHURA, J.:
Before us is a petition for certiorari under Rule 64, in relation to Rule 65, of the Rules of Court, seeking to annul and set
aside the Resolutions dated April 29, 20101 and May 17, 2010,2 respectively, of the Commission on Elections
(COMELEC) in SPA No. 10-046 (DC).
First, the undisputed facts.
On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his Certificate of Candidacy (COC) for Mayor of
Candijay, Bohol. At that time, Amora was the incumbent Mayor of Candijay and had been twice elected to the post, in the
years 2004 and 2007.
To oppose Amora, the Nationalist Peoples Coalition (NPC) fielded Trygve L. Olaivar (Olaivar) for the mayoralty post.
Respondent Arnielo S. Olandria (Olandria) was one of the candidates for councilor of the NPC in the same municipality.
On March 5, 2010, Olandria filed before the COMELEC a Petition for Disqualification against Amora. Olandria alleged that
Amoras COC was not properly sworn contrary to the requirements of the Omnibus Election Code (OEC) and the 2004
Rules on Notarial Practice. Olandria pointed out that, in executing his COC, Amora merely presented his Community Tax
Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty. Granada), instead of presenting competent evidence of
his identity. Consequently, Amoras COC had no force and effect and should be considered as not filed.
Amora traversed Olandrias allegations in his Answer cum Position Paper.3 He countered that:
1. The Petition for Disqualification is actually a Petition to Deny Due Course or cancel a certificate of candidacy.
Effectively, the petition of Olandria is filed out of time;
2. Olandrias claim does not constitute a proper ground for the cancellation of the COC;
3. The COC is valid and effective because he (Amora) is personally known to the notary public, Atty. Granada, before
whom he took his oath in filing the document;
4. Atty. Granada is, in fact, a close acquaintance since they have been members of the League of Muncipal Mayors,
Bohol Chapter, for several years; and
5. Ultimately, he (Amora) sufficiently complied with the requirement that the COC be under oath.
As previously adverted to, the Second Division of the COMELEC granted the petition and disqualified Amora from running
for Mayor of Candijay, Bohol.
Posthaste, Amora filed a Motion for Reconsideration4 before the COMELEC en banc. Amora reiterated his previous
arguments and emphasized the asseverations of the notary public, Atty. Granada, in the latters affidavit,5 to wit:
1. The COMELECs (Second Divisions) ruling is contrary to the objectives and basic principles of election laws which
uphold the primacy of the popular will;
2. Atty. Granada states that while he normally requires the affiant to show competent evidence of identity, in Amoras
case, however, he accepted Amoras CTC since he personally knows him;
3. Apart from the fact that Amora and Atty. Granada were both members of the League of Municipal Mayors, Bohol
Chapter, the two consider each other as distant relatives because Amoras mother is a Granada;
4. It is a matter of judicial notice that practically everybody knows the Mayor, most especially lawyers and notaries public,
who keep themselves abreast of developments in local politics and have frequent dealings with the local government; and
5. In all, the COC filed by Amora does not lack the required formality of an oath, and thus, there is no reason to nullify his
COC.

Meanwhile, on May 10, 2010, national and local elections were held. Amora obtained 8,688 votes, equivalent to 58.94%
of the total votes cast, compared to Olaivars 6,053 votes, equivalent to only 41.06% thereof. Subsequently, the Muncipal
Board of Canvassers of Candijay, Bohol, proclaimed Amora as the winner for the position of Municipal Mayor of Candijay,
Bohol.6
A week thereafter, or on May 17, 2010, in another turn of events, the COMELEC en banc denied Amoras motion for
reconsideration and affirmed the resolution of the COMELEC (Second Division). Notably, three (3) of the seven (7)
commissioners dissented from the majority ruling. Commissioner Gregorio Larrazabal (Commissioner Larrazabal) wrote a
dissenting opinion, which was concurred in by then Chairman Jose A.R. Melo and Commissioner Rene V. Sarmiento.
In denying Amoras motion for reconsideration and upholding Olandrias petition for disqualification of Amora, the
COMELEC ratiocinated, thus:
[Amora] himself admitted in his Motion that the Second Division was correct in pointing out that the CTC is no longer a
competent evidence of identity for purposes of notarization.
The COC therefore is rendered invalid when [petitioner] only presented his CTC to the notary public. His defense that he
is personally known to the notary cannot be given recognition because the best proof [of] his contention could have been
the COC itself. However, careful examination of the jurat portion of the COC reveals no assertion by the notary public that
he personally knew the affiant, [petitioner] herein. Belated production of an Affidavit by the Notary Public cannot be given
weight because such evidence could and should have been produced at the earliest possible opportunity.
The rules are absolute. Section 73 of the Election Code states:
"Section 73. Certificate of Candidacy. No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein."
Under the 2004 Rules on Notarial Practice of 2004 (Rules), the requirements of notarization of an oath are:
"Section 2. Affirmation or Oath. The term Affirmation or Oath refers to an act in which an individual on a single
occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or document."
The required form of identification is prescribed in [S]ection 12 of the same Rules, to wit:
"Section 12. Competent Evidence of Identity. The phrase competent evidence of identity refers to the identification of
an individual based on:
(a) at least one current identification document issued by an official agency bearing the photograph and signature of the
individual. x x x."
It is apparent that a CTC, which bears no photograph, is no longer a valid form of identification for purposes of
Notarization of Legal Documents. No less than the Supreme Court itself, when it revoked the Notarial Commission of a
member of the Bar in Baylon v. Almo, reiterated this when it said:
"As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a
person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that
notaries public should use in ascertaining the identity of persons appearing before them to have their documents
notarized."
Seeking other remedies, [Amora] maintained that Section 78 of the Election Code governs the Petition. Said section
provides that:
"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material

representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election."
[Amora] however failed to note that the Petition relies upon an entirely different ground. The Petition has clearly stated
that it was invoking Section 73 of the Election Code, which prescribes the mandatory requirement of filing a sworn
certificate of candidacy. As properly pointed out by [Olandria], he filed a Petition to Disqualify for Possessing Some
Grounds for Disqualification, which, is governed by COMELEC Resolution No. 8696, to wit:
"B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTION CODE
AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION
1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a
candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last
day for filing of certificates of candidacy but not later than the date of proclamation;
xxxx
3. The petition to disqualify a candidate for lack of qualification or possessing some grounds for disqualification, shall be
filed in ten (10) legible copies, personally or through a duly authorized representative, by any person of voting age, or duly
registered political party, organization or coalition of political parties on the ground that the candidate does not possess all
the qualifications as provided for by the Constitution or by existing law or who possesses some grounds for
disqualification as provided for by the Constitution or by existing law."
xxxx
Finally, we do not agree with [Amora] when he stated that the Second Divisions Resolution "practically supplanted
congress by adding another ground for disqualification, not provided in the omnibus election code or the local government
code. The constitution is very clear that it is congress that shall prescribe the qualifications (and disqualifications) of
candidates for local government positions." These grounds for disqualification were laid down in both laws mentioned by
[Amora] and COMELEC Resolution 8696.7
Hence, this petition for certiorari imputing grave abuse of discretion to the COMELEC. On June 15, 2010, we issued a
Status Quo Ante Order and directed respondents to comment on the petition. As directed, Olandria and the COMELEC
filed their respective Comments8 which uniformly opposed the petition. Thereafter, Amora filed his Reply.9
Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to Deny Due Course since the
purported ground for disqualification simply refers to the defective notarization of the COC. Amora is adamant that Section
73 of the OEC pertains to the substantive qualifications of a candidate or the lack thereof as grounds for disqualification,
specifically, the qualifications and disqualifications of elective local officials under the Local Government Code (LGC) and
the OEC. Thus, Olandrias petition was filed way beyond the reglementary period of twenty-five (25) days from the date of
the filing of the disputed COC.
Moreover, Amora maintains that his COC is properly notarized and not defective, and the presentation of his CTC to the
notary public to whom he was personally known sufficiently complied with the requirement that the COC be under oath.
Amora further alleges that: (1) Olaivar, his opponent in the mayoralty post, and likewise a member of the NPC, is
purportedly a fraternity brother and close associate of Nicodemo T. Ferrer (Commissioner Ferrer), one of the
commissioners of the COMELEC who disqualified him; and (2) Olaivar served as Consultant for the COMELEC, assigned
to the Office of Commissioner Ferrer.
Olandria and the COMELEC reiterated the arguments contained in the COMELEC en banc resolution of May 17, 2010.
Amoras petition is meritorious.
We find that the COMELEC ruling smacks of grave abuse of discretion, a capricious and whimsical exercise of judgment
equivalent to lack of jurisdiction. Certiorari lies where a court or any tribunal, board, or officer exercising judicial or quasijudicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion.10
In this case, it was grave abuse of discretion to uphold Olandrias claim that an improperly sworn COC is equivalent to
possession of a ground for disqualification. Not by any stretch of the imagination can we infer this as an additional ground
for disqualification from the specific wording of the OEC in Section 68, which reads:

SEC. 68. Disqualifications. Any candidate who, in an action or protest in which he is party is declared by final decision of
a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80,
83, 85, 86, and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate,
or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as a
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the
elections laws.
and of Section 40 of the LGC, which provides:
SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
It is quite obvious that the Olandria petition is not based on any of the grounds for disqualification as enumerated in the
foregoing statutory provisions. Nowhere therein does it specify that a defective notarization is a ground for the
disqualification of a candidate. Yet, the COMELEC would uphold that petition upon the outlandish claim that it is a petition
to disqualify a candidate "for lack of qualifications or possessing some grounds for disqualification."
The proper characterization of a petition as one for disqualification under the pertinent provisions of laws cannot be made
dependent on the designation, correctly or incorrectly, of a petitioner. The absurd interpretation of Olandria, respondent
herein, is not controlling; the COMELEC should have dismissed his petition outright.
A petition for disqualification relates to the declaration of a candidate as ineligible or lacking in quality or accomplishment
fit for the position of mayor. The distinction between a petition for disqualification and the formal requirement in Section 73
of the OEC that a COC be under oath is not simply a question of semantics as the statutes list the grounds for the
disqualification of a candidate.
Recently, we have had occasion to distinguish the various petitions for disqualification and clarify the grounds therefor as
provided in the OEC and the LGC. We declared, thus:
To emphasize, a petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or Section
40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement
of a material representation in the said certificate that is false. The petitions also have different effects. While a person
who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is
cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus,
in Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be
substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC
has been denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a
candidate.11
Apart from the qualifications provided for in the Constitution, the power to prescribe additional qualifications for elective
office and grounds for disqualification therefrom, consistent with the constitutional provisions, is vested in Congress.12
However, laws prescribing qualifications for and disqualifications from office are liberally construed in favor of eligibility

since the privilege of holding an office is a valuable one.13 We cannot overemphasize the principle that where a
candidate has received popular mandate, all possible doubts should be resolved in favor of the candidates eligibility, for
to rule otherwise is to defeat the will of the people.14
In stark contrast to the foregoing, the COMELEC allowed and confirmed the disqualification of Amora although the latter
won, and was forthwith proclaimed, as Mayor of Candijay, Bohol.
Another red flag for the COMELEC to dismiss Olandrias petition is the fact that Amora claims to personally know the
notary public, Atty. Granada, before whom his COC was sworn. In this regard, the dissenting opinion of Commissioner
Larrazabal aptly disposes of the core issue:
With all due respect to the well-written Ponencia, I respectfully voice my dissent. The primary issue herein is whether it is
proper to disqualify a candidate who, in executing his Certificate of Candidacy (COC), merely presented to the Notary
Public his Community Tax Certificate.
The majority opinion strictly construed the 2004 Rules on Notarial Practice (the "2004 Notarial Rules") when it provided
that valid and competent evidence of identification must be presented to render Sergio G. Amora, Jr.s [petitioners] COC
valid. The very wording of the 2004 Notarial Rules supports my view that the instant motion for reconsideration ought to
be granted, to wit:
Section 2. Affirmation or Oath . The term "Affirmation" or "Oath" refers to an act in which an individual on a single
occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or document.
As quoted supra, competent evidence of identity is not required in cases where the affiant is personally known to the
Notary Public, which is the case herein. The records reveal that [petitioner] submitted to this Commission a sworn affidavit
executed by Notary Public Oriculo A. Granada (Granada), who notarized [petitioners] COC, affirming in his affidavit that
he personally knows [petitioner].
[Respondent], on the other hand, presented no evidence to counter Granadas declarations. Hence, Granada[s] affidavit,
which narrates in detail his personal relation with [petitioner], should be deemed sufficient.
The purpose of election laws is to give effect to, rather than frustrate, the will of the voters.1wphi1 The people of
Candijay, Bohol has already exercised their right to suffrage on May 10, 2010 where [petitioner] was one of the
candidates for municipal mayor. To disqualify [petitioner] at this late stage simply due to an overly strict reading of the
2004 Notarial Rules will effectively deprive the people who voted for him their rights to vote.
The Supreme Courts declaration in Petronila S. Rulloda v. COMELEC et al. must not be taken lightly:
Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the
electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice
of public officials may not be defeated by mere technical objections.
Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle
to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any
interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but
also the correct ascertainment of the results.15
Our ruling herein does not do away with the formal requirement that a COC be sworn. In fact, we emphasize that the filing
of a COC is mandatory and must comply with the requirements set forth by law.16
Section 2 of the 2004 Rules on Notarial Practice lists the act to which an affirmation or oath refers:
Sec. 2. Affirmation or Oath. The term "Affirmation" or "Oath" refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or document.
In this case, however, contrary to the declarations of the COMELEC, Amora complied with the requirement of a sworn
COC. He readily explained that he and Atty. Granada personally knew each other; they were not just colleagues at the
League of Municipal Mayors, Bohol Chapter, but they consider each other as distant relatives. Thus, the alleged defect in
the oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient in this instance. On the
whole, the COMELEC should not have brushed aside the affidavit of Atty. Granada and remained inflexible in the face of
Amoras victory and proclamation as Mayor of Candijay, Bohol.
WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on Elections in SPA No. 10-046 (DC) dated
April 29, 2010 and May 17, 2010, respectively, are ANULLED and SET ASIDE.
SO ORDERED.

G.R. No. 164185

July 23, 2008

PEOPLE OF THE PHILIPPINES, Petitioner, vs. THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A.
VILLAPANDO, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor assails the
May 20, 2004 Decision1 of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent
Alejandro A. Villapandos Demurrer to Evidence2 and acquitting him of the crime of unlawful appointment under Article
2443 of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape (now
deceased), a relative of Villapandos wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while
Tiape lost. Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal Administrator of the Municipality of San
4
5
Vicente, Palawan. A Contract of Consultancy dated February 8, 1999was executed between the Municipality of San
Vicente, Palawan and Tiape whereby the former employed the services of Tiape as Municipal Administrative and
Development Planning Consultant in the Office of the Municipal Mayor for a period of six months from January 1, 1999 to
June 30, 1999 for a monthly salary of P26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of Article
244 of the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon.6 The complaint was resolved
against Villapando and Tiape and the following Information7 dated March 19, 2002 charging the two with violation of
Article 244 of the Revised Penal Code was filed with the Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public officer, being
then the Municipal Mayor of San Vicente, Palawan, committing the crime herein charged, in relation to and taking
advantage of his official functions, conspiring and confederating with accused Orlando M. Tiape, did then and there
wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of San Vicente, Palawan,
accused Alejandro A. Villapando knowing fully well that Orlando Tiape lacks the qualification as he is a losing mayoralty
candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998 elections, hence is ineligible for
appointment to a public office within one year (1) from the date of the elections, to the damage and prejudice of the
government and of public interest.
CONTRARY TO LAW.

The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was
dismissed after the prosecution proved his death which occurred on July 26, 2000.9
After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The Sandiganbayan,
Fourth Division denied his motion but gave him five days within which to inform the court in writing whether he will
nonetheless submit his Demurrer to Evidence for resolution without leave of court. 10Villapando then filed a Manifestation
of Intent to File Demurrer to Evidence,11 and was given 15 days from receipt to file his Demurrer to Evidence. He filed his
Demurrer to Evidence12 on October 28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapandos Demurrer to Evidence
meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed with merit.

Article 244 of the Revised Penal Code provides:

Article 244. Unlawful appointments.Any public officer who shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000
pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the following elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
4. the offender knew that his nominee or appointee did not have the legal qualifications at the time he made the
nomination or appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime was
committed.
2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the time
of [his] designation as Municipal Administrator, was lacking in legal qualification. Stated differently, does "legal
qualification" contemplate the one (1) year prohibition on appointment as provided for in Sec. 6, Art. IX-B of the
Constitution and Sec. 94 (b) of the Local Government Code, mandating that a candidate who lost in any election
shall not, within one year after such election, be appointed to any office in the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular appointee to a public office, "there must be a law providing for the
qualifications of a person to be nominated or appointed" therein. To illuminate further, Justice Rodolfo Palattao succinctly
discussed in his book that the qualification of a public officer to hold a particular position in the government is provided for
by law, which may refer to educational attainment, civil service eligibility or experience:
As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public office.
The person nominated or appointed is not qualified and his lack of qualification is known to the party making the
nomination or appointment. The qualification of a public officer to hold a particular position in the government is provided
by law. The purpose of the law is to ensure that the person appointed is competent to perform the duties of the office,
thereby promoting efficiency in rendering public service.
The qualification to hold public office may refer to educational attainment, civil service eligibility or experience. For
instance, for one to be appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates a person for
appointment as judge knowing him to be not a member of the Philippine Bar, such act constitutes a violation of the law
under consideration.
In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that
provides for the legal qualification for the position of municipal administrator is Section 480, Article X of the Local
Government Code, to wit:
"Section 480. Qualifications, Terms, Powers and Duties.(a) No person shall be appointed administrator unless he is a
citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college
degree preferably in public administration, law, or any other related course from a recognized college or university, and a
first grade civil service eligible or its equivalent. He must have acquired experience in management and administration
work for at least five (5) years in the case of the provincial or city administrator, and three (3) years in the case of the
municipal administrator.

xxx

xxx

x x x"

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapandos appointee, Orlando
Tiape, lacked any of the qualifications imposed by law on the position of Municipal Administrator. Prosecutions argument
rested on the assertion that since Tiape lost in the May 11, 1998 election, he necessarily lacked the required legal
qualifications.
It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person who
possessed the required legal qualifications for a position may be temporarily disqualified for appointment to a public
position by reason of the one year prohibition imposed on losing candidates. Upon the other hand, one may not be
temporarily disqualified for appointment, but could not be appointed as he lacked any or all of the required legal
qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary to discuss the same.
WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the same is hereby GRANTED.
Mayor Villapando is hereby ACQUITTED of the crime charged.
SO ORDERED.13
Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the People
of the Philippines.
Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed to do
so and in a Resolution14 dated June 7, 2006, this Court informed him that he is deemed to have waived the filing of his
comment and the case shall be resolved on the basis of the pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF OR EXCESS OF JURISDICTION IN INTERPRETING THAT THE "LEGAL DISQUALIFICATION" IN
ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR PROHIBITION
IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION AND THE LOCAL
GOVERNMENT CODE.
II.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF OR EXCESS OF JURISDICTION IN GIVING DUE COURSE TO, AND EVENTUALLY GRANTING,
THE DEMURRER TO EVIDENCE.15
Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to
lack or excess of jurisdiction.
Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or
excess of jurisdiction because its interpretation of Article 244 of the Revised Penal Code does not complement the
provision on the one-year prohibition found in the 1987 Constitution and the Local Government Code, particularly Section
6, Article IX of the 1987 Constitution which states no candidate who has lost in any election shall, within one year after
such election, be appointed to any office in the government or any government-owned or controlled corporation or in any
of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for its part, states that except for losing
candidates in barangay elections, no candidate who lost in any election shall, within one year after such election, be
appointed to any office in the government or any government-owned or controlled corporation or in any of their
subsidiaries. Petitioner argues that the court erred when it ruled that temporary prohibition is not synonymous with the
absence of lack of legal qualification.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may well be
that one who possesses the required legal qualification for a position may be temporarily disqualified for appointment to a

public position by reason of the one-year prohibition imposed on losing candidates. However, there is no violation of
Article 244 of the Revised Penal Code should a person suffering from temporary disqualification be appointed so long as
the appointee possesses all the qualifications stated in the law.
There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the
Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987 Constitution
and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year after such election to
be appointed to any office in the government or any government-owned or controlled corporations or in any of their
subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. Any public officer who shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000
pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No elective
or appointive local official shall be eligible for appointment or designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official shall
hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year
after such election, be appointed to any office in the government or any government-owned or controlled corporations or
in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office
in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.
Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of the term legal disqualification lack
cogency. Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification cannot be read
as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX of
the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.
Although this Court held in the case of People v. Sandiganbayan16 that once a court grants the demurrer to evidence,
such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription
on double jeopardy, this Court held in the same case that such ruling on the matter shall not be disturbed in the absence
of a grave abuse of discretion.1avvphi1
Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as
is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion and hostility. 17
In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with grave
abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code defies legal
cogency. Legal disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the
legal prohibitions under the 1987 Constitution and the Local Government Code of 1991. We reiterate the legal maxim ubi
lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory construction that where the law does not
distinguish, the courts should not distinguish. There should be no distinction in the application of a law where none is
indicated.

Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File Demurrer to Evidence yet
accommodated Villapando by giving him five days within which to inform it in writing whether he will submit his demurrer
to evidence for resolution without leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal
contemplation and, thus, cannot be the source of an acquittal.18
The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of
statutory construction resulting in its decision granting Villapandos Demurrer to Evidence and acquitting the latter, we can
do no less but declare its decision null and void.
WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division, in
Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos Demurrer to Evidence and acquitting him
of the crime of unlawful appointment under Article 244 of the Revised Penal Code is hereby declared NULL and VOID.
Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for further proceedings.
SO ORDERED.

C. Term of Office (Section 43 LGC)

G.R. No. 120140 August 21, 1996
BENJAMIN U. BORJA, JR., Petitioner, v. COMMISSION ON ELECTIONS, PATEROS MUNICIPAL BOARD OF
CANVASSERS and JOSE T. CAPCO, JR., Respondents.
SYLLABUS
1.
POLITICAL LAW; ELECTION LAW; OMNIBUS ELECTION CODE; FAILURE OF ELECTION; GROUNDS CITED
IN CASE AT BAR ARE NOT PROPER IN A PETITION TO DECLARE A FAILURE OF ELECTION. A petition to declare
a failure of election is neither a pre-proclamation controversy as classified under Section 5(h), Rule 1 of the Revised
COMELEC Rules of Procedure, not an election case. It must be remembered that Capco was duly elected and
proclaimed as Mayor of Pateros. "Such proclamation enjoys the presumption of regularity and validity." To destroy the
presumption, Borja must convincingly show that his opponents victory was procured through extra-legal means. This he
tried to do by alleging matters in his petition which he thought constituted failure of election, such as lack of notice of the
date and time of canvass; fraud, violence, terrorism and analogous causes; disenfranchisement of voters; presence of
flying voters; and unqualified members of the Board of Election Inspectors. These grounds, however, as correctly pointed
out by the COMELEC, are proper only in an election contest but not in a petition to declare a failure of election and to
nullify a proclamation.
A FAILURE OF ELECTION MAY BE DECLARED; NOT PRESENT IN CASE AT BAR. Section 6 of the Omnibus
Election Code is reiterated in Section 2, Rule 26 of the Revised COMELEC Rules. In other words, the COMELEC can call
for the holding or continuation of election by reason of failure of election only when the election is not held, is suspended
or results in a failure to elect. The latter phrase, in turn, must be understood in its literal sense, which is "nobody was
elected." None of these circumstances is present in the case at bar. At best, the "grounds" cited by Borja are simply
events which give rise to the three consequences just mentioned.
3.
ID.; ID.; ID.; ID.; CASE AT BAR; A CASE OF. In reality, Borjas petition was nothing but a simple election
protest involving an elective municipal position which, under Section 251 of the Election Code, falls within the exclusive
original jurisdiction of the appropriate Regional Trial Court.
ROMERO, J.:p
Petitioner Benjamin U. Borja, Jr. questions the authority of respondent Commission on Elections en banc to hear and
decide at the first instance a petition seeking to declare a failure of election without the benefit of prior notice and hearing.
During the May 8, 1995 elections, Borja and private respondent Jose T. Capco vied for the position of Mayor of the
Municipality of Pateros which was won by Capco by a margin of 6,330 votes. Capco was consequently proclaimed and
has since been serving as Mayor of Pateros.
Alleging lack of notice of the date and time of canvass, fraud, violence terrorism and analogous causes, such as
disenfranchisement of voters, presence of flying voters, and unqualified members of the Board of Election Inspectors,
Borja filed before the COMELEC a petition to declare a failure of election and nullify the canvass and proclamation made
by the Pateros Board of Canvassers.
Concluding that the grounds relied upon by Borja were warranted only in an election contest, the COMELEC en
banc dismissed the petition in its resolution dated May 25, 1995. It declared that "force majeure, violence, terrorism, fraud
and other analogous causes . . . are merely the causes which may give rise to the grounds to declare failure of elections."
These grounds, which include (a) no election held on the designated election date; (b) suspension of election before the
hour fixed by law for the closing of voting; and (c) election in any polling place resulted in a failure to elect, were not
present in Borja's petition.
Aggrieved by said resolution, petitioner elevated the matter to this Court, arguing the same matters while claiming that the
COMELEC committed grave abuse of discretion in issuing the questioned resolution of May 25, 1995. He avers that the
COMELEC en banc does not have the power to hear and decide the merits of the petition he filed below because under
Article IX-C, Section 3 of the Constitution, all election cases, including pre-proclamation controversies, "shall be heard and
decided in division, provided that motions for reconsideration of decision shall be decided by the Commission en banc."
After a careful scrutiny of petitioner's arguments, this Court finds the same to be untenable. The petition must inevitably be
dismissed.

In order to resolve the threshold issue formulated at the outset, there must first be a determination as to whether a petition
to declare a failure of election qualifies as an election case or a pre-proclamation controversy. If it does, the Constitution
mandates that it be heard and adjudged by the COMELEC through any of its Divisions. The COMELEC en banc is only
empowered to resolve motions for reconsideration of cases decided by a Division for Article IX-C, Section 3 of the
Constitution expressly provides:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All
such election cases shall be heard and decided in division, provided that motions for reconsideration shall
be decided by the Commission en banc.
In the case at bar, no one, much less the COMELEC, is disputing the mandate of the aforequoted Article IX-C, Section 3
of the Constitution. As Borja himself maintained, the soundness of this provision has already been affirmed by the
1
Supreme Court in a number of cases, albeit with some dissent. In Ong, the Court declared that if a case raises "preproclamation issues, the COMELEC, sitting en banc, has no original jurisdiction" over the same. Accordingly, said case
should be remanded to the COMELEC which, in turn, will refer the same to any of its Divisions for proper disposition.
A petition to declare a failure of election is neither a pre-proclamation controversy as classified under Section 5(h), Rule 1
of the Revised COMELEC Rules of Procedure, nor an election case.
It must be remembered that Capco was duly elected and proclaimed as Mayor of Pateros. "Such proclamation enjoys the
presumption of regularity and validity." 2 To destroy the presumption, Borja must convincingly show that his opponent's
victory was procured through extra-legal means. This he tried to do by alleging matters in his petition which he thought
constituted failure of election, such as lack of notice of the date and time of canvass; fraud, violence, terrorism and
analogous causes; disenfranchisement of voters; presence of flying voters; and unqualified members of the Board of
Election Inspectors. These grounds, however, as correctly pointed out by the COMELEC, are proper only in an election
contest but not in a petition to declare a failure of election and to nullify a proclamation. Section 6 of the Omnibus Election
Code lays down the instances when a failure of election may be declared. It states thus;
Sec. 6. Failure of Election. If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of a verified petition by any interested
party and after due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the election or failure to elect.
The same provisions are reiterated under Section 2, Rule 26 of the Revised COMELEC Rules. In other words, the
COMELEC can call for the holding or continuation of election by reason of failure of election only when the
election is not held, is suspended or results in a failure to elect. The latter phrase, in turn, must be understood in
its literal sense, which is "nobody was elected." None of these circumstances is present in the case at bar. At
best, the "grounds" cited by Borja are simply events which give rise to the three consequences just mentioned.
In reality, Borja's petition was nothing but a simple election protest involving an elective municipal position which, under
Section 251 of the Election Code, falls within the exclusive original jurisdiction of the appropriate Regional Trial Court.
Section 251 states:
Sec. 251. Election contests for municipal offices. A sworn petition contesting the election of a
municipal officer shall be filed with the proper regional trial court by any candidate who has duly filed a
certificate of candidacy and has been voted for the same office, within ten days after proclamation of the
results of the election. (Emphasis supplied)
The COMELEC in turn exercises appellate jurisdiction over the trial court's decision pursuant to Article IX-C, Section 2(2)
of the Constitution which states:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and
barangay offices shall be final, executory, and not appealable.
The COMELEC, therefore, had no choice but to dismiss Borja's petition, not only for being deficient in
form but also for having been filed before the wrong tribunal. This reason need not even be stated in the
body of the decision as the same is patent on the face of the pleading itself. Nor can Borja claim that he
was denied due process because when the COMELEC en banc reviewed and evaluated his petition, the
same was tantamount to a fair "hearing" of his case. The fact that Capco was not even ordered to rebut
the allegations therein certainly did not deprive him of his day in court. If anybody here was aggrieved by
the alleged lack of notice and hearing, it was Capco whose arguments were never ventilated. If he
remained complacent, it was because the COMELEC's actuation was favorable to him.
Certainly, the COMELEC cannot be said to have committed abuse of discretion, let alone grave abuse thereof, in
dismissing Borja's petition. For having applied the clear provisions of the law, it deserves, not condemnation, but
commendation. WHEREFORE, the instant petition is hereby DISMISSED. The Resolution of the Commission on Elections
dated May 25, 1995 is hereby AFFIRMED. No pronouncement as to cost.
SO ORDERED.

G.R. No. 135150

July 28, 1999

ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI,
respondents.
GONZAGA-REYES, J.:
This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC
First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the
matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales, Eufemio Muli,
petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida
disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast
in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void.
Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio,
Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio,
Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in
1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial
Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled:
PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the
mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election.
Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant.
Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by
Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San
Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lonzanida. On
February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and
Alvez assumed office for the remainder of the term.
In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21,
1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in
the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998,
petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned
resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as
mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The
COMELEC found that Lonzanida's assumption of office by virtue of his proclamation in May 1995, although he was later
unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit
under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the
COMELEC En Banc in a resolution dated August 11, 1998.
Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San
Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and
that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term
limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections
as evidenced by the COMELEC decision dated November 13, 1997 in EAC No. 6-97 entitled Juan Alvez, ProtestantAppellee vs. Romeo Lonzanida, Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly elected
mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition
for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for
quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure.
Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of
the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the
petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA
6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the
elections and/or proclamation of the party sought to be disqualified may still be heard and decided by the COMELEC after
the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whether for
acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on
the merits of the petition for disqualification were issued within the commission's jurisdiction. As regards the merits of the
case, the private respondent maintains that the petitioner's assumption of office in 1995 should be considered as service

of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few
months before the next mayoral elections.
The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition.
The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local
Government Code which bar a local government official from serving more than three consecutive terms in the same
position speaks of "service of a term" and so the rule should be examined in this light. The public respondent contends
that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as
service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The
issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the
application of the three term limit because the prohibition speaks or "service of a term" which was intended by the framers
of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition
for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and
so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC
thereafter regardless of the imputed basis of disqualification.
The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995
to 1998 although he assumed office as mayor for that period because he was not lawfully elected to the said office.
Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be
considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC
ceased to have jurisdiction to hear the election protest after the petitioner's proclamation.
The petition has merit.
Sec. 8, Art. X of the Constitution provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be
three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.
Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule:
Sec. 43.

Term of Office.

(b)
No local elective official shall serve for more than three consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio Zambales from May
1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for
elective local government officials.
The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art.
X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for
the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the
accumulation of massive political power by an elective local government official in a given locality in order to perpetuate
his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates
who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same
office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a
powerful chief executive of his political territory and is most likely to form a political dynasty. 1 The drafters however,
recognized and took note of the fact that some local government officials run for office before they reach forty years of
age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the
people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government
official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term,
he may again run for the same office. 2
The scope of the constitutional provision barring elective local officials with the exception of barangay officials from
serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr.; vs. COMELEC and
Jose Capco, Jr. 3 where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by operation
of law upon the death of the incumbent mayor and served the remainder of the term should be considered to have served
a term in that office for the purpose of computing the three term limit. This court pointed out that from the discussions of

the Constitutional Convention it is evident that the delegates proceeded from the premise that the official's assumption of
office is by reason of election. This Court stated: 4
Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of
service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The
second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to
govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the
officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional
Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of
Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to
rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will remember-was: How long will that
period of rest be? Will it be one election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election
following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter,
this particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the
Committees' stand.
xxx

xxx

xxx

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X,
section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence
speaks of "the-term of office of elective local officials" and bars "such officials" from serving for more than three
consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full
term of office, states that "voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected." The term served must therefore be
one "for which the official concerned was elected." The purpose of the provision is to prevent a circumvention of the
limitation on the number of terms an elective official may serve."
This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned
has been elected for three consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms. It stated:
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right
to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive
terms in an elective local office, he must also have been elected to the same position for the same number of times before
the disqualification can apply.
It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio
Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio,
Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998
when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election
protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez
served the remaining portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as
having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 19951998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested
ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections
and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be
deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by
this court that a proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate
may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who
assumes office subject to the final outcome of the election protest. 6 Petitioner Lonzanida did not serve a term as mayor

of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely
assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with
finality that Lonzanida lost in the May 1995 mayoral elections.
Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate
his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have
served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support
it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three
consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of
office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which
he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by
a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full
service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full
term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of
service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his
assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit.
The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should
therefore be set aside.
The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which
took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not
lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that
the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was
not without legal recourse to move for the early resolution of the election protest while it was pending before the regional
trial court or to file a motion for the execution of the regional trial court's decision declaring the position of mayor vacant
and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not
here shown to have intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right
to be elected and to serve his chosen local government post in the succeeding mayoral election.
The petitioner's contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was
proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May
1998 elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga
vs. COMELEC and Trinidad 7 that the proclamation nor the assumption of office of a candidate against whom a petition
for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the
case and to resolve it on the merits.
Sec. 6 of RA 6646 specifically mandates that:
Sec. 6. Effects of disqualification Case. any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion
of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for
disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to
be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the
resolution of the petition until after he has been proclaimed.
The court stated:
Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its
conclusion i.e., until judgment is rendered thereon. The word "shall" signified that this requirement of the law is
mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with
no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright

dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows
what R.A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be
countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasijudicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole
purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the
scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot
amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative
ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses
would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply
because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses
were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to
employ delaying tactics so that the disqualification case based on the commission of election offenses would not be
decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of
the law.
The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of
authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC
this Court held
Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass
and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no
bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since
private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and
proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC
. . . Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation
and the assumption of office thereunder, baneful effects may easily supervene.
It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if
elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been
proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a
separate investigation .
Accordingly, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified
to run for mayor in the 1998 mayoral elections are hereby set aside.1wphi1.nt
SO ORDERED.

G.R. No. 135150 July 28, 1999

ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO
MULI, respondents.
GONZAGA-REYES, J.:
This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC
First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the
matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales, Eufemio Muli,
petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida
disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast
in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and
void.1wphi1.nt
Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio,
Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio,
Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in
1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial
Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled:
PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for
the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that
there was a failure of election.
Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared
vacant.
Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by
Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San
Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lonzanida. On
February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and
Alvez assumed office for the remainder of the term.
In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21,
1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in
the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998,
petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned
resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as
mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The
COMELEC found that Lonzanida's assumption of office by virtue of his proclamation in May 1995, although he was later
unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit
under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the
COMELEC En Banc in a resolution dated August 11, 1998.
Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San
Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and
that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term
limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections
as evidenced by the COMELEC decision dated November 13, 1997 in EAC No. 6-97 entitled Juan Alvez, ProtestantAppellee vs. Romeo Lonzanida, Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly elected
mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition
for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition
for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure.
Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of
the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the
petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA
6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the
elections and/or proclamation of the party sought to be disqualified may still be heard and decided by the COMELEC after

the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whether for
acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on
the merits of the petition for disqualification were issued within the commission's jurisdiction. As regards the merits of the
case, the private respondent maintains that the petitioner's assumption of office in 1995 should be considered as service
of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few
months before the next mayoral elections.
The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition.
The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local
Government Code which bar a local government official from serving more than three consecutive terms in the same
position speaks of "service of a term" and so the rule should be examined in this light. The public respondent contends
that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as
service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The
issue of whether or not Lonzanida served as a de jure or de factomayor for the 1995-1998 term is inconsequential in the
application of the three term limit because the prohibition speaks or "service of a term" which was intended by the framers
of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition
for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and
so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC
thereafter regardless of the imputed basis of disqualification.
The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995
to 1998 although he assumed office as mayor for that period because he was not lawfully elected to the said office.
Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be
considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC
ceased to have jurisdiction to hear the election protest after the petitioner's proclamation.
The petition has merit.
Sec. 8, Art. X of the Constitution provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined
by law shall be three years and no such officials shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official concerned was elected.
The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio Zambales from May
1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for
elective local government officials.
The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art.
X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for
the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the
accumulation of massive political power by an elective local government official in a given locality in order to perpetuate
his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates
who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same
office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a
1
powerful chief executive of his political territory and is most likely to form a political dynasty. The drafters however,
recognized and took note of the fact that some local government officials run for office before they reach forty years of
age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the
people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government
official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term,
2
he may again run for the same office.

The scope of the constitutional provision barring elective local officials with the exception of barangay officials from
serving more than three consecutive terms was discussed at length in the case of Benjamin
3
Borja, Jr.; vs. COMELEC and Jose Capco, Jr. where the issue raised was whether a vice-mayor who succeeds to the
office of the mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term
should be considered to have served a term in that office for the purpose of computing the three term limit. This court
pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the
premise that the official's assumption of office is by reason of election. This Court stated: 4
Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is
the notion of service of term, derived from the concern about the accumulation of power as a result of a
prolonged stay in office. The second is the idea of election, derived from the concern that the right of the
people to choose those whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the
assumption that the officials concerned were serving by reason of election. This is clear from the following
exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4
and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second
term. We will allow the Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will
remember-was: How long will that period of rest be? Will it be one election which is three
years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether such
election will be on the third year or on the sixth year thereafter, this particular member of
the Senate can run. So it is not really a period of hibernation for six years. That was the
Committees' stand.
xxx xxx xxx
Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC
that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of
election. The first sentence speaks of "the-term of office of elective local officials" and bars "such officials"
from serving for more than three consecutive terms. The second sentence, in explaining when an elective
official may be deemed to have served his full term of office, states that "voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected." The term served must therefore be one "for which the official
concerned was elected." The purpose of the provision is to prevent a circumvention of the limitation on
the number of terms an elective official may serve."
This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned
has been elected for three consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms. It stated:
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as
well as the right to serve in the same elective position. Consequently, it is not enough that an individual
has served three consecutive terms in an elective local office, he must also have been elected to the
same position for the same number of times before the disqualification can apply.
It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio
Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio,
Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998
when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election
protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez
served the remaining portion of the 1995-1998 mayoral term.

The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as
having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 19951998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested
ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections
and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be
deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by
this court that a proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate may
assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who
6
assumes office subject to the final outcome of the election protest. Petitioner Lonzanida did not serve a term as mayor of
San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed
office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that
Lonzanida lost in the May 1995 mayoral elections.
Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate
his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have
served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support
it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three
consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of
office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which
he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by
a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full
service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full
term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of
service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his
assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit.
The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should
therefore be set aside.
The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which
took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not
lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that
the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was
not without legal recourse to move for the early resolution of the election protest while it was pending before the regional
trial court or to file a motion for the execution of the regional trial court's decision declaring the position of mayor vacant
and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not
here shown to have intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right
to be elected and to serve his chosen local government post in the succeeding mayoral election.
The petitioner's contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was
proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May
1998 elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga
7
vs. COMELEC and Trinidad that the proclamation nor the assumption of office of a candidate against whom a petition for
disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the
case and to resolve it on the merits.
Sec. 6 of RA 6646 specifically mandates that:
Sec. 6. Effects of disqualification Case. any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the court or commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong.

This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for
disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to
be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the
resolution of the petition until after he has been proclaimed.
The court stated:
Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion i.e., until judgment is rendered thereon. The word "shall" signified
that this requirement of the law is mandatory, operating to impose a positive duty which must be
enforced. The implication is that the COMELEC is left with no discretion but to proceed with the
disqualification case even after the election. Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows
what R.A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC
which cannot be countenanced and is invalid for having been issued beyond the scope of its authority.
Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect
harmony with statutes and should be for the sole purpose of carrying their general provisions into effect.
By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited.
Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of
Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative
ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of
election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the
disqualification case against him simply because the investigating body was unable, for any reason
caused upon it, to determine before the election if the offenses were indeed committed by the candidate
sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that
the disqualification case based on the commission of election offenses would not be decided before the
election. This scenario is productive of more fraud which certainly is not the main intent and purpose of
the law.
The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the
COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification
case. In Aguam v. COMELEC this Court held
Time and again this Court has given its imprimatur on the principle that COMELEC is with
authority to annul any canvass and proclamation which was illegally made. The fact that
a candidate proclaimed has assumed office, we have said, is no bar to the exercise of
such power. It of course may not be availed of where there has been a valid
proclamation. Since private respondent's petition before the COMELEC is precisely
directed at the annulment of the canvass and proclamation, we perceive that inquiry into
this issue is within the area allocated by the Constitution and law to COMELEC . . .
Really, were a victim of a proclamation to be precluded from challenging the validity
thereof after that proclamation and the assumption of office thereunder, baneful effects
may easily supervene.
It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from
running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the
fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed
condoned and may no longer be the subject of a separate investigation .
Accordingly, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified
to run for mayor in the 1998 mayoral elections are hereby set aside.1wphi1.nt
SO ORDERED.

G.R. No. 195229

October 9, 2012

EFREN RACEL ARA TEA, Petitioner, vs. COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.
DECISION
CARPIO, J.:
The Case
1

This is a special civil action for certiorari seeking to review and nullify the Resolution dated 2 February 2011 and the
Order3 dated 12 January 2011 of the Commission on Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v. Romeo
D. Lonzanida, docketed as SPA No. 09-158 (DC). The petition asserts that the COMELEC issued the Resolution and
Order with grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for Mayor of San Antonio, Zambales
in the May 2010 National and Local Elections. Lonzanida filed his certificate of candidacy on 1 December 2009.4 On 8
December 2009, Dra. Sigrid S. Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus Election Code to
disqualify Lonzanida and to deny due course or to cancel Lonzanidas certificate of candidacy on the ground that
Lonzanida was elected, and had served, as mayor of San Antonio, Zambales for four (4) consecutive terms immediately
prior to the term for the May 2010 elections. Rodolfo asserted that Lonzanida made a false material representation in his
certificate of candidacy when Lonzanida certified under oath that he was eligible for the office he sought election. Section
8, Article X of the 1987 Constitution5 and Section 43(b) of the Local Government Code6 both prohibit a local elective
official from being elected and serving for more than three consecutive terms for the same position.
The COMELEC Second Division rendered a Resolution7 on 18 February 2010 cancelling Lonzanidas certificate of
candidacy. Pertinent portions of the 18 February 2010 Resolution read:
Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for more than nine
consecutive years. Instead he raised arguments to forestall or dismiss the petition on the grounds other than the main
issue itself. We find such arguments as wanting. Respondent Lonzanida, for holding the office of mayor for more than
three consecutive terms, went against the three-term limit rule; therefore, he could not be allowed to run anew in the 2010
elections. It is time to infuse new blood in the political arena of San Antonio.
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of Candidacy of
Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San Antonio, Zambales is hereby
CANCELLED. His name is hereby ordered STRICKEN OFF the list of Official Candidates for the position of Mayor of San
Antonio, Zambales in May 10, 2010 elections.
SO ORDERED.8
Lonzanidas motion for reconsideration before the COMELEC En Banc remained pending during the May 2010 elections.
Lonzanida and Efren Racel Aratea (Aratea) garnered the highest number of votes and were respectively proclaimed
Mayor and Vice-Mayor.
Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge Raymond C. Viray of Branch 75,
9
Olongapo City on 5 July 2010. On the same date, Aratea wrote the Department of Interior and Local Government (DILG)
and requested for an opinion on whether, as Vice-Mayor, he was legally required to assume the Office of the Mayor in
view of Lonzanidas disqualification. DILG Legal Opinion No. 117, S. 201010 stated that Lonzanida was disqualified to hold
office by reason of his criminal conviction. As a consequence of Lonzanidas disqualification, the Office of the Mayor was
deemed permanently vacant. Thus, Aratea should assume the Office of the Mayor in an acting capacity without prejudice
to the COMELECs resolution of Lonzanidas motion for reconsideration. In another letter dated 6 August 2010, Aratea
requested the DILG to allow him to take the oath of office as Mayor of San Antonio, Zambales. In his response dated 24
August 2010, then Secretary Jesse M. Robredo allowed Aratea to take an oath of office as "the permanent Municipal
Mayor of San Antonio, Zambales without prejudice however to the outcome of the cases pending before the
11
[COMELEC]."

12

On 11 August 2010, the COMELEC En Banc issued a Resolution disqualifying Lonzanida from running for Mayor in the
May 2010 elections. The COMELEC En Bancs resolution was based on two grounds: first, Lonzanida had been elected
and had served as Mayor for more than three consecutive terms without interruption; and second, Lonzanida had been
convicted by final judgment of ten (10) counts of falsification under the Revised Penal Code. Lonzanida was sentenced for
each count of falsification to imprisonment of four (4) years and one (1) day of prisin correccional as minimum, to eight
(8) years and one (1) day of prisin mayor as maximum. The judgment of conviction became final on 23 October 2009 in
the Decision of this Court in Lonzanida v. People,13 before Lonzanida filed his certificate of candidacy on 1 December
2009. Pertinent portions of the 11 August 2010 Resolution read:
Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio, Zambales for more than
three (3) consecutive terms and for having been convicted by a final judgment of a crime punishable by more than one (1)
year of imprisonment, is clearly disqualified to run for the same position in the May 2010 Elections.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.
SO ORDERED.14
On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention.15 She
claimed her right to be proclaimed as Mayor of San Antonio, Zambales because Lonzanida ceased to be a candidate
when the COMELEC Second Division, through its 18 February 2010 Resolution, ordered the cancellation of his certificate
of candidacy and the striking out of his name from the list of official candidates for the position of Mayor of San Antonio,
Zambales in the May 2010 elections.
In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate who received the second
highest number of votes, could not be proclaimed as the winning candidate. Since Lonzanidas disqualification was not yet
final during election day, the votes cast in his favor could not be declared stray. Lonzanidas subsequent disqualification
resulted in a permanent vacancy in the Office of Mayor, and Aratea, as the duly-elected Vice-Mayor, was mandated by
Section 4416 of the Local Government Code to succeed as Mayor.
The COMELECs Rulings
The COMELEC En Banc issued an Order dated 12 January 2011, stating:
Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention" filed by Estela D. Antipolo
(Antipolo) and pursuant to the power of this Commission to suspend its Rules or any portion thereof in the interest of
justice, this Commission hereby RESOLVES to:
1. GRANT the aforesaid Motion;
2. ADMIT the Petition-in-Intervention filed by Antipolo;
3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL ARATEA, proclaimed ViceMayor of San Antonio, Zambales, to file their respective Comments on the Petition-in- Intervention within a non-extendible
period of five (5) days from receipt thereof;
4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m. COMELEC Session
Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.
WHEREFORE, furnish copies hereof the parties for their information and compliance.
SO ORDERED.17
In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered Lonzanidas qualification as an
issue: "It is beyond cavil that Lonzanida is not eligible to hold and discharge the functions of the Office of the Mayor of San
Antonio, Zambales. The sole issue to be resolved at this juncture is how to fill the vacancy resulting from Lonzanidas
disqualification."18 The Resolution further stated:
We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be proclaimed as the duly
elected Mayor of Antipolo [sic] for being a second placer in the elections. The teachings in the cases of Codilla vs. De

Venecia and Nazareno and Domino vs. COMELEC, et al., while they remain sound jurisprudence find no application in
the case at bar. What sets this case apart from the cited jurisprudence is that the notoriety of Lonzanidas disqualification
and ineligibility to hold public office is established both in fact and in law on election day itself. Hence, Lonzanidas name,
as already ordered by the Commission on February 18, 2010 should have been stricken off from the list of official
candidates for Mayor of San Antonio, Zambales.
WHEREFORE, in view of the foregoing, the Commission hereby:
1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;
2. GRANTS the Petition for Intervention of Estela D. Antipolo;
3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to PROCLAIM Intervenor Estela D.
Antipolo as the duly elected Mayor of San Antonio, Zambales;
4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions of the Office of the Mayor,
and to cause a peaceful turn-over of the said office to Antipolo upon her proclamation; and
5. Orders the Office of the Executive Director as well as the Regional Election Director of Region III to cause the
implementation of this Resolution and disseminate it to the Department of Interior and Local Government.
SO ORDERED.19
Aratea filed the present petition on 9 February 2011.
The Issues
The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio, Zambales is dependent upon
the determination of Lonzanidas removal. Whether Lonzanida was disqualified under Section 68 of the Omnibus Election
Code, or made a false material representation under Section 78 of the same Code that resulted in his certificate of
candidacy being void ab initio, is determinative of whether Aratea or Antipolo is the rightful occupant to the Office of the
Mayor of San Antonio, Zambales.
The dissenting opinions reverse the COMELECs 2 February 2011 Resolution and 12 January 2011 Order. They hold that
Aratea, the duly elected Vice-Mayor of San Antonio, Zambales, should be declared Mayor pursuant to the Local
Government Codes rule on succession.
The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence that a false representation in
the certificate of candidacy as to eligibility in the number of terms elected and served is a material fact that is a ground for
a petition to cancel a certificate of candidacy under Section 78; second, they ignore that a false representation as to
eligibility to run for public office due to the fact that the candidate suffers from perpetual special disqualification is a
material fact that is a ground for a petition to cancel a certificate of candidacy under Section 78; and third, they resort to a
strained statutory construction to conclude that the violation of the three-term limit rule cannot be a ground for cancellation
of a certificate of candidacy under Section 78, even when it is clear and plain that violation of the three-term limit rule is an
ineligibility affecting the qualification of a candidate to elective office.
The dissenting opinions tread on dangerous ground when they assert that a candidates eligibility to the office he seeks
election must be strictly construed to refer only to the details, i.e., age, citizenship, or residency, among others, which the
law requires him to state in his COC, and which he must swear under oath to possess. The dissenting opinions choose to
view a false certification of a candidates eligibility on the three-term limit rule not as a ground for false material
representation under Section 78 but as a ground for disqualification under Section 68 of the same Code. This is clearly
contrary to well-established jurisprudence.
The Courts Ruling
We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because Lonzanidas certificate of
candidacy was void ab initio. In short, Lonzanida was never a candidate at all. All votes for Lonzanida were stray votes.
Thus, Antipolo, the only qualified candidate, actually garnered the highest number of votes for the position of Mayor.

Qualifications and Disqualifications

Section 65 of the Omnibus Election Code points to the Local Government Code for the qualifications of elective local
officials. Paragraphs (a) and (c) of Section 39 and Section 40 of the Local Government Code provide in pertinent part:
Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city or province x x x; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age on election day.
xxxx
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis supplied)
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. Any person who has been declared by competent authority insane or incompetent, or has
been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his
service of sentence, unless within the same period he again becomes disqualified. (Emphasis supplied)
The grounds for disqualification for a petition under Section 68 of the Omnibus Election Code are specifically enumerated:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision
by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration
to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified
from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident
of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphasis supplied)

A petition for disqualification under Section 68 clearly refers to "the commission of prohibited acts and possession of a
permanent resident status in a foreign country."20 All the offenses mentioned in Section 68 refer to election offenses
under the Omnibus Election Code, not to violations of other penal laws. There is absolutely nothing in the language
of Section 68 that would justify including violation of the three-term limit rule, or conviction by final judgment of the crime of
falsification under the Revised Penal Code, as one of the grounds or offenses covered under Section 68. In Codilla, Sr. v.
de Venecia,21 this Court ruled:
[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus
Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not
administrative in nature. x x x
Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final judgment of the crime of
falsification under the Revised Penal Code, does not constitute a ground for a petition under Section 68.
False Material Representation
Section 78 of the Omnibus Election Code states that a certificate of candidacy may be denied or cancelled when there
is false material representation of the contents of the certificate of candidacy:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time
not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election. (Emphasis supplied)
Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy:
Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the
Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he
seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address
for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines
and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by
the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in
the certificate of candidacy are true to the best of his knowledge.
x x x x (Emphasis supplied)
A candidate for mayor in the 2010 local elections was thus required to provide 12 items of information in the certificate of
22
candidacy: name; nickname or stage name; gender; age; place of birth; political party that nominated the candidate; civil
status; residence/address; profession or occupation; post office address for election purposes; locality of which the
candidate is a registered voter; and period of residence in the Philippines before 10 May 2010. The candidate also
certifies four statements: a statement that the candidate is a natural born or naturalized Filipino citizen; a statement that
the candidate is not a permanent resident of, or immigrant to, a foreign country; a statement that the candidate is
eligible for the office he seeks election; and a statement of the candidates allegiance to the Constitution of the
23
Republic of the Philippines. The certificate of candidacy should also be under oath, and filed within the period
prescribed by law.
The conviction of Lonzanida by final judgment, with the penalty of prisin mayor, disqualifies him perpetually from
holding any public office, or from being elected to any public office. This perpetual disqualification took effect
upon the finality of the judgment of conviction, before Lonzanida filed his certificate of candidacy. The pertinent
provisions of the Revised Penal Code are as follows:
Art. 27. Reclusion perpetua. x x x
Prisin mayor and temporary disqualification. The duration of the penalties of prisin mayor and temporary
disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification
is imposed as an accessory penalty, in which case, it shall be that of the principal penalty.

xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The penalties of perpetual or
temporary absolute disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held, even if conferred by
popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such
office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last
during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. The penalties of perpetual or
temporary special disqualification for public office, profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence,
according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage.
The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the
offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in
any popular election for any public office or to be elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of his disqualification.
Art. 42. Prisin mayor Its accessory penalties. The penalty of prision mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the
pardon. (Emphasis supplied)
The penalty of prisin mayor automatically carries with it, by operation of law, 24 the accessory penalties of temporary
absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary
absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective
office or to be elected to such office. The duration of temporary absolute disqualification is the same as that of the
principal penalty of prisin mayor. On the other hand, under Article 32 of the Revised Penal Code, perpetual special
disqualification means that "the offender shall not be permitted to hold any public office during the period of his
disqualification, which is perpetually. Both temporary absolute disqualification and perpetual special disqualification
constitute ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run
for elective public office, and commits a false material representation if he states in his certificate of candidacy
that he is eligible to so run.
In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory
penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellees conviction of a crime penalized
with prision mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special
disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code
disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to
vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal
Code) that, in the case of Abes, would have expired on 13 October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise
of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public
office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence.
Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage.
The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any
public office during the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective
antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the phrase "during
the term of the sentence" refers to the temporary special disqualification. The duration between the perpetual and the
temporary (both special) are necessarily different because the provision, instead of merging their durations into one
period, states that such duration is "according to the nature of said penalty" which means according to whether the
penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the
right to vote or to be elected to or hold public office perpetually.
The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal
penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender
shall not be permitted to hold any public office during the period of his [perpetual special] disqualification." Once the
judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the
time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any
elective public office perpetually. In the case of Lonzanida, he became ineligible perpetually to hold, or to run for,
any elective public office from the time the judgment of conviction against him became final. The judgment of
conviction was promulgated on 20 July 2009 and became final on 23 October 2009, before Lonzanida filed his
certificate of candidacy on 1 December 2009 . 26
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because
this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the
statement that Section 74 requires him to state under oath in his certificate of candidacy. As this Court held in Fermin v.
Commission on Elections,27 the false material representation may refer to "qualifications or eligibility. One who suffers
from perpetual special disqualification is ineligible to run for public office. If a person suffering from perpetual special
disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office," as expressly
required under Section 74, then he clearly makes a false material representation that is a ground for a petition under
Section 78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false, which may relate to the
qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her
CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to
the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is
empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation,
while a petition for quo warranto is filed after proclamation of the winning candidate. 28 (Emphasis supplied)
Latasa, Rivera and Ong:
The Three-Term Limit Rule as a Ground for Ineligibility
Section 74 requires the candidate to certify that he is eligible for the public office he seeks election. Thus, Section 74
states that "the certificate of candidacy shall state that the person filing x x x is eligible for said office. The threeterm limit rule, enacted to prevent the establishment of political dynasties and to enhance the electorates freedom of
29
30
31
choice, is found both in the Constitution and the law. After being elected and serving for three consecutive terms, an

32

elective local official cannot seek immediate reelection for the same office in the next regular election because he
is ineligible. One who has an ineligibility to run for elective public office is not "eligible for [the] office." As used in Section
74, the word "eligible"33 means having the right to run for elective public office, that is, having all the qualifications and
none of the ineligibilities to run for the public office.
In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was elected mayor of the Municipality of Digos, Davao
del Sur in 1992, 1995, and 1998. The Municipality of Digos was converted into the City of Digos during Latasas third
term. Latasa filed his certificate of candidacy for city mayor for the 2001 elections. Romeo Sunga, Latasas opponent, filed
before the COMELEC a "petition to deny due course, cancel certificate of candidacy and/or disqualification" under Section
78 on the ground that Latasa falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos
City. Latasa argued that he did not make any false representation. In his certificate of candidacy, Latasa inserted a
*
footnote after the phrase "I am eligible" and indicated " Having served three (3) term[s] as municipal mayor and now
running for the first time as city mayor." The COMELEC First Division cancelled Latasas certificate of candidacy for
violation of the three-term limit rule but not for false material representation. This Court affirmed the COMELEC En Bancs
denial of Latasas motion for reconsideration.
We cancelled Marino Morales certificate of candidacy in Rivera III v. Commission on Elections (Rivera).35 We held that
Morales exceeded the maximum three-term limit, having been elected and served as Mayor of Mabalacat for four
consecutive terms (1995 to 1998, 1998 to 2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible as a
candidate for the same position for the 2007 to 2010 term. Although we did not explicitly rule that Morales violation of the
three-term limit rule constituted false material representation, we nonetheless granted the petition to cancel Morales
certificate of candidacy under Section 78. We also affirmed the cancellation of Francis Ongs certificate of candidacy
in Ong v. Alegre,36 where the "petition to disqualify, deny due course and cancel" Ongs certificate of candidacy under
Section 78 was predicated on the violation of the three-term limit rule.
Loong, Fermin and Munder:
When
Possession
of
is Not a Ground for a Petition for Disqualification

Disqualifying

Condition

It is obvious from a reading of the laws and jurisprudence that there is an overlap in the grounds for eligibility and
ineligibility vis--vis qualifications and disqualifications. For example, a candidate may represent that he is a resident of a
particular Philippine locality37 when he is actually a permanent resident of another country.38 In cases of such overlap, the
petitioner should not be constrained in his choice of remedy when the Omnibus Election Code explicitly makes available
multiple remedies.39 Section 78 allows the filing of a petition to deny due course or to cancel a certificate of candidacy
before the election, while Section 253 allows the filing of a petition for quo warranto after the election. Despite the overlap
of the grounds, one should not confuse a petition for disqualification using grounds enumerated in Section 68 with a
petition to deny due course or to cancel a certificate of candidacy under Section 78.
The distinction between a petition under Section 68 and a petition under Section 78 was discussed in Loong v.
Commission on Elections40 with respect to the applicable prescriptive period. Respondent Nur Hussein Ututalum filed a
petition under Section 78 to disqualify petitioner Benjamin Loong for the office of Regional Vice-Governor of the
Autonomous Government of Muslim Mindanao for false representation as to his age. The petition was filed 16 days after
the election, and clearly beyond the prescribed 25 day period from the last day of filing certificates of candidacy. This
Court ruled that Ututalums petition was one based on false representation under Section 78, and not for disqualification
under Section 68. Hence, the 25-day prescriptive period provided in Section 78 should be strictly applied. We recognized
the possible gap in the law:
It is true that the discovery of false representation as to material facts required to be stated in a certificate of candidacy,
under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by Section 78 of the
Code, through no fault of the person who discovers such misrepresentations and who would want the disqualification of
the candidate committing the misrepresentations. It would seem, therefore, that there could indeed be a gap between the
time of the discovery of the misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of the
Code has lapsed) and the time when the proclamation of the results of the election is made. During this so-called "gap"
the would-be petitioner (who would seek the disqualification of the candidate) is left with nothing to do except to wait for
the proclamation of the results, so that he could avail of a remedy against the misrepresenting candidate, that is, by filing
a petition for quo warranto against him. Respondent Commission sees this "gap" in what it calls a procedural gap which,
according to it, is unnecessary and should be remedied.

At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government to fix a
definite time within which petitions of protests related to eligibility of candidates for elective offices must be filed, as seen
in Sections 78 and 253 of the Code. Respondent Commission may have seen the need to remedy this so-called
procedural gap", but it is not for it to prescribe what the law does not provide, its function not being legislative. The
question of whether the time to file these petitions or protests is too short or ineffective is one for the Legislature to decide
and remedy.41
42

In Fermin v. Commission on Elections, the issue of a candidates possession of the required one-year residency
requirement was raised in a petition for disqualification under Section 68 instead of a petition to deny due course or to
cancel a certificate of candidacy under Section 78. Despite the question of the one-year residency being a proper ground
under Section 78, Dilangalen, the petitioner before the COMELEC in Fermin, relied on Section 5(C)(1) and 5(C)(3)(a)(4)
of COMELEC Resolution No. 780043 and filed the petition under Section 68. In Fermin, we ruled that "a COMELEC rule or
resolution cannot supplant or vary legislative enactments that distinguish the grounds for disqualification from those
44
of ineligibility, and the appropriate proceedings to raise the said grounds." A petition for disqualification can only be
premised on a ground specified in Section 12 or 68 of the Omnibus Election Code or Section 40 of the Local Government
Code. Thus, a petition questioning a candidates possession of the required one-year residency requirement, as
distinguished from permanent residency or immigrant status in a foreign country, should be filed under Section 78, and a
petition under Section 68 is the wrong remedy.
In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of candidacy for Mayor of Bubong,
Lanao del Sur on 26 November 2009. Respondent Atty. Tago Sarip filed a petition for Munders disqualification on 13 April
2010. Sarip claimed that Munder misrepresented that he was a registered voter of Bubong, Lanao del Sur, and that he
was eligible to register as a voter in 2003 even though he was not yet 18 years of age at the time of the voters
registration. Moreover, Munders certificate of candidacy was not accomplished in full as he failed to indicate his precinct
and did not affix his thumb-mark. The COMELEC Second Division dismissed Sarips petition and declared that his
grounds are not grounds for disqualification under Section 68 but for denial or cancellation of Munders certificate of
candidacy under Section 78. Sarips petition was filed out of time as he had only 25 days after the filing of Munders
certificate of candidacy, or until 21 December 2009, within which to file his petition.
The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second Division, the COMELEC En
Banc did not rule on the propriety of Sarips remedy but focused on the question of whether Munder was a registered
voter of Bubong, Lanao del Sur. This Court reinstated the COMELEC Second Divisions resolution. This Court ruled that
the ground raised in the petition, lack of registration as voter in the locality where he was running as a candidate, is
inappropriate for a petition for disqualification. We further declared that with our ruling in Fermin, we had already rejected
the claim that lack of substantive qualifications of a candidate is a ground for a petition for disqualification under Section
68. The only substantive qualification the absence of which is a ground for a petition under Section 68 is the candidates
permanent residency or immigrant status in a foreign country.
The dissenting opinions place the violation of the three-term limit rule as a disqualification under Section 68 as the
violation allegedly is "a status, circumstance or condition which bars him from running for public office despite the
possession of all the qualifications under Section 39 of the [Local Government Code]." In so holding the dissenting
opinions write in the law what is not found in the law. Section 68 is explicit as to the proper grounds for disqualification
under said Section. The grounds for filing a petition for disqualification under Section 68 are specifically enumerated in
said Section. However, contrary to the specific enumeration in Section 68 and contrary to prevailing jurisprudence, the
dissenting opinions add to the enumerated grounds the violation of the three-term limit rule and falsification under the
Revised Penal Code, which are obviously not found in the enumeration in Section 68.
The dissenting opinions equate Lonzanidas possession of a disqualifying condition (violation of the three-term limit rule)
with the grounds for disqualification under Section 68. Section 68 is explicit as to the proper grounds for disqualification:
the commission of specific prohibited acts under the Omnibus Election Code and possession of a permanent residency or
immigrant status in a foreign country. Any other false representation regarding a material fact should be filed under
Section 78, specifically under the candidates certification of his eligibility. In rejecting a violation of the three-term limit as
a condition for eligibility, the dissenting opinions resort to judicial legislation, ignoring the verba legis doctrine and wellestablished jurisprudence on this very issue.
In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and thus qualification, to the office
he seeks election. Even though the certificate of candidacy does not specifically ask the candidate for the number of
terms elected and served in an elective position, such fact is material in determining a candidates eligibility, and thus
qualification for the office. Election to and service of the same local elective position for three consecutive terms renders a
candidate ineligible from running for the same position in the succeeding elections. Lonzanida misrepresented his
eligibility because he knew full well that he had been elected, and had served, as mayor of San Antonio, Zambales for

more than three consecutive terms yet he still certified that he was eligible to run for mayor for the next succeeding term.
Thus, Lonzanidas representation that he was eligible for the office that he sought election constitutes false material
representation as to his qualification or eligibility for the office.
Legal
Duty
to Enforce Perpetual Special Disqualification

of

COMELEC

Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from perpetual special disqualification to run for public office by virtue of a final
judgment of conviction. The final judgment of conviction is judicial notice to the COMELEC of the disqualification of the
convict from running for public office. The law itself bars the convict from running for public office, and the disqualification
is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch,
but also to other government agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that
the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because
under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative to the
conduct of an election."46 The disqualification of a convict to run for elective public office under the Revised Penal Code,
as affirmed by final judgment of a competent court, is part of the enforcement and administration of "all the laws"
relating to the conduct of elections.
Effect of a Void Certificate of Candidacy
A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid votes. 47 We
quote from the COMELECs 2 February 2011 Resolution with approval:
As early as February 18, 2010, the Commission speaking through the Second Division had already ordered the
cancellation of Lonzanidas certificate of candidacy, and had stricken off his name in the list of official candidates for the
mayoralty post of San Antonio, Zambales. Thereafter, the Commission En Banc in its resolution dated August 11, 2010
unanimously affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained by the Supreme Court
no less. The disqualification of Lonzanida is not simply anchored on one ground. On the contrary, it was emphasized in
our En Banc resolution that Lonzanidas disqualification is two-pronged: first, he violated the constitutional fiat on the
three-term limit; and second, as early as December 1, 2009, he is known to have been convicted by final judgment for ten
(10) counts of Falsification under Article 171 of the Revised Penal Code. In other words, on election day, respondent
Lonzanidas disqualification is notoriously known in fact and in law. Ergo, since respondent Lonzanida was never a
candidate for the position of Mayor [of] San Antonio, Zambales, the votes cast for him should be considered stray votes.
Consequently, Intervenor Antipolo, who remains as the sole qualified candidate for the mayoralty post and obtained the
highest number of votes, should now be proclaimed as the duly elected Mayor of San Antonio, Zambales. 48 (Boldfacing
and underscoring in the original; italicization supplied)
Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run for
Mayor.1wphi1Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the
cancellation on such ground means he was never a candidate from the very beginning, his certificate of candidacy being
void ab initio. There was only one qualified candidate for Mayor in the May 201 0 elections - Anti polo, who therefore
received the highest number of votes.
WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the Order dated 12 January 2011
of the COMELEC En Bane in SPA No. 09-158 (DC) are AFFIRMED. The COMELEC En Bane is DIRECTED to constitute
a Special Municipal Board of Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of San Antonio,
Zambales. Petitioner Efren Racel Aratea is ORDERED to cease and desist from discharging the functions of the Office of
the Mayor of San Antonio, Zambales.
SO ORDERED.

G.R. No. 180444

April 8, 2008

FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners, vs. COMMISSION ON ELECTION and
SESINANDO F. POTENCIOSO, JR., respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition1 for certiorari assails the June 2, 2007 Resolution2 of the First Division of the Commission on Elections
(COMELEC) in SPA No. 07-421, denying the petition for disqualification filed by petitioners Federico T. Montebon and
Eleanor M. Ondoy against respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007 Resolution3 of
the COMELEC En Banc denying the motion for reconsideration.
Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal councilor of the
Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007,
petitioners and other candidates4 for municipal councilor filed a petition for disqualification against respondent with the
COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 19982001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it
would be his fourth consecutive term.
In his answer, respondent admitted that he had been elected for three consecutive terms as municipal councilor.
However, he claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he
succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not
disqualified from vying for the position of municipal councilor in the 2007 elections.
In the hearing of May 10, 2007, the parties were directed to file their respective memoranda.
In petitioners memorandum, they maintained that respondents assumption of office as vice-mayor in January 2004
should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his
office as municipal councilor. They argued that, according to the law, voluntary renunciation of the office for any length of
time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was
elected.
On the other hand, respondent alleged that a local elective official is not disqualified from running for the fourth
consecutive time to the same office if there was an interruption in one of the previous three terms.
On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondents assumption
of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been
involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.5
On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows:
Respondents assumption to the office of the vice-mayor of Tuburan in January 2004 during his second term as councilor
is not a voluntary renunciation of the latter office. The same therefore operated as an effective disruption in the full service
of his second term as councilor. Thus, in running for councilor again in the May 14, 2007 Elections, respondent is deemed
to be running only for a second consecutive term as councilor of Tuburan, the first consecutive term fully served being his
2004-2007 term.
Petitioner Montebons and Ondoys June 9, 2007 manifestation and omnibus motion are hereby declared moot and
academic with the instant disposition of their motion for reconsideration.
WHEREFORE, premises considered, petitioners motion for reconsideration is hereby DENIED for lack of merit.
SO ORDERED.6
Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that respondents assumption of office as vice-mayor in January 2004
interrupted his 2001-2004 term as municipal councilor.
The petition lacks merit.
The 1987 Constitution bars and disqualifies local elective officials from serving more than three consecutive terms in the
same post. Section 8, Article X thereof states:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be
three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.
Section 43 of the Local Government Code also provides:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation
of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for
which the elective official concerned was elected.
In Lonzanida v. Commission on Elections,7 the Court held that the two conditions for the application of the disqualification
must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government
post; and 2) that he has fully served three consecutive terms.8 In Borja, Jr. v. Commission on Elections,9 the Court
emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to
serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been
elected three consecutive times; he must also have served three consecutive terms in the same position.10
While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on
whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan
on January 12, 2004.
Succession in local government offices is by operation of law.11 Section 4412 of Republic Act No. 7160, otherwise known
as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest
ranking sanggunian member shall become vice mayor. Thus:
SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. (a) If a
permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall
become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice
mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking
sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as
defined herein. x x x
In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza.
Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore
that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal
councilor.
In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows:
The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length
of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected.
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term
is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the
three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service.13 (Emphasis added)
Thus, respondents assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as
municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by
reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC
that
The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the
Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to succeed to
the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned
be considered as permanent inability within the contemplation of law. Essentially therefore, the successor cannot refuse to

assume the office that he is mandated to occupy by virtue of succession. He can only do so if for some reason he is
permanently unable to succeed and occupy the post vacated.
xxxx
Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the
performance of a public duty by a government official, the non-performance of which exposes said official to possible
administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore
more compulsory and obligatory rather than voluntary.14
WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007 Resolution of the COMELEC First Division
denying the petition for disqualification and the September 28, 2007 Resolution of the COMELEC en banc denying the
motion for reconsideration, are AFFIRMED.
SO ORDERED.

G.R. No. 182088

January 30, 2009
ROBERTO L. DIZON, Petitioner, vs COMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary restraining order and writ of
preliminary injunction under Rule 65 of the 1997 Rules of Civil Procedure. The present petition seeks the reversal of the
Resolution dated 27 July 2007 of the Commission on Elections (COMELEC) Second Division which dismissed the
petition to disqualify and/or to cancel Marino P. Morales (Morales) certificate of candidacy, as well as the Resolution
dated 14 February 2008 of the COMELEC En Banc which denied Roberto L. Dizons (Dizon) motion for reconsideration.
The Facts
The COMELEC Second Division stated the facts as follows:
Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the Municipality of Mabalacat,
Pampanga. Marino P. Morales, hereinafter referred to as respondent, is the incumbent Mayor of the Municipality of
Mabalacat, Pampanga.
Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga during the 1995, 1998,
2001 and 2004 elections and has fully served the same. Respondent filed his Certificate of Candidacy on March 28, 2007
again for the same position and same municipality.
Petitioner argues that respondent is no longer eligible and qualified to run for the same position for the May 14, 2007
elections under Section 43 of the Local Government Code of 1991. Under the said provision, no local elective official is
allowed to serve for more than three (3) consecutive terms for the same position.
Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of the Municipality of
Mabalacat, Pampanga because he was not elected for the said position in the 1998 elections. He avers that the
Commission en banc in SPA Case No. A-04-058, entitled Atty. Venancio Q. Rivera III and Normandick P. De Guzman vs.
Mayor Marino P. Morales, affirmed the decision of the Regional Trial Court of Angeles City declaring Anthony D. Dee as
the duly elected Mayor of Mabalacat, Pampanga in the 1998 elections.
Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as Mayor of Mabalacat,
Pampanga. Respondent further asserts that his election in 2004 is only for his second term. Hence, the three term rule
provided under the Local Government Code is not applicable to him.
Respondent further argues that the grounds stated in the instant petition are not covered under Section 78 of the Omnibus
Election Code. Respondent further contend [sic] that even if it is covered under the aforementioned provision, the instant
petition failed to allege any material misrepresentation in the respondents Certificate of Candidacy.1
The Ruling of the COMELEC Second Division
In its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of this Courts ruling in the
consolidated cases of Atty. Venancio Q. Rivera III v. COMELEC and Marino "Boking" Morales in G.R. No. 167591 and
Anthony Dee v. COMELEC and Marino "Boking" Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007.
The pertinent portions of the COMELEC Second Divisions ruling read as follows:
Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There was no interruption of his
second term from 1998 to 2001. He was able to exercise the powers and enjoy the position of a mayor as "caretaker of
the office" or a "de facto officer" until June 30, 2001 notwithstanding the Decision of the RTC in an electoral protest case.
He was again elected as mayor from July 1, 2001 to June 30, 2003 [sic].
It is worthy to emphasize that the Supreme Court ruled that respondent has violated the three-term limit under Section 43
of the Local Government Code. Respondent was considered not a candidate in the 2004 Synchronized National and
Local Elections. Hence, his failure to qualify for the 2004 elections is a gap and allows him to run again for the same
position in the May 14, 2007 National and Local Elections.
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to DENY the instant Petition
to Cancel the Certificate of Candidacy and/or Petition for the Disqualification of Marino P. Morales for lack of merit.2

Dizon filed a motion for reconsideration before the COMELEC En Banc.

The Ruling of the COMELEC En Banc
The COMELEC En Banc affirmed the resolution of the COMELEC Second Division.
The pertinent portions of the COMELEC En Bancs Resolution read as follows:
Respondents certificate of candidacy for the May 2004 Synchronized National and Local Elections was cancelled
pursuant to the above-mentioned Supreme Court decision which was promulgated on May 9, 2007. As a result,
respondent was not only disqualified but was also not considered a candidate in the May 2004 elections.
Another factor which is worth mentioning is the fact that respondent has relinquished the disputed position on May 16,
2007. The vice-mayor elect then took his oath and has assumed office as mayor of Mabalacat on May 17, 2007 until the
term ended on June 30, 2007. For failure to serve for the full term, such involuntary interruption in his term of office should
be considered a gap which renders the three-term limit inapplicable.
The three-term limit does not apply whenever there is an involuntary break. The Constitution does not require that the
interruption or hiatus to be a full term of three years. What the law requires is for an interruption, break or a rest period
from a candidates term of office "for any length of time." The Supreme Court in the case of Latasa v. Comelec ruled:
Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to
exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.
In sum, the three-term limit is not applicable in the instant case for lack of the two conditions: 1) respondent was not the
duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term primordially because he was not even
considered a candidate thereat; and 2) respondent has failed to serve the entire duration of the term of office because he
has already relinquished the disputed office on May 16, 2007 which is more than a month prior to the end of his supposed
term.
xxx
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the instant Motion
for Reconsideration for LACK OF MERIT. The Resolution of the Commission Second Division is hereby AFFIRMED.
SO ORDERED.3
The Issues
Dizon submits that the factual findings made in the Rivera case should still be applied in the present case because
Morales had, except for one month and 14 days, served the full term of 2004-2007. Morales assumption of the mayoralty
position on 1 July 2007 makes the 2007-2010 term Morales fifth term in office. Dizon raises the following grounds before
this Court:
1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF ITS JURISDICTION
WHEN IT RULED THAT RESPONDENT MORALES DID NOT VIOLATE THE THREE-YEAR TERM LIMIT WHEN HE
RAN AND WON AS MAYOR OF MABALACAT, PAMPANGA DURING THE MAY 14, 2007 ELECTION.
2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT RULED THAT DUE TO THIS HONORABLE COURTS RULING IN THE AFORESAID CONSOLIDATED
CASES, RESPONDENT MORALES FOURTH TERM IS CONSIDERED A GAP IN THE LATTERS SERVICE WHEN HE
FILED HIS CERTIFICATE OF CANDIDACY FOR THE 2007 ELECTIONS.
3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT THE FOURTH TERM OF MORALES
WAS INTERRUPTED WHEN HE "RELINQUISHED" HIS POSITION FOR ONE MONTH AND 14 DAYS PRIOR TO THE
MAY 14, 2007 ELECTION.4
The Ruling of the Court
The petition has no merit.

The present case covers a situation wherein we have previously ruled that Morales had been elected to the same office
and had served three consecutive terms, and wherein we disqualified and removed Morales during his fourth term. Dizon
claims that Morales is currently serving his fifth term as mayor. Is the 2007-2010 term really Morales fifth term?
The Effect of our Ruling in the Rivera Case
In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We cancelled his
Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales from being a candidate in the
May 2004 elections. The votes cast for Morales were considered stray votes. The dispositive portion in the Rivera case
reads:
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of Candidacy dated
December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor of Mabalacat, Pampanga, the vicemayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared
mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R.
No. 170577 is DISMISSED for being moot.
This Decision is immediately executory.
SO ORDERED.5
Article X, Section 8 of the 1987 Constitution reads:
The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was
elected.
Section 43(b) of the Local Government Code restated Article X, Section 8 of the 1987 Constitution as follows:
No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation
of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for
which the elective official concerned was elected.
For purposes of determining the resulting disqualification brought about by the three-term limit, it is not enough that an
individual has served three consecutive terms in an elective local office, he must also have been elected to the same
position for the same number of times.6 There should be a concurrence of two conditions for the application of the
disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government
post and (2) that he has fully served three consecutive terms.7lavvphil.net
In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive terms: 1 July 1995 to
30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 30 June 2007. We
disqualified Morales from his candidacy in the May 2004 elections because of the three-term limit. Although the trial court
previously ruled that Morales proclamation for the 1998-2001 term was void, there was no interruption of the continuity of
Morales service with respect to the 1998-2001 term because the trial courts ruling was promulgated only on 4 July 2001,
or after the expiry of the 1998-2001 term.
Our ruling in the Rivera case served as Morales involuntary severance from office with respect to the 2004-2007 term.
Involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of
continuity of service.8 Our decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately.
The next day, Morales notified the vice mayors office of our decision. The vice mayor assumed the office of the mayor
from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short
it may seem to Dizon, interrupted Morales continuity of service. Thus, Morales did not hold office for the full term of 1 July
2004 to 30 June 2007.
2007-2010: Morales Fifth Term?
Dizon claims that the 2007-2010 term is Morales fifth term in office. Dizon asserts that even after receipt of our decision
on 10 May 2007, Morales "waited for the election to be held on 14 May 2007 to ensure his victory for a fifth term."9
We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July 1995 to 30 June
1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16 May 2007. However, because of

his disqualification, Morales was not the duly elected mayor for the 2004-2007 term. Neither did Morales hold the position
of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007 because he
was ordered to vacate his post before the expiration of the term. Morales occupancy of the position of mayor of
Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-term limit.
Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the
present 1 July 2007 to 30 June 2010 term is effectively Morales first term for purposes of the three-term limit rule.
Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy litigations. x x x In other words, he
was violating the rule on three-term limit with impunity by the sheer length of litigation and profit from it even more by
raising the technicalities arising therefrom."10 To this, we quote our ruling in Lonzanida v. COMELEC:
The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which
took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not
lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that
the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was
not without legal recourse to move for the early resolution of the election protest while it was pending before the regional
trial court or to file a motion for the execution of the regional trial courts decision declaring the position of mayor vacant
and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not
here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his
right to be elected and to serve his chosen local government post in the succeeding mayoral election.11
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on Elections En Banc dated 14
February 2008 as well as the Resolution of the Commission on Elections Second Division dated 27 July 2007.
SO ORDERED.

G.R. No. 184082

March 17, 2009

NICASIO BOLOS, JR., Petitioner, vs. THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE,
Respondents.
DECISION
PERALTA, J.:
This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the Commission on Elections
(COMELEC) committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions
promulgated on March 4, 2008 and August 7, 2008 holding that petitioner Nicasio Bolos, Jr. is disqualified as a candidate
for the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29,
2007 Barangay and Sangguniang Kabataan Elections on the ground that he has served the three-term limit provided in
the Constitution and Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991.
The facts are as follows:
For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay Biking, Dauis, Bohol
in the Barangay Elections held in 1994, 1997 and 2002.
In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for Municipal Councilor
of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004, leaving his post as Punong
Barangay. He served the full term of the Sangguniang Bayan position, which was until June 30, 2007.
Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis, Bohol in the
October 29, 2007 Barangay and Sangguniang Kabataan Elections.
Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same office, filed before
the COMELEC a petition for the disqualification of petitioner as candidate on the ground that he had already served the
three-term limit. Hence, petitioner is no longer allowed to run for the same position in accordance with Section 8, Article X
of the Constitution and Section 43 (b) of R.A. No. 7160.
Cinconiegue contended that petitioners relinquishment of the position of Punong Barangay in July 2004 was voluntary on
his part, as it could be presumed that it was his personal decision to run as municipal councilor in the May 14, 2004
National and Local Elections. He added that petitioner knew that if he won and assumed the position, there would be a
voluntary renunciation of his post as Punong Barangay.
In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking, Dauis, Bohol in the last
three consecutive elections of 1994, 1997 and 2002. However, he countered that in the May 14, 2004 National and Local
Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang
Bayan member, his remaining term of office as Punong Barangay, which would have ended in 2007, was left unserved.
He argued that his election and assumption of office as Sangguniang Bayan member was by operation of law; hence, it
must be considered as an involuntary interruption in the continuity of his last term of service.
Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition was heard by the
Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the evidence, records of the case, and the
Hearing Officers action on the matter were endorsed to and received by the Commission on November 21, 2007.
The issue before the COMELEC was whether or not petitioners election, assumption and discharge of the functions of the
Office of Sangguniang Bayan member can be considered as voluntary renunciation of his office as Punong Barangay of
Barangay Biking, Dauis, Bohol which will render unbroken the continuity of his service as Punong Barangay for the full
term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have
served three consecutive terms and shall be disqualified to run for the same position in the October 29, 2007 elections.
But if it is considered as an involuntary
renunciation, petitioners service is deemed to have been interrupted; hence, he is not barred from running for another
term.
In a Resolution1 dated March 4, 2008, the First Division of the COMELEC ruled that petitioners relinquishment of the
office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption of office as Sangguniang Bayan

member of Dauis, Bohol, on July 1, 2004, was a voluntary renunciation of the Office of Punong Barangay. The dispositive
portion of the Resolution reads:
WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition. Respondent NICASIO
BOLOS, JR., having already served as Punong Barangay of Barangay Biking, Dauis, Bohol for three consecutive terms is
hereby DISQUALIFIED from being a candidate for the same office in the October 29, 2007 Barangay and SK Elections.
Considering that respondent had already been proclaimed, said proclamation is hereby ANNULLED. Succession to said
office shall be governed by the provisions of Section 44 of the Local Government Code.2
Petitioners motion for reconsideration was denied by the COMELEC en banc in a Resolution3 dated August 7, 2008.
Hence, this petition for certiorari raising this lone issue:
WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS
JURISDICTION AMOUNTING TO LACK OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
DISQUALIFYING [PETITIONER] AS A CANDIDATE FOR PUNONG BARANGAY IN THE OCTOBER 29, 2007
BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS AND, SUBSEQUENTLY, ANNULLING HIS
PROCLAMATION.4
The main issue is whether or not there was voluntary renunciation of the Office of Punong Barangay by petitioner when he
assumed office as Municipal Councilor so that he is deemed to have fully served his third term as Punong Barangay,
warranting his disqualification from running for the same position in the October 29, 2007 Barangay and Sangguniang
Kabataan Elections.
Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29, 2007 Barangay and
Sangguniang Kabataan Elections since he did not serve continuously three consecutive terms. He admits that in the
1994, 1997 and 2002 Barangay elections, he was elected as Punong Barangay for three consecutive terms. Nonetheless,
while serving his third term as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1,
2004, he assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred that he
served the full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his
Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC gravely abused its discretion in
disqualifying him as a candidate for Punong Barangay since he did not complete his third term by operation of law.
The argument does not persuade.
The three-term limit for elective local officials is contained in Section 8, Article X of the Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be
three years, and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.
David v. Commission on Elections5 elucidates that the Constitution did not expressly prohibit Congress from fixing any
term of office for barangay officials, thereby leaving to the lawmakers full discretion to fix such term in accordance with the
exigencies of public service. The discussions in the Constitutional Commission showed that the term of office of barangay
officials would be "[a]s may be determined by law," and more precisely, "[a]s provided for in the Local Government
Code."6 Section 43(b) of the Local Government Code provides that barangay officials are covered by the three-term limit,
while Section 43(c)7 thereof states that the term of office of barangay officials shall be five (5) years. The cited provisions
read, thus:
Sec. 43. Term of Office. x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
(c) The term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin
after the regular election of barangay officials on the second Monday of May 1997: Provided, That the sangguniang
kabataan members who were elected in the May 1996 elections shall serve until the next regular election of barangay
officials.

Socrates v. Commission on Elections8 held that the rule on the three-term limit, embodied in the Constitution and the
Local Government Code, has two parts:
x x x The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear
intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary
renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary
severance from office for any length of time interrupts continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited
election refers to the next regular election for the same office following the end of the third consecutive term. 9
In Lonzanida v. Commission on Elections,10 the Court stated that the second part of the rule on the three-term limit
shows the clear intent of the framers of the Constitution to bar any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service
of a term. The Court held that two conditions for the application of the disqualification must concur: (1) that the official
concerned has been elected for three consecutive terms in the same government post; and (2) that he has fully served
three consecutive terms.11
In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive terms, satisfying the
first condition for disqualification.
What is to be determined is whether petitioner is deemed to have voluntarily renounced his position as Punong Barangay
during his third term when he ran for and won as Sangguniang Bayan member and assumed said office.
The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his position as Punong
Barangay.
The COMELEC correctly held:
It is our finding that Nicasio Bolos, Jr.s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a
consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, is a voluntary
renunciation.
As conceded even by him, respondent (petitioner herein) had already completed two consecutive terms of office when he
ran for a third term in the Barangay Elections of 2002. When he filed his certificate of candidacy for the Office of
Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the
acts attending his pursuit of his election as municipal councilor point out to an intent and readiness to give up his post as
Punong Barangay once elected to the higher elective office, for it was very unlikely that respondent had filed his
Certificate of Candidacy for the Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for
him as such and then after being elected and proclaimed, return to his former position. He knew that his election as
municipal councilor would entail abandonment of the position he held, and he intended to forego of it. Abandonment, like
resignation, is voluntary.12
Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang Bayan member and,
upon winning, assumed the position of Sangguniang Bayan member, thus, voluntarily relinquishing his office as Punong
Barangay which the Court deems as a voluntary renunciation of said office.
Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member, he left his post as
Punong Barangay by
operation of law; hence, he did not fully serve his third term as Punong Barangay.
The term "operation of law" is defined by the Philippine Legal Encyclopedia13 as "a term describing the fact that rights
may be acquired or lost by the effect of a legal rule without any act of the person affected." Black's Law Dictionary also
defines it as a term that "expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the
mere application to the particular transaction of the established rules of law, without the act or cooperation of the party
himself."14
An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v. Commission on
Elections.15 The respondent therein, Sesinando F. Potencioso, Jr., was elected and served three consecutive terms as
Municipal Councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, during his second term, he

succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-Mayor pursuant to Section 44 of R.A. No. 7160.16
Potenciosos assumption of office as Vice-Mayor was considered an involuntary severance from his office as Municipal
Councilor, resulting in an interruption in his second term of service.17 The Court held that it could not be deemed to have
been by reason of voluntary renunciation because it was by operation of law.18 Hence, Potencioso was qualified to run as
candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007 Synchronized National and
Local Elections.
Further, in Borja, Jr. v. Commission on Elections,19 respondent therein, Jose T. Capco, Jr., was elected as Vice-Mayor of
Pateros on January 18, 1988 for a term ending on June 30, 1992. On September 2, 1989, Capco became Mayor, by
operation of law, upon the death of the incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for
two more terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros in
the May 11, 1998 election. Capcos disqualification was sought on the ground that he would have already served as
Mayor for three consecutive terms by June 30, 1998; hence, he would be ineligible to serve for another term. The Court
declared that the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to
serve the same elective position.20 The Court held that Capco was qualified to run again as mayor in the next election
because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of
law.21 Neither had he served the full term because he only continued the service, interrupted by the death, of the
deceased mayor.22 The vice-mayors assumption of the mayorship in the event of the vacancy is more a matter of
chance than of design.23 Hence, his service in that office should not be counted in the application of any term limit.24
In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead relinquished his office as
Punong Barangay during his third term when he won and assumed office as Sangguniang Bayan member of Dauis,
Bohol, which is deemed a voluntary renunciation of the Office of Punong Barangay.
In fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
Resolutions dated March 4, 2008 and August 7, 2008, disqualifying petitioner from being a candidate for Punong
Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.
WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4, 2008 and August 7, 2008 are
hereby AFFIRMED. No pronouncement as to costs.
SO ORDERED.

G.R. No. 147927

February 4, 2002

RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR.,
respondents.
DECISION
QUISUMBING, J.:
Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction and/or temporary restraining order, to
nullify and set aside the resolution dated May 9, 2001 of public respondent Commission on Elections in Comelec SPA No.
01-055, which granted the motion for reconsideration and declared private respondent Ramon Y. Talaga, Jr., qualified to
run for Mayor in Lucena City for the May 14, 2001 election. Petitioner prays that votes cast in private respondents favor
should not be counted; and should it happen that private respondent had been already proclaimed the winner, his
proclamation should be declared null and void.
The uncontroverted facts are as follows:
Petitioner and private respondent were the only candidates who filed their certificates of candidacy for mayor of Lucena
City in the May 14, 2001 elections. Private respondent was then the incumbent mayor.
Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he was re-elected in 19951998. In the election of 1998, he lost to Bernard G. Tagarao. In the recall election of May 12, 2000, he again won and
served the unexpired term of Tagarao until June 30, 2001.
On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a Petition to Deny Due
Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter
was elected and had served as city mayor for three (3) consecutive terms as follows: (1) in the election of May 1992,
where he served the full term; (2) in the election of May 1995, where he again served the full term; and, (3) in the recall
election of May 12, 2000, where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998
election. Petitioner contended that Talagas candidacy as Mayor constituted a violation of Section 8, Article X of the 1987
Constitution which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.
On March 9, 2001, private respondent responded that he was not elected City Mayor for three (3) consecutive terms but
only for two (2) consecutive terms. He pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the
consecutiveness of his years as mayor was interrupted, and thus his mayorship was not for three consecutive terms of
three years each. Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and eighteen
(18) days was not a full term, in the contemplation of the law and the Constitution. He cites Lonzanida vs. COMELEC,
G.R. No. 135150, 311 SCRA 602, 611 (1999), as authority to the effect that to apply disqualification under Section 8,
Article X of the Constitution, two (2) conditions must concur, to wit: (a) that the official concerned has been elected for
three consecutive terms in the same local government post, and (b) that he has fully served three (3) consecutive terms.
On April 20, 2001, the COMELEC, through the First Division, found private respondent Ramon Y. Talaga, Jr. disqualified
for the position of city mayor on the ground that he had already served three (3) consecutive terms, and his Certificate of
Candidacy was ordered withdrawn and/or cancelled.
On April 27, 2001, private respondent filed a motion for reconsideration reiterating that "three (3) consecutive terms"
means continuous service for nine (9) years and that the two (2) years service from 1998 to 2000 by Tagarao who
defeated him in the election of 1998 prevented him from having three consecutive years of service. He added that
Tagaraos tenure from 1998 to 2000 could not be considered as a continuation of his mayorship. He further alleged that
the recall election was not a regular election, but a separate special election specifically to remove incompetent local
officials.
On May 3, 2001, petitioner filed his Opposition to private respondents Motion for Reconsideration stating therein that
serving the unexpired term of office is considered as one (1) term.1 Petitioner further contended that Article 8 of the
Constitution speaks of "term" and does not mention "tenure". The fact that private respondent was not elected in the May
1998 election to start a term that began on June 30, 1998 was of no moment, according to petitioner, and what matters is
that respondent was elected to an unexpired term in the recall election which should be considered one full term from
June 30, 1998 to June 30, 2001.

On May 9, 2001, the COMELEC en banc ruled in favor of private respondent Ramon Y. Talaga, Jr.. It reversed the First
Divisions ruling and held that 1) respondent was not elected for three (3) consecutive terms because he did not win in the
May 11, 1998 elections; 2) that he was installed only as mayor by reason of his victory in the recall elections; 3) that his
victory in the recall elections was not considered a term of office and is not included in the 3-term disqualification rule, and
4) that he did not fully serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is considered an
interruption in the continuity of his service as Mayor of Lucena City.
On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected Mayor of Lucena City.
Petitioner is now before this Court, raising the sole issue:
WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001,
DECLARING PRIVATE RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN LUCENA CITY
FOR THE MAY 14, 2001 ELECTIONS.2
Stated differently, was private respondent disqualified to run for mayor of Lucena City in the May 14, 2001 elections?3
This issue hinges on whether, as provided by the Constitution, he had already served three consecutive terms in that
office.
Petitioner contends that private respondent was disqualified to run for city mayor by reason of the three-term rule because
the unexpired portion of the term of office he served after winning a recall election, covering the period May 12, 2000 to
June 30, 2001 is considered a full term. He posits that to interpret otherwise, private respondent would be serving four (4)
consecutive terms of 10 years, in violation of Section 8, Article X of 1987 Constitution4 and Section 43 (b) of R.A. 7160,
known as the Local Government Code.
Section 43. Term of Office.
xxx
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive. He lost his bid for a
second re-election in 1998 and between June 30, 1998 to May 12, 2000, during Tagaraos incumbency, he was a private
citizen, thus he had not been mayor for 3 consecutive terms.
In its comment, the COMELEC restated its position that private respondent was not elected for three (3) consecutive
terms having lost his third bid in the May 11, 1998 elections, said defeat is an interruption in the continuity of service as
city mayor of Lucena.
The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we held,
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right
to serve in the same elective position.1wphi1 Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected to the same position for the same number of
times before the disqualification can apply. This point can be made clearer by considering the following case or situation:
xxx
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1
year. If he is twice reelected after that, can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
xxx
To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that
while the people should be protected from the evils that a monopoly of political power may bring about, care should be
taken that their freedom of choice is not unduly curtailed.

Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said,
This Court held that the two conditions for the application of the disqualification must concur: a) that the official concerned
has been elected for three consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms.
Accordingly, COMELECs ruling that private respondent was not elected for three (3) consecutive terms should be upheld.
For nearly two years he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998
elections.
Patently untenable is petitioners contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998
election violates Article X, Section 8 of 1987 Constitution.5 To bolster his case, respondent adverts to the comment of Fr.
Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that "if one is elected
representative to serve the unexpired term of another, that unexpired, no matter how short, will be considered one term
for the purpose of computing the number of successive terms allowed."6
As pointed out by the COMELEC en banc, Fr. Bernas comment is pertinent only to members of the House of
Representatives. Unlike local government officials, there is no recall election provided for members of Congress.7
Neither can respondents victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as
"voluntary renunciation" for clearly it is not.1wphi1 In Lonzanida vs. COMELEC, we said:
The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any
length of time shall not be considered as an interruption in the continuity of service for the full term for which he was
elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service
of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full
term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of
service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.8
WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public respondent Commission on Elections
dated May 9, 2001, in Comelec SPA No. 01-055 is AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. 154829

December 10, 2003

ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents
DECISION
AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the resolution issued by the
First Division of the Commission on Elections (COMELEC) dated April 27, 2001 in SPA Case No. 01-059 entitled, Romeo
M. Sunga, petitioner, versus Arsenio A. Latasa, respondent, and the Resolution of the COMELEC en banc denying herein
petitioners Motion for Reconsideration. The assailed Resolution denied due course to the certificate of candidacy of
petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur Province in the May
14, 2001 elections, ordering that all votes cast in his favor shall not be counted, and if he has been proclaimed winner,
declaring said proclamation null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992,
1995, and 1998. During petitioners third term, the Municipality of Digos was declared a component city, to be known as
the City of Digos. A plebiscite conducted on September 8, 2000 ratified Republic Act No. 8798 entitled, "An Act
Converting the Municipality of Digos, Davao del Sur Province into a Component City to be known as the City of Digos" or
the Charter of the City of Digos. This event also marked the end of petitioners tenure as mayor of the Municipality of
Digos. However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as
mayor of the new City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated
therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor
of the Municipality of Digos and is now running for the first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before
the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/ or For Disqualification1 against
petitioner Latasa. Respondent Sunga alleged therein that petitioner falsely represented in his certificate of candidacy that
he is eligible to run as mayor of Digos City since petitioner had already been elected and served for three consecutive
terms as mayor from 1992 to 2001.
On March 5, 2001, petitioner Latasa filed his Answer,2 arguing that he did not make any false representation in his
certificate of candidacy since he fully disclosed therein that he had served as mayor of the Municipality of Digos for three
consecutive terms. Moreover, he argued that this fact does not bar him from filing a certificate of candidacy for the May
14, 2001 elections since this will be the first time that he will be running for the post of city mayor.
Both parties submitted their position papers on March 19, 2001.3
On April 27, 2001, respondent COMELECs First Division issued a Resolution, the dispositive portion of which reads, as
follows:
Wherefore, premises considered, the respondents certificate of candidacy should be cancelled for being a violation of the
three (3)-term rule proscribed by the 1987 Constitution and the Local Government Code of 1991.4
Petitioner filed his Motion for Reconsideration dated May 4, 2001,5 which remained unacted upon until the day of the
elections, May 14, 2001. On May 16, 2001, private respondent Sunga filed an Ex Parte Motion for Issuance of Temporary
Restraining Order Enjoining the City Board of Canvassers From Canvassing or Tabulating Respondents Votes, and From
Proclaiming Him as the Duly Elected Mayor if He Wins the Elections.6 Despite this, however, petitioner Latasa was still
proclaimed winner on May 17, 2001, having garnered the most number of votes. Consequently, private respondent Sunga
filed, on May 27, 2001, a Supplemental Motion7 which essentially sought the annulment of petitioners proclamation and
the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor of Digos City. It was only
on August 27, 2002 that the COMELEC en banc issued a Resolution denying petitioners Motion for Reconsideration.
Hence, this petition.

It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC8 that after an elective official has
been proclaimed as winner of the elections, the COMELEC has no jurisdiction to pass upon his qualifications. An
opposing partys remedies after proclamation would be to file a petition for quo warranto within ten days after the
proclamation.
On the other hand, certain peculiarities in the present case reveal the fact that its very heart is something which this Court
considers of paramount interest. This Court notes from the very beginning that petitioner himself was already entertaining
some doubt as to whether or not he is indeed eligible to run for city mayor in the May 14, 2001 elections. In his certificate
of candidacy, after the phrase "I am eligible", petitioner inserted a footnote and indicated:
*Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor.9
Time and again, this Court has held that rules of procedure are only tools designed to facilitate the attainment of justice,
such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is
empowered to suspend their operation. We will not hesitate to set aside technicalities in favor of what is fair and just.10
The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of procedural rules.
The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or not petitioner Latasa
is eligible to run as candidate for the position of mayor of the newly-created City of Digos immediately after he served for
three consecutive terms as mayor of the Municipality of Digos.
As a rule, in a representative democracy, the people should be allowed freely to choose those who will govern them.
Article X, Section 8 of the Constitution is an exception to this rule, in that it limits the range of choice of the people.
Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.
An examination of the historical background of the subject Constitutional provision reveals that the members of the
Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were
with preventing the monopolization of political power. In fact, they rejected a proposal set forth by Commissioner
Edmundo Garcia that after serving three consecutive terms or nine years, there should be no further re-election for local
and legislative officials.11 The members, instead, adopted the alternative proposal of Commissioner Christian Monsod
that such officials be simply barred from running for the same position in the succeeding election following the expiration
of the third consecutive term:
MR. MONSOD: Madam President, I was reflecting on this issue earlier and I asked to speak because in this draft
Constitution, we are recognizing peoples power. We have said that now there is a new awareness, a new kind of voter, a
new kind of Filipino. And yet at the same time, we are prescreening candidates among whom they will choose. We are
saying that this 48-member Constitutional Commission has decreed that those who have served for a period of nine years
are barred from running for the same position.

The argument is that there may be other positions. But there are some people who are very skilled and good at
legislation, and yet are not of a national stature to be Senators. They may be perfectly honest, perfectly competent and
with integrity. They get voted into office at the age of 25, which is the age we provide for Congressmen. And at 34 years
old we put them into pasture.
Second, we say that we want to broaden the choices of the people. We are talking here only of congressional or
senatorial seats. We want to broaden the peoples choice but we are making prejudgment today because we exclude a
certain number of people. We are, in effect, putting an additional qualification for office that the officials must have not
have served a total of more than a number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but the future participation
of these statesmen is limited. Their skills may be only in some areas, but we are saying that they are going to be barred
from running for the same position.
Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing of his skills and
competence, in intellectual combat, in concern and contact with the people, and here we are saying that he is going to be
barred from the same kind of public service.

I do not think it is in our place today to make such a very important and momentous decision with respect to many of our
countrymen in the future who may have a lot more years ahead of them in the service of their country.
If we agree that we will make sure that these people do not set up structures that will perpetuate them, then let us give
them this rest period of three years or whatever it is. Maybe during that time, we would even agree that their fathers or
mothers or relatives of the second degree should not run. But let us not bar them for life after serving the public for
number of years.12
The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive
accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections,
officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to
accumulate these powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of
their families in a subsequent election. x x x 13
An elective local official, therefore, is not barred from running again in for same local government post, unless two
conditions concur: 1.) that the official concerned has been elected for three consecutive terms to the same local
government post, and 2.) that he has fully served three consecutive terms.14
In the present case, petitioner states that a city and a municipality have separate and distinct personalities. Thus they
cannot be treated as a single entity and must be accorded different treatment consistent with specific provisions of the
Local Government Code. He does not deny the fact that he has already served for three consecutive terms as municipal
mayor. However, he asserts that when Digos was converted from a municipality to a city, it attained a different juridical
personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be construed as vying for the
same local government post.
For a municipality to be converted into a city, the Local Government Code provides:
SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of barangays may be converted into a component
city it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos
(20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following
requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau;
or,
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics
Office.
Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at
the time of said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on
land are shall not apply where the city proposed to be created is composed of one (1) or more island. The territory need
not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds,
transfers, and non-recurring income.15
Substantial differences do exist between a municipality and a city. For one, there is a material change in the political and
economic rights of the local government unit when it is converted from a municipality to a city and undoubtedly, these
changes affect the people as well.16 It is precisely for this reason why Section 10, Article X of the Constitution mandates
that no province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially
altered, without the approval by a majority of the votes cast in a plebiscite in the political units directly affected.
As may be gleaned from the Local Government Code, the creation or conversion of a local government unit is done
mainly to help assure its economic viability. Such creation or conversion is based on verified indicators:
Section 7. Creation and Conversion. --- As a general rule, the creation of a local government unit or its conversion from
one level to another shall be based on verifiable indicators or viability and projected capacity to provide services, to wit:

(a) Income. --- It must be sufficient, based on acceptable standards, to provide for all essential government facilities and
services and special functions commensurate with the size of its population, as expected of the local government unit
concerned;
(b) Population. --- It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local
government unit concerned; and
(c) Land Area. --- It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government
unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to
provide for such basic services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics
Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources
(DENR).17
On the other hand, Section 2 of the Charter of the City of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be converted into a component city to be known as the City
of Digos, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Digos, Davao
del Sur Province. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of
Digos. x x x
Moreover, Section 53 of the said Charter further states:
Section 53. Officials of the City of Digos. --- The present elective officials of the Municipality of Digos shall continue to
exercise their powers and functions until such a time that a new election is held and the duly-elected officials shall have
already qualified and assumed their offices. x x x.
As seen in the aforementioned provisions, this Court notes that the delineation of the metes and bounds of the City of
Digos did not change even by an inch the land area previously covered by the Municipality of Digos. This Court also notes
that the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were
held for the new city officials.
True, the new city acquired a new corporate existence separate and distinct from that of the municipality. This does not
mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal mayor
would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the
territorial jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants of the
municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner
Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held
power and authority as their chief executive for nine years.
This Court must distinguish the present case from previous cases ruled upon this Court involving the same Constitutional
provision.
In Borja, Jr. v. COMELEC,18 the issue therein was whether a vice-mayor who became the mayor by operation of law and
who served the remainder of the mayors term should be considered to have served a term in that office for the purpose of
the three-term limit under the Constitution. Private respondent in that case was first elected as vice-mayor, but upon the
death of the incumbent mayor, he occupied the latters post for the unexpired term. He was, thereafter, elected for two
more terms. This Court therein held that when private respondent occupied the post of the mayor upon the incumbents
death and served for the remainder of the term, he cannot be construed as having served a full term as contemplated
under the subject constitutional provision. The term served must be one "for which [the official concerned] was elected."
It must also be noted that in Borja, the private respondent therein, before he assumed the position of mayor, first served
as the vice-mayor of his local government unit. The nature of the responsibilities and duties of the vice-mayor is wholly
different from that of the mayor. The vice-mayor does not hold office as chief executive over his local government unit. In
the present case, petitioner, upon ratification of the law converting the municipality to a city, continued to hold office as
chief executive of the same territorial jurisdiction. There were changes in the political and economic rights of Digos as
local government unit, but no substantial change occurred as to petitioners authority as chief executive over the
inhabitants of Digos.

In Lonzanida v. COMELEC,19 petitioner was elected and served two consecutive terms as mayor from 1988 to 1995. He
then ran again for the same position in the May 1995 elections, won and discharged his duties as mayor. However, his
opponent contested his proclamation and filed an election protest before the Regional Trial Court, which ruled that there
was a failure of elections and declared the position of mayor vacant. The COMELEC affirmed this ruling and petitioner
acceded to the order to vacate the post. During the May 1998 elections, petitioner therein again filed his certificate of
candidacy for mayor. A petition to disqualify him was filed on the ground that he had already served three consecutive
terms. This Court ruled, however, that petitioner therein cannot be considered as having been duly elected to the post in
the May 1995 elections, and that said petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary
relinquishment of office.
In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998 elections. Can he then
be construed as having involuntarily relinquished his office by reason of the conversion of Digos from municipality to city?
This Court believes that he did involuntarily relinquish his office as municipal mayor since the said office has been
deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also
assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped
down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never
ceased from discharging his duties and responsibilities as chief executive of Digos.
In Adormeo v. COMELEC,20 this Court was confronted with the issue of whether or not an assumption to office through a
recall election should be considered as one term in applying the three-term limit rule. Private respondent, in that case,
was elected and served for two consecutive terms as mayor. He then ran for his third term in the May 1998 elections, but
lost to his opponent. In June 1998, his opponent faced recall proceedings and in the recall elections of May 2000, private
respondent won and served for the unexpired term. For the May 2001 elections, private respondent filed his certificate of
candidacy for the office of mayor. This was questioned on the ground that he had already served as mayor for three
consecutive terms. This Court held therein that private respondent cannot be construed as having been elected and
served for three consecutive terms. His loss in the May 1998 elections was considered by this Court as an interruption in
the continuity of his service as mayor. For nearly two years, private respondent therein lived as a private citizen. The
same, however, cannot be said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,21 the principal issue was whether or not private respondent Edward M. Hagedorn was
qualified to run during the recall elections. Therein respondent Hagedorn had already served for three consecutive terms
as mayor from 1992 until 2001 and did not run in the immediately following regular elections. On July 2, 2002, the
barangay officials of Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of the
incumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed his certificate of
candidacy for mayor in the recall election. A petition for his disqualification was filed on the ground that he cannot run for
the said post during the recall elections for he was disqualified from running for a fourth consecutive term. This Court,
however, ruled in favor of respondent Hagedorn, holding that the principle behind the three-term limit rule is to prevent
consecutiveness of the service of terms, and that there was in his case a break in such consecutiveness after the end of
his third term and before the recall election.
It is evident that in the abovementioned cases, there exists a rest period or a break in the service of the local elective
official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in
Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months
respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and
ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government
unit.1wphi1
This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the
very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial
jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the
Constitution, if not abhorred by it.
Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC,22 he should be deemed the mayoralty
candidate with the highest number of votes. On the contrary, this Court held in Labo that the disqualification of a winning
candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the
elections. As an obiter, the Court merely mentioned that the rule would have been different if the electorate, fully aware in
fact and in law of a candidates disqualification so as to bring such awareness within the realm of notoriety, would
nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived

the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which
case, the eligible candidate obtaining the next higher number of votes may be deemed elected. The same, however,
cannot be said of the present case.
This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate
at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate
who garnered the second highest number of votes to be declared elected. The same merely results in making the winning
candidates election a nullity.23 In the present case, moreover, 13,650 votes were cast for private respondent Sunga as
against the 25,335 votes cast for petitioner Latasa.24 The second placer is obviously not the choice of the people in that
particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by
succession.25
WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.
SO ORDERED.

G.R. No. 184836

December 23, 2009

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners, vs. COMMISSION ON
ELECTIONS AND WILFREDO F. ASILO, Respondents.
DECISION
BRION, J.:
Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term
limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local
Government Code)?
The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption
because it renders the suspended public official unable to provide complete service for the full term; thus, such term
should not be counted for the purpose of the three-term limit rule.
1

The present petition seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 19982001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the
Sandiganbayan preventively suspended him for 90 days in relation with a criminal case he then faced. This Court,
however, subsequently lifted the Sandiganbayans suspension order; hence, he resumed performing the functions of his
office and finished his term.
In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr.,
Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilos certificate of candidacy
or to cancel it on the ground that he had been elected and had served for three terms; his candidacy for a fourth term
therefore violated the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.
The COMELECs Second Division ruled against the petitioners and in Asilos favour in its Resolution of November 28,
2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the 20042007 term because of the suspension the Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the Second Divisions ruling in its October 7, 2008 Resolution; hence,
the PRESENT PETITION raising the following ISSUES:
1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and
2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b) of RA
7160
Thus presented, the case raises the direct issue of whether Asilos preventive suspension constituted an interruption that
allowed him to run for a 4th term.
THE COURTS RULING
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on the three-term limit provision of the Constitution, but is the first on the
effect of preventive suspension on the continuity of an elective officials term. To be sure, preventive suspension, as an
interruption in the term of an elective public official, has been mentioned as an example in Borja v. Commission on

Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the
application of the three-term rule on the term that an elective official acquired by succession.
a. The Three-term Limit Rule:
The Constitutional Provision Analyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.
Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume
any significance in this case.
As worded, the constitutional provision fixes the term of a local elective office and limits an elective officials stay in office
to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X.
Significantly, this provision refers to a "term" as a period of time three years during which an official has title to office
and can serve. Appari v. Court of Appeals,3 a Resolution promulgated on November 28, 2007, succinctly discusses what
a "term" connotes, as follows:
The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer
may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon
expiration of the officers term, unless he is authorized by law to holdover, his rights, duties and authority as a public
officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer
ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis supplied].1avvphi1
A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during which the officer may
claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another."
The "limitation" under this first branch of the provision is expressed in the negative "no such official shall serve for more
than three consecutive terms." This formulation no more than three consecutive terms is a clear command suggesting
the existence of an inflexible rule. While it gives no exact indication of what to "serve. . . three consecutive terms" exactly
connotes, the meaning is clear reference is to the term, not to the service that a public official may render.1awphi1 In
other words, the limitation refers to the term.
The second branch relates to the provisions express initiative to prevent any circumvention of the limitation through
voluntary severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be
considered as an interruption in the continuity of his service for the full term for which he was elected." This declaration
complements the term limitation mandated by the first branch.
A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual
interruption of service that does not affect "continuity of service for a full term" for purposes of the three-term limit rule. It is
a pure declaratory statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary
renunciation," by itself, is not without significance in determining constitutional intent.
The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or
resign.5 It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the
definition of a "term" in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot
but mean an act that results in cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked
together with "renunciation" signifies an act of surrender based on the surenderees own freely exercised will; in other
words, a loss of title to office by conscious choice. In the context of the three-term limit rule, such loss of title is not
considered an interruption because it is presumed to be purposely sought to avoid the application of the term limitation.
The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation" shed
further light on the extent of the term "voluntary renunciation":

MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation" does
not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us exactly
what "voluntary renunciation" mean? Is this akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any
given time on the second term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than abandonment and
resignation?
MR. DAVIDE. It is more general, more embracing.

From this exchange and Commissioner Davides expansive interpretation of the term "voluntary renunciation," the
framers intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in the
way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit rule. Harking
back to the text of the constitutional provision, we note further that Commissioner Davides view is consistent with the
negative formulation of the first branch of the provision and the inflexible interpretation that it suggests.
This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation
impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be
strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. We
view preventive suspension vis--vis term limitation with this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provisions
contemplation, particularly on the "interruption in the continuity of service for the full term" that it speaks of.
Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the basis of the threeterm limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public
official) for his supposedly third term had been declared invalid in a final and executory judgment. We ruled that the two
requisites for the application of the disqualification (viz., 1. that the official concerned has been elected for three
consecutive terms in the same local government post; and 2. that he has fully served three consecutive terms) were not
present. In so ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term
is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the
three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral
elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the
COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the
three-term limit rule inapplicable.
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there had been a completed
term for purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their
final judgments in the electoral contest came after the term of the contested office had expired so that the elective officials
in these cases were never effectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded that
there was nevertheless an election and service for a full term in contemplation of the three-term rule based on the
following premises: (1) the final decision that the third-termer lost the election was without practical and legal use and
value, having been promulgated after the term of the contested office had expired; and (2) the official assumed and
continuously exercised the functions of the office from the start to the end of the term. The Court noted in Ong the
absurdity and the deleterious effect of a contrary view that the official (referring to the winner in the election protest)
would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless electoral
protest ruling, when another actually served the term pursuant to a proclamation made in due course after an election.
This factual variation led the Court to rule differently from Lonzanida.
In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was merely a
"caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the Constitution is
violated and its purpose defeated when an official fully served in the same position for three consecutive terms. Whether
as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that enabled him "to
stay on indefinitely."
Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply.
Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because
of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court signalled how
zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in
favor of limitation rather than its exception.
Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit disqualification. The case
presented the question of whether the disqualification applies if the official lost in the regular election for the supposed
third term, but was elected in a recall election covering that term. The Court upheld the COMELECs ruling that the official
was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a
private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term.
Socrates v. Commission on Elections11 also tackled recall vis--vis the three-term limit disqualification. Edward Hagedorn
served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in the election that
immediately followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less
than 1 years after Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him,
leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but
Socrates sought his disqualification on the ground that he (Hagedorn) had fully served three terms prior to the recall
election and was therefore disqualified to run because of the three-term limit rule. We decided in Hagedorns favor, ruling
that:
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited
election refers to the next regular election for the same office following the end of the third consecutive term. Any
subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent
election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether
there would be no further election after three terms, or whether there would be "no immediate reelection" after three
terms.
xxxx
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The
Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not
immediately after the end of the third consecutive term. A recall election mid-way in the term following the third
consecutive term is a subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent
election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. 12
Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor who had fully served for
three consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During
the third term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the

municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the
new city officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the
municipal mayor into a local government post different from the office of the city mayor the territorial jurisdiction of the
city was the same as that of the municipality; the inhabitants were the same group of voters who elected the municipal
mayor for 3 consecutive terms; and they were the same inhabitants over whom the municipal mayor held power and
authority as their chief executive for nine years. The Court said:
This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the
very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial
jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the
14
Constitution, if not abhorred by it.
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation
results if a rest period or break in the service between terms or tenure in a given elective post intervened. In Lonzanida,
the petitioner was a private citizen with no title to any elective office for a few months before the next mayoral elections.
Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two years and fifteen months,
respectively. Thus, these cases establish that the law contemplates a complete break from office during which the local
elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit.
Seemingly differing from these results is the case of Montebon v. Commission on Elections, 15 where the highest-ranking
municipal councilor succeeded to the position of vice-mayor by operation of law. The question posed when he
subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor that
would place him outside the operation of the three-term limit rule. We ruled that an interruption had intervened so that he
could again run as councilor. This result seemingly deviates from the results in the cases heretofore discussed since the
elective official continued to hold public office and did not become a private citizen during the interim. The common thread
that identifies Montebon with the rest, however, is that the elective official vacated the office of councilor and assumed the
higher post of vice-mayor by operation of law. Thus, for a time he ceased to be councilor an interruption that effectively
placed him outside the ambit of the three-term limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit
rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left
his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of
Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective officials continuous stay in office
to no more than three consecutive terms, using "voluntary renunciation" as an example and standard of what does not
constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service
within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions
of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is
simply barred from exercising the functions of his office for a reason provided by law.
An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot
be equated with the failure to render service. The latter occurs during an office holders term when he retains title to the
office but cannot exercise his functions for reasons established by law. Of course, the term "failure to serve" cannot be
used once the right to office is lost; without the right to hold office or to serve, then no service can be rendered so that
none is really lost.
To put it differently although at the risk of repetition, Section 8, Article X both by structure and substance fixes an
elective officials term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed,
no less, by citing voluntary renunciation as an example of a circumvention. The provision should be read in the context
of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective
position. The "voluntary renunciation" it speaks of refers only to the elective officials voluntary relinquishment of office and

loss of title to this office. It does not speak of the temporary "cessation of the exercise of power or authority" that may
16
occur for various reasons, with preventive suspension being only one of them. To quote Latasa v. Comelec:
Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to
exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.
[Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension whether under the Local Government Code,17 the Anti-Graft and Corrupt Practices Act,18 or the
19
Ombudsman Act is an interim remedial measure to address the situation of an official who have been charged
administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or
liability.
Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the
gravity of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses
or pose a threat to the safety and integrity of the records and other evidence." Under the Anti-Graft and Corrupt Practices
Act, it is imposed after a valid information (that requires a finding of probable cause) has been filed in court, while under
the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the
charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the charges
would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed
against him.
Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office
and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a
consequence that only results upon an eventual finding of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a premium to
the protection of the service rather than to the interests of the individual office holder. Even then, protection of the service
goes only as far as a temporary prohibition on the exercise of the functions of the officials office; the official is reinstated
to the exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the
exercise of power results, no position is vacated when a public official is preventively suspended. This was what exactly
happened to Asilo.
That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and
prerogative under the Constitution and the laws. The imposition of preventive suspension, however, is not an unlimited
power; there are limitations built into the laws20 themselves that the courts can enforce when these limitations are
transgressed, particularly when grave abuse of discretion is present. In light of this well-defined parameters in the
imposition of preventive suspension, we should not view preventive suspension from the extreme situation that it can
totally deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an election
officials term.
Term limitation and preventive suspension are two vastly different aspects of an elective officials service in office and
they do not overlap. As already mentioned above, preventive suspension involves protection of the service and of the
people being served, and prevents the office holder from temporarily exercising the power of his office. Term limitation, on
the other hand, is triggered after an elective official has served his three terms in office without any break. Its companion
concept interruption of a term on the other hand, requires loss of title to office. If preventive suspension and term
limitation or interruption have any commonality at all, this common point may be with respect to the discontinuity of service
that may occur in both. But even on this point, they merely run parallel to each other and never intersect; preventive
suspension, by its nature, is a temporary incapacity to render service during an unbroken term; in the context of term
limitation, interruption of service occurs after there has been a break in the term.
b. Preventive Suspension and the Intent of the Three-Term Limit Rule
Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an
interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a
term interruption because the suspended official continues to stay in office although he is barred from exercising the
functions and prerogatives of the office within the suspension period. The best indicator of the suspended officials

continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no
vacancy exists.
To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality
and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of
office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist,
voluntary or involuntary some of them personal and some of them by operation of law that may temporarily prevent an
elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious
extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some
involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting
title to office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term.
Adopting such interruption of actual service as the standard to determine effective interruption of term under the threeterm rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when
actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of
the three-term limit rule to a case-to-case and possibly see-sawing determination of what an effective interruption is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the
suspended official, except in the indirect sense that he may have voluntarily committed the act that became the basis of
the charge against him. From this perspective, preventive suspension does not have the element of voluntariness that
voluntary renunciation embodies. Neither does it contain the element of renunciation or loss of title to office as it merely
involves the temporary incapacity to perform the service that an elective office demands. Thus viewed, preventive
suspension is by its very nature the exact opposite of voluntary renunciation; it is involuntary and temporary, and
involves only the actual delivery of service, not the title to the office. The easy conclusion therefore is that they are, by
nature, different and non-comparable.
But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the
three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the
Constitution as an effective interruption of a term. It is therefore not allowed as a mode of circumventing the three-term
limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a
reason to avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and consider it
an effective interruption of a term. Let it be noted that a preventive suspension is easier to undertake than voluntary
renunciation, as it does not require relinquishment or loss of office even for the briefest time. It merely requires an easily
fabricated administrative charge that can be dismissed soon after a preventive suspension has been imposed. In this
sense, recognizing preventive suspension as an effective interruption of a term can serve as a circumvention more potent
than the voluntary renunciation that the Constitution expressly disallows as an interruption.
Conclusion
To recapitulate, Asilos 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension in
2005, as preventive suspension does not interrupt an elective officials term. Thus, the COMELEC refused to apply the
legal command of Section 8, Article X of the Constitution when it granted due course to Asilos certificate of candidacy for
a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack
or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less than the Constitution and
was one undertaken outside the contemplation of law.21
WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC rulings.
The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena
City for a prohibited fourth term. Costs against private respondent Asilo.
SO ORDERED.

G.R. No. 201716

January 8, 2013

MAYOR ABELARDO ABUNDO, SR., Petitioner, vs. COMMISSION ON ELECTIONS and ERNESTO R. VEGA,
Respondents.
DECISION
VELASCO, JR., J.:
The Case
In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo) assails and seeks to nullify (1) the
February 8, 2012 Resolution1 of the Second Division, Commission on Elections (COMELEC), in EAC (AE) No. A-25-2010
and (2) the May 10, 2012 Resolution2 of the COMELEC en banc affirming that divisions disposition. The assailed
issuances, in turn, affirmed the Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated
August 9, 2010, in Election Case No. 55 declaring Abundo as ineligible, under the three-term limit rule, to run in the 2010
elections for the position of, and necessarily to sit as, Mayor of Viga, Catanduanes.
The antecedent facts are undisputed.
For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national and local elections, Abundo
vied for the position of municipal mayor of Viga, Catanduanes. In both the 2001 and 2007 runs, he emerged and was
proclaimed as the winning mayoralty candidate and accordingly served the corresponding terms as mayor. In the 2004
electoral derby, however, the Viga municipal board of canvassers initially proclaimed as winner one Jose Torres (Torres),
who, in due time, performed the functions of the office of mayor. Abundo protested Torres election and proclamation.
Abundo was eventually declared the winner of the 2004 mayoralty electoral contest, paving the way for his assumption of
office starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a period of a little over one year
and one month.
Then came the May 10, 2010 elections where Abundo and Torres again opposed each other. When Abundo filed his
certificate of candidacy3 for the mayoralty seat relative to this electoral contest, Torres lost no time in seeking the formers
disqualification to run, the corresponding petition,4 docketed as SPA Case No. 10-128 (DC), predicated on the threeconsecutive term limit rule. On June 16, 2010, the COMELEC First Division issued a Resolution5 finding for Abundo, who
in the meantime bested Torres by 219 votes6 and was accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted disqualification case Torres initiated
against Abundo, herein private respondent Ernesto R. Vega (Vega) commenced a quo warranto7 action before the RTCBr. 43 in Virac, Catanduanes, docketed as Election Case No. 55, to unseat Abundo on essentially the same grounds
Torres raised in his petition to disqualify.
The Ruling of the Regional Trial Court
By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve as municipal mayor,
disposing as follows:
WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo Abundo, Sr. ineligible to
serve as municipal mayor of Viga, Catanduanes.
SO ORDERED.9
In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC,10 found Abundo to have already served three consecutive
mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-2010, and, hence, disqualified for another, i.e., fourth,
consecutive term. Abundo, the RTC noted, had been declared winner in the aforesaid 2004 elections consequent to his
protest and occupied the position of and actually served as Viga mayor for over a year of the remaining term, i.e., from
May 9, 2006 to June 30, 2007, to be exact. To the RTC, the year and a month service constitutes a complete and full
service of Abundos second term as mayor.
Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-25-2010.
The Ruling of the COMELEC
On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELECs Second Division rendered the first assailed
Resolution, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73, Virac, Catanduanes is
AFFIRMED and the appeal is DISMISSED for lack of merit.
SO ORDERED.11
Just like the RTC, the COMELECs Second Division ruled against Abundo on the strength of Aldovino, Jr. and held that
service of the unexpired portion of a term by a protestant who is declared winner in an election protest is considered as
service for one full term within the contemplation of the three-term limit rule.
In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its equally assailed Resolution of
May 10, 2012. The fallo of the COMELEC en bancs Resolution reads as follows:
WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of merit. The Resolution of the
Commission (Second Division) is hereby AFFIRMED.
SO ORDERED.12
In affirming the Resolution of its Second Division, the COMELEC en banc held in essence the following: first, there was no
involuntary interruption of Abundos 2004-2007 term service which would be an exception to the three-term limit rule as he
is considered never to have lost title to the disputed office after he won in his election protest; and second, what the
Constitution prohibits is for an elective official to be in office for the same position for more than three consecutive terms
and not to the service of the term.
Hence, the instant petition with prayer for the issuance of a temporary restraining order (TRO) and/or preliminary
injunction.
Intervening Events
In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution denying Abundos motion for
reconsideration, the following events transpired:
1. On June 20, 2012, the COMELEC issued an Order13 declaring its May 10, 2012 Resolution final and executory. The
following day, June 21, 2012, the COMELEC issued an Entry of Judgment.14
2. On June 25, 2012, Vega filed a Motion for Execution15 with the RTC-Br. 43 in Virac, Catanduanes.
3. On June 27, 2012, the COMELEC, acting on Vegas counsels motion16 filed a day earlier, issued an Order17 directing
the bailiff of ECAD (COMELEC) to personally deliver the entire records to said RTC.
On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire records of the instant case to, and were
duly received by, the clerk of court of RTC-Br. 43.
4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-Br. 43 in Virac, Catanduanes granted
Vegas Motion for Execution through an Order18 of even date. And a Writ of Execution19 was issued on the same day.
5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served the same at the office of Mayor Abundo
on the same day via substituted service.
6. On July 3, 2012, the Court issued a TRO20 enjoining the enforcement of the assailed COMELEC Resolutions.
7. On July 4, 2012, Vega received the Courts July 3, 2012 Resolution21 and a copy of the TRO. On the same day, ViceMayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes of Viga, Catanduanes took their oaths of office22 as
mayor and vice-mayor of Viga, Catanduanes, respectively.
8. On July 5, 2012, Vega received a copy of Abundos Seventh (7th) Most Extremely Urgent Manifestation and Motion23
dated June 28, 2012 praying for the issuance of a TRO and/or status quo ante Order. On the same day, Vice-Mayor
Emeterio M. Tarin and First Councilor Cesar O. Cervanteswho had taken their oaths of office the day beforeassumed
the posts of mayor and vice-mayor of Viga, Catanduanes.24

9. On July 6, 2012, Vega interposed a Motion (To Admit Attached Manifestation)25 and Manifestation with Leave to
Admit26 dated July 5, 2012 stating that the TRO thus issued by the Court has become functus officio owing to the
execution of the RTCs Decision in Election Case No. 55.
10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the Petitioners Prayer for the Issuance of a
Status Quo Ante Order27 reiterating the argument that since Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O.
Cervantes already assumed the posts of Mayor and Vice-Mayor of Viga, Catanduanes, then a Status Quo Ante Order
would serve no purpose.
11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to Convert the July 3, 2012 TRO into a
Status Quo Ante Order (In View of the Unreasonable and Inappropriate Progression of Events).28
It is upon the foregoing backdrop of events that Abundo was dislodged from his post as incumbent mayor of Viga,
Catanduanes. To be sure, the speed which characterized Abundos ouster despite the supervening issuance by the Court
of a TRO on July 3, 2012 is not lost on the Court. While it is not clear whether Vice-Mayor Tarin and First Councilor
Cervantes knew of or put on notice about the TRO either before they took their oaths of office on July 4, 2012 or before
assuming the posts of mayor and vice-mayor on July 5, 2012, the confluence of events following the issuance of the
assailed COMELEC en banc irresistibly tends to show that the TROissued as it were to maintain the status quo, thus
averting the premature ouster of Abundo pending this Courts resolution of his appealappears to have been trivialized.
On September 11, 2012, Vega filed his Comment on Abundos petition, followed not long after by public respondent
COMELECs Consolidated Comment.29
The Issues
Abundo raises the following grounds for the allowance of the petition:
6.1 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
declared the arguments in Abundos motion for reconsideration as mere rehash and reiterations of the claims he raised
prior to the promulgation of the Resolution.
6.2 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
declared that Abundo has consecutively served for three terms despite the fact that he only served the remaining one
year and one month of the second term as a result of an election protest.30
First Issue:
Arguments in Motion for Reconsideration Not Mere Reiteration
The COMELEC en banc denied Abundos motion for reconsideration on the basis that his arguments in said motion are
mere reiterations of what he already brought up in his appeal Brief before the COMELEC Second Division. In this petition,
petitioner claims otherwise.
Petitioners assertion is devoid of merit.
A comparison of Abundos arguments in the latters Brief vis--vis those in his Motion for Reconsideration (MR) reveals
that the arguments in the MR are elucidations and amplications of the same issues raised in the brief. First, in his Brief,
Abundo raised the sole issue of lack of jurisdiction of the RTC to consider the quo warranto case since the alleged
violation of the three-term limit has already been rejected by the COMELEC First Division in SPA Case No. 10-128 (DC),
while in his MR, Abundo raised the similar ground of the conclusiveness of the COMELECs finding on the issue of his
qualification to run for the current term. Second, in his Brief, Abundo assailed RTCs reliance on Aldovino, Jr., while in his
MR, he argued that the Courts pronouncement in Aldovino, Jr., which dealt with preventive suspension, is not applicable
to the instant case as it involves only a partial service of the term. Abundo argued in his Brief that his situation cannot be
equated with the case of preventive suspension as held in Aldovino, Jr., while in his MR, he argued before that the almost
two years which he did not sit as mayor during the 2004-2007 term is an interruption in the continuity of his service for the
full term.
Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the Brief.
Core Issue:
Whether or not Abundo is deemed to have served three consecutive terms

The pivotal determinative issue then is whether the service of a term less than the full three years by an elected official
arising from his being declared as the duly elected official upon an election protest is considered as full service of the term
for purposes of the application of the three consecutive term limit for elective local officials.
On this core issue, We find the petition meritorious. The consecutiveness of what otherwise would have been Abundos
three successive, continuous mayorship was effectively broken during the 2004-2007 term when he was initially deprived
of title to, and was veritably disallowed to serve and occupy, an office to which he, after due proceedings, was eventually
declared to have been the rightful choice of the electorate.
The three-term limit rule for elective local officials, a disqualification rule, is found in Section 8, Article X of the 1987
Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected. (Emphasis supplied.)
and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC) of 1991, thusly:
Sec. 43. Term of Office.
xxxx
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected. (Emphasis Ours.)
To constitute a disqualification to run for an elective local office pursuant to the aforequoted constitutional and statutory
provisions, the following requisites must concur:
(1) that the official concerned has been elected for three consecutive terms in the same local government post; and
(2) that he has fully served three consecutive terms.31
Judging from extant jurisprudence, the three-term limit rule, as applied to the different factual milieus, has its complicated
side. We shall revisit and analyze the various holdings and relevant pronouncements of the Court on the matter.
As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC, voluntary renunciation of the
office by the incumbent elective local official for any length of time shall NOT, in determining service for three consecutive
terms, be considered an interruption in the continuity of service for the full term for which the elective official concerned
was elected. In Aldovino, Jr., however, the Court stated the observation that the law "does not textually state that
voluntary renunciation is the only actual interruption of service that does not affect continuity of service for a full term for
purposes of the three-term limit rule."32
As stressed in Socrates v. Commission on Elections,33 the principle behind the three-term limit rule covers only
consecutive terms and that what the Constitution prohibits is a consecutive fourth term. Put a bit differently, an elective
local official cannot, following his third consecutive term, seek immediate reelection for a fourth term,34 albeit he is
allowed to seek a fresh term for the same position after the election where he could have sought his fourth term but
prevented to do so by reason of the prohibition.
There has, in fine, to be a break or interruption in the successive terms of the official after his or her third term. An
interruption usually occurs when the official does not seek a fourth term, immediately following the third. Of course, the
basic law is unequivocal that a "voluntary renunciation of the office for any length of time shall NOT be considered an
interruption in the continuity of service for the full term for which the elective official concerned was elected." This
qualification was made as a deterrent against an elective local official intending to skirt the three-term limit rule by merely
resigning before his or her third term ends. This is a voluntary interruption as distinguished from involuntary interruption
which may be brought about by certain events or causes.
While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes resulting from the
varying interpretations applied on local officials who were elected and served for three terms or more, but whose terms or
service was punctuated by what they view as involuntary interruptions, thus entitling them to a, but what their opponents

perceive as a proscribed, fourth term. Involuntary interruption is claimed to result from any of these events or causes:
succession or assumption of office by operation of law, preventive suspension, declaration of the defeated candidate as
the winner in an election contest, declaration of the proclaimed candidate as the losing party in an election contest,
proclamation of a non-candidate as the winner in a recall election, removal of the official by operation of law, and other
analogous causes.
This brings us to an examination of situations and jurisprudence wherein such consecutive terms were considered or not
considered as having been "involuntarily interrupted or broken."
(1) Assumption of Office by Operation of Law
In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998) and Montebon v. Commission on Elections36
(2008), the Court delved on the effects of "assumption to office by operation of law" on the three-term limit rule. This
contemplates a situation wherein an elective local official fills by succession a higher local government post permanently
left vacant due to any of the following contingencies, i.e., when the supposed incumbent refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the
functions of his office.37
In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for a term ending June
30, 1992. On September 2, 1989, Capco became mayor, by operation of law, upon the death of the incumbent mayor,
Cesar Borja. Capco was then elected and served as mayor for terms 1992-1995 and 1995-1998. When Capco expressed
his intention to run again for the mayoralty position during the 1998 elections, Benjamin U. Borja, Jr., who was then also a
candidate for mayor, sought Capcos disqualification for violation of the three-term limit rule.
Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an individual has served
three consecutive terms in an elective local office, he must also have been elected to the same position for the same
number of times before the disqualification can apply."38 There was, the Court ruled, no violation of the three-term limit,
for Capco "was not elected to the office of the mayor in the first term but simply found himself thrust into it by operation of
law"39 when a permanent vacancy occurred in that office.
The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been elected for three
consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, in
January 2004, or during his second term, Montebon succeeded and assumed the position of vice-mayor of Tuburan when
the incumbent vice-mayor retired. When Montebon filed his certificate of candidacy again as municipal councilor, a
petition for disqualification was filed against him based on the three-term limit rule. The Court ruled that Montebons
assumption of office as vice-mayor in January 2004 was an interruption of his continuity of service as councilor. The Court
emphasized that succession in local government office is by operation of law and as such, it is an involuntary severance
from office. Since the law no less allowed Montebon to vacate his post as councilor in order to assume office as vicemayor, his occupation of the higher office cannot, without more, be deemed as a voluntary renunciation of his position as
councilor.
(2) Recall Election
With reference to the effects of recall election on the continuity of service, Adormeo v. Commission on Elections40 (2002)
and the aforementioned case of Socrates (2002) provide guidance.
In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during terms 1992-1995 and
1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao. However, before Tagaraos 1998-2001 term
ended, a recall election was conducted in May 2000 wherein Talaga won and served the unexpired term of Tagarao until
June 2001. When Talaga ran for mayor in 2001, his candidacy was challenged on the ground he had already served as
mayor for three consecutive terms for violation of the three term-limit rule. The Court held therein that the remainder of
Tagaraos term after the recall election during which Talaga served as mayor should not be considered for purposes of
applying the three-term limit rule. The Court emphasized that the continuity of Talagas mayorship was disrupted by his
defeat during the 1998 elections.
A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the COMELEC
Resolution which declared Edward Hagedorn qualified to run for mayor in a recall election. It appeared that Hagedorn had
been elected and served as mayor of Puerto Princesa City for three consecutive terms: in 1992-1995, 1995-1998 and
1998-2001. Obviously aware of the three-term limit principle, Hagedorn opted not to vie for the same mayoralty position in
the 2001 elections, in which Socrates ran and eventually won. However, midway into his term, Socrates faced recall
proceedings and in the recall election held, Hagedorn run for the formers unexpired term as mayor. Socrates sought
Hagedorns disqualification under the three-term limit rule.

In upholding Hagedorns candidacy to run in the recall election, the Court ruled:
x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of
September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During
the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of
Hagedorns service as mayor, not because of his voluntary renunciation, but because of a legal prohibition.41
The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end of the third
consecutive term and, hence, any subsequent election, like recall election, is no longer covered x x x."42
(3) Conversion of a Municipality into a City
On the other hand, the conversion of a municipality into a city does not constitute an interruption of the incumbent officials
continuity of service. The Court said so in Latasa v. Commission on Elections43 (2003).
Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of the Municipality of
Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third term, Digos was converted into a
component city, with the corresponding cityhood law providing the holdover of elective officials. When Latasa filed his
certificate of candidacy as mayor for the 2001 elections, the Court declared Latasa as disqualified to run as mayor of
Digos City for violation of the three-term limit rule on the basis of the following ratiocination:
This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the said office has been
deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also
assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped
down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never
ceased from discharging his duties and responsibilities as chief executive of Digos.
(Emphasis supplied.)
(4) Period of Preventive Suspension
In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a local elected official is
under preventive suspension cannot be considered as an interruption of the continuity of his service. The Court explained
why so:
Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an
interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a
term interruption because the suspended official continues to stay in office although he is barred from exercising the
functions and prerogatives of the office within the suspension period. The best indicator of the suspended officials
continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no
vacancy exists.44 (Emphasis supplied.)
(5) Election Protest
With regard to the effects of an election protest vis--vis the three-term limit rule, jurisprudence presents a more differing
picture. The Courts pronouncements in Lonzanida v. Commission on Elections45 (1999), Ong v. Alegre46 (2006), Rivera
III v. Commission on Elections47 (2007) and Dizon v. Commission on Elections48 (2009), all protest cases, are
illuminating.
In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio, Zambales in terms
1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to the 1995 election was protested and was
eventually declared by the RTC and then by COMELEC null and void on the ground of failure of elections. On February
27, 1998, or about three months before the May 1998 elections, Lonzanida vacated the mayoralty post in light of a
COMELEC order and writ of execution it issued. Lonzanidas opponent assumed office for the remainder of the term. In
the May 1998 elections, Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli, filed a petition for
disqualification on the ground that Lonzanida had already served three consecutive terms in the same post. The Court,
citing Borja Jr., reiterated the two (2) conditions which must concur for the three-term limit to apply: "1) that the official

concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully
served three consecutive terms."49
In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of Lonzanida. The Court held
that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections since his
assumption of office as mayor "cannot be deemed to have been by reason of a valid election but by reason of a void
proclamation." And as a corollary point, the Court stated that Lonzanida did not fully serve the 1995-1998 mayoral term
having been ordered to vacate his post before the expiration of the term, a situation which amounts to an involuntary
relinquishment of office.This Court deviated from the ruling in Lonzanida in Ong v. Alegre50 owing to a variance in the
factual situations attendant.
In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte for terms 1995-1998,
1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his supposed second term, the COMELEC
nullified Ongs proclamation on the postulate that Ong lost during the 1998 elections. However, the COMELECs decision
became final and executory on July 4, 2001, when Ong had fully served the 1998-2001 mayoralty term and was in fact
already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his
certificate of candidacy for the same position as mayor, which his opponent opposed for violation of the three-term limit
rule.
Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served as mayor from 19982001 because he was not duly elected to the post and merely assumed office as a "presumptive winner." Dismissing
Ongs argument, the Court held that his assumption of office as mayor for the term 1998-2001 constitutes "service for the
full term" and hence, should be counted for purposes of the three-term limit rule. The Court modified the conditions stated
in Lonzanida in the sense that Ongs service was deemed and counted as service for a full term because Ongs
proclamation was voided only after the expiry of the term. The Court noted that the COMELEC decision which declared
Ong as not having won the 1998 elections was "without practical and legal use and value" promulgated as it was after the
contested term has expired. The Court further reasoned:
Petitioner Francis Ongs contention that he was only a presumptive winner in the 1998 mayoralty derby as his
proclamation was under protest did not make him less than a duly elected mayor. His proclamation as the duly elected
mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions
thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term
rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that
Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless
electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an
election.51 (Emphasis supplied.)
The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit:
The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the
mayoralty election was declared a nullity for the stated reason of "failure of election", and, as a consequence thereof, the
proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of the continuity of service.52 (Emphasis supplied.)
Ongs slight departure from Lonzanida would later find reinforcement in the consolidated cases of Rivera III v.
Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor of Mabalacat, Pampanga for the
following consecutive terms: 1995-1998, 1998-2001 and 2001-2004. In relation to the 2004 elections, Morales again ran
as mayor of the same town, emerged as garnering the majority votes and was proclaimed elective mayor for term
commencing July 1, 2004 to June 30, 2007. A petition for quo warranto was later filed against Morales predicated on the
ground that he is ineligible to run for a "fourth" term, having served as mayor for three consecutive terms. In his answer,
Morales averred that his supposed 1998-2001 term cannot be considered against him, for, although he was proclaimed by
the Mabalacat board of canvassers as elected mayor vis--vis the 1998 elections and discharged the duties of mayor until
June 30, 2001, his proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony Dee,
proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that he only served as a mere caretaker.
The Court found Morales posture untenable and held that the case of Morales presents a factual milieu similar with Ong,
not with Lonzanida. For ease of reference, the proclamation of Francis Ong, in Ong, was nullified, but after he, like
Morales, had served the three-year term from the start to the end of the term. Hence, the Court concluded that Morales
exceeded the three-term limit rule, to wit:

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as
mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral
protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such
circumstance does not constitute an interruption in serving the full term.
xxxx
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break
since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12)
continuous years.55 (Emphasis supplied.)
The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term, cannot constitute an
interruption in Morales service of the full term; neither can Morales, as he argued, be considered merely a "caretaker of
the office" or a mere "de facto officer" for purposes of applying the three-term limit rule.
In a related 2009 case of Dizon v. Commission on Elections,56 the Court would again find the same Mayor Morales as
respondent in a disqualification proceeding when he ran again as a mayoralty candidate during the 2007 elections for a
term ending June 30, 2010. Having been unseated from his post by virtue of this Courts ruling in Rivera, Morales would
argue this time around that the three-term limit rule was no longer applicable as to his 2007 mayoralty bid. This time, the
Court ruled in his favor, holding that for purposes of the 2007 elections, the three-term limit rule was no longer a
disqualifying factor as against Morales. The Court wrote:
Our ruling in the Rivera case served as Morales involuntary severance from office with respect to the 2004-2007 term.
Involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of
continuity of service. Our decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately. The
next day, Morales notified the vice mayors office of our decision. The vice mayor assumed the office of the mayor from 17
May 2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short it may
seem to Dizon, interrupted Morales continuity of service. Thus, Morales did not hold office for the full term of 1 July 2004
to 30 June 2007.57 (Emphasis supplied)
To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of terms and/or
involuntary interruption, viz:
1. When a permanent vacancy occurs in an elective position and the official merely assumed the position pursuant to the
rules on succession under the LGC, then his service for the unexpired portion of the term of the replaced official cannot be
treated as one full term as contemplated under the subject constitutional and statutory provision that service cannot be
counted in the application of any term limit (Borja, Jr.). If the official runs again for the same position he held prior to his
assumption of the higher office, then his succession to said position is by operation of law and is considered an
involuntary severance or interruption (Montebon).
2. An elective official, who has served for three consecutive terms and who did not seek the elective position for what
could be his fourth term, but later won in a recall election, had an interruption in the continuity of the officials service. For,
he had become in the interim, i.e., from the end of the 3rd term up to the recall election, a private citizen (Adormeo and
Socrates).
3. The abolition of an elective local office due to the conversion of a municipality to a city does not, by itself, work to
interrupt the incumbent officials continuity of service (Latasa).
4. Preventive suspension is not a term-interrupting event as the elective officers continued stay and entitlement to the
office remain unaffected during the period of suspension, although he is barred from exercising the functions of his office
during this period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when he
loses in an election protest and is ousted from office, thus disenabling him from serving what would otherwise be the
unexpired portion of his term of office had the protest been dismissed (Lonzanida and Dizon). The break or interruption
need not be for a full term of three years or for the major part of the 3-year term; an interruption for any length of time,
provided the cause is involuntary, is sufficient to break the continuity of service (Socrates, citing Lonzanida).
6. When an official is defeated in an election protest and said decision becomes final after said official had served the full
term for said office, then his loss in the election contest does not constitute an interruption since he has managed to serve

the term from start to finish. His full service, despite the defeat, should be counted in the application of term limits because
the nullification of his proclamation came after the expiration of the term (Ong and Rivera).
The Case of Abundo
Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had already served three consecutive
terms and is, thus, barred by the constitutional three-term limit rule to run for the current 2010-2013 term. In gist, Abundo
arguments run thusly:
1. Aldovino, Jr. is not on all fours with the present case as the former dealt with preventive suspension which does not
interrupt the continuity of service of a term;
2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so as to remove him from the reach of the
constitutional three-term limitation;
3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its reliance on a mere portion of the Decision
and not on the unified logic in the disquisition;
4. Of appropriate governance in this case is the holding in Lonzanida58 and Rivera III v. Commission on Elections.59
5. The COMELEC missed the point when it ruled that there was no interruption in the service of Abundo since what he
considered as an "interruption" of his 2004-2007 term occurred before his term started; and
6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid was interrupted while that of
the protestant (Abundo) who was eventually proclaimed winner was not so interrupted is at once absurd as it is illogical.
Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr. finds application in the instant
case. The COMELEC ruled that Abundo did not lose title to the office as his victory in the protest case confirmed his
entitlement to said office and he was only unable to temporarily discharge the functions of the office during the pendency
of the election protest.
We note that this present case of Abundo deals with the effects of an election protest, for which the rulings in Lonzanida,
Ong, Rivera and Dizon appear to be more attuned than the case of Aldovino Jr., the interrupting effects of the imposition
of a preventive suspension being the very lis mota in the Aldovino, Jr. case. But just the same, We find that Abundos
case presents a different factual backdrop.
Unlike in the abovementioned election protest cases wherein the individuals subject of disqualification were candidates
who lost in the election protest and each declared loser during the elections, Abundo was the winner during the election
protest and was declared the rightful holder of the mayoralty post. Unlike Mayor Lonzanida and Mayor Morales, who were
both unseated toward the end of their respective terms, Abundo was the protestant who ousted his opponent and had
assumed the remainder of the term.
Notwithstanding, We still find this Courts pronouncements in the past as instructive, and consider several doctrines
established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino Jr. in 2009, as potent aids in arriving
at this Courts conclusion.
The intention behind the three-term limit rule was not only to abrogate the "monopolization of political power" and prevent
elected officials from breeding "proprietary interest in their position"60 but also to "enhance the peoples freedom of
choice."61 In the words of Justice Vicente V. Mendoza, "while people should be protected from the evils that a monopoly
of power may bring about, care should be taken that their freedom of choice is not unduly curtailed."62
In the present case, the Court finds Abundos case meritorious and declares that the two-year period during which his
opponent, Torres, was serving as mayor should be considered as an interruption, which effectively removed Abundos
case from the ambit of the three-term limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July 1, 2004 to June 30, 2007,
was the duly elected mayor. Otherwise how explain his victory in his election protest against Torres and his consequent
proclamation as duly elected mayor. Accordingly, the first requisite for the application of the disqualification rule based on
the three-term limit that the official has been elected is satisfied.
This thus brings us to the second requisite of whether or not Abundo had served for "three consecutive terms," as the
phrase is juridically understood, as mayor of Viga, Catanduanes immediately before the 2010 national and local elections.

Subsumed to this issue is of course the question of whether or not there was an effective involuntary interruption during
the three three-year periods, resulting in the disruption of the continuity of Abundos mayoralty.
The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007 term.
There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision of the election
protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and served the term until June 30, 2007 or
for a period of a little over one year and one month. Consequently, unlike Mayor Ong in Ong and Mayor Morales in
Rivera, it cannot be said that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise
entitled.
A "term," as defined in Appari v. Court of Appeals,63 means, in a legal sense, "a fixed and definite period of time which
the law describes that an officer may hold an office."64 It also means the "time during which the officer may claim to hold
office as a matter of right, and fixes the interval after which the several incumbents shall succeed one another."65 It is the
period of time during which a duly elected official has title to and can serve the functions of an elective office. From
paragraph (a) of Sec. 43, RA 7160,66 the term for local elected officials is three (3) years starting from noon of June 30 of
the first year of said term.
In the present case, during the period of one year and ten months, or from June 30, 2004 until May 8, 2006, Abundo
cannot plausibly claim, even if he wanted to, that he could hold office of the mayor as a matter of right. Neither can he
assert title to the same nor serve the functions of the said elective office. The reason is simple: during that period, title to
hold such office and the corresponding right to assume the functions thereof still belonged to his opponent, as proclaimed
election winner. Accordingly, Abundo actually held the office and exercised the functions as mayor only upon his
declaration, following the resolution of the protest, as duly elected candidate in the May 2004 elections or for only a little
over one year and one month. Consequently, since the legally contemplated full term for local elected officials is three (3)
years, it cannot be said that Abundo fully served the term 2004-2007. The reality on the ground is that Abundo actually
served less.
Needless to stress, the almost two-year period during which Abundos opponent actually served as Mayor is and ought to
be considered an involuntary interruption of Abundos continuity of service. An involuntary interrupted term, cannot, in the
context of the disqualification rule, be considered as one term for purposes of counting the three-term threshold.67
The notion of full service of three consecutive terms is related to the concepts of interruption of service and voluntary
renunciation of service. The word interruption means temporary cessation, intermission or suspension.68 To interrupt is to
obstruct, thwart or prevent.69 When the Constitution and the LGC of 1991 speak of interruption, the reference is to the
obstruction to the continuance of the service by the concerned elected official by effectively cutting short the service of a
term or giving a hiatus in the occupation of the elective office. On the other hand, the word "renunciation" connotes the
idea of waiver or abandonment of a known right. To renounce is to give up, abandon, decline or resign.70 Voluntary
renunciation of the office by an elective local official would thus mean to give up or abandon the title to the office and to
cut short the service of the term the concerned elected official is entitled to.
In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr.,71 held:
It must be stressed that involuntary interruption of service which jurisprudence deems an exception to the three-term limit
rule, implies that the service of the term has begun before it was interrupted. Here, the respondent did not lose title to the
office. As the assailed Resolution states:
In the case at bar, respondent cannot be said to have lost his title to the office. On the contrary, he actively sought
entitlement to the office when he lodged the election protest case. And respondent-appellants victory in the said case is a
final confirmation that he was validly elected for the mayoralty post of Viga, Catanduanes in 2004-2007. At most,
respondent-appellant was only unable to temporarily discharge the functions of the office to which he was validly elected
during the pendency of the election protest, but he never lost title to the said office.72 (Emphasis added.)
The COMELECs Second Division, on the other hand, pronounced that the actual length of service by the public official in
a given term is immaterial by reckoning said service for the term in the application of the three-term limit rule, thus:
As emphasized in the case of Aldovino, "this formulationno more than three consecutive termsis a clear command
suggesting the existence of an inflexible rule." Therefore we cannot subscribe to the argument that since respondent
Abundo served only a portion of the term, his 2004-2007 "term" should not be considered for purposes of the application
of the three term limit rule. When the framers of the Constitution drafted and incorporated the three term limit rule, it is
clear that reference is to the term, not the actual length of the service the public official may render. Therefore, ones
actual service of term no matter how long or how short is immaterial.73

In fine, the COMELEC ruled against Abundo on the theory that the length of the actual service of the term is immaterial in
his case as he was only temporarily unable to discharge his functions as mayor.
The COMELECs case disposition and its heavy reliance on Aldovino, Jr. do not commend themselves for concurrence.
The Court cannot simply find its way clear to understand the poll bodys determination that Abundo was only temporarily
unable to discharge his functions as mayor during the pendency of the election protest.
As previously stated, the declaration of being the winner in an election protest grants the local elected official the right to
serve the unexpired portion of the term. Verily, while he was declared winner in the protest for the mayoralty seat for the
2004-2007 term, Abundos full term has been substantially reduced by the actual service rendered by his opponent
(Torres). Hence, there was actual involuntary interruption in the term of Abundo and he cannot be considered to have
served the full 2004-2007 term.
This is what happened in the instant case. It cannot be overemphasized that pending the favorable resolution of his
election protest, Abundo was relegated to being an ordinary constituent since his opponent, as presumptive victor in the
2004 elections, was occupying the mayoralty seat. In other words, for almost two years or from July 1, 2004the start of
the termuntil May 9, 2006 or during which his opponent actually assumed the mayoralty office, Abundo was a private
citizen warming his heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to
serve the elective position from July 1, 2004, such declaration would not erase the fact that prior to the finality of the
election protest, Abundo did not serve in the mayors office and, in fact, had no legal right to said position.
Aldovino Jr. cannot possibly lend support to respondents cause of action, or to COMELECs resolution against Abundo.
In Aldovino Jr., the Court succinctly defines what temporary inability or disqualification to exercise the functions of an
elective office means, thus:
On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary,
should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least
an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions
of his office for a reason provided by law.74
We rule that the above pronouncement on preventive suspension does not apply to the instant case. Verily, it is erroneous
to say that Abundo merely was temporarily unable or disqualified to exercise the functions of an elective post. For one,
during the intervening period of almost two years, reckoned from the start of the 2004-2007 term, Abundo cannot be said
to have retained title to the mayoralty office as he was at that time not the duly proclaimed winner who would have the
legal right to assume and serve such elective office. For another, not having been declared winner yet, Abundo cannot be
said to have lost title to the office since one cannot plausibly lose a title which, in the first place, he did not have. Thus, for
all intents and purposes, even if the belated declaration in the election protest accords him title to the elective office from
the start of the term, Abundo was not entitled to the elective office until the election protest was finally resolved in his
favor.1wphi1
Consequently, there was a hiatus of almost two years, consisting of a break and effective interruption of his service, until
he assumed the office and served barely over a year of the remaining term. At this juncture, We observe the apparent
similarities of Mayor Abundos case with the cases of Mayor Talaga in Adormeo and Mayor Hagedorn in Socrates as
Mayors Talaga and Hagedorn were not proclaimed winners since they were non-candidates in the regularelections. They
were proclaimed winners during the recall elections and clearly were not able to fully serve the terms of the deposed
incumbent officials. Similar to their cases where the Court deemed their terms as involuntarily interrupted, Abundo also
became or was a private citizen during the period over which his opponent was serving as mayor. If in Lonzanida, the
Court ruled that there was interruption in Lonzanidas service because of his subsequent defeat in the election protest,
then with more reason, Abundos term for 2004-2007 should be declared interrupted since he was not proclaimed winner
after the 2004 elections and was able to assume the office and serve only for a little more than a year after winning the
protest.
As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest period during which the
local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit."75 Applying the said principle in the present case, there is no question
that during the pendency of the election protest, Abundo ceased from exercising power or authority over the good people
of Viga, Catanduanes.
Consequently, the period during which Abundo was not serving as mayor should be considered as a rest period or break
in his service because, as earlier stated, prior to the judgment in the election protest, it was Abundos opponent, Torres,
who was exercising such powers by virtue of the still then valid proclamation.

As a final note, We reiterate that Abundos case differs from other cases involving the effects of an election protest
because while Abundo was, in the final reckoning, the winning candidate, he was the one deprived of his right and
opportunity to serve his constituents. To a certain extent, Abundo was a victim of an imperfect election system. While
admittedly the Court does not possess the mandate to remedy such imperfections, the Constitution has clothed it with
enough authority to establish a fortress against the injustices it may bring.
In this regard, We find that a contrary ruling would work damage and cause grave injustice to Abundoan elected official
who was belatedly declared as the winner and assumed office for only a short period of the term. If in the cases of
Lonzanida and Dizon, this Court ruled in favor of a losing candidateor the person who was adjudged not legally entitled
to hold the contested public office but held it anywayWe find more reason to rule in favor of a winning candidateprotestant who, by popular vote, deserves title to the public office but whose opportunity to hold the same was halted by
an invalid proclamation.
Also, more than the injustice that may be committed against Abundo is the injustice that may likewise be committed
against the people of Viga, Catanduanes by depriving them of their right to choose their leaders. Like the framers of the
Constitution, We bear in mind that We "cannot arrogate unto ourselves the right to decide what the people want"76 and
hence, should, as much as possible, "allow the people to exercise their own sense of proportion and rely on their own
strength to curtail the power when it overreaches itself."77 For democracy draws strength from the choice the people
make which is the same choice We are likewise bound to protect.
WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8, 2012 Resolution of the
Commission on Elections Second Division and May 10, 2012 Resolution of the Commission on Elections en banc in EAC
(AE) No. A-25-2010 and the Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August
9, 2010, in Election Case No. 55, are hereby REVERSED and SET ASIDE.
Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga, Catanduanes to which he was
duly elected in the May 2010 elections and is accordingly ordered IMMEDIATELY REINSTATED to said position. Withal,
Emeterio M. Tarin and Cesar O. Cervantes are ordered to immediately vacate the positions of Mayor and Vice-Mayor of
Viga, Catanduanes, respectively, and shall revert to their original positions of Vice-Mayor and First Councilor,
respectively, upon receipt of this Decision.
The TRO issued by the Court on July 3, 2012 is hereby LIFTED.
This Decision is immediately executory.
SO ORDERED.

G.R. No. 207851

July 8, 2014

ANGEL G. NAVAL, Petitioner, vs. COMMISSION ON ELECTIONS and NELSON B. JULIA, Respondents.
DECISION
REYES, J.:
A politician thinks of the next election a statesman of the next generation. - James Freeman Clarke, American preacher
and author
The Case
A provincial board member cannot be elected and serve for more than three consecutive terms. But then, the Court is now
called upon to resolve the following questions. First.What are the consequences to the provincial board members
eligibility to run for the same elective position if the legislative district, which brought him orher to office to serve the first
two consecutive terms, be reapportioned in such a way that 8 out of its 10 town constituencies are carved out and
renamed as another district? Second. Is the provincial board members election to the same position for the third and
fourth time, but now in representation ofthe renamed district, a violation of the three-term limit rule?
Before the Court is a Petition for Certiorariwith an Urgent Prayer for the Issuance of a Temporary Restraining Order and a
Writ of Preliminary Injunction1 filed under Rule 64 of the Rules of Court to assail the following resolutions of the public
respondent Commission on Elections (COMELEC):
(a) Resolution2 (first assailed resolution) issued by the Second Division on March 5, 2013, in SPA No. 13-166 (DC),
granting the petition filed by Nelson B. Julia (Julia), seeking to cancel the Certificate of Candidacy 3 (COC) as Member of
the Sangguniang Panlalawiganof Camarines Sur (Sanggunian) of Angel G. Naval (Naval), who is allegedly violating the
three-term limit imposed upon elective local officials as provided for in Article X, Section 84of the 1987 Constitution, and
Section 43(b)5 of the Local Government Code (LGC); and
(b) En BancResolution6 (second assailed resolution) issued on June 5, 2013, denying Navals Motion for
Reconsideration7 to the Resolution dated March 5, 2013.
Antecedents
From 2004 to 2007 and 2007 to 2010, Naval had been elected and had served as a member of the Sanggunian, Second
District, Province of Camarines Sur.
8

On October 12, 2009, the President approved Republic Act (R.A.) No. 9716, which reapportioned the legislative districts
in Camarines Sur in the following manner:
[[reference - http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/july2014/207851.pdf]]
District

Before the Enactment of

R.A. No. 9716

After the Enactment of

R.A. No. 9716

1st

Libmanan, Minalabac,
Pamplona, Pasacao, San
Fernando, Del Gallego,
Ragay, Lupi, Sipocot,
Cabusao

Del Gallego, Ragay, Lupi,

Sipocot, Cabusao

2nd

Naga City, Pili, Ocampo,

Camaligan, Canaman,
Magarao, Bombon,
Calabanga,9 Gainza,
Milaor

Libmanan, Minalabac,
Pamplona, Pasacao, San
Fernando, Gainza, Milaor

3rd

Caramoan, Garchitorena,
Goa, Lagonoy, Presentacion,
Sangay, San Jose, Tigaon,
Tinambac, Siruma

Naga City, Pili, Ocampo,

Camaligan, Canaman,
Magarao, Bombon,
Calabanga

4th

Iriga City, Baao, Balatan,

Bato, Buhi, Bula, Nabua

Caramoan, Garchitorena,
Goa, Lagonoy,
Presentacion, Sangay, San
Jose, Tigaon, Tinambac,
Siruma

5th

Iriga City, Baao, Balatan, Bato,

Buhi, Bula, Nabua

Notably, 8 out of 10 towns were taken from the old Second District to form the present Third District. The present Second
District is composed of the two remaining towns, Gainza and Milaor, merged with five towns from the old First District.
In the 2010 elections, Naval once again won as among the members of the Sanggunian, Third District. He served until
2013.
In the 2013 elections, Naval ran anewand was re-elected as Member of the Sanggunian, Third District.
Julia was likewise a SanggunianMember candidate from the Third District in the 2013 elections. On October 29, 2012, he
invoked Section 7810 of the Omnibus Election Code (OEC) and filed beforethe COMELEC a Verified Petition to Deny Due
Course or to Cancel the Certificate of Candidacy11 of Naval. Julia posited that Naval had fully served the entire Province
of Camarines Sur for three consecutive terms as a member of the Sanggunian, irrespective of the district he had been
elected from. The three-term limit rules application is more with reference to the same local elective post, and not
necessarily in connection with an identical territorial jurisdiction. Allowing Naval to run as a Sanggunianmember for the
fourth time is violative of the inflexible three-term limit rule enshrined in the Constitution and the LGC, which must be
strictly construed.12
The Resolution of the COMELEC Second Division
In the first assailed resolution issued on March 5, 2013, the COMELEC Second Division cancelled Navals COC on
grounds stated below:
[W]hen a candidate for public office swears in his COC that he is eligible for the elective posts he seeks, while, in reality,
he knowingly lacks the necessary requirements for eligibility, he commits a false material misrepresentation cognizable
under Section 78 of the [OEC].
xxxx
The Supreme Court[,] in the case of Lonzanida v. [COMELEC][,] detailed the important components of[Article X, Section 8
of the Constitution]:
This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned
has been elected for three consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms.It stated:
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right
to serve in the same elective position.
Consequently, it is not enough that an individual has servedthree consecutive terms in an elective local office[;] he must
also have been electedto the same position for the same number of times before the disqualification can apply. x x x
x x x The first requisite does not only describe a candidate who has been elected for public office for three consecutive
terms. The candidate must have been elected in the samelocal government post. This connotes that the candidate must

have been inthe same elective position serving the same constituency who elected him to office for three consecutive
terms.
xxxx
The three-term limit rule was designed by the framers of the Constitution to prevent the monopoly of power centered only
on a chosen few. The said disqualification was primarily intended to forestall the accumulation of massive political power
by an elective local government official in a given locality in order to perpetuate his tenure in office. The framers also
considered the necessityof the enhancement of the freedom of choice of the electorate by broadening the selection of
would-be elective public officers. By rendering ineligible for public office those who have been elected and served for
three consecutive terms in the same public elective post, the prohibition seeks to infuse new blood in the political arena.
xxxx
x x x [T]he new Third District where [Naval] was elected and has served is composed of the same municipalities
comprising the previous Second District, absent the towns Gainza and [Milaor]. The territorial jurisdiction [Naval] seeks to
serve for the term 2013-2016 is the same as the territorial jurisdiction he previously served. The electorate who voted for
him in 2004, 2007 and 2010 isthe same electorate who shall vote for him come May 13, 2013 Elections. They are the
same group of voters who elected him into office for three consecutive terms.
The resolution of this Commission in the case of Bandillo, et al[.] v. Hernandez (SPA No. 10-078)13 cannot be applied
inthe case at bar. Hernandez who then hailed from Libmanan belonged to the First District of Camarines Sur. With
RepublicAct 9716, Libmanan, Minalabac, Pamplona, Pasacao and San Fernando, all originally belonging to the First
District, were merged with Gainza and Milaor to form the Second District. With the addition of the municipalities of Gainza
and Milaor, it cannot be said that the previous First District became the Second District only by name. The voters of
Gainza and Milaoradded to the electorate of the new Second District formed a different electorate, different from the one
which voted for Hernandez in the 2001, 2004 and 2007 elections. In the case at bar, the municipalities comprising the new
Third District are the same municipalities that consisted of the previous Second [District], absent Milaor and Gainza.
The Supreme Court, in Latasav. [COMELEC], ruled that the conversion of the municipality into a city did not convert the
office of the municipal mayor into a local government post different from the office of the city mayor[.]
x x x x14 (Citations omitted)
The Resolution of the COMELEC En Banc
In the second assailed resolution issued on June 5, 2013, the COMELEC en bancdenied Navals Motion for
Reconsideration to the above. The COMELEC pointed out thatabsent the verification required under Section 3, Rule 19 of
the COMELEC Rules of Procedure, Navals motion was instantly dismissible. Nonetheless, the COMELEC proceeded to
discuss the demerits of Navals motion, viz:
The conditions for the application of the three-term limit rule are present in the instant case as the records clearly
establish that [Naval] is running for the 4th time for the same government post. To put things in a proper perspective, it is
imperative to review and discuss the salient points in the case of Latasa v. [COMELEC]. The case involves the question of
whether or not a municipal mayor, having been elected and had already served for three (3) consecutive terms, canrun as
city mayor in light of the conversion of the municipality to a city. In applying the three-term limit rule, the Court pointed out
that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government
post different from the office of the city mayor. The Court took into account the following circumstances: (1) That the
territorial jurisdiction of [the] city was the same as that of the municipality; (2) That the inhabitants were the same group of
voters who elected the municipal mayor for three (3) consecutive terms; and (3) That the inhabitants were the same group
of voters [over] whom he held power and authority as their chief executive for nine years.
Anchoring from the said case, it is therefore clear that the position to which [Naval] has filed his candidacy for the 13 May
2013 x x x Elections is the same position for which he had been elected and had served for the past nine (9) years.
xxxx
x x x The following circumstances establish that the subject posts are one and the same: First, the territorial jurisdictions
of the two (2) districts are the same except for the municipalities of Gainza and Milaor which were excluded by R.A. No.

9716; Second, the inhabitants of the 3rd District of Camarines Sur, where [Naval] is presently running as member of the
[Sanggunian], are the same voters who elected him for the past three (3) consecutive terms; and Lastly, the inhabitants of
the [3rd ] District are the same group of voters whom [Naval] had served as member of the [Sanggunian] representing the
2nd District.
x x x The enactment of R.A. No. 9716 did not convert [Navals] post [into one] different from [w]hat he [previously had]. As
correctly ruled by the Commission (Second Division), [Naval] ha[d] already been elected and ha[d] already served inthe
same government post for three consecutive terms, x x x[.]
x x x x.15 (Citations omitted)
Unperturbed, Naval is now before the Court raising the issues of whether or not the COMELEC gravely erred and ruled
contrary to law and jurisprudence:
I. IN FINDING THAT NAVAL HAD ALREADY SERVED FOR THREE CONSECUTIVE TERMS IN THE SAME
GOVERNMENT POST;16
II. IN IGNORING THE FACT THAT SANGGUNIAN MEMBERS ARE ELECTED BY LEGISLATIVE DISTRICTS; 17and
III. WHEN IT RULED THAT THE PROHIBITION CONTEMPLATED BY SECTION 8, ARTICLE X OF THE 1987
CONSTITUTION AND SECTION 43(B) OF THE LGC APPLIES TO NAVAL. 18
The Arguments of the Contending Parties
In support of the instant petition, Naval alleges that the First, Second and Third Legislative Districts of Camarines Sur are
not merely renamed but are composed of new sets of municipalities. With the separation of Gainza and Milaor from the
other eight towns which used to comprise the Second District, the voters from the Third Legislative District are no longer
the same ones as those who had elected him to office in the 2004 and 2007 elections.
Naval further invokes Article 9419 of Administrative Order No. 270 prescribing the Implementing Rules and Regulations of
the LGC to argue that Sanggunianmembers are elected by districts. Thus, the right to choose representatives in the
Sanggunianpertains to each of the districts. Naval was elected as Sanggunian member in 2004 and 2007 by the Second
District. In 2010 and 2013, it was the Third District, which brought him to office. Essentially then, Navals election in 2013
is merely his second term as Sanggunianmember for the Third District.
Naval likewise cites Borja, Jr. v. COMELEC20 to point out that for the disqualification on the ground of the three-term limit
to apply, it is not enough that an individual has served three consecutive terms in an elective local office, but it is also
required that he or she had been elected to the same position for the same number of times. 21
Naval also assails as erroneous the COMELECs interpretations of the rulings in Latasa v. COMELEC22 and Bandillo, et
al. v. Hernandez.23 In Latasa, the Court applied the three-term prohibition only because notwithstanding the conversion of
the Municipality of Digos into a city, the mayor was to serve the same territorialjurisdiction and constituents. Naval asserts
that the same does not hold true in his case. Naval further avers that in Bandillo, which finds more application in the
instant petition, the COMELEC ruled that the three-term limit cannot be invoked in a situation where the legislative districts
have been altered. An extraction or an addition both yields a change inthe composition of the voters.
Naval further emphasizes that he garnered the majority of the votes from his constituents, whose will and mandate should
be upheld. Besides, Julias counsel already withdrew his appearance, indicating no less than his clients lack of interest in
still pursuing Navals ouster from office.24
In its Comment,25 the Office of the Solicitor General (OSG) seeks the denial of the instant petition. The OSG contends that
Naval had been elected and had fully served the same local elective post for three consecutive terms. Naval thus
violatedSection 78 of the OEC when he filed his COC despite knowledge of his ineligibility. Navals reliance on Bandillo is
also misplaced since in the said case, two towns were instead added to form a new district. Apparently then, in Bandillo,
there was a new set of voters. The OSG also alleges that Naval is not entitled to the issuance of injunctive reliefs by this
Court. No clear and unmistakable right pertains to Naval and it is his eligibility to be elected as Sanggunianmember for the
Third District which is the issue at hand.
Ruling of the Court

The Court denies the petition.

As the issues are interrelated, they shall be discussed jointly.
The case before this Court is one of first impression. While the contending parties cite Latasa, Lonzanida v.
26
27
COMELEC, Borja,Aldovino, Jr. v. COMELEC, and Bandillo, which all involve the application of the three-term limit rule,
the factual and legal circumstances in those cases are different and the doctrinal values therein do not directly address
the issues now at hand.
In Latasa, the issue arose as a result of the conversion of a municipality into a city. The then municipal mayor attempted
to evade the application upon him of the three-term limit rule by arguing that the position of a city mayor was not the same
as the one he previously held. The Court was not convinced and, thus, declared that there was no interruption of the
incumbent mayors continuity of service.
In Lonzanida, a candidate ran for the mayoralty post and won in three consecutive elections. While serving his third term,
his opponent filed an election protest. Months before the expiration of the mayors third term, he was ousted from office.
He ran again for the same post in the immediately succeeding election. A petition was thereafter filed assailing his
eligibility to run as mayor on the ground of violation of the three-term limit rule. The Court ruled that the mayor could not
beconsidered as having served a full third term. An interruption for any length of time, if due to an involuntary cause, is
enough to break the elected officials continuity of service.
In Borja, the mayor of Pateros died and was succeeded in office by the vice mayor. In the two immediately succeeding
elections, the latter vied for and won the mayoralty post. When he ran for the same position for the third time, his
disqualification was sought for alleged violation of the three-term limit rule. The Court ruled that whenhe assumed the
position of mayor by virtue of succession, his service should not be treated as one full term. For the disqualification to
apply, the candidate should have been thrice elected for and had served the same post consecutively. In Aldovino,
preventive suspension was imposed upon an elected municipal councilor. The Court ruled that the said suspension did
not interrupt the elective officials term. Although hewas barred from exercising the functions of the position during the
period of suspension, his continued stay and entitlement tothe office remain unaffected.
In Bandillo, a case decided by the COMELEC, Gainza and Milaor were added to five of the ten towns, which used to
comprise Camarines Surs old First District, to form the new Second District. The COMELEC declined to apply the threeterm limit rule against the elected Provincial Board member on the ground that the addition of Gainza and Milaor
distinctively created a new district, with an altered territory and constituency.
In the case before this Court, the task is to determine the application of the three-term limit rule upon local elective officials
in renamed and/or reapportioned districts. In the process of doing so, it is inevitable to discuss the role of elections and
the nature of public office in a democratic and republican state like ours.
The Role of Elections in our
Democratic and Republican State,
and the Restraints Imposed Upon
Those Who Hold Public Office
The Court begins with general and undeniable principles.
The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them.28
Then Associate Justice Reynato S. Puno explained the character of a republican state and a public office, viz: A republic
is a representative government, a government run by and for the people. It is not a pure democracy where the people
govern themselves directly. The essence of republicanism is representation and renovation, the selection by the citizenry
of a corps of public functionaries who derive their mandate from the people and act on their behalf, serving for a limited
period only, after which they are replaced or retained, at the option of their principal. Obviously, a republican government
is a responsiblegovernment whose officials hold and discharge their position as a public trust and shall, according to the
Constitution, at all times be accountable to the people they are sworn to serve. The purpose of a republican government

it is almost needless to state, is the promotion of the common welfare according to the will of the people
themselves.29 (Emphasis ours and italics in the original)
30

In Tolentino v. COMELEC, Justice Puno likewise characterized the role of the electoral process in the following wise:
The electoral process is one of the linchpins of a democratic and republican framework because it isthrough the act of
voting that government by consent is secured. Through the ballot, people express their will on the defining issues of the
day and they are able to choose their leaders in accordance with the fundamental principle of representative democracy
that the people should elect whom they please to govern them. Voting has an important instrumental value in preserving
the viability of constitutional democracy. It has traditionally been taken as a prime indicator of democratic
participation.31 (Citations omitted and italics ours)
The importance of elections cannottherefore be over emphasized. Thus,
True, election is the expression ofthe sovereign power of the people. In the exercise of suffrage, a free people expects to
achieve the continuity of government and the perpetuation of its benefits. However, inspite of its importance, the privileges
32
and rights arising from having been elected may be enlarged or restricted by law. x x x. (Italics ours)
Hence, while it is settled that in elections, the first consideration of every democratic polity is to give effect to the
33
expressed will of the majority, there are limitations tobeing elected to a public office. Our Constitution and statutes are
explicit anent the existence of term limits, the nature of public office, and the guarantee from the State that citizens shall
have equal access to public service.34 Section 8, Article X of our Constitution, on term limits, is significantly reiterated by
Section 43(b) of the LGC. Moreover, the Court has time and again declared that a public office is a public trust and not a
vested property right.35
The Deliberations of the Members
of the Constitutional Commission
on the Three-Term Limits
Application to Local Elective
Officials
Following are entries in the Journal of the Constitutional Commission regarding the exchanges of the members on the
subject of the three-term limit rule imposed on local elective officials: VOTING ON THE TERMS OF LOCAL OFFICIALS
With respect to local officials, Mr. Nolledo, informed that the Committee on Local Governments had not decided on the
term of office for local officials and suggested that the Body decide on the matter.
xxxx
On Mr. Bacanis inquiry regarding localofficials, Mr. Davide explained that local officials would includethe governor, vicegovernor and the members of the provincial board; the city mayor, city vice-mayor and members of the city board; and the
municipal mayor, municipal vice mayor and members of the municipal council. He stated that barangay officials would be
governed by speciallaw, to which Mr. Nolledo agreed.
xxxx
MOTION TO VOTE ON THE PROPOSALS RELATIVE TO ALTERNATIVE NO. 3
In reply to Mr. Guingonas query onwhether the Committee had decided on the interpretation of "two reelections", Mr.
Davide suggested that the matter be submitted to a vote.
Thereupon, Mr. Romulo moved for a vote on whether Alternative No. 3 as proposed by Mr. Garcia, would allow a local
official three terms, after which he would not be allowed to seek any reelection; or whether, as interpreted by Mr. Davide,

it would mean that after two successive reelections or a consecutive periodof nine years, he could run for reelection after
the lapse of three years.
xxxx
RESTATEMENT OF THE PROPOSALS
Mr. Garcia reiterated that the local officials could be reelected twice, after which, they would be barred from ever
runningfor reelection.
On the other proposal, Mr. Davide, on behalf ofthe Committee, stated that local officials after two reelections would be
allowed to run for reelection after the lapse of three years.
xxxx
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulomanifested that the Body would proceed to the consideration of two issues on
the term of Representatives and local officials, namely: 1) Alternative No. 1 (no further reelection after a total of three
terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms).
SPONSORSHIP REMARKS OF MR. GARCIA ON ALTERNATIVE NO. 1
Mr. Garcia stated that he was advocating Alternative No. 1 on four grounds: 1) to prevent monopoly of political power
because the countrys history showed that prolonged stay in public office could lead to the creation of entrenched
preservesof political dynasties; 2) to broaden the choiceso that more people could be enlisted to the cause of public
service; 3) no one is indispensable in running the affairs of the countryand that reliance on personalities would be
avoided; and 4) the disqualification from running for reelection after three terms would create a reserve of statesmen both
in the local and national levels.
He added that the turnover in public office after nine years would ensure the introduction of new ideas and approaches.
He stressed that public office would no longer be a preserve of conservatism and tradition, and that public service would
no longer be limited to those directly holding public office, but would also include consultative bodiesorganized by the
people. INQUIRY OF MR. REGALADO
In reply to Mr. Regalados query whether the three terms need not be served consecutively, Mr. Garcia answered in the
affirmative.
SPONSORSHIP REMARKS OF MR. MONSOD ON ALTERNATIVE NO. 2
Mr. Monsod stated that while the new Constitution would recognize people power because of a new awareness, a new
kind of voter and a new kind of Filipino, at the same time, it pre-screens the candidates among whom the people would
choose by barring those who would have served for nine years from being reelected. He opined that this would actually
require an additional qualification for office to a certain number of people.
He stressed that, while the stand of the Commission is to create a reserve of statesmen, their future participation is
actually limited to some areas and only for a certain periodof time. He added thatit is not for the Commission to decide on
the future of our countrymen who may have more years ahead of them to serve the country.
xxxx
INQUIRY OF MR. OPLE
xxxx
Thereupon, speaking in support of Mr. Monsods manifestation, Mr. Ople expressed apprehension over the Bodys
exercise of some sort of omnipotent power in disqualifying those who will have served their tasks. He opined that the
Commission had already taken steps to prevent the accumulation of powers and prequisites that would permit officials to

stay on indefinitely and to transfer them to members of their families. He opined, however, that perpetual disqualification
would deprive the people of their freedom of choice.He stated that the Body had already succeeded in striking a balance
onpolicies which could ensure a redistribution of opportunities to the people both in terms of political and economic power.
He stated that Philippine politics had been unshackled from the two-party system, which he said was the most critical
support for the perpetuation of political dynasties. Considering that such achievement is already a victory, Mr. Ople stated
that the role of political parties should not be despised because the strength of democracy depends on how strong
political parties are, that a splintering thereof will mean a great loss to the vitality and resiliency of democracy.
Mr. Ople reiterated that he was against perpetual disqualification from office.
x x x x.
MR. GARCIAS RESPONSE TOMR. OPLES STATEMENTS
Mr. Garcia stated that there are two principles involved in Alternative No. 1: 1) the recognition of the ambivalent nature of
political power, and 2) the recognition of alternative forms of public service. He stated that it is important to remember the
lessons learned from the recent past; that public service is service to the people and not an opportunity to accumulate
political power, and that a prolonged stay in public office brings about political dynasties or vested interests. Regarding
political parties, he stated that it will encourage the constant renewal of blood in party leadership, approach, style and
ideas. He opined that this is very healthy for a pluralist and multi-party democracy.
On the recognition of alternative forms of public service, Mr. Garcia stressed that public service could be limited to public
office since many good leaders who were in the streets and in jail fought against the dictatorship. He stressed that public
service would also mean belonging to consultative bodies or peoples councils which brought about new forms of service
and leadership.
REMARKS OF MR. ABUBAKAR
Mr. Abubakar stated that in any democracy the voice of the people is the voice of God.He stated that if the people want to
elect a representative to serve them continuously, the Commission should not arrogate unto itself the right to decide what
the people want. He stated that in the United States, a Senator had served for 30 years.
xxxx
REMARKS OF MS. AQUINO
Ms. Aquino stated that she differs from the views advanced by Mr. Garcia and Ms. Tan, although she stated that they
spoke of the same premises. She stated that she agrees with them that leaders need not be projected and developed
publicly in an election as leaders are better tempered and tested in the various forms of mass struggles and organized
work. She stated that if the people are to be encouraged to have their own sense of responsibility in national leadership,
what ultimately matters is the political determination of the citizenry to chart their own national destiny. She opined that the
Body should allow the people to exercise their own sense of proportion and imbibe the salutary effects of their own
strength to curtail power when it overreaches itself. She stressed that in the final analysis,the Commission cannot legislate
into the Constitution the essence of new politics as it is a chastening experience of learning and unlearning. Adverting to
Mr. Garcias statement that politics is an imperfect art, she stated that the Commission could correct politics with all its
imperfections and flaws by a constitutional provision. She opined that perpetual disqualification cannot provide the cure.
She maintained that perpetual disqualification is, at best, a palliative which could also be counter-productive, in the sense
that it could effectively foil the possibilities of realpublic service.
REMARKS OF MR. BACANI
Mr. Bacani stated that when the Body granted the illiterates the right to vote and that proposals were made to empower
the people to engage in the legislative process,the Body presupposed the political maturity of the people. He observed
that in this instance, political maturity is denied with the constitutional bar for reelection.He opined that the Body should
stick to the premise that the people are politically mature.
REJOINDER OF MR. GARCIA

By way of rejoinder to Mr. Bacanis statements,Mr. Garcia stated that the proposal was basically premisedon the undue
advantage of the incumbent in accumulating power, money, party machine and patronage and not on lack of trust in the
people.
Mr. Garcia stated that politics isnot won by ideals alone but by solid organized work by organizations. He stated that with
three terms, an official would have served the people long enough.
xxxx
VOTING ON THE TWO ALTERNATIVES
Thereafter, the Body proceeded to vote by ballot on the two alternatives.
xxxx
RESULT OF THE VOTING
The result of the voting was as follows:
Alternative No. 1 (no further election after three successive terms) 17 votes
Alternative No. 2 (no immediate reelection after three successive terms) 26 votes
With 17 votes in favor of Alternative No. 1 and 26 in favor of Alternative No. 2, the Chair declared Alternative No. 2
approved by the Body.36 (Emphasis and italics ours)
The Constitution mandates the
strict implementation of the
three-term limit rule.
The Court notes that in the process of drafting the Constitution, the framers thereof had not discussed with specifity the
subject of the three-term limit rules application on reapportioned districts.
From the above-cited deliberations, however, the divergent stances of the members of the Constitutional Commission on
the general application of the three-term limit rule show. On one side were those who espoused the stern view that
perpetual disqualification to hold public office after three consecutive terms would ensure that new blood would be infused
into our political system. More choices for the voters would give fuller meaning to our democratic institutions. On the other
side of the fence were those who believed that the imposition of termlimits would be tantamount to squandering the
experience of seasoned public servants and a curtailment of the power of the citizens to elect whoever they want to
remain in office.
In the end, 26 members of the Commission cast their votes in favor of the proposal that no immediate re-election after
three successive terms shall be allowed. On the other hand, 17 members stood pat on their view that there should be no
further reelection after three successive terms.
Clearly, the drafters of our Constitution are in agreement about the possible attendant evils if there would be no limit to reelection. Notwithstanding their conflicting preferences on whether the term limit would disqualify the elected official
perpetually or temporarily, they decided that only three consecutive elections tothe same position would be allowed.
Thereafter, the public official can once again vie for the same post provided there be a gap of at least one term from his or
her last election. The rule answers the need to prevent the consolidation of political power in the hands of the few, while at
the same time giving to the people the freedom to call back to public service those who are worthy to be called statesmen.
The compromise agreed upon by the drafters of our Constitution was a result of exhaustive deliberations. The required
gap after three consecutive elections is significant. Thus, the rulecannot be taken with a grain of salt. Nothing less than its
strict application is called for.

Ratio legis est anima.37

"A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration.Thus, it
has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
38
calculated to effect that purpose." In Aldovino, the Court describes the three-term limit rule as inflexible.
In Aldovino, a local elective official pleaded exemption from the application of the three-term limit on the ground that there
was an interruption in his service after the penalty of suspension was imposed upon him. Although not in all four
withNavals case, there are principles enunciated therein which undeniably hold true, viz:
As worded, the constitutional provision fixes the term of a local elective office and limits an elective officials stay in office
to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X.
Significantly, this provision refers to a "term" as a period of time three years during which an official has title to office
and can serve. x x x[.]
xxxx
The "limitation" under this first branch of the provision is expressed in the negative"no such official shall serve for more
than three consecutive terms." This formulationno more than three consecutive termsis a clear command suggesting
the existence of an inflexible rule. x x x.
xxxx
This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation
impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be
strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. x x x.
xxxx
x x x [T]he Court signalled how zealously it guards the three-term limit rule. Effectively, these cases teach usto strictly
interpret the term limitation rule in favor of limitation rather than its exception.
xxxx
[In] Latasa v. Commission on Electionsx x x[,] [t]he Court said:
This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged stay in the same office. x x x.
xxxx
To put it differently although at the risk of repetition, Section 8, Article Xboth by structure and substancefixes an
elective officials term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed,
no less, by citing voluntary renunciation as an example of a circumvention. x x x. 39 (Citations omitted, italics and emphasis
in the original and underscoring ours)
Reapportionment and its Basis
Reapportionment is "the realignment orchange in legislative districts brought about by changes in population and
mandated by the constitutional requirement of equality of representation."40 The aim of legislative apportionment is to
equalize population and voting power among districts.41 The basis for districting shall be the number of the inhabitants of a
city or a province and not the number of registered voters therein.42

R.A. No. 9716 and the Reapportioned Districts of Camarines Sur

Sections 1 to 3 of R.A. No. 9716 provide:
Section 1. The composition of the current First (1st) and Second (2nd) Legislative Districts in the Province of Camarines
Sur is hereby reapportioned in order to create an additional legislative districtto commence in the next national elections
after the effectivity of this Act.
Section 2. In furtherance of the reapportionment mandated by this Act, the municipalities of Libmanan, Minalabac,
Pamplona, Pasacao and San Fernando of the current First (1st) Legislative District are hereby consolidated with the
municipalities of Gainza and Milaor of the current Second (2nd) Legislative District, to comprise the new legislative district
authorized under this Act.
Section 3. The result of the reapportionment described in this Act are summarized as follows:
a) First District The remaining municipalities in the current First (1st) Legislative District shall continue to be designated
as the First (1st) Legislative District, composed of the following municipalities: Del Gallego, Ragay, Lupi, Sipicot and
Cabusao;
b) Second District This new legislative districtshall be composed of the municipalities enumerated in Section 2 hereof;
c) Third District The current Second (2nd) Legislative District shall be renamedas the Third (3rd) Legislative District,
composed of the following: Naga City and the municipalities of Pili, Ocampo, Camaligan, Canaman, Magarao, Bombon
and Calabanga;
d) Fourth District The current Third (3rd) Legislative District, without any change in its composition, shall be renamedas
the Fourth (4th) Legislative District, composed of the following municipalities: Caramoan, Garchitorena, Goa, Lagonoy,
Presentacion, Sangay, San Jose, Tigaon, Tinambac and Siruma; and
e) Fifth District The current Fourth (4th) Legislative District, without any change inits composition, shall be renamedas
the Fifth (5th) Legislative District, composed of the following: Iriga City and the municipalities of Baao, Balatan, Bato, Buhi,
Bula and Nabua. (Italics and emphasis ours)
As a result of the reapportionment made by R.A. No. 9716, the old Second District of Camarines Sur, minus only the two
towns of Gainza and Milaor, is renamed as the Third District and now configured as follows: 43
[[reference - http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/july2014/207851.pdf]]
Before the Enactment of
RA 9716

After the Enactment of

RA 9716

2
nd
District
Population: 474,899
Gainza
Milaor
Naga
Pili
Ocampo
Canaman
Camaligan
Magarao
Bombon
Calabanga

3rd District
Population: 439,043
Naga
Pili
Ocampo
Canaman
Camaligan
Magarao
Bombon
Calabanga

R.A. No. 9716 created a new Second

District, but it merely renamed the
other four.
The Court notes that after the reapportionment of the districts in Camarines Sur, the current Third District, which brought
Naval to office in 2010 and 2013, has a population of 35,856 less than that of the old Second District, which elected him in
2004 and 2007. However, the wordings of R.A. No. 9716 indicate the intent of the lawmakers to create a single new
Second District from the merger of the towns from the old First District with Gainza and Milaor. As to the current Third
District, Section 3(c) of R.A. No. 9716 used the word "rename." Although the qualifier "without a change in its
composition" was not found in Section 3(c), unlike in Sections 3(d) and (e), still, what is pervasive isthe clear intent to
create a sole new district in that of the Second, while merely renaming the rest.
The following statutory construction rules surface:
First, the general rule in construing words and phrases used in a statute is that, in the absence of legislative intent to the
contrary, they should be given their plain, ordinary and common usage meaning; the words should be read and
considered intheir natural, ordinary, commonly accepted usage, and without resorting to forced or subtle construction.
Words are presumed to have been employed by the lawmaker in their ordinary and common use and acceptation.
Second, a word of general significance ina statute is to be taken in its ordinary and comprehensive sense, unless it is
shown that the word is intended to be given a different or restricted meaning; what is generally spoken shall be generally
understood and general words shall be understood in a general sense.44 (Citations omitted)
The Court looks to the language of the document itself in our search for its meaning.45
In Navals case, the words of R.A.No. 9716 plainly state that the new Second Districtis to be created, but the Third
Districtis to be renamed. Verba legis non est recedendum. The terms used in a legal provision to be construed compels
acceptanceand negates the power of the courts to alter it, based on the postulate that the framers mean what they say. 46
The verb createmeans to "make or produce something new."47 On the other hand, the verb renamemeans to "give a new
name to someone or something."48 A complete reading of R.A. No. 9716 yields no logical conclusion other than that the
lawmakers intended the old Second District to be merely renamed as the current Third District.
It likewise bears noting that the actual difference in the population of the old Second District from that of the current Third
District amounts to less than 10% of the population of the latter. This numericalfact renders the new Third District as
essentially, although not literally, the same as the old Second District. Hence, while Naval is correct in his argument that
Sanggunianmembers are elected by district, it does not alter the fact that the district which elected him for the third and
fourth time is the same one which brought him to office in 2004 and 2007.
The application upon Naval of the
three-term limit rule does not
undermine the constitutional
requirement to achieve equality of
representation among districts.
The rationale behind reapportionment is the constitutional requirement to achieve equality ofrepresentation among the
49
districts. It is with this mindset that the Court should consider Navals argument anent having a new set of constituents
electing him into office in 2010 and 2013.
Navals ineligibility to run, by reason of violation of the three-term limit rule, does not undermine the right toequal
representation of any of the districts in Camarines Sur. With or without him, the renamed Third District, which he labels as
a new set of constituents, would still be represented, albeit by another eligible person.

The presumed competence of the

COMELEC to resolve matters
falling within its jurisdiction is
upheld.
"Time and again, the Court has held that a petition for certiorariagainst actions of the COMELEC is confined only to
instances of grave abuse of discretion amounting to patent and substantial denial of due process, because the COMELEC
50
is presumed to be most competent in matters falling within its domain."
"In a special civil action for certiorari, the burden rests on the petitioner to prove not merelyreversible error, but grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent issuing the impugned
order, decision or resolution."51 "Grave abuse of discretion arises when a court or tribunal violates the Constitution, the
52
law or existing jurisprudence."
In the case at bar, the Court finds the COMELECs disquisitions to be amply supported by the Constitution,law and
jurisprudence.
Conclusion
In sum, the Court finds no compelling reason to grant the reliefs prayed for by Naval. For the Court to declare otherwise
would be to create a dangerous precedent unintended by the drafters of our Constitution and of R.A. No. 9716.
Considering that the one-term gap or rest after three consecutive elections is a result of a compromise among the
members of the Constitutional Commission, no cavalier exemptions or exceptions to its application is to be allowed.
Aldovinoaffirms this interpretation. Further, sustaining Navals arguments would practically allow him to hold the same
office for 15 years. These are the circumstances the Constitution explicitly intends to avert.
Certainly, the Court accords primacy to upholding the will of the voting public, the real sovereign, soto speak. However, let
all the candidates for public office be reminded that as citizens, we have a commitment to be bound by our Constitution
and laws. Side by side our privileges as citizens are restrictions too.
Einer Elhauge, a faculty member from Harvard Law School, wrote an article entitled "What Term Limits Do That Ordinary
Voting Cannot."53 In the article, Greek mythology was tapped to make a tempting analogy. The gist of the story follows.
In Odyssey Book XII, the goddess Circe warned Odysseus of the Sirens who seduce all men approaching them with their
voices. Those who fell into the Sirens trap never returnedhome to their wives and children. A clever strategy was thus
hatched to secure safe passage for Odysseus and his men. The men were to plug their ears with wax to muffle the songs
of the Sirens. Odysseus, on the other hand, was to be tied to the mast of the ship so he could still listen to the songs,
which may contain clues on how they can get home. When the wind died down,Odysseus heard beautiful voices calling
out to them. The voices were incomparable to anything he had ever heard before. Even whenOdysseus knew that the
irresistible voices were coming from the Sirens, he struggled with all his strength to free himself from the ropes, but was
unable to do so. The voices became fainter as the men continued to row. When the voices can no longer be heard,
Odysseus realized how he had nearly been beguiled. They had made it through safely and Odysseus was untied. It was
54
their clever plan which kept them all alive.
The same lesson holds true in the case before this Court. The drafters of the Constitution recognized the propensity of
public officers to perpetuate themselves in power, hence, the adoption of term limits and a guarantee of every citizen's
equal access to public service. These are the restrictions statesmen should observe for they are intended to help ensure
the continued vitality of our republican institutions.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED. The Resolutions dated March 5, 2013 and June
5, 2013 of the Commission on Elections in SPA No. 13-166 (DC) are AFFIRMED.
SO ORDERED.

D. Vacancies and Succession

G.R. No. 102948

February 2, 1994

JAIME T. PANIS, petitioner, vs. CIVIL SERVICE COMMISSION and BELLA V. VELOSO, respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section 7 of Article IX (A) of the
Constitution, to nullify Resolution No. 90-1047 dated November 22, 1990 and Resolution No. 91-1100 dated September
24, 1991, of the Civil Service Commission. The first Resolution dismissed petitioner's appeal from the decision of the
Regional Office of the Civil Service Commission, and at the same time, upheld the appointment of respondent Bella V.
Veloso to the position of Assistant Chief of Hospital for Administration of the Cebu City Medical Center (CCMC). The
second Resolution denied the motion for reconsideration of the decision.
I.
The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local government of Cebu City.
Petitioner was employed as Administrative Officer of the Hospital, while private respondent was Administrative Officer of
the City Health Department detailed at the said hospital.
On November 9, 1987, the Mayor of Cebu City appointed private respondent to the position of Assistant Chief of Hospital
for Administration of CCMC. Petitioner, a candidate for the said position, promptly protested the appointment before the
Regional Office of the Civil Service Commission (CSC). The CSC Regional Office, however, indorsed the matter to the
Office of the City Mayor, which in turn referred it to the Office of the City Attorney.
In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor, dismissed petitioner's protest and
upheld the appointment of private respondent. This dismissal was affirmed by the CSC Regional Office and later on
appeal, by respondent CSC. Hence, the present petition.
II.
Petitioner contends that the appointment of private respondent was made in violation of law, existing civil service rules
and established jurisprudence because (1) the position of Assistant Chief of Hospital for Administration was not legally
created; (2) assuming that it was, there was no qualification standard nor valid screening procedure; and (3) the seniority
and next-in-rank rules were disregarded.
III.
The petition is not impressed with merit.
Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June 17, 1986, amended the charter of the
Cebu City Hospital for the purpose of correcting the deficiencies and improving the performance of said institution. The
hospital's name was changed to CCMC, and the departments and offices therein were reorganized. The Office of Hospital
Administrator was created and granted such powers as were deemed in line with the objectives of the Ordinance.
On March 6, 1987, the City Mayor appointed private respondent to the position of Hospital Administrator. This
appointment was, however, not acted upon by the CSC but returned to the appointing authority on October 21, 1987 for
lack of the screening requirement. On even date, the City Mayor withdrew private respondent's appointment. The title of
Hospital Administrator was later found to be a misnomer and thus was properly classified by the Joint Commission on
Local Government Personnel Administration as one of Assistant Chief of Hospital for Administration. This classification
was subsequently approved by the Department of Budget Management.
The position of Assistant Chief of Hospital for Administration is the very same position of Hospital Administrator created by
Ordinance No. 1216. The Office of Hospital Administrator was not extinguished, but the designation thereof merely
corrected to reflect the proper classification of the position under existing rules (Rollo, pp. 78-80). The Office of Assistant
Chief of Hospital for Administration therefore was created and existed in accordance with law.
As a result of the reclassification, candidates to the position, among whom were petitioner and private respondent, were
notified by the Personnel Selection Board (Board) of the screening scheduled on October 22, 1987. The notice sent
petitioner at 9:30 A.M. may have been "too close for comfort to the 10:00 schedule," but the screening was actually reset

to the following day, October 23, 1987. Petitioner however never appeared before the Board. Neither did he appear,
despite due notice, at the final selection process on November 5, 1987.
The fact that private respondent was actually screened and interviewed by the Board does not mean that her appointment
was a fait accompli. The screening was just a stage in the appointment process.
Private respondent and petitioner are college degree holders with three units in Public Administration and three years
experience in Hospital Administration or Health Administration. Indeed, both candidates possess the minimum
qualifications for the position. The determination, however, who among the qualified candidates should be preferred
belongs to the appointing authority. The Mayor of Cebu City, in the instant case, chose to appoint private respondent.
The argument that petitioner should have been the one appointed because he was next in rank to the contested position
and that he had been with CCMC since 1961 as compared to private respondent, who joined the hospital in 1986 and only
on detail, cannot be upheld.
It is ironic that petitioner is personally interested in the subject position, the creation and validity of which he himself
originally questioned. Be that as it may, the "next in rank" rule specifically applies only in cases of promotion (Medenilla v.
Civil Service Commission, 194 SCRA 278 [1991]; Pineda v. Claudio, 28 SCRA 34 [1969]). The instant controversy,
however, involves a new office and a position created in the course of a valid reorganization. Under the law, a vacancy
not filled by promotion may be filled by transfer of present employees in the government service, by reinstatement, by
reemployment of those separated from the service, and appointment of outsiders who have appropriate civil service
eligibility, but not necessarily in this order (P.D. 807 Art. VIII, Sec. 19 (5); E.O. 292, Bk. V, Sec. 21 (5); Espaol v. Civil
Service Commission, 206 SCRA 715 [1992]; Medenilla v. Civil Service Commission, supra., at 289-290).
It cannot be said that private respondent was an outsider. Although directly employed by the City Health Department, she
actually worked at the CCMC prior to her appointment to the subject position. Besides, even, if she was an outsider, the
law does not prohibit the employment of persons from the private sector so long as they have the appropriate civil service
eligibility.
Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of "next in
rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position
in the occupational group of the office. What the Civil Service Law and the Administrative Code of 1987 provide is that if a
vacancy is filled up by the promotion, the person holding the position next in rank thereto "shall be considered for
promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3); Espaol v. Civil Service Commission, supra; Barrozo v.
Civil Service Commission, 198 SCRA 487 [1991]). In other words, one who is "next in rank" to a vacancy is given
preferential consideration for promotion to the vacant position, but it does nor necessarily follow that he alone and no one
else can be appointed. There is no vested right granted the next in rank nor a ministerial duty imposed on the appointing
authority to promote the holder to the vacant position (Barrozo v. Civil Service Commission, supra; Santiago, Jr. v. Civil
Service Commission, 178 SCRA 733 [1989]).
An appointment, whether to a vacancy or to a newly created position, is essentially within the discretionary power of
whomsoever it is vested. Once a candidate possesses the minimum qualities required by law, sufficient discretion, if not
plenary, is granted to the appointing authority (Medenilla v. Civil Service Commission, supra, at 291; Central Bank v. Civil
Service Commission, 171 SCRA 744 [1989]). After all, the appointing authority is the officer primarily responsible for the
administration of the office, and is likewise in the best position to determine who among the qualified candidates can
efficiently discharge the functions of the position (Villegas v. Subido, 30 SCRA 498 [1969]); Reyes v. Abeleda, 22 SCRA
825 [1968]). Indeed, whom to appoint among those qualified is an administrative question involving considerations of
wisdom for the best interest of the service which only the appointing authority can decide (Simpao v. Civil Service
Commission, 191 SCRA 396 [1990]; Luego v. Civil Service Commission, 143 SCRA 327 [1986]).
It is markworthy that private respondent was detailed at the CCMC primarily to help in upgrading the level of performance
of the said hospital. She accomplished this mission by institutionalizing changes in the management and financial
reporting system of the hospital such that its income doubled in less than two years since her detail. Private respondent's
competence and her remarkable achievement are things the appointing authority took notice of and which served as basis
for her appointment to the contested position.
Finally, the moral character and honesty of private respondent are issues that should be threshed out in an appropriate
action before the proper forum. As it stands, private respondent is presumed innocent and her acts done in good faith,
until proven otherwise.
WHEREFORE, finding no grave abuse of discretion on the part of the public respondent, the Court resolved to DISMISS
the petition for lack of merit.

SO ORDERED.

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, Petitioner, v. LEYTE ACTING GOVERNOR, LEOPOLDO
E. PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG
PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, Respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; VACANCY EXISTS WHERE THERE IS NO PERSON LAWFULLY AUTHORIZED TO
ASSUME AND EXERCISE AT PRESENT THE DUTIES OF THE OFFICE. The law on Public Officers is clear on the
matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a
vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. (see
Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61).
2. ID.; APPOINTMENT OF PETITIONER AS VICE-GOVERNOR EXTENDED BY THE SECRETARY OF LOCAL
GOVERNMENT HELD AS VALID. The circumstances of the case reveal that there is indeed a necessity for the
appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure
permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed
due to a pending election case before the Commission on Elections. The two-year interregnum which would result from
the respondents view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to
the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible
that to leave the situation without affording any remedy was ever intended by the Local Government Code. Under the
circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to
obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego,
the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to
the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate
appointment of an acting Vice-Governor.
3. ID.; POWER OF THE PRESIDENT TO MAKE TEMPORARY APPOINTMENTS IN CERTAIN PUBLIC OFFICES;
SIMILARLY APPLIED IN THE CASE AT BAR. It may be noted that under Commonwealth Act No. 588 and the Revised
Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in
case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions.
However, in the absence of any contrary provision in the Local Government Code and in the best interest of public
service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the
present case. The respondents contend that the provincial board is the correct appointing power. This argument has no
merit. As between the President who has supervision over local governments as provided by law and the members of the
board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides
otherwise.
4. ID.; PUBLIC SERVICE; PRIMARY CONCERN OF THOSE IN THE GOVERNMENT; CASE AT BAR. Whether or not
the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in proper
cases, for the judiciary to adjudicate. As shown in this case where for about two years there was only an acting Governor
steering the leadership of the province of Leyte, the urgency of filing the vacancy in the Office of the Vice-Governor to free
the hands of the acting Governor to handle provincial problems and to serve as the buffer in case something might
happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing
happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous vacancies in
both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor.
Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political
considerations. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government
Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly
the intent to provide for continuity in the performance of the duties of the Vice-Governor.
5. ID.; LOCAL GOVERNMENT CODE; SANGGUNIANG PANLALAWIGAN MEMBER WHO OBTAINED THE HIGHEST
NUMBER OF VOTES MAY ASSUME THE OFFICE OF THE VICE-GOVERNOR IN CASE OF TEMPORARY. The
Local Government Code provides for the mode of succession in case of a permanent vacancy, viz: Section 49: "In case a
permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails
to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the
functions of his office, the sangguniang panlalawigan . . . member who obtained the highest number of votes in the
election immediately preceding, . . . shall assume the office for the unexpired term of the Vice-Governor . . . By virtue of
the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be
observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The
petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The
Department Secretary acted correctly in extending the temporary appointment.

6. ID.; DE FACTO OFFICER; COMPENSATION RECEIVED BY PETITIONER AS ACTING VICE-GOVERNOR;

CONSIDERED PAYMENTS FOR ACTUAL SERVICES RENDERED. There is no denying that the petitioner assumed
the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was
appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath
of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res
Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity
of the petitioners appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was
passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the
petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties
attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of
public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to
now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of
Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974]).

This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition
for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution,
the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting Vice-Governor and,
therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments while actually
discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in
the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla
as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also
designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of
Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the ViceGovernor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision
relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner
as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily performing the functions of
the Governor, could concurrently assume the functions of both offices.
As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang
Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment
of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads:
WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no
permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the ViceGovernor after he took his oath of office to said position.
WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official
communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L.
Granados and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-Governor of
Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from
Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion.

On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion.1wphi1 The pertinent portion of
the letter reads:
This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial
Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there is no succession
provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a
temporary vice-governor is not necessary.
We hold the view that the designation extended by the Secretary of Local Government in favor of one of the
Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vicegovernor during the pendency of the electoral controversy in the Office of the Governor, does not contradict the
stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily designated to
perform the functions of the vice-governor could not be considered that the Sangguniang member succeeds to
the office of the latter, for it is basic that designation is merely an imposition of additional duties to be performed
by the designee in addition to the official functions attached to his office. Furthermore, the necessity of
designating an official to temporarily perform the functions of a particular public office, would depend on the
discretion of the appointing authority and the prevailing circumstances in a given area and by taking into
consideration the best interest of public service.
On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of
the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral
controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang
Member to act as vice-governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government,
Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo
E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The
letter states:
In view thereof, please correct previous actions made by your office and those of the Sangguniang Panlalawigan
which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as acting vice-governor,
including the payment of his salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request.
Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct
Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The petition
sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting ViceGovernor of Leyte.
In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the
Governor of the province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna
allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the
actual services rendered by the petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor Larrazabal to
direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while
acting as the Vice-Governor of Leyte.
On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this
Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while
he was acting as such.

The petitioner interposes the following reason for the allowance of the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS
DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE
AND EQUITY.
The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the
Secretary of Local Government has the authority to make temporary appointments?
The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the appointment of
the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-Governor, the power to appoint
is net vested in the Secretary of Local Government. Absent any provision in the Local Government Code on the mode of
succession in case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes an internal
problem of the Sangguniang Panlalawigan and was thus for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and
exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on
Public Offices and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant
when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to
which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor,
continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor
call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was
Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor.
The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the
position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the
Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board,
unilaterally acting, may revoke an appointment made by a higher authority.
Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had
the authority to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the
Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting.
The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For
about two years after the governatorial elections, there had been no de jure permanent Governor for the province of
Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the
Commission on Elections.
The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause
disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the
local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was
ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in
order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter
ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment
extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the
immediate appointment of an acting Vice-Governor.

The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and
reconsidered his previous position and acknowledged the need for an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is
empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both
laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the
Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus
outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial
board is the correct appointing power. This argument has no merit. As between the President who has supervision over
local governments as provided by law and the members of the board who are junior to the vice-governor, we have no
problem ruling in favor of the President, until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their
right of representation and governance in their own local government.
In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or
absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a
consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to
decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two years there was only
an acting Governor steering the leadership of the province of Leyte, the urgency of filling the vacancy in the Office of the
Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve as the buffer in case
something might happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact
that nothing happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous
vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting ViceGovernor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any
political considerations.
The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is
no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to
provide for continuity in the performance of the duties of the Vice-Governor.
The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to
assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently
incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the
highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term
of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may
likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy.
The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The
Department Secretary acted correctly in extending the temporary appointment.
In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is
indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth
Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must
only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the
Office of the Vice-Governor.
And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to
appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As
revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local

Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the
petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by
the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner
was made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was
acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and
basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he
actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974])
WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the
petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board Member,
shall be considered as payment for the actual services rendered as acting Vice-Governor and may be retained by him.
SO ORDERED.

G.R. No. 118883 January 16, 1998

SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE MAYOR NENITO AQUINO and
MAYOR LYDIA T. ROMANO, petitioner, vs. COURT OF APPEALS and AUGUSTO T. ANTONIO, respondents.
PANGANIBAN, J.:
Although a resignation is not complete without an acceptance thereof by the proper authority, an office may still be
deemed relinquished through voluntary abandonment which needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of the Decision 1 of the Court of
2
Appeals promulgated on January 31, 1995 in CA-G.R. SP No. 34158, which modified the Decision dated February 18,
1994 of the Regional Trial Court 3 of Virac, Catanduanes, Branch 42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:
WHEREFORE, the judgment appealed from is hereby MODIFIED such that paragraphs 1, 2 and 4 thereof are deleted.
Paragraph 3 is AFFIRMED. No pronouncement as to costs. 4
Antecedent Facts
Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay, San Andres, Catanduanes in
March 1989. He was later elected president of the Association of Barangay Councils (ABC) 5 for the Municipality of San
Andres, Catanduanes. In that capacity and pursuant to the Local Government Code of 1983, he was appointed by the
President as member of the Sangguniang Bayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local Government (DILG) declared the
election for the president of the Federation of the Association of Barangay Councils (FABC) of the same province, in
which private respondent was a voting member, void for want of a quorum. Hence, a reorganization of the provincial
council became necessary. Conformably, the DILG secretary designated private respondent as a temporary member of
the Sangguniang Panlalawigan of the Province of Catanduanes, effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the Sangguniang Bayan. He tendered his
resignation 6 dated June 14, 1990 to Mayor Lydia T. Romano of San Andres, Catanduanes, with copies furnished to the
provincial governor, the DILG and the municipal treasurer. Pursuant to Section 50 of the 1983 Local Government
Code 7(B.P. Blg. 337), Nenito F. Aquino, then vice president of the ABC, was subsequently appointed by the provincial
8
governor as member of the Sangguniang Bayan in place of private respondent. Aquino assumed office on July 18, 1990
9
after taking his oath.
Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC president was reversed by the
10
Supreme Court in Taule vs. Santos. In the same case, the appointment of Private Respondent Antonio as sectoral
representative to the Sangguniang Panlalawigan was declared void, because he did not possess the basic qualification
that he should be president of the federation of barangay councils. 11 This ruling of the Court became final and executory
on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of San Andres, advising them of
his re-assumption of his "original position, duties and responsibilities as sectoral representative" 12 therein. In response
thereto, the Sanggunian issued Resolution No. 6, Series of 1992, declaring that Antonio had no legal basis to resume
office as a member of the Sangguniang Bayan. 13
On August 13, 1992, private respondent sought from the DILG a definite ruling relative to his right to resume his office as
member of the Sangguniang Bayan. 14 Director Jacob F. Montesa, department legal counsel of the DILG, clarified
Antonio's status in this wise:
Having been elected President of the ABC in accordance with the Department's Memorandum Circular No. 8909, 15 you became an ex-officio member in the sanggunian. Such position has not been vacated inasmuch as you
did not resign nor abandon said office when you were designated as temporary representative of the Federation

to the Sangguniang Panlalawigan of Catanduanes on June 7, 1990. The Supreme Court in Triste vs. Leyte State
College Board of Trustees (192 SCRA 327), declared that: "designation implies temporariness. Thus, to
"designate" a public officer to another position may mean to vest him with additional duties while he performs the
functions of his permanent office. In some cases, a public officer may be "designated" to a position in an acting
capacity as when an undersecretary is designated to discharge the functions of the Secretary pending the
appointment of a permanent Secretary."
Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations Implementing the 1991
Local Government Code to continue to act as president of the association and to serve as ex-officiomembers of
the sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep. Act No. 7160, provides that:
The incumbent presidents of the municipal, city and provincial chapters of the liga shall continue
to serve as ex-officio members of the sanggunian concerned until the expiration of their term of
office, unless sooner removed for cause.
(f) . . . Pending election of the presidents of the municipal, city, provincial and metropolitan
chapters of the liga, the incumbent presidents of the association of barangay councils in the
municipality, city, province and Metropolitan Manila, shall continue to act as president of the
corresponding liga chapters under this Rule.
In view of the foregoing, considering that the annulled designation is only an additional duty to your primary
function, which is the ABC President, we find no legal obstacle if you re-assume your representation in
the sanggunian bayan as ex-officio member. 16
Despite this clarification, the local legislative body issued another resolution 17 reiterating its previous stand.
In response to private respondent's request, 18 Director Montesa opined that Antonio did not relinquish or abandon his
office; and that since he was the duly elected ABC president, he could re-assume his position in the Sanggunian. 19 A
copy of said reply was sent to the members of the local legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to re-assume office as sectoral
representative.
On December 10, 1992, private respondent filed a petition for certiorari and mandamus with preliminary mandatory
injunction and/or restraining order before the RTC. On February 18, 1994, the trial court rendered its decision holding that
Augusto T. Antonio's resignation from the Sangguniang Bayan was ineffective and inoperative, since there was no
acceptance thereof by the proper authorities. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the petitioner and against the
respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount of P10,000.00 as attorney's fees and the cost of the suit;
(2) to allow petitioner to assume his position as sectoral representative of the Sangguniang Bayan of San Andres,
Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected salaries similar to those received by the other
members of the Sangguniang Bayan of San Andres, Catanduanes as certified to by the Municipal Budget Officer
and Municipal Treasurer of the same municipality from April 8, 1992 up to the date of this judgment; and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no effect. 20
Petitioners appealed this judgment to the Court of Appeals.
Appellate Court's Ruling

Respondent Court of Appeals affirmed the trial court's ruling but deleted the first, second and fourth paragraphs of its
dispositive portion. It held that private respondent's resignation was not accepted by the proper authority, who is the
President of the Philippines. While the old Local Government Code is silent as to who should accept and act on the
resignation of any member of the Sanggunian, the law vests in the President the power to appoint members of the local
legislative unit. Thus, resignations must be addressed to and accepted by him. It added that, though the secretary of the
DILG is the alter ego of the President and notice to him may be considered notice to the President, the records are bereft
of any evidence showing that the DILG secretary received and accepted the resignation letter of Antonio.
Moreover, granting that there was complete and effective resignation, private respondent was still the president of the
ABC and, as such, he was qualified to sit in the Sangguniang Bayan in an ex officio capacity by virtue of Section 494 21 of
R.A. 7160 22 and Memorandum Circular No. 92-38. 23 In view, however, of the May 1994 elections in which a new set of
barangay officials was elected, Antonio's reassumption of office as barangay representative to the Sangguniang
Bayan was no longer legally feasible.
The appellate court added that private respondent could not be considered to have abandoned his office. His designation
as member of the Sangguniang Panlalawigan was merely temporary and not incompatible with his position as president of
the ABC of San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorney's fees for being without basis, and held that Resolution Nos. 6
and 28 of the Sangguniang Bayan of San Andres involved a valid exercise of the powers of said local body. It thus
modified the trial court's judgment by affirming paragraph 3 and deleting the other items. Unsatisfied, petitioners brought
the present recourse. 24
Issues
The petitioner, in its memorandum, 25 submits before this Court the following issues:
I. Whether or not respondent's resignation as ex-officio member of Petitioner Sangguniang Bayan ng San Andres,
Catanduanes is deemed complete so as to terminate his official relation thereto;
II. Whether or not respondent had totally abandoned his ex-officio membership in Petitioner Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries similar to those received by other members of
Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this case by the Regional Trial Court
of Virac, Catanduanes. 26
In sum, was there a complete and effective resignation? If not, was there an abandonment of office?
This Court's Ruling
The petition is meritorious. Although the terms of office of barangay captains, including private respondent, elected in
March 1989 have expired, the Court deemed it necessary to resolve this case, as the Court of Appeals had ordered the
payment of the uncollected salaries allegedly due prior to the expiration of Respondent Antonio's term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid and effective despite the absence of
an express acceptance by the President of the Philippines. The letter of resignation was submitted to the secretary of the
DILG, an alter ego of the President, the appointing authority. The acceptance of respondent's resignation may be inferred
from the fact that the DILG secretary himself appointed him a member of the Sangguniang Panlalawigan of
Catanduanes. 27
In Ortiz vs. COMELEC, 28 we defined resignation as the "act of giving up or the act of an officer by which he declines his
office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of
the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority." To
constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the
29
term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. The last one is required by reason of
30
Article 238 of the Revised Penal Code.

The records are bereft of any evidence that private respondent's resignation was accepted by the proper authority. From
the time that he was elected as punong barangay up to the time he resigned as a member of Sangguniang Bayan, the
governing law was B.P. 337 or the Local Government Code of 1983. While said law was silent as to who specifically
should accept the resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing
rules states that the "[r]esignation of sanggunian members shall be acted upon by the sanggunian concerned, and a copy
of the action taken shall be furnished the official responsible for appointing a replacement and the Ministry of Local
Government. The position shall be deemed vacated only upon acceptance of the resignation."
It is not disputed that private respondent's resignation letter was addressed only to the municipal mayor of San Andres,
Catanduanes. It is indicated thereon that copies were furnished the provincial governor, the municipal treasurer and the
DILG. Neither the mayor nor the officers who had been furnished copies of said letter expressly acted on it. On hindsight,
and assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and applicable, the mayor should have referred or
endorsed the latter to the Sangguniang Bayan for proper action. In any event, there is no evidence that the resignation
was accepted by any government functionary or office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. (1) The sangguniang bayan shall be the legislative body of the municipality and shall
be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall be the
presiding officer pro tempore, eight members elected at large, and the members appointed by the President
consisting of the resident of the katipunang bayan and the president of the kabataang barangay municipal
federation. . . . (Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they should be
submitted, should be tendered to the appointing person or body. 31 Private respondent, therefore, should have submitted
his letter of resignation to the President or to his alter ego, the DILG secretary. Although he supposedly furnished the
latter a copy of his letter, there is no showing that it was duly received, much less, that it was acted upon. The third
requisite being absent, there was therefore no valid and complete resignation.
Second Issue: Abandonment of Office
While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof by the proper
authority, we nonetheless hold that Private Respondent Antonio has effectively relinquished his membership in
the Sangguniang Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of
terminating his possession and control thereof. 32 Indeed, abandonment of office is a species of resignation; while
resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. 33 Nonuser
refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an easement or an office
(Black's Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of choice. 34 Its concomitant effect is that the
35
former holder of an office can no longer legally repossess it even by forcible reoccupancy.
Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from
his own conduct. 36 Thus, the failure to perform the duties pertaining to the office must be with the officer's actual or
37
imputed intention to abandon and relinquish the office. Abandonment of an office is not wholly a matter of intention; it
38
results from a complete abandonment of duties of such a continuance that the law will infer a relinquishment. Therefore,
there are two essential elements of abandonment: first, an intention to abandon and, second, an overt or "external" act by
which the intention is carried into effect. 39
Petitioner argues that the following clearly demonstrate private respondent's abandonment of his post in the Sangguniang
Bayan:
Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of Catanduanes was
worded "temporary," but his acts more than clearly established his intention to totally abandon his office,
indicating an absolute relinquishment thereof. It bears to emphasize that respondent actually tendered his
resignation and subsequently accepted an ex-officio membership in the Sangguniang Panlalawigan of
Catanduanes. He performed his duties and functions of said office for almost two (2) years, and was completely
aware of the appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then Vice-President of

the Association of Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member of petitioner
Sangguniang Bayan representing the ABC.
xxx xxx xxx
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondent's former position for
twenty (20) months, without him questioning the term of office of the former if indeed respondent's designation
as ex-officio member of the Sangguniang Panlalawigan was only temporary. Likewise, for almost eight (8) months
after knowledge of the decision in Taule vs. Santos, et al., Ibid., nullifying his designation as representative to the
Sangguniang Panlalawigan, respondent opted to remain silent, and in fact failed to seasonably act for the
purpose of reassuming his former position. Evidently, respondent had clearly abandoned his former position by
voluntary relinquishment of his office through non-user. 40 [Emphasis supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention of private respondent to abandon his position:
(1) his failure to perform his function as member of the Sangguniang Bayan, (2) his failure to collect the corresponding
remuneration for the position, (3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang
Bayan, (4) his prolonged failure to initiate any act to reassume his post in the Sangguniang Bayan after the Supreme
Court had nullified his designation to the Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter of resignation from
the Sangguniang
Bayan, 41 (2) his assumption of office as member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties
and functions as member of said Sanggunian, and (4) his receipt of the remuneration for such post.
It must be stressed that when an officer is "designated" to another post, he is usually called upon to discharge duties in
addition to his regular responsibilities. Indeed, his additional responsibilities are prescribed by law to inhere, as it were, to
his original position. A Supreme Court justice, for instance, may be designated member of the House of Representatives
Electoral Tribunal. In some cases, a public officer may be "designated" to a position in an acting capacity, as when an
undersecretary is tasked to discharge the functions of a secretary for a temporary period. 42 In all cases, however, the law
does not require the public servant to resign from his original post. Rather, the law allows him to concurrently discharge
the functions of both offices.
Private respondent, however, did not simultaneously discharge the duties and obligations of both positions. Neither did
he, at that time, express an intention to resume his office as member of the Sangguniang Bayan. His overt acts, silence,
inaction and acquiescence, when Aquino succeeded him to his original position, show that Antonio had abandoned the
contested office. His immediate and natural reaction upon Aquino's appointment should have been to object or, failing to
do that, to file appropriate legal action or proceeding. But he did neither. It is significant that he expressed his intention to
resume office only on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992, and months after this
Court had nullified his "designation" on August 12, 1991. From his passivity, he is deemed to have recognized the validity
of Aquino's appointment and the latter's discharge of his duties as a member of the Sangguniang Bayan.
In all, private respondent's failure to promptly assert his alleged right implies his loss of interest in the position. His overt
acts plainly show that he really meant his resignation and understood its effects. As pointed out by the eminent American
43
commentator, Mechem.
Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties
belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a
short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of
the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to
perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform
was willful, but also where, while he intended to vacate the office, it was because he in good faith but mistakenly
supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the Sangguniang
Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right thereto is not self-executory, for the law itself requires
44
another positive act an appointment by the President or the secretary of local government per E.O. 342. What private
respondent could have done in order to be able to reassume his post after Aquino's resignation was to seek a
reappointment from the President or the secretary of local government. By and large, private respondent cannot claim an
absolute right to the office which, by his own actuations, he is deemed to have relinquished. 45

We reiterate our ruling in Aparri vs. Court of Appeals:

46

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit of the public . . . The right to hold a
public office under our political system is therefore not a natural right. It exists, when it exists at all, only because
and by virtue of some law expressly or impliedly creating and conferring it . . . There is no such thing as a vested
interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which
provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an
office or its salary . . .
Third Issue: Salary
Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang Bayan, he cannot be entitled
to any back salaries. Basic is the "no work, no pay" 47 rule. A public officer is entitled to receive compensation for services
48
actually rendered for as long as he has the right to the office being claimed. When the act or conduct of a public servant
constitutes a relinquishment of his office, he has no right to receive any salary incident to the office he had abandoned. 49
WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and SET ASIDE. No costs.
SO ORDERED.

G.R. No. 134213

July 20, 1999

ROMEO J. GAMBOA, JR., petitioner, vs. MARCELO AGUIRRE, JR., and JUAN Y. ARANETA, respondents.
YNARES-SANTIAGO, J.:

The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the Acting Governor, continue to
preside over the sessions of the Sangguniang Panlalawigan (SP)?
The facts are not in dispute.1wphi1.nt
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents Marcelo Aguirre, Jr., and
Juan Y. Araneta were elected Negros Occidental Governor, Vice-Governor and SP members, respectively. Sometime in
August of 1995, the governor designated petitioner as Acting Governor for the duration of the former's official trip abroad
until his return. When the SP held its regular session on September 6, 1995, respondents questioned the authority of
petitioner to preside therein in view of his designation as Acting Governor and asked him to vacate the Chair. The latter,
however, refused to do so. In another session, seven (7) members of the SP voted to allow petitioner to continue
presiding while four (4) others voted against with one (1) abstention. On September 22, 1995, respondents filed before the
lower court a petition for declatory relief and prohibition. In the meantime, on October 2, 1995, the Governor re-assumed
his office. Later, the trial court rendered a decision and declared petitioner as "temporarily legally incapacitated to preside
over the sessions of the SP during the period that he is the Acting Governor." 1 Aggrieved, petitioner filed a petition for
review raising the issue earlier mentioned. Although this case is dismissible for having become moot and academic
considering the expiration in 1998 of the terms of office of the local officials involved herein, the Court nonetheless
proceeds to resolve this common controversy but novel issue under the existing laws on local government.
Sec. 49(a) and 466(a) (1) of Republic Act (R.A.) No. 7160 otherwise known as the Local Government Code of 1991,
provide that the Vice-Governor shall be the presiding officer of the SP. 2 In addition to such function, he "become(s)" 3 the
Governor and "assume(s)" 4 the higher office for the unexpired term of his predecessor, in case of "permanent vacancy"
therein. When the vacancy, however, is merely temporary, the Vice-Governor "shall automatically exercise the powers
(subject to certain limitations) and perform the duties and functions" 5 of the Governor. It may be noted that the code
provides only for modes of succession in case of permanent vacancy in the office of the Governor and the Vice-Governor
(whether single or simultaneously) as well as in case of a temporary vacancy in the office of the Governor. But, no such
contingency is provided in case of temporary vacancy in the office of the Vice-Governor, just like the 1983 Local
Government Code. 6
It is correct that when the Vice-Governor exercises the "powers and duties" of the Office of the Governor, he does not
assume the latter office. He only "acts" as the Governor but does not "become" the Governor. His assumption of the
powers, duties and functions of the provincial Chief Executive does not create a permanent vacuum or vacancy in his
position as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title as Vice-Governor by
merely becoming an Acting Governor, (not Governor) or by merely exercising the powers and duties of the higher officer.
But the problem is, while in such capacity, does he temporarily relinquish the powers, functions, duties and responsibilities
of the Vice-Governor, including the power to preside over the sessions of the SP?
Sad to say the new Local Government Code is silent on this matter, yet this query should be answered in the positive. A
Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that for purposes of
exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the time being. By
tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in nature, whereas plain
members of the provincial board perform functions partaking of a legislative character. This is because the authority
vested by law in the provincial boards involves primarily a delegation of some legislative powers of Congress. 7 Unlike
under the old Code, where the Governor is not only the provincial Chief Executive, 8 but also the presiding officer of the
local legislative body, 9 the new Code delineated the union of the executive-legislative powers in the provincial, city and
municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the
SP and is no longer considered a member thereof. 10 This is clear from the law, when it provides that "local legislative
power shall be vested in the
SP," 11 which is "the legislative body of the province," and enumerates therein membership consisting of the:
1.)

Vice-Governor, as presiding officer,

2.)

regular elective SP members,

3.)

three elective sectoral representatives, and

4.)

those ex-officio members, namely:

a.)

president of the provincial chapter of the liga ng mga barangay,

b.)

president of the panlalawigang pederasyon ng mga sangguniang kabataan,

c.)

president of the provincial federation of sangguniang members of municipalities and component cities. 12

None being included in the enumeration, the Governor is deemed excluded applying the rule in legal hermeneutics that
when the law enumerates, the law necessarily excludes. On the contrary, local executive power in the province is vested
alone in the Governor. 13 Consequently, the union of legislative-executive powers in the office of the local chief executive
under the former Code has been disbanded, so that either department now comprises different and non-intermingling
official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and
balance between the two.
It has been held that if a Mayor who is out of the contrary is considered "effectively absent", the Vice-Mayor should
discharge the duties of the mayor during the latter's absence. 14 This doctrine should equally apply to the Vice-Governor
since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what constitutes
absence, yet this term should be reasonably construed to mean "effective" absence, 15 that is, one that renders the
officer concerned powerless, for the time being, to discharge the powers and prerogatives of his office. 16 There is no
vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when
there is no person lawfully authorized to assume and exercise at present the duties of the office. 17 By virtue of the
foregoing definition, it can be said that the designation, appointment or assumption of the Vice-Governor as the Acting
Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during such contingency.
Considering the silence of the law on the matter, the mode of succession provided for permanent vacancies, under the
new Code, in the office of the Vice-Governor may likewise be observed in the event of temporary vacancy occurring in the
same office. 18 This is so because in the eyes of the law, the office to which he was elected was left barren of a legally
qualified person to exercise the duties of the office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the latter office,
since the nature of the duties of the provincial Governor call for a full-time occupant to discharge them. 19 Such is not only
consistent with but also appears to be the clear rationale of the new Code wherein the policy of performing dual functions
in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor
creates a corresponding temporary vacancy in the office of the Vice-Governor whenever the latter acts as Governor by
virtue of such temporary vacancy. This event constitutes an "inability" on the part of the regular presiding officer (Vice
Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the
Local Government Code concerning the election of a temporary presiding officer. The continuity of the Acting
Governor's (Vice Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under
Section 49(b), "(i)n the event of the inability of the regular presiding officer to preside at the sanggunian session, the
members present and constituting a quorum shall elect from among themselves a temporary presiding officer." 20
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.

G.R. No. 116763

April 19, 1996

GOVERNOR RODOLFO C. FARIAS and AL NACINO, petitioners, vs. MAYOR ANGELO N. BARBA, VICE MAYOR
MANUEL S. HERNANDO and EDWARD PALAFOX, respondents.
MENDOZA, J.:p
The question in this case is: In case of a permanent vacancy in the Sangguniang Bayan caused by the cessation from
office of a member who does not belong to any political party, who can appoint the replacement and in accordance with
what procedure?
This case arose from the following facts:
Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte. On March 24, 1994, he
resigned after going without leave to the United States.
To fill the vacancy created by his resignation, the mayor, respondent Angelo M. Barba, recommended to the Governor of
the province, respondent Rodolfo C. Farias, the appointment of respondent Edward Palafox.
A similar recommendation for the appointment of Edward Palafox was made by the Sangguniang Bayan of San Nicolas
but the recommendation was made to Mayor Barba. The resolution, containing the recommendation, was submitted to the
Sangguniang Panlalawigan of Ilocos Norte purportedly in compliance with 56 of the Local Government Code (R.A. No.
7160). 1
The Sangguniang Panlalawigan, purporting to act under this provision of the Local Government Code, disapproved the
resolution "for the reason that the authority and power to appoint Sangguniang Bayan members are lodged in the
Governor, and therefore, the Resolution should be addressed to the Provincial Governor." Accordingly, the Sangguniang
Panlalawigan recommended to the Governor the appointment of petitioner Al Nacino, vice Carlito Domingo, as member of
the Sangguniang Bayan of San Nicolas. On June 8, 1994, petitioner Governor appointed petitioner Nacino and swore him
in office that same day.
On the other hand, respondent Mayor Barba appointed respondent Edward Palafox to the same position on June 8, 1994.
The next day, June 9, 1994, respondent Palafox took his oath as member of the Sangguniang Bayan.
On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a petition for quo warranto and prohibition,
entitled "Governor Rodolfo C. Farias and Al Nacino v. Mayor Angelo M. Barba, Vice Mayor Manuel S. Hernando, Jr. and
Edward D. Palafox."
On July 8, 1994 the trial court rendered its decision, upholding the appointment of respondent Palafox by respondent
Mayor Barba. It held:
Under the facts and circumstances as shown clearly in the case, there is no doubt the law that is applicable is sub-section
"C" of Section 45 of Republic Act No. 7160 otherwise known as the Local Government Code of 1991 which provides:
In case the permanent vacancy is caused by a Sanggunian Member who does not belong to any political party, the Local
Chief Executive shall upon the recommendation of the Sanggunian concerned, appoint a qualified person to fill the
vacancy.
. . . Inasmuch as the permanent vacancy is in the Sanggunian Bayan of San Nicolas, Ilocos Norte, it is the Sanggunian
concerned referred to in the law which recommends the appointment to fill the vacancy. . . This being so, the Local Chief
Executive referred to in sub-section "C" of Section 45 of Republic Act No. 7160 is the Municipal Mayor of San Nicolas,
Ilocos Norte.
It cannot be denied that the Governor has the authority to appoint a qualified person to fill the vacancy in the Sanggunian
Bayan caused by resignation of a member thereof as that is vested in him or her by the Provision of No. 2, Sec. 45 of
Republic Act No. 7160. To the mind of the court that authority is not vested in him or her where the permanent vacancy is
caused by a Sanggunian Member who does not belong to any political party as that authority is specifically vested upon
the Local Chief Executive upon recommendation of the Sanggunian concerned as per sub-section "C" of Section 45 of the
same Republic Act No. 7160. Under No. 2 of Sec. 45 aforementioned the law does not require a recommendation for the
appointment of Sanggunian Bayan Member to fill a permanent vacancy either from the Sangguniang Panlalawigan or
from the Sanggunian Bayan. . . As such there can be no other person referred to as the Local Chief Executive having the
authority to appoint other than the Municipal Mayor of the Municipality of the Sanggunian Bayan where there is permanent

vacancy. This can be clearly inferred from the two (2) provisions of the law (No. 2 and sub-section C of Sec. 45 of Rep.
Act No. 7160). While No. 2 of Sec. 45 specifically vests the power to appoint in the Governor, sub-sec. C of Sec. 45,
specifically vests the power to appoint in the Local Chief Executive. The Local Chief Executive specifically mentioned in
said sub-section C of Sec. 45 is not the Governor, for there would have been no need for the law making body to have
specifically stated in the law if it had intended that the Governor is that one and the same Local Chief Executive vested
with power to appoint.
Petitioners filed a motion for reconsideration, but this was denied by the trial court on August 18, 1994. Hence this petition
for review on certiorari.
Petitioners contend that the power to fill a vacancy in the Sangguniang Bayan, which is created as a result of the
cessation from office of a member who does not belong to a political party, is vested in the provincial governor upon
recommendation of the Sangguniang Panlalawigan.
The statutory provision in question is 45 of the Local Government Code of 1991 (R.A. No . 7160) which reads:
45.
Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic
successions provided above do not apply shall be filled by appointment in the following manner:
(1)
The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities and independent component cities;
(2)

The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan;

(3)
The city or municipal mayor, in the case of the sangguniang barangay, upon recommendation of the sangguniang
barangay concerned.
(b)
Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian
member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in
the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political
party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office.
In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest
official of the political party concerned are conditions sine qua non, and any appointment without such nomination and
certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible
therefor.
(c)
In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party,
the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the
vacancy.
(d)
In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be
filled automatically by the official next in rank of the organization concerned.
[1]
Since the vacancy in this case was created by a Sanggunian member who did not belong to any political party,
the specific provision involved is par. (c), to wit:
(c)
In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party,
the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the
vacancy.
But who is the "local chief executive" referred? And which is the "sanggunian concerned"? With respect to the first ("local
chief executive"), petitioners look to 45(a) for the answer and say that it is the governor, with respect to vacancies in the
Sangguniang Panlungsod of component cities and Sangguniang Bayan, or the mayor with respect to vacancies in the
Sangguniang Barangay.
In support of this view, they cite, first of all, the following provision of the former Local Government Code (B.P. Blg. 337):
50.
Permanent Vacancies in the Local Sanggunians. In case of permanent vacancy in the sangguniang
panlalawigan, sangguniang panlungsod, 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 the sangguniang panglungsod; 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 sanggunian member who caused the vacancy, and shall serve the
unexpired term of the vacant office.
and, second, the following provision of the present Code:
63.

Preventive Suspension. (a) Preventive suspension may be imposed:

(1)
By the President, if the respondent is an elective official of a province, a highly urbanized or an independent
component city;
(2)

By the governor, if the respondent is an elective official of a component city or municipality; or

(3)

By the mayor, if the respondent is an elective official of the barangay. . . .

Reference to these provisions is appropriate not for the reason advanced by petitioners, i.e., that the power to appoint
implies the power to remove, but because implicit in these provisions is a policy to vest in the President, the governor and
the mayor in descending order the exercise of an executive power whether to appoint in order to fill vacancies in local
councils or to suspend local officials. These provisions are in pari materia with 45.
To be sure the President of the Philippines can not be referred to as "local chief executive" in 45(c) but it is apparent that
the phrase is a misnomer and that the choice of this phrase was simply dictated by the need to avoid, for stylistic reasons,
interminably repeating the officials on whom the power to appoint is conferred. Perhaps "authorities concerned" would
have been a more accurate generic phrase to use.
For that matter, to follow private respondents' interpretation would be to run into a similar, if not greater, difficulty. For
45(a) (3) vests the power to fill vacancies in the Sangguniang Barangay in the mayor but the local chief executive of a
barangay is not the mayor. It is the punong barangay. Yet "local chief executive" cannot be applied to the punong
barangay without rendering 45(a) (3) meaningless. For then there would never be any occasion when the mayor, under
this provision, can appoint a replacement for a member of the Sangguniang Bayan who for one reason or another ceases
from office for reason other than the expiration of his term. And why should a vacancy in the Sangguniang Panlalawigan
be filled by a different authority (the governor, according to this view) simply because the vacancy was created by a
member who does not belong to a political party when, according to 45(a) (1), a vacancy created by a member who
belongs to a political party must be filled by appointment by the President of the Philippines?
With reference to the phrase "sangguniang concerned" in 45(c), petitioners say it means, with respect to a vacancy in
the Sangguniang Bayan, the Sangguniang Panlalawigan. Their reason is that under 61 of the Code, the power to
investigate complaints against elective municipal officials is vested in the Sangguniang Panlalawigan:
61.
Form and Filing of Administrative Complaints A verified complaint against any erring local elective official shall
be prepared as follows:
(a)
A complaint against any elective official of a province, a highly urbanized city, an independent component city or a
component city shall be filed before the Office of the President;
(b)
A complaint against any elective official of a municipality shall be filed before the sanggunian panlalawigan whose
decision may be appealed to the Office of the President;
(c)
A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or
sangguniang bayan concerned whose decision shall be final and executory.
This interpretation is inconsistent with the fact that in filling vacancies in the Sangguniang Barangay it is the Sangguniang
Barangay which under 45(a) (3) recommends the appointee, not the Sangguniang Panlungsod or the Sangguniang
Bayan, which would be the case if petitioners' view were to prevail.
We think that the phrase "sanggunian concerned" in 45(c) should more properly be understood as referring to the
Sanggunian in which the vacancy is created. This is in keeping with the policy implicit in 45(a) (3).
In other words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as providing for the filling
of vacancies in the various Sanggunians when these vacancies are created as a result of the cessation from office (other
than expiration of term) of members who belong to political parties. On the other hand, 45(c) must be understood as
providing for the filling of vacancies created by members who do not belong to any political party. Consequently, 45 must

be construed to mean that

I.

Where the Permanent Vacancy is Caused by a Sanggunian Member Belonging to a Political Party

A.
Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized cities and independent component
cities The President, through the Executive Secretary, upon the nomination and certification of the political party to
which the member who caused the vacancy belonged, as provided in 45 (b).
B.
Sangguniang Panlungsod of component cities and Sangguniang Bayan The Governor upon the nomination
and certification of the political party to which the member who caused the vacancy belonged, as provided in 45 (b).
III.

Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a Political Party

A.
Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized and independent component cites
The President, through the Executive Secretary, upon recommendation of the Sangguniang Panlalawigan or
Sangguniang Panlungsod as the case may be
B.
Sangguniang Panlungsod of component cities and Sangguniang Bayan The Governor upon recommendation
of the Sangguniang Panlungsod or Sangguniang Bayan as the case may be
III.
Where the Vacancy is Caused by a Member of the Sangguniang Barangay City or Municipal Mayor upon
recommendation of the Sangguniang Barangay
There is only one rule governing appointments to the Sangguniang Barangay. Any vacancy therein caused by the
cessation from office of a member must be made by the mayor upon the recommendation of that Sanggunian. The reason
is that members of the Sangguniang Barangay are not allowed to have party affiliations.
Indeed there is no reason for supposing that those who drafted 45 intended to make the manner of filling vacancies in
the Sanggunians, created by members who do not belong to any political party, different from the manner of filling such
vacancies when created by members who belong to political party or parties. The provision for the first must approximate
the provision for the second situation. Any difference in procedure must be limited to the fact that in the case of vacancies
caused by those who have political affiliations there is a party which can nominate a replacement while there is none in
the case of those who have no political affiliation. Accordingly, where there is no political party to make a nomination, the
Sanggunian, where the vacancy occurs, must be considered the appropriate authority for making the recommendation, by
analogy to vacancies created in the Sangguniang Barangay whose members are by law prohibited from having any party
affiliation.
[2]
Having determined that appointments in case of vacancies caused by Sanggunian members who do not belong to
any political party must be made in accordance with the "recommendation" of the Sanggunians concerned where the
vacancies occur, the next question is: Is the appointing authority limited to the appointment of those "recommended" to
him? We think an affirmative answer must be given to the question. The appointing authority is not bound to appoint
anyone recommended to him by the Sanggunian concerned. The power of appointment is a discretionary power. On the
other hand, neither is the appointing power vested with so large a discretion that he can disregard the recommendation of
the Sanggunian concerned, Since the recommendation takes the place of nomination by political party, the
recommendation must likewise be considered a condition sine qua non for the validity of the appointment, by analogy to
the provision of 45(b).
[3]
The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor respondent Edward Palafox was
appointed in the manner indicated in the preceding discussion, neither is entitled to the seat in the Sangguniang Bayan of
San Nicolas, Ilocos Norte which was vacated by member Carlito B. Domingo. For while petitioner Al Nacino was
appointed by the provincial governor, he was not recommended by the Sangguniang Bayan of San Nicolas. On the other
hand, respondent Edward Palafox was recommended by the Sangguniang Bayan but it was the mayor and not the
provincial governor who appointed him.
WHEREFORE, the decision of the Regional Trial Court of Ilocos Norte, insofar as it dismisses petitioners' action for quo
warranto and prohibition, is AFFIRMED, but for different reasons from those given by the trial court in its decision.
SO ORDERED.

G.R. No. 143540

April 11, 2003

JOEL G. MIRANDA vs. ANTONIO C. CARREON, MILAGROS B. CASCO, ELSIE S. ESTARES, JULIUS N. MALLARI,
ELINORA A. DANAO, JOVELYN G. RETAMAL, MARIFE S. ALMAZAN, JONALD R. DALMACIO, JENNIFER C.
PLAZA, RIZALDY B. AGGABAO, VILMA T. VENTURA, BENEDICT B. PANGANIBAN, JOSE L. GOMBIO, MELCHOR
E. SORIANO, ZARINA C. PANGANIBAN, EMELITA D. TAUYA, EVANGELINE A. SICAM, MATABAI AQUARIOUS Q.
CULANG, MELVIN L. GARCIA, JOHNNY N. YU, JR., LOIDA J. PURUGGANAN, EDUARDO S. VALENCIA, EDITHA A.
REGLOS, HENRY P. MAPALAD, RAMIL C. GALANG, JUSTINA M. MACASO, MARTHA B. ALLAM, and ARSENIA A.
CATAINA
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari 1 assailing the Decision2 dated May 21, 1999 and the Resolution dated June
5, 2000 of the Court of Appeals in CA-G.R. SP No. 36997.
In the early part of 1988, Vice Mayor Amelita Navarro, while serving as Acting Mayor of the City of Santiago because of
the suspension of Mayor Jose Miranda, appointed the above-named respondents to various positions in the city
government. Their appointments were with permanent status and based on the evaluation made by the City Personnel
3
Selection and Promotion Board (PSPB) created pursuant to Republic Act No. 7160. The Civil Service Commission (CSC)
approved the appointments.
When Mayor Jose Miranda reassumed his post on March 5, 1998 after his suspension, he considered the composition of
the PSPB irregular since the majority party, to which he belongs, was not properly represented.4He then formed a threeman special performance audit team composed of Roberto C. Bayaua, Antonio AL. Martinez and Antonio L. Santos, to
conduct a personnel evaluation audit of those who were previously screened by the PSPB and those on probation. After
conducting the evaluation, the audit team submitted to him a report dated June 8, 1998 stating that the respondents were
found "wanting in (their) performance."
On June 10, 1998, or three months after Mayor Miranda reassumed his post, he issued an order terminating respondents
services effective June 15, 1998 because they "performed poorly" during the probationary period.
Respondents appealed to the CSC, contending that being employees on probation, 5 they can be dismissed from the
service on the ground of poor performance only after their probationary period of six months, not after three (3) months.
They also denied that an evaluation on their performance was conducted, hence, their dismissal from the service violated
their right to due process.
On October 19, 1998, the CSC issued Resolution No. 982717 reversing the order of Mayor Miranda and ordering that
respondents be reinstated to their former positions with payment of backwages, thus:
xxx
"Granting that the complainant-employees (now respondents) indeed rated poorly, the question that remains is whether
they can be terminated from the service on that ground.
xxx
"x x x, at the time of their termination the complainants have not finished the six (6) months probationary period. x x x,
they may be terminated even before the expiration of the probationary period pursuant to Section 26, par. 1, Chapter 5,
Book V, Title I-A of the Revised Administrative Code of 1987. Said Section provides:
All such persons (appointees who meet all the requirements of the position) must serve a probationary period of six
months following their original appointment and shall undergo a thorough character investigation in order to acquire a
permanent civil service status. A probationer may be dropped from the service for unsatisfactory conduct or
for want of capacity anytime beforethe expiration of the probationary period: Provided, that such action is
appealable to the Commission.
"It is, however, clear from the foregoing quoted provision that an employee on probation status may be terminated only for
unsatisfactory conduct or want of capacity. In this case, the services of the complainants were terminated on the
ground of poor performance x x x. Although poor performance may come near the concept of want of capacity,

the latter, as held by this Commission, implies opportunity on the part of the head of office to observe the
performance and demeanor of the employee concerned (Charito Pandes, CSC Resolution No. 965592). At this
point, considering that Mayor Jose Miranda reassumed his post only on March 5, 1998 after serving his
suspension, it is quite improbable that he can already gauge the performance of the complainants through the
mere lapse of three months considering that the date of the letter of termination is June 10, 1998 and its
effectivity date June 15, 1998."6 (emphasis supplied)
Meanwhile, the COMELEC disqualified Mayor Jose Miranda as a mayoralty candidate in the 1998 May elections. His son
Joel G. Miranda, herein petitioner, substituted for him and was proclaimed Mayor of Santiago City. He then filed a motion
for reconsideration of the CSC Resolution No. 982717 (in favor of respondents) but it was denied in the CSC Resolution
No. 990557 dated March 3, 1999.
Petitioner then filed with the Court of Appeals a petition for review on certiorari, docketed as CA-G.R. SP No. 36997. On
May 21, 1999, the Court of Appeals rendered a Decision affirming in toto the CSC Resolution No. 982717. Forthwith,
petitioner filed a motion for reconsideration, but before it could be resolved by the Court of Appeals, several events
supervened. This Court, in G.R. No. 136351, "Joel G. Miranda vs. Antonio M. Abaya and the COMELEC," set aside the
proclamation of petitioner as Mayor of Santiago City for lack of a certificate of candidacy and declared Vice Mayor Amelita
Navarro as City Mayor by operation of law.7
On December 20, 1999, Mayor Navarro filed with the Court of Appeals a "Motion to Withdraw the Motion for
Reconsideration" (previously submitted by former Mayor Joel G. Miranda).
On June 5, 2000, the Court of Appeals denied petitioners motion for reconsideration of its Decision.
On June 11, 2000, the Court of Appeals granted Mayor Navarros "Motion to Withdraw the Motion for Reconsideration." In
effect, the CSC Resolution reinstating respondents to their positions stays.
In this petition, petitioner Joel G. Miranda contends that the Court of Appeals erred in affirming the CSC Resolution
declaring that the termination of respondents services is illegal and ordering their reinstatement to their former positions
with payment of backwages.
In their comment, respondents claim that since petitioner ceased to be Mayor of Santiago City, he has no legal personality
to file the instant petition and, therefore, the same should be dismissed. They insist that they were not actually evaluated
on their performance. But assuming there was indeed such an evaluation, it should have been done by their immediate
supervisors, not by those appointed by former Mayor Jose Miranda.
In his reply, petitioner contends that as a taxpayer, he has a legal interest in the case at bar, hence, can lawfully file this
petition.
Section 17, Rule 3 of the 1997 Rules of Civil Procedure, as amended, provides:
"Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in his official
capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be
granted by the Court, it is satisfactorily shown by any party that there is substantial need for continuing or maintaining it
and the successor adopts or continues or threatens to adopt or continue the action of his predecessor."
It is clear from the above Rule that when petitioner ceased to be mayor of Santiago City, the action may be continued and
maintained by his successor, Mayor Amelita Navarro, if there is substantial need to do so.
Mayor Navarro, however, found no substantial need to continue and maintain the action of her predecessor in light of the
CSC Resolution declaring that respondents services were illegally terminated by former Mayor Jose Miranda. In fact, she
filed with the Court of Appeals a"Motion to Withdraw the Motion for Reconsideration" (lodged by petitioner). She likewise
reinstated all the respondents to their respective positions and approved the payment of their salaries.
Petitioner insists though that as a taxpayer, he is a real party-in-interest and, therefore, should continue and maintain this
suit. Such contention is misplaced. Section 2, Rule 3 of the same Rules provides:

"Section 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the name of the real party in interest." (emphasis supplied)
Even as a taxpayer, petitioner does not stand "to be benefited or injured by the judgment of the suit." Not every action
8
filed by a taxpayer can qualify to challenge the legality of official acts done by the government. It bears stressing that "a
taxpayers suit refers to a case where the act complained of directly involves the illegal disbursement of public funds
9
from taxation." The issue in this case is whether respondents services were illegally terminated. Clearly, it does not
involve the illegal disbursement of public funds, hence, petitioners action cannot be considered a taxpayers suit.
At any rate, to put to rest the controversy at hand, we shall resolve the issue of whether respondents services were
illegally terminated by former Mayor Jose Miranda.
The 1987 Constitution provides that "no officer or employee of the civil service shall be removed or suspended except for
cause provided by law."10 Under the Revised Administrative Code of 1987, a government officer or employee may be
removed from the service on two (2) grounds: (1) unsatisfactory conduct and (2) want of capacity. While the Code does
not define and delineate the concepts of these two grounds, however, the Civil Service Law (Presidential Decree No. 807,
as amended) provides specific grounds for dismissing a government officer or employee from the service. Among these
grounds are inefficiency and incompetence in the performance of official duties. In the case at bar, respondents were
dismissed on the ground of poor performance. Poor performance falls within the concept of inefficiency and incompetence
in the performance of official duties which, as earlier mentioned, are grounds for dismissing a government official or
employee from the service.
But inefficiency or incompetence can only be determined after the passage of sufficient time, hence, the probationary
period of six (6) months for the respondents. Indeed, to be able to gauge whether a subordinate is inefficient or
incompetent requires enough time on the part of his immediate superior within which to observe his performance. This
condition, however, was not observed in this case. As aptly stated by the CSC, it is quite improbable that Mayor Jose
Miranda could finally determine the performance of respondents for only the first three months of the probationary period.
Not only that, we find merit in respondents claim that they were denied due process. They cited Item 2.2 (b), Section VI of
the Omnibus Guidelines on Appointments and Other Personnel Actions (CSC Memorandum Circular No. 38, Series of
1993, as amended by CSC Memorandum Circular No. 12, Series of 1994) which provides:
"2.2. Unsatisfactory or Poor Performance
xxx
b. An official or employee who, for one evaluation period, is rated poor in performance, may be dropped from the rolls
after due notice. Due notice shall mean that the officer or employee is informed in writing of the status of his
performance not later than the fourth month of that rating period with sufficient warning that failure to improve
his performance within the remaining period of the semester shall warrant his separation from the service. Such
notice shall also contain sufficient information which shall enable the employee to prepare an explanation." 11 (emphasis
supplied)
Respondents vehemently assert that they were never notified in writing regarding the status of their performance, neither
were they warned that they will be dismissed from the service should they fail to improve their performance. Significantly,
petitioner did not refute respondents assertion. The records show that what respondents received was only the
termination order from Mayor Jose Miranda. Obviously, respondents right to due process was violated.
Moreover, respondents contend that the only reason behind their arbitrary dismissal was Mayor Jose Mirandas
perception that they were not loyal to him, being appointees of then Acting Mayor Navarro. This contention appears to be
true considering that all those who were accepted and screened by the PSPB during the incumbency of Acting Mayor
Navarro were rated to have performed poorly by an audit team whose three members were personally picked by Mayor
Jose Miranda.
The Constitution has envisioned the civil service to be a career service based on merit and rewards system that will truly
be accountable and responsive to the people and deserving of their trust and support. 12 These noble objectives will be
frustrated if the tenure of its members is subject to the whim of partisan politics. A civil servant who lives in ceaseless fear
of being capriciously removed from office every time a new political figure assumes power will strive to do anything that
pleases the latter. In this way, he will hardly develop efficiency, accountability and a sense of loyalty to the public service.

Such a climate will only breed opportunistic, inefficient and irresponsible civil servants to the detriment of the public. This
should not be countenanced.
In fine, we hold that petitioner, not being a real party in interest, has no legal personality to file this petition. Besides, his
motion for reconsideration was validly withdrawn by the incumbent Mayor. Even assuming he is a real party in interest, we
see no reason to disturb the findings of both the CSC and the Court of Appeals. The reinstatement of respondents who,
unfortunately, were victims of political bickerings, is in order.
WHEREFORE, the petition is DENIED. The assailed Decision dated May 21, 1999 of the Court of Appeals in CA-G.R. SP
No. 36997 is AFFIRMED.
Treble costs against petitioner.
SO ORDERED.

G.R. No. 96817 July 25, 1991

AGUSTIN B. DOCENA vs. THE SANGGUNIANG PANLALAWIGAN OF EASTERN SAMAR, GOVERNOR LUTGARDO
B. BARBO, VICE GOVERNOR CAMILO A. CAMENFORTE, BOARD MEMBERS MARCOS ALIDO, NONATO GERNA,
ISMAEL KHO, MARCELINO C. LIBANAN, NICOLAS PIMENTEL, GENEROSO YU and ATTY. SOCRATES B. ALAR
CRUZ, J.:p
Two persons are claiming the same position in the Sangguniang Panlalawigan of Eastern Samar by virtue of separate
appointments thereto extended to them by the same authority. The first appointment was replaced by the second
appointment, which was subsequently withdrawn to reinstate the first appointment, but this was later itself recalled in favor
of the second appointment. To add to the confusion, the Sangguniang Panlalawigan has joined the fray and taken it upon
itself to decide who as between the two claimants is entitled to the office.
The case arose when Luis B. Capito, who had been elected to and was serving as a member of the Sangguniang
Panlalawigan of Eastern Samar (SPES) died in office and petitioner Agustin B. Docena was appointed to succeed him.
The appointment was issued on November 19, 1990, 1 by Secretary Luis T. Santos of the Department of Local
Government and read in full as follows:
Republic of the Philippines
Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
OFFICE OF THE SECRETARY
November 19, 1990
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed MEMBER OF THE SANGGUNIANG
PANLALAWIGAN, PROVINCE OF EASTERN SAMAR.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the
Civil Service Commission copies of your oath of office.
Very truly yours,
By Authority of the President
LUIS T. SANTOS
Secretary
Mr. AGUSTIN B. DOCENA
Thru: The Honorable Governor
Province of Eastern Samar
Pursuant thereto, the petitioner took his oath of office before Speaker Ramon V. Mitra of the House of Representatives on
November 22, 1990, 2 and assumed office as member of the SPES on November 26, 1990. 3
The record does not show why, but on November 27, 1990, private respondent Socrates B. Alar was appointed, also by
4
Secretary Luis T. Santos, to the position already occupied by Docena. The appointment read in full as follows:
Republic of the Philippines
Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
OFFICE OF THE SECRETARY
November 27, 1990
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed MEMBER OF THE SANGGUNIANG
PANLALAWIGAN, PROVINCE OF EASTERN SAMAR.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the
Civil Service Commission with copies of your oath of office.
Very truly yours,
By Authority of the President
LUIS T. SANTOS
Secretary

Atty. SOCRATES ALAR

Thru: The Honorable Governor
Eastern Samar
On December 18, 990, the SPES passed Resolution No. 75 5 recognizing Alar rather than Docena as the legitimate
successor of the late Board Member Capito.
The following day, the SPES was in effect reversed by Secretary Santos when he addressed the following letter to Alar:

Republic of the Philippines

Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
OFFICE OF THE SECRETARY
December 19, 1990
Mr. Socrates Alar
Borongan, Eastern Samar
Dear Mr. Alar:
It appearing from perusal of records that an appointment dated November 19, 1990 was already issued to Mr. AGUSTIN
DOCENA as member of the Sangguniang Panlalawigan of Eastern Samar, vice: Luis Capito, the appointment issued to
you dated November 27, 1990 as member of the same sanggunian, is hereby recalled effective the date of issue.
Please be guided accordingly.
Very truly yours,
LUIS T. SANTOS
Secretary
cc: The Honorable Governor
Borongan, Eastern Samar
The Sangguniang Panlalawigan
Borongan, Eastern Samar
Mr. Agustin Docena
Borongan, Eastern Samar
This action was affirmed in a First Indorsement dated January 4, 1991, signed by Head Executive Assistant Arturo V.
7
Agundo of the Department of Local Government, in which he declared "by authority of the Secretary" that
1. Records show that the Secretary has appointed Mr. Agustin B. Docena as Sangguniang Panlalawigan Member as of
November 19, 1990; the Secretary has extended another appointment to the same post in favor of Atty. Socrates Alar on
November 27, 1990; the Secretary, on December 19, 1990, has recalled the appointment of Atty. Socrates Alar on the
basis of the earlier appointment extended in favor of Mr. Docena.
In view of the foregoing, the appointment of Mr. Agustin Docena stands and should be recognized.
8

The reaction of the SPES was to pass, Resolution No. 1 dated January 8, 1991, where it reiterated its previous
recognition of Alar and declared that "the recall order issued by Secretary Santos, dated December 19, 1990, recalling the
appointment of Atty. Alar has no legal basis in fact and in law and issued to fit his whimsical, capricious and wishy-washy
desires to the detriment of decency and due process of law.
On the same date, Provincial Prosecutor Dario S. Labrador had rendered an opinion that the recall order of Secretary
Santos was "void ab initio"' because Alar's right to the office "had become vested." 9
It is not clear if Secretary Santos agreed with these views, but at any rate he issued on February 20, 1991, another recall
10
order. this time addressed to Docena, reading in full as follows:
Republic of the Philippines
Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
OFFICE OF THE SECRETARY
February 20, 1991
MEMORANDUM

TO: MR. AGUSTIN DOCENA

Borongan, Eastern Samar
SUBJECT: RECALL OF APPOINTMENT
Please be informed that the appointment extended to you as Member of the Sangguniang Panlalawigan of Eastern
Samar, last November 19, 1990 is hereby recalled effective immediately.
You are hereby directed to turn-over the office to Mr. Socrates Alar who was appointed by this Department on November
27, 1990, immediately upon receipt hereof.
For compliance.
LUIS T. SANTOS
Secretary
cc: The Honorable Governor
Province of Eastern Samar
Mr. Socrates Alar
Borongan, Eastern Samar
Docena then came to this Court in a petition for mandamus to compel the respondents to recognize and admit him as a
lawfully appointed member of the Sangguniang Panlalawigan of Eastern Samar. He also seeks to hold them officially and
personally liable in damages for their refusal to do so in spite of his clear title to the disputed office.
Pending resolution of this case, we issued a temporary restraining order on January 31, 1991, enjoining both Docena and
Alar from assuming the office of member of the Sangguniang Panlalawigan of Eastern Samar.
The pertinent legal provision is Section 50 of the Local Government Code reading as follows:
Sec. 50. Permanent Vacancies in Local Sanggunians. In case of permanent vacancy in the sangguniang panlalawigan,
sangguniang panlungsod, 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 the sangguniang panlungsod; 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 sanggunian member who caused the vacancy, and shall serve the
unexpired term of the vacant office.
The petitioner makes the point, and it has not been disputed by the respondents, that both he and Capito ran for the
provincial board in the 1988 elections under the banner of Lakas ng Bansa. Later, they both joined the Laban ng
Demokratikong Pilipino under the leadership of Speaker Mitra, who administered the oath of office to him when he was
appointed to the SPES on November 19, 1990. Docena argues that he has a preferential right to the disputed office even
on equitable grounds because he placed ninth in the election, next to Capito, compared to Alar who did not even run for
the office.
The respondents do not challenge the qualifications of the petitioner. But they contend that the appointment in his favor on
November 19, 1990, had been superseded by the appointment in favor of Alar on November 27, 1990, and that the recall
of the second appointment on December 19, 1990, was null and void ab initio for lack of previous hearing. Curiously, they
do not have the same view of the recall of Docena's appointment on February 20, 1991, which was also issued without
hearing.
From the tenor of the appointment extended to Docena on November 19, 1990, there is no question that it was intended
to be permanent, to fill the permanent vacancy caused by Capito's death. As such, it was to be valid for the unexpired
portion of the term of the deceased member, who was entitled to serve "until noon of June 30, 1992," in accordance with
Article XVIII, Section 2, of the Constitution.
The said appointment had been accepted by Docena, who had in fact already assumed office as member of the SPES as
per certification of the Provincial Secretary. 11 For all legal intents and purposes, the petitioner's appointment had already
become complete and enforceable at the time it was supposed to have been "superseded" by the appointment in favor of
Alar.
The respondents are ambivalent about the power of the Secretary of Local Government to recall his appointments. They
described the appointment as "whimsical, capricious and wishy-washy" but they had no similar complaints about the recall
of Docena's appointment although also apparently indecisive. On the contrary, they maintained a deep silence about this
other recall and insisted simply that the subsequent appointment of Alar had invalidated the earlier appointment of
Docena.

It is noteworthy that absolutely no reason was given for the recall of Docena's appointment (or for that matter, the recall of
Alar's appointment). It appears that after appointing Docena and later twice sustaining his title to the office, Secretary
Santos simply had a change of heart and decided to award the position to Alar.
This is not the way things are done in a democracy.
Docena's appointment having been issued and accepted earlier, and the petitioner having already assumed office, he
could not thereafter be just recalled and replaced to accommodate Alar. The appointment was permanent in nature, and
for the unexpired portion of the deceased predecessor's term. Docena had already acquired security of tenure in the
position and could be removed therefrom only for any of the causes, and conformably to the procedure, prescribed by the
Local Government Code. 12 These requirements could not be circumvented by the simple process of recalling his
appointment.
Whatever gave the SPES the impression that the questioned appointments were revocable at will can only be left to
conjecture; what is certain is that it was not based on careful legal study. The Provincial Prosecutor's opinion that the
office had "become vested" in Alar suffers from the same flaw and a lack of understanding of the nature of a public office.
Political rather than legal considerations seem to have influenced the action of the provincial government in rejecting the
petitioner's claim despite its obvious merit.
The respondents also argue that the petitioner should have sought to enforce his claimed right in a petition not
for mandamus but for quo warranto, as his purpose is to challenge Alar's title to the disputed office. That is only secondary
in this case. The real purpose of the present petition is to compel the respondent SPES to recognize and admit Docena as
a member of the body by virtue of a valid appointment extended to him by the Secretary of Local Government.
Mandamus is employed to compel the performance of a ministerial duty to which the petitioner is entitled. In arguing that
the recognition and admission of the petitioner is not a ministerial duty, the respondents are asserting the discretion to
review, and if they so decide, reject, the Secretary's appointment. They have no such authority. Faced with a strictly legal
question, they had no right and competence to resolve it in their discretion. What they should have done was reserve their
judgment on the matter, leaving it to the courts of justice to decide which of the conflicting claims should be upheld. As a
local legislative body subject to the general supervision of the President of the Philippines, the SPES had no discretion to
rule on the validity of the decisions of the Secretary of Local Government acting as her alter ego.
Even assuming that the proper remedy is a petition for quo warranto, the Court may in its own discretion consider the
present petition a. such and deal with it accordingly. We find that as a petition for quo warranto, it complies with the
prescribed requirements, to wit, that it be filed on time and by a proper party asserting title to the office also claimed by the
respondent. Acting thereon, we hold that Docena has proved his right to the disputed office and could not be legally
replaced by Alar.
The Court will make no award of damages, there being no sufficient proof to overcome the presumption that the
respondents have acted in good faith albeit erroneously. Nevertheless, the petitioner is entitled to the payment of the
salaries and other benefits appurtenant to the office of a Member of the Sangguniang Panlalawigan of Eastern Samar,
from the time of his assumption of office and until he is actually admitted or reinstated.
WHEREFORE, the petition is GRANTED. The petitioner is DECLARED the lawfully appointed member of the
Sangguniang Panlalawigan of Eastern Samar, which is hereby DIRECTED to admit or reinstate him as such. The
temporary restraining order dated January 31, 1991, is LIFTED. No costs.
SO ORDERED.

G.R. No. 181097

June 25, 2008

NORLAINIE MITMUG LIMBONA vs. COMMISSION ON ELECTIONS and MALIK "BOBBY" T. ALINGAN, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for certiorari with prayer for issuance of a temporary restraining order and/or writ of preliminary injunction
seeks to reverse and nullify the September 4, 2007 Resolution1 of the Commission on Elections (Comelec) in SPA Case
No. 07-611 disqualifying petitioner to run as mayor of the municipality of Pantar, Lanao del Norte, as well as the January
2
9, 2008 Resolution denying the motion for reconsideration.
Petitioner Norlainie Mitmug Limbona (Norlainie), her husband, Mohammad G. Limbona (Mohammad), and respondent
Malik "Bobby" T. Alingan (Malik) were mayoralty candidates in Pantar, Lanao del Norte during the 2007 Synchronized
National and Local Elections. Mohammad and Norlainie filed their certificates of candidacy with Acting Election Officer,
Alauya S. Tago, on January 22, 2007 and March 29, 2007, respectively; while Malik filed his certificate of candidacy with
the Office of the Election Officer on March 26, 2007.
On April 2, 2007, Malik filed a petition to disqualify Mohammad for failure to comply with the residency requirement. The
petition was docketed as SPA No. 07-188. Subsequently, or on April 12, 2007, Malik filed another petition to disqualify
Norlainie also on the ground of lack of the one-year residency requirement. The petition was docketed as SPA No. 07611.3
On April 21, 2007, Norlainie filed an Affidavit of Withdrawal of Certificate of Candidacy.4 Thereafter, or on May 2, 2007,
she filed before the Office of the Provincial Election Supervisor a Motion to Dismiss5 the petition for disqualification in SPA
No. 07-611 on the ground that the petition had become moot in view of the withdrawal of her certificate of candidacy.
The Comelec en banc granted the withdrawal of Norlainies certificate of candidacy in Resolution No. 79496 dated May
13, 2007, the dispositive portion of which provides:
The Commission RESOLVED, as it hereby RESOLVES, to approve the foregoing recommendations of the Law
Department, as concurred in by Commissioner Florentino A. Tuason, Jr., as follows:
1. To GIVE due course to the Affidavits of Withdrawal of Certificates of Candidacy of the following candidates:
xxxx
Norlaine M. Limbona Mayor Pantar, Lanao del Norte
xxxx
2. To direct the Election Officers concerned to DELETE the aforementioned names of candidates from the Certified List of
Candidates.
Let the Law Department implement this resolution with dispatch.
SO ORDERED.
Meanwhile, the First Division of Comelec issued on May 24, 2007 a Resolution7 in SPA No. 07-188 granting the petition
filed by Malik and disqualifying Mohammad from running as municipal mayor of Pantar, Lanao del Norte for failing to
satisfy the one year residency requirement and for not being a registered voter of the said place, thus:
WHEREFORE, premises considered, the instant petition is GRANTED. Respondent Mohammad "Exchan" G. Limbona is
hereby disqualified. Accordingly, his name is ordered deleted from the official list of candidates for the position of mayor of
the municipality of Pantar, Lanao del Norte.
SO ORDERED.

The May 24, 2007 Resolution became final and executory on June 2, 2007.8
Consequently, Norlainie filed a new certificate of candidacy as substitute candidate for Mohammad which was given due
course by the Comelec en banc in its Resolution No. 82559 dated July 23, 2007, the dispositive portion of which states:
The Commission RESOLVED, as it hereby RESOLVES, to approve the foregoing recommendations of the Law
Department, as follows:
1. To GIVE due course to the Certificate of Candidacy and Certificate of Nomination and Acceptance of Norlainie "LaiExchan" Mitmug Limbona as substitute candidate for Mohammad "Exchan" G. Limbona for Mayor, Pantar, Lanao del
Norte; and
2. To direct the Election Officer of Pantar, Lanao del Norte to DELETE the name of Mohammad "Exchan" G.
Limbona from the Certified List of Candidates for Mayor, Pantar, Lanao del Norte and to INCLUDEtherein the name of
Norlainie "Lai-Exchan" Mitmug Limbona.
Let the Law Department implement this resolution with dispatch.
SO ORDERED.
Thus, Malik filed a second petition for disqualification against Norlainie docketed as SPA No. 07-621.
After the elections, Norlainie emerged as the winning candidate and accordingly took her oath and assumed office.
However, on September 4, 2007, the Second Division of Comelec in SPA No. 07-611 disqualified Norlainie on three
grounds: lack of the one-year residency requirement; not being a registered voter of the municipality; and, nullity of her
certificate of candidacy for having been filed at a place other than the Office of the Election Officer.
Norlainie filed an Omnibus Motion to declare the petition in SPA No. 07-611 moot and/or for reconsideration, arguing that
the Comelec en banc had approved the withdrawal of her first certificate of candidacy and had given due course to her
new certificate of candidacy as a substitute candidate for Mohammad. Malik opposed the omnibus motion.
Meanwhile, the Second Division of Comelec in SPA No. 07-621, promulgated on November 23, 2007 a
Resolution10 disqualifying Norlainie from running as mayor of Pantar, Lanao del Norte. It held thus:
As regards the residency requirement, We rule for petitioner.
As borne out from the record, respondents domicile of origin was in Maguing, Lanao del Norte, which is her place of birth.
When she got married, she became a resident of Marawi City, specifically, in Barangay Rapasun where her husband
served as Barangay Chairman until November 2006. This is her domicile by operation of law pursuant to the Family Code
as applied in the case of Larrazabal v. Comelec (G.R. No. 100739, September 3, 1991).
What respondent now is trying to impress upon Us is that she has changed her aforesaid domicile and resided in Pantar,
Lanao del Norte. x x x
In the present case, the evidence adduced by respondent, which consists merely of self-serving affidavits cannot
persuade Us that she has abandoned her domicile of origin or her domicile in Marawi City. It is alleged that respondent
"has been staying, sleeping and doing business in her house for more than 20 months" in Lower Kalanganan and yet,
there is no independent and competent evidence that would corroborate such statement.
Further, We find no other act that would indicate respondents intention to stay in Pantar for an indefinite period of time.
The filing of her Certificate of Candidacy in Pantar, standing alone, is not sufficient to hold that she has chosen Pantar as
her new residence. We also take notice of the fact that in SPA No. 07-611, this Commission has even found that she is
not a registered voter in the said municipality warranting her disqualification as a candidate. 11
On January 9, 2008, the Comelec en banc in SPA No. 07-611 denied Norlainies motion for reconsideration.

Hence, the instant petition alleging that the Comelec gravely abused its discretion in proceeding to resolve the petition in
SPA No. 07-611 despite the approval of petitioners withdrawal of certificate of candidacy.12
On January 29, 2008, the Court resolved to issue a temporary restraining order effective immediately enjoining
respondents from enforcing and implementing the Comelec Resolutions disqualifying petitioner as a candidate for mayor
in Pantar, Lanao del Norte.13
The petition lacks merit.
The withdrawal of a certificate of candidacy does not necessarily render the certificate void ab initio. Once filed, the
14
permanent legal effects produced thereby remain even if the certificate itself be subsequently withdrawn. Section 73 of
the Omnibus Election Code of the Philippines (B.P. Blg. 881, as amended) provides:
Sec. 73. Certificate of candidacy. No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein. A person who has filed a certificate of candidacy may, prior to
the election, withdraw the same by submitting to the office concerned a written declaration under oath. No person
shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for
more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of
certificate of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office
for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or
withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which
a candidate may have incurred. (Emphasis supplied)
Thus, when petitioner filed her certificate of candidacy on March 29, 2007, such act produced legal effects, and the
withdrawal of the same, despite the approval of the Comelec, did not bar or render nugatory the legal proceedings it had
set in motion. As such, the Comelec did not commit grave abuse of discretion when it ruled on the merits of the petition
despite the withdrawal of petitioners certificate of candidacy. The Comelec correctly held that a case only becomes moot
when "there is no more actual controversy between the parties or no useful purpose can be served in passing upon the
merits."15 In the instant case, although petitioner withdrew her first certificate of candidacy, the subsequent disqualification
of her husband required that she file a new certificate of candidacy as a substitute candidate. The second filing of a
certificate of candidacy thus once again put her qualifications in issue. Hence, a ruling upon the same is necessary.
The fact that petitioners certificate of candidacy as a substitute candidate was given due course by the Comelec did not
bar the Comelec from deciding on her qualifications to run as municipal mayor. As correctly found by the Comelec:
Said resolution (Comelec Resolution No. 8255) discloses only the following: a) movant is given the green lights to be the
substitute candidate for her husband who was disqualified; b) her certificate of candidacy was duly accomplished in form
and substance and c) the certificate of candidacy will not cause confusion among the voters. Clearly, no issue of
disqualification was passed upon by the Commission in the said resolution.
Movant may have been given the impression that the Commissions act of giving due course to her substitute certificate of
candidacy constitutes a pronouncement that she is not disqualified. It must be pointed out, however, that the bases for
giving due course to a certificate of candidacy are totally different from those for enunciating that the candidate is not
16
disqualified. x x x
Moreover, the Electoral Reforms Law of 1987 (R.A. No. 6646) "authorizes the Commission (Comelec) to try and decide
petitions for disqualifications even after the elections,"17 thus:
SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of
the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis ours)
As such, the Comelec did not err when it continued with the trial and hearing of the petition for disqualification.
The Comelec correctly found that petitioner failed to satisfy the one-year residency requirement. The term "residence" as
used in the election law is synonymous with "domicile," which imports not only intention to reside in a fixed place but also
18
personal presence in that place, coupled with conduct indicative of such intention. The manifest intent of the law in fixing

a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that community.19
For purposes of election law, the question of residence is mainly one of intention. There is no hard and fast rule by which
to determine where a person actually resides.20 Three rules are, however, well established: first, that a man must have a
residence or domicile somewhere; second, that where once established it remains until a new one is acquired; and third, a
man can have but one domicile at a time.21
In order to acquire a domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an
22
intention to remain there, and (3) an intention to abandon the old domicile. A persons "domicile" once established is
considered to continue and will not be deemed lost until a new one is established. 23
To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile;
a bona fide intention of abandoning the former place of residence and establishing a new one, and definite acts which
correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of
24
residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.
Petitioners claim that she has been physically present and actually residing in Pantar for almost 20 months prior to the
elections,25 is self-serving and unsubstantiated. As correctly observed by the Comelec:
In the present case, the evidence adduced by respondent, which consists merely of self-serving affidavits cannot
persuade Us that she has abandoned her domicile of origin or her domicile in Marawi City. It is alleged that respondent
"has been staying, sleeping and doing business in her house for more than 20 months" in Lower Kalanganan and yet,
there is no independent and competent evidence that would corroborate such statement.
Further, We find no other act that would indicate respondents intention to stay in Pantar for an indefinite period of time.
The filing of her Certificate of Candidacy in Pantar, standing alone, is not sufficient to hold that she has chosen Pantar as
her new residence. We also take notice of the fact that in SPA No. 07-611, this Commission has even found that she is
not a registered voter in the said municipality warranting her disqualification as a candidate.26
We note the findings of the Comelec that petitioners domicile of origin is Maguing, Lanao del Norte, 27 which is also her
place of birth; and that her domicile by operation of law (by virtue of marriage) is Rapasun, Marawi City. The Comelec
found that Mohammad, petitioners husband, effected the change of his domicile in favor of Pantar, Lanao del Norte only
on November 11, 2006. Since it is presumed that the husband and wife live together in one legal residence, 28 then it
follows that petitioner effected the change of her domicile also on November 11, 2006. Articles 68 and 69 of the Family
Code provide:
Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render
mutual help and support.
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court
may exempt one spouse from living with the other if the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the
solidarity of the family. (Emphasis ours)
Considering that petitioner failed to show that she maintained a separate residence from her husband, and as there is no
evidence to prove otherwise, reliance on these provisions of the Family Code is proper and is in consonance with human
experience.29
Thus, for failure to comply with the residency requirement, petitioner is disqualified to run for the office of mayor of Pantar,
Lanao del Norte. However, petitioners disqualification would not result in Maliks proclamation who came in second during
the special election.
The rules on succession under the Local Government Code shall apply, to wit:
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. If a
permanent vacancy occurs in the office of the xxx mayor, the xxx vice-mayor concerned shall become the xxx mayor.

xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify or is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
x x x x (Emphasis ours)
Considering the disqualification of petitioner to run as mayor of Pantar, Lanao del Norte, the proclaimed Vice-Mayor shall
then succeed as mayor.
WHEREFORE, the petition for certiorari is DISMISSED. The September 4, 2007 Resolution of the Commission on
Elections in SPA Case No. 07-611 disqualifying petitioner Norlainie Mitmug Limbona from running for office of the Mayor
of Pantar, Lanao del Norte, and the January 9, 2008 Resolution denying the motion for reconsideration, are AFFIRMED.
In view of the permanent vacancy in the Office of the Mayor, the proclaimed Vice-Mayor shall SUCCEED as Mayor. The
temporary restraining order issued on January 29, 2008 is ordered LIFTED.
SO ORDERED.

E. Recall (Secs. 69 75 LGC and Arts. 154 162 IRR)

G.R. No. 111511 October 5, 1993
ENRIQUE T. GARCIA, ET AL. vs. COMMISSION ON ELECTIONS and LUCILA PAYUMO, ET AL.
PUNO, J.:
The EDSA revolution of 1986 restored the reality that the people's might is not a myth. The 1987 Constitution then
included people power as an article of faith and Congress was mandated to p ass laws for its effective exercise. The Local
Government Code of 1991 was enacted providing for two (2) modes of initiating the recall from office of local elective
officials who appear to have lost the confidence of the electorate. One of these modes is recall through the initiative of a
preparatory recall assembly. In the case at bench, petitioners assail this mode of initiatory recall as unconstitutional. The
challenge cannot succeed.
We shall first unfurl the facts.
Petitioner Enrique T. Garcia was elected governor of the province of Bataan in the May 11, 1992 elections. In the early
evening of July 1993, some mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12)
municipalities of the province met at the National Power Corporation compound in Bagac, Bataan. At about 12:30 A.M of
the following day, July 2, 1993, they proceeded to the Bagac town plaza where they constituted themselves into a
Preparatory Recall Assembly to initiate the recall election of petitioner Garcia. The mayor of Mariveles, Honorable Oscar,
de los Reyes, and the mayor of Dinalupihan, the Honorable Lucila Payumo, were chosen as Presiding Officer and
Secretary of the Assembly, respectively. Thereafter, the Vice-Mayor of Limay, the Honorable Ruben Roque, was
recognized and he moved that a resolution be passed for the recall of the petitioner on the ground of "loss of
confidence." 1 The motion was "unanimously seconded." 2 The resolution states:
RESOLUTION NO. 1
Whereas, the majority of all the members of the Preparatory Recall Assembly in the Province of Bataan have voluntarily
constituted themselves for the purpose of the recall of the incumbent provincial governor of the province of Bataan,
Honorable Enrique T. Garcia pursuant to the provisions of Section 70, paragraphs (a), (b) and (c) of Republic Act 7160,
otherwise known as the Local Government Code of 1991;
Whereas, the total number of all the members of the Preparatory Recall Assembly in the province of Bataan is One
Hundred and Forty- Six (146) composed of all mayors, vice-mayors and members of the Sangguniang Bayan of all the 12
towns of the province of Bataan;
Whereas, the majority of all the members of the Preparatory Recall Assembly, after a serious and careful deliberation
have decided to adopt this resolution for the recall of the incumbent provincial governor Garcia for loss of confidence;
Now, therefore, be it resolved, as it is hereby resolved that having lost confidence on the incumbent governor of Bataan,
Enrique T. Garcia, recall proceedings be immediately initiated against him;
Resolved further, that copy of this resolution be furnished the Honorable Commission on Elections, Manila and the
Provincial Election Supervisor, Balanga, Bataan.
One hundred forty-six (146) names appeared in Resolution No. 1 but only eighty (80) carried the signatures of the
members of the PRA. Of the eighty (80) signatures, only seventy-four (74) were found genuine. 3 The PRAC of the
province had a membership of one hundred forty-four (144) 4 and its majority was seventy-three (73).
On July 7, 1993, petitioners filed with the respondent COMELEC a petition to deny due course to said Resolution No. 1.
Petitioners alleged that the PRAC failed to comply with the "substantive and procedural requirement" laid down in Section
70 of R.A. 7160, otherwise known as the Local Government Code of 1991. In a per curiamResolution promulgated August
31, 1993, the respondent COMELEC dismissed the petition and scheduled the recall elections for the position of Governor
of Bataan on October 11 , 1993. Petitioners then filed with Us a petition for certiorari and prohibition with writ of
preliminary injunction to annul the said Resolution of the respondent COMELEC on various grounds. They urged that
section 70 of R.A. 7160 allowing recall through the initiative of the PRAC is unconstitutional because: (1) the people have
the sole and exclusive right to decide whether or not to initiate proceedings, and (2) it violated the right of elected local

public officials belonging to the political minority to equal protection of law. They also argued that the proceedings followed
by the PRAC in passing Resolution No. I suffered from numerous defects, the most fatal of which was the deliberate
failure to send notices of the meeting to sixty-five (65) members of the assembly. On September 7, 1993, We required the
5
respondents to file their Comments within a non-extendible period of ten (10) days. On September 16, 1993, We set
petition for hearing on September 21, 1993 at 11 A.M. After the hearing, We granted the petition on ground that the
sending of selective notices to members of the PRAC violated the due process protection of the Constitution and fatally
flawed the enactment of Resolution No. 1. We ruled:
xxx xxx xxx
After deliberation, the Court opts not to resolve the alleged constitutional infirmity of sec. 70 of R.A. No. 7160 for its
resolution is not unavoidable to decide the merits of the petition. The petition can be decided on the equally fundamental
issues of: (1) whether or not all the members of the Preparatory Recall Assembly were notified of its meeting; and (2)
assuming lack of notice, whether or not it would vitiate the proceedings of the assembly including its Resolution No. 1.
The failure to give notice to all members of the assembly, especially to the members known to be political allies of
petitioner Garcia was admitted by both counsels of the respondents. They did not deny that only those inclined to agree
with the resolution of recall were notified as a matter of political strategy and security. They justified these selective
notices on the ground that the law does not specifically mandate the giving of notice.
We reject this submission of the respondents. The due process clause of the Constitution requiring notice as an element
of fairness is inviolable and should always be considered as part and parcel of every law in case of its silence. The need
for notice to all the members of the assembly is also imperative for these members represent the different sectors of the
electorate of Bataan. To the extent that they are not notified of the meeting of the assembly, to that extent is the sovereign
voice of the people they represent nullified. The resolution to recall should articulate the majority will of the members of
the assembly but the majority will can be genuinely determined only after all the members of the assembly have been
given a fair opportunity to express the will of their constituents. Needless to stress, the requirement of notice is
indispensable in determining the collective wisdom of the members of the Preparatory Recall Assembly. Its nonobservance is fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan.
The petition raises other issues that are not only prima impressionis but also of transcendental importance to the rightful
exercise of the sovereign right of the people to recall their elected officials. The Court shall discuss these issues in a more
extended decision.
In accord with this Resolution, it appears that on September 22, 1993, the Honorable Mayor of Dinalupihan, Oscar de los
Reyes again sent Notice of Session to the members of the PRAC to "convene in session on September 26, 1993 at the
town plaza of Balanga, Bataan at 8:30 o'clock in the morning." 6 From news reports, the PRAC convened in session and
eighty-seven (87) of its members once more passed a resolution calling for the recall of petitioner Garcia. 7 On September
27, 1993, petitioners filed with Us a Supplemental Petition and Reiteration of Extremely Urgent Motion for a resolution of
their contention that section 70 of R.A. 7160 is unconstitutional.
We find the original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar
as it allows a preparatory recall assembly initiate the recall of local elective officials as bereft of merit.
Every law enjoys the presumption of validity. The presumption rests on the respect due to the wisdom, integrity, and the
patriotism of the legislative, by which the law is passed, and the Chief Executive, by whom the law is
8
approved, For upholding the Constitution is not the responsibility of the judiciary alone but also the duty of the legislative
and executive. 9 To strike down a law as unconstitutional, there must be a clear and unequivocal showing that what the
fundamental law prohibits, the statute permits. 10 The annulment cannot be decreed on a doubtful, and arguable
implication. The universal rule of legal hermeneutics is that all reasonable doubts should be resolved in favor of the
constitutionality of a law. 11
Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative
to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power
is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of
12
public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative
13
democracy.
Recall is a mode of removal of elective local officials made its maiden appearance in our 1973 Constitution. 14 It was
mandated in section 2 of Article XI entitled Local Government, viz:

Sec. 2. The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a
majority vote of all its Members, defining a more responsive and accountable local government structure with an effective
system of recall, allocating among the different local government units their powers, responsibilities, and resources, and
providing for the qualifications, election and removal, term, salaries, powers, functions, and duties of local officials, and all
other matters relating to the organization and operation of the local units. However, any change in the existing form of
local government shall not take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose.
(Emphasis supplied)
The Batasang Pambansa then enacted BP 337 entitled "The Local Government Code of 1983." Section 54 of its Chapter
3 provided only one mode of initiating the recall elections of local elective officials, i.e., by petition of at least twenty-five
percent (25%) of the total number of registered voters in the local government unit concerned, viz:
Sec. 54. By Whom Exercised; Requisites. (1) The power of recall shall be exercised by the registered voters of the unit
to which the local elective official subject to such recall belongs.
(2) Recall shall be validly initiated only upon petition of at least twenty-five percent (25%) of the total number of registered
voters in the local government unit concerned based on the election in which the local official sought to be recalled was
elected.
Our legal history does not reveal any instance when this power of recall as provided by BP 337 was exercised by our
people.
In February 1986, however, our people more than exercised their right of recall for they resorted to revolution and they
booted of office the highest elective officials of the land.
The successful use of people power to remove public officials who have forfeited the trust of the electorate led to its firm
institutionalization in the 1987 Constitution. Its Article XIII expressly recognized the Role and Rights of People's
Organizations, viz:
Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and
protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and
lawful means.
People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest
and with identifiable leadership, membership, and structure.
Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social,
political, and economic decision-making shall not be abridged. The State shall, by laws, facilitate the establishment of
adequate consultation mechanisms.
Section 3 of its Article X also reiterated the mandate for Congress to enact a local government code which "shall provide
for a more responsive and accountable local government structure instituted through a system of decentralization with
effective
mechanisms
of
recall,
initiative
and
referendum. . .," viz :
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsible and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local government units their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local units.
In response to this constitutional call, Congress enacted R.A. 7160, otherwise known as the Local Government Code of
1991, which took effect on January 1, 1992. In this Code, Congress provided for a second mode of initiating the recall
process through a preparatory recall assembly which in the provincial level is composed of all mayors, vice-mayors
and sanggunian members of the municipalities and component cities. We quote the pertinent provisions of R.A. 7160, viz:
CHAPTER 5 RECALL

Sec. 69. By Whom Exercised. The power of recall for loss of confidence shall be exercised by the registered voters of a
local government unit to which the local elective official subject to such recall belongs.
Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the registered
voters of the local government unit to which the local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be composed
of the following:
(1) Provincial Level. all mayors, vice-mayors and sanggunian members of the municipalities and component cities;
(2) City level. All punong barangay and sangguniang barangay members in the city;
(3) Legislative District level. In cases where sangguniang panlalawigan members are elected by district, all elective
municipal officials in the district; in cases where sangguniang panglungsod members are elected by district , all elective
barangay officials in the district; and
(4) Municipal level. All punong barangay and sangguniang barangay members in the municipality.
(c) A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall
proceeding against any elective official in the local government unit concerned. Recall of provincial, city, or municipal
officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall
assembly concerned during its session called for the purpose.
(d) Recall of any elective provincial, city, municipal, or barangay official may be validly initiated upon petition of at least
twenty-five (25) percent of the total number of registered voters in the local government unit concerned during the election
which in the local official sought to be recalled was elected.
Sec. 71. Election Recall Upon the filing of a valid resolution petition for with the appropriate local office of the Comelec,
the Commission or its duly authorized representative shall set the date of the election on recall, which shall not be later
than thirty (30) days after the filing of the resolution or petition recall in the case of the barangay, city, or municipal
officials, forty-five (45) days in the case of provincial officials. The official or officials sought to be recalled shall
automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other
candidates, shall be entitled to be voted upon.
Sec. 72. Effectivity of Recall. The recall of an elective local official shall be effective only upon the election and
proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election
on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby
affirmed, and he shall continue in office.
Sec. 73. Prohibition from Resignation. The elective local official sought to be recalled shall not be allowed to resign
while the recall process is in progress.
Sec. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his
term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year
immediately preceding regular election.
A reading of the legislative history of these recall provisions will reveal that the idea of empowering a preparatory recall
assembly to initiate the recall from office of local elective officials originated from the House of Representatives A reading
of the legislative history of these recall provisions will reveal that the idea of empowering a preparatory recall assembly to
initiate the recall from office of local elective officials, originated from the House of Representatives and not the
Senate. 15 The legislative records reveal there were two (2) principal reasons why this alternative mode of initiating the
recall process thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of
the people; and (b) to cut down on its expenses. 16 Our lawmakers took note of the undesirable fact that the mechanism
initiating recall by direct action of the electorate was utilized only once in the City of Angeles, Pampanga, but even this
lone attempt to recall the city mayor failed. Former Congressman Wilfredo Cainglet explained that this initiatory process
17
by direct action of the people was too cumbersome, too expensive and almost impossible to implement. Consequently,

our legislators added in the a second mode of initiating the recall of local officials thru a preparatory recall assembly. They
brushed aside the argument that this second mode may cause instability in the local government units due to its imagined
ease.
We have belabored the genesis of our recall law for it can light up many of the unillumined interstices of the law. In
resolving constitutional disputes, We should not be beguiled by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings and needs. Prescinding from this proposition, We
shall now resolve the contention of petitioners that the alternative mode of allowing a preparatory recall assembly to
initiate the process of recall is unconstitutional.
It is first postulated by the petitioners that "the right to recall does not extend merely to the prerogative of the electorate to
reconfirm or withdraw their confidence on the official sought to be recalled at a special election. Such prerogative
necessarily includes the sole and exclusive right to decide on whether to initiate a recall proceedings or not." 18
We do not agree. Petitioners cannot point to any specific provision of the Constitution that will sustain this submission. To
be sure, there is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to
decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode,
of initiating recall elections. 19 Neither did it prohibit the adoption of multiple modes of initiating recall elections. The
mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local government code which shall
provide for a more responsive and accountable local government structure through a system of decentralization
with effective mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate, Congress was clearly
given the power to choose the effective mechanisms of recall as its discernment dictates. The power given was to select
which among the means and methods of initiating recall elections are effective to carry out the judgment of the electorate.
Congress was not straightjacketed to one particular mechanism of initiating recall elections. What the Constitution simply
required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its
constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to
supplement the former mode of initiation by direct action of the people. Congress has made its choice as called for by the
Constitution and it is not the prerogative of this Court to supplant this judgment. The choice may be erroneous but even
then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By the principle of separation of
powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law. 20
Petitioners also positive thesis that in passing Resolution 1, the Bataan Preparatory Recall Assembly did not only initiate
the process of recall but had de facto recalled petitioner Garcia from office, a power reserved to the people alone. To
quote the exact language of the petitioners: "The initiation of a recall through the PRA effectively shortens and ends the
term of the incumbent local officials. Precisely, in the case of Gov. Garcia, an election was scheduled by the COMELEC
on 11 October 1993 to determine who has the right to assume the unexpired portion of his term of office which should
have been until June 1995. Having been relegated to the status of a mere candidate for the same position of governor (by
operation of law) he has, therefore, been effectively recalled." 21In their Extremely Urgent Clarificatory
Manifestation, 22 petitioners put the proposition more bluntly stating that a "PRA resolution of recall is the re call itself."
Again, the contention cannot command our concurrence. Petitioners have misconstrued the nature of the initiatory
process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the people.
This is a misimpression for initiation by the PRAC is also initiation by the people, albeit done indirectly through their
representatives. It is not constitutionally impermissible for the people to act through their elected representatives. Nothing
less than the paramount task of drafting our Constitution is delegated by the people to their representatives, elected either
to act as a constitutional convention or as a congressional constituent assembly. The initiation of a recall process is a
lesser act and there is no rhyme or reason why it cannot be entrusted to and exercised by the elected representatives of
the people. More far out is petitioners' stance that a PRA resolution of recall is the recall itself. It cannot be seriously
doubted that a PRA resolution of recall merely, starts the process. It is part of the process but is not the whole process.
This ought to be self evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will not
recall its subject official. Likewise, a PRA resolution of recall that is rejected by the people in the election called for the
purpose bears no effect whatsoever. The initiatory resolution merely sets the stage for the official concerned to appear
before the tribunal of the people so he can justify why he should be allowed to continue in office. Before the people render
their sovereign judgment, the official concerned remains in office but his right to continue in office is subject to question.
This is clear in section 72 of the Local Government Code which states that "the recall of an elective local official shall be
effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest
number of votes cast during the election on recall."
We shall next settle the contention of petitioners that the disputed law infracts the equal protection clause of the
Constitution. Petitioners asseverate:

5.01.2. It denied petitioners the equal protection of the laws for the local officials constituting the majority party can
constitute itself into a PRA and initiate the recall of a duly elected provincial official belonging to the minority party thus
rendering ineffectual his election by popular mandate. Relevantly, the assembly could, to the prejudice of the minority (or
even partyless) incumbent official, effectively declare a local elective position vacant (and demand the holding of a special
election) for purely partisan political ends regardless of the mandate of the electorate. In the case at bar, 64 of the 74
signatories to the recall resolution have been political opponents of petitioner Garcia, not only did they not vote for him but
they even campaigned against him in the 1992 elections.
Petitioners' argument does not really assail the law but its possible abuse by the members of the PRAC while exercising
their right to initiate recall proceedings. More specifically, the fear is expressed that the members of the PRAC may inject
political color in their decision as they may initiate recall proceedings only against their political opponents especially
those belonging to the minority. A careful reading of the law, however, will ineluctably show that it does not give an
asymmetrical treatment to locally elected officials belonging to the political minority. First to be considered is the politically
neutral composition of the preparatory recall assembly. Sec. 70 (b) of the Code provides:
Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the registered
voters of the local government unit to which the local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be composed
of the following:
(1) Provincial level. All mayors, vice-mayors and sanggunian members of the municipalities and component cities;
(2) City level. All punong barangay and sangguniang barangay members in the city;
(3) Legislative District Level. In cases where sangguniang panlalawigan members are elected by district, all elective
municipal officials in the district; and in cases where sangguniang panglungsod members are elected by district, all
elective barangay officials in the district; and
(4) Municipal level. All punong barangay and sangguniang barangay members in the municipality.
Under the law, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made
members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties.
No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly, at the
provincial level includes all the elected officials in the province concerned. Considering their number, the greater
probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground
to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not
in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence
cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages multi-party
system for the existence of opposition parties is indispensable to the growth and nurture of democratic system. Clearly
then, the law as crafted cannot be faulted for discriminating against local officials belonging to the minority.
The fear that a preparatory recall assembly may be dominated by a political party and that it may use its power to initiate
the recall of officials of opposite political persuasions, especially those belonging to the minority, is not a ground to strike
down the law as unconstitutional. To be sure, this argument has long been in disuse for there can be no escape from the
reality that all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of
power to an individual or entity. To deny power simply because it can be abused by the grantee is to render government
powerless and no people need an impotent government. There is no democratic government that can operate on the
basis of fear and distrust of its officials, especially those elected by the people themselves. On the contrary, all our laws
assume that officials, whether appointed or elected, will act in good faith and will perform the duties of their office. Such
presumption follows the solemn oath that they took after assumption of office, to faithfully execute all our laws.
Moreover, the law instituted safeguards to assure that the initiation of the recall process by a preparatory recall assembly
will not be corrupted by extraneous influences. As explained above, the diverse and distinct composition of the
membership of a preparatory recall assembly guarantees that all the sectors of the electorate province shall be heard. It is
for this reason that in Our Resolution of September 21, 1993, We held that notice to all the members of the recall
assembly is a condition sine qua non to the validity of its proceedings. The law also requires a qualified majority of all the
preparatory recall assembly members to convene in session and in a public place. It also requires that the recall
resolution by the said majority must be adopted during its session called for the purpose. The underscored words carry
distinct legal meanings and purvey some of the parameters limiting the power of the members of a preparatory recall

assembly to initiate recall proceedings. Needless to state, compliance with these requirements is necessary, otherwise,
there will be no valid resolution of recall which can be given due course by the COMELEC.
Furthermore, it cannot be asserted with certitude that the members of the Bataan preparatory recall assembly voted
strictly along narrow political lines. Neither the respondent COMELEC nor this Court made a judicial inquiry as to the
reasons that led the members of the said recall assembly to cast a vote of lack of confidence against petitioner Garcia.
That inquiry was not undertaken for to do so would require crossing the forbidden borders of the political thicket. Former
Senator Aquilino Pimentel, Jr., a major author of the subject law in his book The Local Government Code of 1991: The
Key to National Development, stressed the same reason why the substantive content of a vote of lack of confidence is
beyond any inquiry, thus:
There is only one ground for the recall of local government officials: loss of confidence. This means that the people may
petition or the Preparatory Recall Assembly may resolve to recall any local elective officials without specifying any
particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption
against the local elective officials who are the subject of any recall petition.
In the case of Evardone vs. Commission on Elections, et al., 204 SCRA 464, 472 (1991), the Court ruled that "loss of
confidence" as a ground for recall is a political question. In the words of the Court, "whether or not the electorate of the
municipality of Sulat has lost confidence in the incumbent mayor is a political question.
Any assertion therefore that the members of the Bataan preparatory recall assembly voted due to their political aversion to
petitioner Garcia is at best a surmise.
Petitioners also contend that the resolution of the members of the preparatory recall assembly subverted the will of the
electorate of the province of Bataan who elected petitioner Garcia with a majority of 12,500 votes. Again, the contention
proceeds from the erroneous premise that the resolution of recall is the recall itself. It refuses to recognize the reality that
the resolution of recall is a mere proposal to the electorate of Bataan to subject petitioner to a new test of faith. The
proposal will still be passed upon by the sovereign electorate of Bataan. As this judgment has yet to be expressed, it is
premature to conclude that the sovereign will of the electorate of Bataan has been subverted. The electorate of Bataan
may or may not recall petitioner Garcia in an appropriate election. If the electorate re-elects petitioner Garcia, then the
proposal to recall him made by the preparatory recall assembly is rejected. On the other hand, if the electorate does not
re-elect petitioner Garcia, then he has lost the confidence of the people which he once enjoyed. The judgment will
write finis to the political controversy. For more than judgments of courts of law, the judgment of the tribunal of the people
is final for "sovereignty resides in the people and all government authority emanates from them."
In sum, the petition at bench appears to champion the sovereignty of the people, particularly their direct right to initiate
and remove elective local officials thru recall elections. If the petition would succeed, the result will be a return to the
previous system of recall elections which Congress found should be improved. The alternative mode of initiating recall
proceedings thru a preparatory recall assembly is, however, an innovative attempt by Congress to remove impediments to
the effective exercise by the people of their sovereign power to check the performance of their elected officials. The power
to determine this mode was specifically given to Congress and is not proscribed by the Constitution.
IN VIEW WHEREOF, the original Petition and the Supplemental Petition assailing the constitutionality of section 70 of
R.A. 7160 insofar as it allows a preparatory recall assembly to initiate the recall process are dismissed for lack of merit.
This decision is immediately executory.
SO ORDERED.
Separate Opinions
QUIASON, J, concurring:
Recall is a process for the removal of an official during his term by a vote of a specified number of citizens at an election
called for such purpose (Wallaca v. Tripp, 358 Mich. 668, 101 NW 2d 312).
The process may be provided for in a constitution or in the absence of constitutional empowerment, in ordinary statutes.
In the latter case, legislature enacts a system for recall in the exercise of its general control of the removal of public officer
(In re Bower, 41 III. 777, 242 No. 2D, 252, Dunhan v. Ardery, 43 OKI 619, 142 p. 331).

Recall statutes enacted without express constitutional mandate have been upheld against claims (a) that they are
obnoxious to a republican form of government (Dunhan v. Ardery, supra) or (b) that they constitute a denial of due
process or a bill of attainder (State ex rel Topping v. Houston, 94 Neb. 445, 643 NW 796, Roberts v. Brown, 73 Tenn App.
567, 310 SW 2d. 197).
The procedure in the recall of an official may be prescribed in the constitution itself or in statutory provisions relating to the
subject. In passing on the construction of recall statutes, the courts have enforced them according to their terms and have
disclaimed all concern as to their wisdom and policy (State ex rel Clark v. Harris, 74 Or 573, 144 p. 109).
The 1987 Constitution does not prescribe the procedure in the recall of elective officials.
The intent is clear that the 1987 Constitution leaves it to Congress to provide the recall mechanism without any preordained restrictions. The broad powers of Congress in pescribing the procedure for recall include the determination as to
the number of electors needed to initiate the recall, the method of voting of the electors, the time and place of the voting
and whether the process includes the election of the successor of the recalled official.
In the Local Government Code of 1991 (R.A. 7160), Congress adopted an alternative procedure for initiating the recall
and made it as a mere stage of the recall process.
Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation of
the recall; and secondly, in the election of the person to occupy the office subject of the recall. This is in contrast with the
first recall statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate were
denied the opportunity to vote for the retention of the official subject of the recall.
In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are all
registered voters of the province. If they constitute less than one per cent of the voters in the province, that miniscule
number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with t he legislature, not
with the judiciary.
VITUG, J., concurring:
I fully concur with the disquisition made by Mr. Justice Reynato S. Puno, and I agree that it is not within the province of the
courts to question the wisdom of, let alone supplant, legislative judgments laid down by Congress to the extent of its
constitutional authority and mandate.
It may not be amiss, however, to caution against any idea of omnipotence in wielding the "power of recall" conferred to the
"Preparatory Recall Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative
duty to exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority,
appropriate judicial recourse to, and corrective relief by, this Court will not be denied.
DAVIDE, JR., J., dissenting:
The paramount issue in this case is the constitutionality of that part of Section 70 of the Local Government Code of 1991
(R.A. 7160) which grants to a body known as the preparatory recall assembly (PRA) the power to initiate recall
proceedings. 1 At the provincial level, as in this case, the PRA is composed of all mayors, vice-mayors
and sanggunian members of the municipalities and component cities in the province.
The issue can only be resolved by inquiring into the nature or essence of recall. The system of recall was adopted for the
first time in our jurisdiction in the 1973 Constitution. Section 2 of Article XI thereof provided:
Sec. 2 The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a
majority vote of all its members, defining a more responsive and accountable local government structure with an effective
system of recall. . . .
This section was incorporated, with some modifications, in the 1987 Constitution to emphasize the thrust on
decentralization and to provide for a mechanism of initiative and referendum. Section 3 of Article X thereof provides as
follows:

Sec. 3 The Congress shall enact a local government code which shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, . . .
Recall is of American origin. In 1951, the constitutions of twelve (12) States of the American union contained provisions on
recall. Oregon was the first to adopt it in 1908, although it had been part of the charter of the city of Los Angeles five years
2
earlier.
Wallace vs. Tripp 3 considers it a fundamental right reserved to the people of the state by the Constitution, and Bernzen
vs. City of Boulder 4 declares it, like the power of initiative and referendum, to be a fundamental right of citizens within a
representative democracy. For its definition, Wallace quotes Websters's New International Dictionary, 2nd ed., to wit:
The right or procedure by which a public official, commonly a legislative or executive official, may be removed from office,
before the end of his term of office, by a vote of the people to be taken on the filing of a petition signed by the required
number of qualified voters (commonly 25%).
The principle underlying recall is stated in Dunham vs. Ardery 5 as follows:
We understand that the principle underlying the recall of public officers means that the people may have an effective and
speed remedy to remove an official who is not giving satisfaction one who they do not want to continue in office,
regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates. If the
policies pursued do not meet the approval of a majority of the people, it is the underlying principle of the recall doctrine to
permit them to expeditiously recall the official, without form or ceremony, as provided for in the charter.
Since recall is constitutionally mandated in our jurisdiction, it goes without saying that it is a power reserved to the people
to be exercised by the registered voters. It was for this reason that, to implement the power of recall under the 1973
Constitution, Batas Pambansa Blg. 337 (the old Local Government Code) provided in Section 54 thereof as follows:
Sec.54. By whom exercised; Requisites. (1) The power of recall shall be exercised by the registered voters of the unit
to which the local elective official subject to such recall belongs.
(2) Recall shall be validly initiated only upon petition of a least twenty-five percent of the total number of registered voters
in the local government unit concerned based on the local sought to be recalled was elected.
To implement the 1987 Constitution provision on recall, the Local Government Code of 1991 likewise expressly provides
in Section 69 as follows:
Sec. 69. By whom Exercised. The power of recall for loss of confidence shall be exercised by the registered voters of a
local government unit to which the local elective official subject to such recall belongings.
Indubitably then, the power of recall is exclusively vested in the electorate or, more specifically, in the registered voters of
the local government unit concerned. In the United States, from where we patterned our system of recall, the initiation of
the recall proceeding is always done by a certain percentage of the voters. Thus:
. . . The required percentage ranges from ten in Kansas to thirty in North Dakota, but twenty-five is by far the most
6
common.
In both B.P. Blg. 337 and the Local Government Code of 1991, our Legislature fixed it at twenty-five percent (25%) of the
total number of registered voters in the local government unit concerned during the election in which the local official
sought to be recalled was elected. 7 It follows then that said power cannot be shared with any other group of persons or
officials. Any such sharing would impair or negate the exclusive character of the power. It is indivisible. Its essential, nay
indispensable, components are the initiation and the election, both of which are substantive in character. By reason of its
exclusive and the indivisible character, both components must be exercised by the electorate alone. The reason why the
initiation phase can and must be done only by the electorate is not difficult to understand. If it can also be done by another
body, such as the PRA in this case, the exclusiveness or indivisibility of the power is necessarily impaired or negated. In
such a case, the electorate is by passed and the resulting recall petition or resolution can by no means be an authentic,
free, and voluntary act of the electorate, which characteristics are indicia of the exercise of a power. The power to initiate,
being a component of the power or recall, necessarily includes the power not to initiate. The power to initiate becomes
meaningless if another body is authorized to do it for the electorate. Worse, since the second component of the power of

recall, i.e., the recall election, does not come into play without the recall petition, it follows that where the petition is not
done through the initiative of the electorate because the latter chooses not to exercise its power to recall or finds no
reason therefor, that election becomes, as to the electorate would in effect be compelled to participate in a political
exercise it neither called for nor decided to have.
Hence, the fullness of the power of recall precludes the delegation of the corresponding authority to initiate it to any entity
other than the electorate, especially where the delegation unduly infringes upon and impairs such power as in this case.
I might add that since Congress decided to retain the 25% requirement for the traditional method of initiating recall
which is the method in full accord and perfect harmony with the true essence of recall the provision for an alternative
method, i.e., recall resolution by a mere majority of the PRA, is subtly designed to negate, if not altogether defeat, the
power of the electorate and to substitute the will of a very small group for the will of the electorate. Admittedly, it is
extremely difficult to meet the 25% requirement. On the other hand, it is far too easy, and at times politically convenient
and expedient, to get a majority of the members of the PRA to initiate a recall proceeding. The choice then is all too
obvious. Indeed, this is the clear message of the admission by former Congressman Wilfredo Cainglet that the 25%
requirement rendered the traditional method ineffective thus necessitating the creation of an alternative method. But the
alternative method besmirches the sanctity of the recall process. If 25% was found ineffective, then the remedy should
have been to reduce it to, say, 15% or 20%.
The conclusion then is inevitable that the provision on the preparatory recall assembly in Section 70 of the Local
Government Code of 1991 is unconstitutional because it amounts to an undue delegation of the power of recall.
I vote to grant the petition.
Melo, J., concur.
# Separate Opinions
QUIASON, J, concurring:
Recall is a process for the removal of an official during his term by a vote of a specified number of citizens at an election
called for such purpose (Wallaca v. Tripp, 358 Mich. 668, 101 NW 2d 312).
The process may be provided for in a constitution or in the absence of constitutional empowerment, in ordinary statutes.
In the latter case, legislature enacts a system for recall in the exercise of its general control of the removal of public officer
(In re Bower, 41 III. 777, 242 No. 2D, 252, Dunhan v. Ardery, 43 OKI 619, 142 p. 331).
Recall statutes enacted without express constitutional mandate have been upheld against claims (a) that they are
obnoxious to a republican form of government (Dunhan v. Ardery, supra) or (b) that they constitute a denial of due
process or a bill of attainder (State ex rel Topping v. Houston, 94 Neb. 445, 643 NW 796, Roberts v. Brown, 73 Tenn App.
567, 310 SW 2d. 197).
The procedure in the recall of an official may be prescribed in the constitution itself or in statutory provisions relating to the
subject. In passing on the construction of recall statutes, the courts have enforced them according to their terms and have
disclaimed all concern as to their wisdom and policy (State ex rel Clark v. Harris, 74 Or 573, 144 p. 109).
The 1987 Constitution does not prescribe the procedure in the recall of elective officials.
The intent is clear that the 1987 Constitution leaves it to Congress to provide the recall mechanism without any preordained restrictions. The broad powers of Congress in pescribing the procedure for recall include the determination as to
the number of electors needed to initiate the recall, the method of voting of the electors, the time and place of the voting
and whether the process includes the election of the successor of the recalled official.
In the Local Government Code of 1991 (R.A. 7160), Congress adopted an alternative procedure for initiating the recall
and made it as a mere stage of the recall process.
Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation of
the recall; and secondly, in the election of the person to occupy the office subject of the recall. This is in contrast with the

first recall statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate were
denied the opportunity to vote for the retention of the official subject of the recall.
In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are all
registered voters of the province. If they constitute less than one per cent of the voters in the province, that miniscule
number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with t he legislature, not
with the judiciary.
VITUG, J., concurring:
I fully concur with the disquisition made by Mr. Justice Reynato S. Puno, and I agree that it is not within the province of the
courts to question the wisdom of, let alone supplant, legislative judgments laid down by Congress to the extent of its
constitutional authority and mandate.
It may not be amiss, however, to caution against any idea of omnipotence in wielding the "power of recall" conferred to the
"Preparatory Recall Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative
duty to exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority,
appropriate judicial recourse to, and corrective relief by, this Court will not be denied.
DAVIDE, JR., J., dissenting:
The paramount issue in this case is the constitutionality of that part of Section 70 of the Local Government Code of 1991
(R.A. 7160) which grants to a body known as the preparatory recall assembly (PRA) the power to initiate recall
proceedings. 1 At the provincial level, as in this case, the PRA is composed of all mayors, vice-mayors
and sanggunian members of the municipalities and component cities in the province.
The issue can only be resolved by inquiring into the nature or essence of recall. The system of recall was adopted for the
first time in our jurisdiction in the 1973 Constitution. Section 2 of Article XI thereof provided:
Sec. 2 The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a
majority vote of all its members, defining a more responsive and accountable local government structure with an effective
system of recall. . . .
This section was incorporated, with some modifications, in the 1987 Constitution to emphasize the thrust on
decentralization and to provide for a mechanism of initiative and referendum. Section 3 of Article X thereof provides as
follows:
Sec. 3 The Congress shall enact a local government code which shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, . . .
Recall is of American origin. In 1951, the constitutions of twelve (12) States of the American union contained provisions on
recall. Oregon was the first to adopt it in 1908, although it had been part of the charter of the city of Los Angeles five years
earlier. 2
3

Wallace vs. Tripp considers it a fundamental right reserved to the people of the state by the Constitution, and Bernzen
vs. City of Boulder 4 declares it, like the power of initiative and referendum, to be a fundamental right of citizens within a
representative democracy. For its definition, Wallace quotes Websters's New International Dictionary, 2nd ed., to wit:
The right or procedure by which a public official, commonly a legislative or executive official, may be removed from office,
before the end of his term of office, by a vote of the people to be taken on the filing of a petition signed by the required
number of qualified voters (commonly 25%).
The principle underlying recall is stated in Dunham vs. Ardery 5 as follows:
We understand that the principle underlying the recall of public officers means that the people may have an effective and
speed remedy to remove an official who is not giving satisfaction one who they do not want to continue in office,
regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates. If the

policies pursued do not meet the approval of a majority of the people, it is the underlying principle of the recall doctrine to
permit them to expeditiously recall the official, without form or ceremony, as provided for in the charter.
Since recall is constitutionally mandated in our jurisdiction, it goes without saying that it is a power reserved to the people
to be exercised by the registered voters. It was for this reason that, to implement the power of recall under the 1973
Constitution, Batas Pambansa Blg. 337 (the old Local Government Code) provided in Section 54 thereof as follows:
Sec.54. By whom exercised; Requisites. (1) The power of recall shall be exercised by the registered voters of the unit
to which the local elective official subject to such recall belongs.
(2) Recall shall be validly initiated only upon petition of a least twenty-five percent of the total number of registered voters
in the local government unit concerned based on the local sought to be recalled was elected.
To implement the 1987 Constitution provision on recall, the Local Government Code of 1991 likewise expressly provides
in Section 69 as follows:
Sec. 69. By whom Exercised. The power of recall for loss of confidence shall be exercised by the registered voters of a
local government unit to which the local elective official subject to such recall belongings.
Indubitably then, the power of recall is exclusively vested in the electorate or, more specifically, in the registered voters of
the local government unit concerned. In the United States, from where we patterned our system of recall, the initiation of
the recall proceeding is always done by a certain percentage of the voters. Thus:
. . . The required percentage ranges from ten in Kansas to thirty in North Dakota, but twenty-five is by far the most
common. 6
In both B.P. Blg. 337 and the Local Government Code of 1991, our Legislature fixed it at twenty-five percent (25%) of the
total number of registered voters in the local government unit concerned during the election in which the local official
sought to be recalled was elected. 7 It follows then that said power cannot be shared with any other group of persons or
officials. Any such sharing would impair or negate the exclusive character of the power. It is indivisible. Its essential, nay
indispensable, components are the initiation and the election, both of which are substantive in character. By reason of its
exclusive and the indivisible character, both components must be exercised by the electorate alone. The reason why the
initiation phase can and must be done only by the electorate is not difficult to understand. If it can also be done by another
body, such as the PRA in this case, the exclusiveness or indivisibility of the power is necessarily impaired or negated. In
such a case, the electorate is by passed and the resulting recall petition or resolution can by no means be an authentic,
free, and voluntary act of the electorate, which characteristics are indicia of the exercise of a power. The power to initiate,
being a component of the power or recall, necessarily includes the power not to initiate. The power to initiate becomes
meaningless if another body is authorized to do it for the electorate. Worse, since the second component of the power of
recall, i.e., the recall election, does not come into play without the recall petition, it follows that where the petition is not
done through the initiative of the electorate because the latter chooses not to exercise its power to recall or finds no
reason therefor, that election becomes, as to the electorate would in effect be compelled to participate in a political
exercise it neither called for nor decided to have.
Hence, the fullness of the power of recall precludes the delegation of the corresponding authority to initiate it to any entity
other than the electorate, especially where the delegation unduly infringes upon and impairs such power as in this case.
I might add that since Congress decided to retain the 25% requirement for the traditional method of initiating recall
which is the method in full accord and perfect harmony with the true essence of recall the provision for an alternative
method, i.e., recall resolution by a mere majority of the PRA, is subtly designed to negate, if not altogether defeat, the
power of the electorate and to substitute the will of a very small group for the will of the electorate. Admittedly, it is
extremely difficult to meet the 25% requirement. On the other hand, it is far too easy, and at times politically convenient
and expedient, to get a majority of the members of the PRA to initiate a recall proceeding. The choice then is all too
obvious. Indeed, this is the clear message of the admission by former Congressman Wilfredo Cainglet that the 25%
requirement rendered the traditional method ineffective thus necessitating the creation of an alternative method. But the
alternative method besmirches the sanctity of the recall process. If 25% was found ineffective, then the remedy should
have been to reduce it to, say, 15% or 20%.
The conclusion then is inevitable that the provision on the preparatory recall assembly in Section 70 of the Local
Government Code of 1991 is unconstitutional because it amounts to an undue delegation of the power of recall.

I vote to grant the petition.

Melo, J., concur.

G.R. No. 94010 December 2, 1991

FELIPE EVARDONE vs. COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN and NOEL
A. NIVAL
G.R. No. 95063 December 2, 1991
ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL vs. COMMISSION ON ELECTIONS and
MAYOR FELIPE EVARDONE, respondents.
PADILLA, J.:p
These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by the respondent
Commission on Elections (COMELEC) dated 20 June 1990 which approved the recommendation of the Election Registrar
of Sulat, Eastern Samar to hold and conduct the signing of the petition for recall of the incumbent Mayor of Sulat, Eastern
Samar, on 14 July 1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a restraining order and/or writ
of preliminary injunction to restrain the holding of the signing of the petition for recall on 14 July 1990.
G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No. 90-0660 of the
respondent COMELEC nullifying the signing process held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor
Evardone of said municipality and en banc Resolution No. 90-0777 denying petitioners' motion for reconsideration, on the
basis of the temporary restraining order issued by this Court on 12 July 1990 in G.R. No. 94010.
Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat, Eastern Samar, having
been elected to the position during the 1988 local elections. He assumed office immediately after proclamation.
On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival (hereinafter referred to as Apelado, et
al.) filed a petition for the recall of Evardone with the Office of the Local Election Registrar, Municipality of Sulat.
In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557, approving the
recommendation of Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on 14 July 1990 the
signing of the petition for recall against incumbent Mayor Evardone of the said Municipality.
On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for immediate issuance of
restraining order and/or writ of preliminary injunction, which was docketed as G.R. No. 94010.
On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective immediately and continuing
until further orders from the Court, ordering the respondents to cease and desist from holding the signing of the petition for
recall on 14 July 1990, pursuant to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.
On the same day (12 July 1990), the notice of TRO was received by the Central Office of the respondent COMELEC. But
it was only on 15 July 1990 that the field agent of the respondent COMELEC received the telegraphic notice of the TRO
a day after the completion of the signing process sought to be temporarily stopped by the TRO.
In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the signing process held
in Sulat, Eastern Samar for being violative of the order (the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a
motion for reconsideration and on 29 August 1990, the respondent COMELEC denied said motion holding that:
. . . The critical date to consider is the service or notice of the Restraining Order on 12 July 1990 upon the principal i.e. the
Commission on Election, and not upon its agent in the field. 1
Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc Resolution No. 900660 of respondent COMELEC.
In G.R. No. 94010, Evardone contends that:

I. The COMELEC committed grave abuse of discretion in approving the recommendation of the Election Registrar of
Sulat, Eastern Samar to hold the signing of the petition for recall without giving petitioner his day in court.
II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess of jurisdiction in
promulgating Resolution No. 2272 on May 22, 1990 which is null and void for being unconstitutional. 2
In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the petition for recall held on
14 July 1990 has been rendered nugatory by the TRO issued by this court in G.R. No. 94010 dated 12 July 1990 but
received by the COMELEC field agent only on 15 July 1990.
The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272 promulgated by respondent
COMELEC on 23 May 1990 by virtue of its powers under the Constitution and Batas Pambansa Blg. 337 (Local
Government Code). The resolution embodies the general rules and regulations on the recall of elective provincial, city and
municipal officials.
Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg. 337 in favor of one
to be enacted by Congress. Said Section 3 provides:
Sec. 3. The Congress shall enact a local government code shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers, responsibilities and resources, and provide
for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties local officials,
and all other matters relating to the organization operation of the local units.
Since there was, during the period material to this case, no local government code enacted by Congressafter the
effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of elected government officials,
Evardone contends that there is no basis for COMELEC Resolution No. 2272 and that the recall proceedings in the case
at bar is premature.
The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:
The constitutional provision does not refer only to a local government code which is in futurum but also in esse. It merely
sets forth the guidelines which Congress will consider in amending the provisions of the present Local Government Code.
Pending the enactment of the amendatory law, the existing Local Government Code remains operative. The adoption of
the 1987 Constitution did not abrogate the provisions of BP No. 337, unless a certain provision thereof is clearly
irreconciliable with the provisions of the 1987 Constitution. In this case, Sections 54 to 59 of Batas Pambansa No. 337 are
not inconsistent with the provisions of the Constitution. Hence, they are operative. 3
We find the contention of the respondent COMELEC meritorious.
Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not inconsistent with the 1987
Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided
in Sec. 534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case. Prior to the
enactment of the new Local Government Code, the effectiveness of B.P. Blg. 337 was expressly recognized in the
proceedings of the 1986 Constitutional Commission. Thus
MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the report of the Committee on
Amendments and Transitory Provisions, the former Local Government Code, which is Batas Pambansa Blg. 337 shall
continue to be effective until repealed by the Congress of the Philippines. 4
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59
expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the
exercise of such powers, promulgate the necessary rules and regulations.
The Election Code contains no special provisions on the manner of conducting elections for the recall of a local official.
Any such election shall be conducted in the manner and under the rules on special elections, unless otherwise provided

by law or rule of the COMELEC. 5 Thus, pursuant to the rule-making power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional.
Consequently, the respondent COMELEC had the authority to approve the petition for recall and set the date for the
signing of said petition.
The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the signing process of the
petition for recall held pursuant to Resolution No. 2272.
In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et al., 6 this Court held:
. . . What is sought in this suit is to enjoin respondents particularly respondent Commission from implementing Batas
Pambansa Blg. 86, specifically "from conducting, holding and undertaking the plebiscite provided for in said act." The
petition was filed on December 5, 1980. There was a plea for a restraining order, but Proclamation No. 2034 fixing the
date for such plebiscite on December 6, 1980 had been issued as far as back as November 11, 1980. Due this delay in to
this suit, attributable solely to petitioners, there was no time even to consider such a plea. The plebiscite was duly held.
The certificate of canvass and proclamation of the result disclosed that out of 2,409 total votes cast in such plebiscite,
2,368 votes were cast in favor of the creation of the new municipality, which, according to the statute, will be named
municipality of Aguinaldo. There were only 40 votes cast against. As a result, such municipality was created. There is no
turning back the clock. The moot and academic character of this petition is thus apparent.
In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, et al. on or about 21
February 1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in following up and determining the
outcome of such notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know about the
Resolution of respondent COMELEC setting the signing of the petition for recall on 14 July 1990. But despite his urgent
prayer for the issuance of a TRO, Evardone filed the petition for prohibition only on 10 July 1990.
Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just the same on the
scheduled date through no fault of the respondent COMELEC and Apelado, et al. The signing process was undertaken by
the constituents of the Municipality of Sulat and its Election Registrar in good faith and without knowledge of the TRO
earlier issued by this Court. As attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of
Sulat, Eastern Samar or about 34% signed the petition for recall. As held in Parades vs. Executive Secretary 7 there is no
turning back the clock.
The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage. It is based on the
theory that the electorate must maintain a direct and elastic control over public functionaries. It is also predicated upon the
idea that a public office is "burdened" with public interests and that the representatives of the people holding public offices
are simply agents or servants of the people with definite powers and specific duties to perform and to follow if they wish to
remain in their respective offices. 8
Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political
question. It belongs to the realm of politics where only the people are the judge. 9 "Loss of confidence is the formal
withdrawal by an electorate of their trust in a person's ability to discharge his office previously bestowed on him by the
same electorate. 10 The constituents have made a judgment and their will to recall the incumbent mayor (Evardone) has
already been ascertained and must be afforded the highest respect. Thus, the signing process held last 14 July 1990 in
Sulat, Eastern Samar, for the recall of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.
However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P. Blg, 337, which
states:
Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held. . . .
(2) No recall shall take place within two years from the date of the official's assumption of office or one year immediately
preceding a regular local election.
The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or more specifically, as
provided for in Article XVIII, Sec. 5 on the second Monday of May, 1992. 11 Thus, to hold an election on recall
approximately seven (7) months before the regular local election will be violative of the above provisions of the applicable
Local Government Code (B.P. Blg. 337)

ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.
SO ORDERED.

G.R. No. 123169 November 4, 1996

DANILO E. PARAS vs. COMMISSION ON ELECTIONS
RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular
barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay.
Acting on the petition for recall, public respondent Commission on Elections (COMELEC) resolved to approve the petition,
scheduled the petition signing on October 14, 1995, and set the recall election on November 13,
1995. 1 At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law. The
COMELEC, however, deferred the recall election in view of petitioner's opposition. On December 6, 1995, the COMELEC
set anew the recall election, this time on December 16, 1995. To prevent the holding of the recall election, petitioner filed
before the Regional Trial Court of Cabanatuan City a petition for injunction, docketed as SP Civil Action No. 2254-AF, with
the trial court issuing a temporary restraining order. After conducting a summary hearing, the trial court lifted the
restraining order, dismissed the petition and required petitioner and his counsel to explain why they should not be cited for
2
contempt for misrepresenting that the barangay recall election was without COMELEC approval.
In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election an January 13,
1996; hence, the instant petition for certiorari with urgent prayer for injunction. On January 12, 1996, the Court issued a
temporary restraining order and required the Office of the Solicitor General, in behalf of public respondent, to comment on
the petition. In view of the Office of the Solicitor General's manifestation maintaining an opinion adverse to that of the
COMELEC, the latter through its law department filed the required comment. Petitioner thereafter filed a reply. 3
Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160, otherwise known as the
Local Government Code, which states that "no recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local election", petitioner insists that the scheduled
January 13, 1996 recall election is now barred as the Sangguniang Kabataan (SK) election was set by Republic Act No.
7808 on the first Monday of May 1996, and every three years thereafter. In support thereof, petitioner cites Associated
Labor Union v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the SK election as a regular local election.
Petitioner maintains that as the SK election is a regular local election, hence no recall election can be had for barely four
months separate the SK election from the recall election. We do not agree.
The subject provision of the Local Government Code provides:
Sec. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his
term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year
immediately preceding a regular local election.
[Emphasis added]
It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context, i.e., that
every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the
whole enactment. 4 The evident intent of Section 74 is to subject an elective local official to recall election once during his
term of office. Paragraph (b) construed together with paragraph (a) merely designates the period when such elective local
official may be subject of a recall election, that is, during the second year of his term of office. Thus, subscribing to
petitioner's interpretation of the phrase regular local election to include the SK election will unduly circumscribe the novel
provision of the Local Government Code on recall, a mode of removal of public officers by initiation of the people before
the end of his term. And if the SK election which is set by R.A No. 7808 to be held every three years from May 1996 were
to be deemed within the purview of the phrase "regular local election", as erroneously insisted by petitioner, then no recall
election can be conducted rendering inutile the recall provision of the Local Government Code.
In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an
5
effective law, and the legislature is not presumed to have done a vain thing in the enactment of a statute. An
interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as

otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless,
6
inoperative or nugatory.
It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution. 7 Thus, the interpretation of Section 74 of the Local Government Code, specifically paragraph (b) thereof,
should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to "enact a local
government code which shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanism of recall, initiative, and referendum . . . ."
Moreover, petitioner's too literal interpretation of the law leads to absurdity which we cannot countenance. Thus, in a case,
the Court made the following admonition:
We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the
8
intention of its authors. That intention is usually found not in "the letter that killeth but in the spirit that vivifieth". . .
The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read
according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating additional
expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local
election. The proscription is due to the proximity of the next regular election for the office of the local elective official
concerned. The electorate could choose the official's replacement in the said election who certainly has a longer tenure in
office than a successor elected through a recall election. It would, therefore, be more in keeping with the intent of the
recall provision of the Code to construe regular local election as one referring to an election where the office held by the
local elective official sought to be recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of the Code
considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the
same having been scheduled on May 1997. 9
ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The temporary restraining order
issued by the Court on January 12, 1996, enjoining the recall election should be as it is hereby made permanent.
SO ORDERED.
Separate Opinions
DAVIDE, JR., J., concurring:
I concur with Mr. Justice Ricardo J. Francisco in his ponencia.
However, I wish to add another reason as to why the SK election cannot be considered a "regular local election" for
purposes of recall under Section 74 of the Local Government Code of 1991.
The term "regular local election" must be confined to the regular election of elective local officials, as distinguished from
the regular election of national officials. The elective national officials are the President, Vice-President, Senators and
Congressmen. The elective local officials are Provincial Governors, Vice-Governors of provinces, Mayors and ViceMayors of cities and municipalities, Members of the Sanggunians of provinces, cities and municipalities, punong
barangays and members of the sangguniang barangays, and the elective regional officials of the Autonomous Region of
Muslim Mindanao. These are the only local elective officials deemed recognized by Section 2(2) of Article IX-C of the
Constitution, which provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
xxx xxx xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal

officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction.
A regular election, whether national or local, can only refer to an election participated in by those who possess the right of
suffrage, are not otherwise disqualified by law, and who are registered voters. One of the requirements for the exercise of
suffrage under Section 1, Article V of the Constitution is that the person must be at least 18 years of age, and one
requisite before he can vote is that he be a registered voter pursuant to the rules on registration prescribed in the
Omnibus Election Code (Section 113-118).
Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424, Local Government Code of 1991).
Accordingly, they include many who are not qualified to vote in a regular election, viz., those from ages 15 to less than 18.
In no manner then may SK elections be considered a regular election (whether national or local).
Indeed the Sangguniang Kabataan is nothing more than a youth organization, and although fully recognized in the Local
Government Code and vested with certain powers and functions, its elective officials have not attained the status of local
elective officials. So, in Mercado vs. Board of Election Supervisors (243 SCRA 422 [1995]), this Court ruled that although
the SK Chairman is an ex-officio member of the sangguniang barangay an elective body that fact does not make
him "an elective barangay official," since the law specifically provides who comprise the elective officials of
the sangguniang barangay, viz., the punong barangay and the seven (7) regular sangguniang barangay members elected
at large by those qualified to exercise the right of suffrage under Article V of the Constitution, who are likewise registered
voters of the barangay. This shows further that the SK election is not a regular local election for purposes of recall under
Section 74 of the Local Government Code.
Separate Opinions
DAVIDE, JR., J., concurring:
I concur with Mr. Justice Ricardo J. Francisco in his ponencia.
However, I wish to add another reason as to why the SK election cannot be considered a "regular local election" for
purposes of recall under Section 74 of the Local Government Code of 1991.
The term "regular local election" must be confined to the regular election of elective local officials, as distinguished from
the regular election of national officials. The elective national officials are the President, Vice-President, Senators and
Congressmen. The elective local officials are Provincial Governors, Vice-Governors of provinces, Mayors and ViceMayors of cities and municipalities, Members of the Sanggunians of provinces, cities and municipalities, punong
barangays and members of the sangguniang barangays, and the elective regional officials of the Autonomous Region of
Muslim Mindanao. These are the only local elective officials deemed recognized by Section 2(2) of Article IX-C of the
Constitution, which provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
xxx xxx xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction.
A regular election, whether national or local, can only refer to an election participated in by those who possess the right of
suffrage, are not otherwise disqualified by law, and who are registered voters. One of the requirements for the exercise of
suffrage under Section 1, Article V of the Constitution is that the person must be at least 18 years of age, and one
requisite before he can vote is that he be a registered voter pursuant to the rules on registration prescribed in the
Omnibus Election Code (Section 113-118).
Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424, Local Government Code of 1991).
Accordingly, they include many who are not qualified to vote in a regular election, viz., those from ages 15 to less than 18.
In no manner then may SK elections be considered a regular election (whether national or local).

Indeed the Sangguniang Kabataan is nothing more than a youth organization, and although fully recognized in the Local
Government Code and vested with certain powers and functions, its elective officials have not attained the status of local
elective officials. So, in Mercado vs. Board of Election Supervisors (243 SCRA 422 [1995]), this Court ruled that although
the SK Chairman is an ex-officio member of the sangguniang barangay an elective body that fact does not make
him "an elective barangay official," since the law specifically provides who comprise the elective officials of
the sangguniang barangay, viz., the punong barangay and the seven (7) regular sangguniang barangay members elected
at large by those qualified to exercise the right of suffrage under Article V of the Constitution, who are likewise registered
voters of the barangay. This shows further that the SK election is not a regular local election for purposes of recall under
Section 74 of the Local Government Code.
Narvasa, C.J., Padilla, Regalado, Bellosillo, Vitug and Mendoza, JJ., concur.

G.R. No. 109713 April 6, 1995

JOSE M. MERCADO vs. BOARD OF ELECTION SUPERVISORS OF THE MUNICIPALITY OF IBAAN, PROVINCE OF
BATANGAS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, CRISANTO P. PANGILINAN and HON.
CONRADO R. ANTONA
SYLLABUS
1. POLITICAL LAW; COMELEC; EXCLUSIVE APPELLATE JURISDICTION UNDER SEC. 252 OF THE OMNIBUS
ELECTION CODE AND PAR. 2, SEC. 2 OF ART. IX-C OF THE CONSTITUTION; CONTESTS ON ELECTION OF
SANGGUNIANG KABATAAN (SK) OFFICIALS, NOT INCLUDED. Section 252 of the Omnibus Election Code and that
portion of paragraph (2), Section 2, Article IX-C of the Constitution on the COMELECs exclusive appellate jurisdiction
over contests involving elective barangay officials refer to the elective barangay officials under the pertinent laws in force
at the time the Omnibus Election Code was enacted and upon the ratification of the Constitution. That law was B.P. Blg.
337, otherwise known as the Local Government Code, and the elective barangay officials referred to were the punong
barangay and the six sangguniang bayan members. They were to be elected by those qualified to exercise the right of
suffrage. They are also the same officers referred to by the provisions of the Omnibus Election Code of the Philippines on
election of barangay officials. Metropolitan and municipal trial courts had exclusive original jurisdiction over contests
relating to their election. The decisions of these courts were appealable to the Regional Trial Courts. These were the laws
on elective barangay officials which the Constitutional Commission took into account when it debated on that portion of
paragraph (2), Section 2, Article IX-C of the Constitution relating to contests involving elective barangay officials. It is
indisputable that contests involving elections of SK (formerly KB) officials do not fall within Section 252 of the Omnibus
Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and that no law in effect prior to the ratification
of the Constitution had made the SK chairman an elective barangay official. His being an ex-officio member of the
sangguniang barangay does not make him one for the law specifically provides who are its elective members, viz., the
punong barangay and the seven regular sangguniang barangay members who are elected at large by those who are
qualified to exercise the right of suffrage under Article V of the Constitution and who are duly registered voters of the
barangay.
2. ID.; ID.; RESOLUTION NO. 2499 CREATING AND CONFERRING JURISDICTION ON BOARD OF ELECTION
SUPERVISORS IN CONTESTS INVOLVING SK ELECTIONS; DECISIONS MAY BE APPEALED TO THE REGIONAL
TRIAL COURTS. The Court recognizes the consequences of the quasi-judicial acts performed by the BES pursuant to
Section 24 of COMELEC Resolution No. 2499 under the operative fact doctrine; thus, we hold that the Regional Trial
Court is competent to review the decision of the BES in election controversies within its level. As correctly stated by the
petitioner, it is a basic principle in administrative law that the absence of a provision for the review of an administrative
action does not preclude recourse to the courts. It is generally understood that as to administrative agencies exercising
quasi-judicial or legislative power there is an underlying power in the courts to scrutinize the acts of such agencies on
questions of law and jurisdiction even though no right of review is given by statute. The purpose of judicial review is to
keep the administrative agency within its jurisdiction and protect substantial rights of parties affected by its decisions. It is
part of the system of checks and balances which restricts the separation of powers and forestalls arbitrary and unjust
adjudications. The Court further holds that there was no need for the petitioner to exhaust administrative remedies; firstly,
because Section 24 of COMELEC Resolution No. 2499 did not provide for recourse to a higher administrative body; and
secondly, the petitioners cause falls within the exception to the rule in that his petition in Civil Case No. 3565, aside from
raising pure questions of law and jurisdiction, also alleges deprivation of due process.
DAVIDE, JR., J.:
The novel issues presented in this petition may be reduced (1) the legality and constitutionality of Section 24, Resolution
No. 2499 of the Commission on Elections (COMELEC) creating, for purposes of the elections in the Sangguniang
Kabataan (SK), the Boards of Election Supervisors (BES) and making it the final arbiter of all election protests, and (2) the
jurisdiction of Regional Trial Courts over contests involving sangguniang kabataan elections.
Petitioner Jose M. Mercado was proclaimed winner in the 4 December 1992 election for chairman of the SK of Barangay
Mabalor, Ibaan, Batangas. The proclamation was made by the Board of Election Tellers (BET) acting as the Board of
Canvassers, on the basis of its tally which showed Mercado winning by one vote(49 to 48) over his rival, private
respondent Crisanto P. Pangilinan. 1
Mercado' s victory was, however, short-lived. Immediately after Mercado's proclamation as the winner by the BET,
Pangilinan filed a formal protest with the BES questioning the results of the election. He alleged that the BET Chairman,
drinking gin and Coke during the counting, had invalidated some votes without consulting the other board members. The
BES ordered .the reopening of the ballot box and the recount of the votes for SK Chairman. The recount reversed the

earlier tally to 51 to 49 in favor of Pangilinan, who was thereupon proclaimed the duly elected SK Chairman by the BES,
which issued for that purpose its own Certificate of Canvass and Proclamation.
Mercado then filed with the Regional Trial Court (RTC) of Batangas City a petition for certiorari and mandamuspraying for
the annulment of Pangilinan's proclamation by the BES, and for the issuance of an order to compel the Department of
Interior and Local Government (DILG) to recognize him as the duly elected SK Chairman of Barangay Mabalor and to
allow him to take his oath of office and discharge his duties as such.
In his petition docketed as Civil Case No. 3565, Mercado assailed the jurisdiction of the BES to act on the protest filed by
Pangilinan as the ground cited therein was allegedly in the nature of an election protest properly cognizable by the
Metropolitan or Municipal Trial Court in accordance with Section 252 of the Omnibus Election Code. He further claimed
that, assuming that the BES has jurisdiction over the protest, the grounds raised therein were deemed waived by
Pangilinan's failure to invoke them at the level of the BET, and that the BES acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in denying the petitioner of due process when it ordered the reopening of the
ballot box and the recounting of the votes without affording him the opportunity to be heard.
In its Order dated 13 January 1993, the RTC dismissed the petition for lack of jurisdiction, The trial court stated that it was
not aware of any law by which it could act on the matters raised in Mercado's petition since Resolution No. 2499 of the
COMELEC did not vest in the RTC jurisdiction over controversies affecting Sangguniang Kabataan elections; constituting
instead the BES, which is under COMELEC jurisdiction , as the final arbiter of all election controversies within its level.
Mercado moved for a reconsideration of the dismissal order. He argued that the RTC was competent to act on his petition
because (a) one mode of seeking judicial review is through the writ of certiorari which may be issued by the RTC under
B.P. Blg. 129;(b) under its Resolutions Nos. 2499 and 2520, the COMELEC was to provide only technical assistance in
the conduct of the SK election and therefore could not grant any relief from the action of the BES; moreover, under said
Resolution No. 2499, no appeal to a higher administrative level wash allowed from the action of the BES and (c) the
principle of exhaustion of administrative remedies did not apply to the case at bar, the jurisdictional and due process
issues raised therein being legal in nature.
Unconvinced, the RTC, in its Order dated 2 March 1993, denied the motion for reconsideration for lack of merit. It ruled
that the reopening of the ballot box for Barangay Mabalor and the recounting of the votes cast therein were perfectly
within the ambit of the BES's authority, and that Mercado should have gone to the DILG which has direct control and
supervision of the SK elections.
Hence, Mercado's present petition under Rule 45 of the Rules of Court for the review on pure questions of law of the
Orders of 13 January 1993 and 2 March 1993 of the Batangas RTC. He initially raises the same issues he presented in
Civil Case No. 3565 on the competency of the BES to take cognizance of Pangilinan' s protest and his right to due
process, and he reiterates the arguments he adduced in his motion for reconsideration regarding the jurisdiction of the
RTC over Civil Case No. 3565. However, in refutation of the Solicitor General's defense of the BES jurisdiction as
conferred by COMELEC Resolution No. 2499, Mercado, in his Consolidated Reply, now contends that COMELEC
Resolution No. 2499 is null and void because: (a) it prescribes a separate set of rules for the election of the SK Chairman
different from and inconsistent with that set forth in the Omnibus Election Code, thereby contravening Section 2, Article I
of the said Code which explicitly provides that "it shall govern all elections of public officers"; and, (b) it constitutes a total,
absolute, and complete abdication by the COMELEC of its constitutionally and statutorily mandated duty to enforce and
administer all election laws as provided for in Section 2 (1), Article IX-C of the Constitution; Section 52, Article VIII of the
Omnibus Election Code; and Section 2, Chapter 1, Subtitle C, Title I, Book V of the 1987 Administrative Code.
The issues presented require a flashback into the history of the SK. It was initially organized by P.D. No. 684 (15 April
1975) as the Kabataang Barangay (KB), a youth organization composed of all barangay residents who were less than 18
years of age which aims to provide its members with the opportunity to express their views and opinions on issues of
transcendental importance. Its affairs were administered by a barangay youth chairman together with six barangay youth
leaders, who should at least be 15 years of age or over but less than 18 The then Secretary of Local Government and
Community Development was authorized to promulgate the implementing rules and regulations.
Pursuant to P.D. No. 1191 (1 September 1977), the Pambansang Katipunan ng Kabataang Barangay ng Pilipinas was
constituted as "a body corporate" with "the powers and attributes of a corporation" and placed directly under the Office of
the President. Its affairs were to be administered by the Executive Committee which was empowered to promulgate rules
and regulations governing the KB. This youth organization was recognized in B.P. Blg. 337 (The Local Government
Code), 2 which raised the maximum age requirement of the members from 18 to 21.

Under R.A. No. 7160 (The Local Government Code of 1991), the Kabataang Barangay was changed to the Sangguniang
Kabataan. 3 It remains as a youth organization in every barangay, composed of a chairman and seven members to be
elected by the katipunan ng kabataan, and the secretary and the treasurer to be appointed by the SK chairman with the
4
concurrence of the SK. The katipunan ng kabataan is composed of all citizens of the Philippines actually residing in the
barangay for at least six months who are 15 but not more than 21 and who are duly registered in the list of the SK or in
the official barangay list in the custody of the barangay secretary. 5 The chairman, upon assumption of office, shall
automatically become an ex-officio member of the sangguniang barangay 6
Under subparagraph (5), paragraph (e) Article 203, Rule XXVII of the Rules and Regulations Implementing the Local
Government Code of 1991 7 the conduct and administration of the elections for sangguniang kabataan members shall be
governed by the rules promulgated by the COMELEC.
Pursuant to such authority and for purposes of the SK election authorized under Section 532 of R.A. No. 7160, the
COMELEC promulgated Resolution No. 2499 which closely followed the pattern set in the Constitution of the Kabataang
Barangay providing for a Board of Election Supervisors and Board of Election Tellers, with the former having direct
general supervision in the conduct of such election and as the final arbiter of all election protests. Article V of Resolution
No. 2499 expressly provides:
ARTICLE V
BOARD OF ELECTION SUPERVISORS AND BOARD OF ELECTION TELLERS
Sec. 24. Board of election supervisors. There shall be created aboard of election supervisors (BES) in every city or
municipality composed of the following: a) city/municipal local government operations officer as chairman; b)
city/municipal election officer as member; and c) city/municipal secretary as member.
The board shall have direct general supervision in the conduct of elections for sangguniang kabataan in the barangay and
shall act as final arbiter in the resolution of all election protests.
No pre-proclamation cases shall be allowed on matters relating to the election of sangguniang kabataan chairman and
members.
The petitioner contends that COMELEC Resolution No. 2499 is illegal and unconstitutional because it makes the BES the
final arbiter of election contests involving the SK in contravention of Section 252 of the Omnibus Election Code which
vests in the proper metropolitan or municipal trial court original jurisdiction over such contests and, on a more fundamental
ground, in contravention of Section 2, Article IX-C of the Constitution which lodges on. such courts exclusive original
jurisdiction over contests involving elective barangay officials. 8
This contention is without merit for it assumes that the SK election is an election involving elective barangay officials
within the purview of the aforesaid statutory and constitutional provisions.
Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2, Article IX-C of the Constitution on
the COMELEC's exclusive appellate jurisdiction over contests involving elective barangay officials refer to the elective
barangay officials under the pertinent laws in force at the time the Omnibus Election Code was enacted and upon the
ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the Local Government Code, and the
9
elective barangay officials referred to were the punong barangay and the six sangguniang bayan members. They were to
10
be elected by those qualified to exercise the right of suffrage. They are also the same officers referred to by the
provisions of the Omnibus Election Code of the Philippines 11 on election of barangay officials. 12 Metropolitan and
municipal trial courts had exclusive original The jurisdiction over contests relating to their election . The decisions of these
courts were appealable to the Regional Trial Courts. 13
These were the laws on elective barangay officials which the Constitutional Commission took into account when it
debated on that portion of paragraph (2), Section 2, Article IX-C of the Constitution relating to contests involving elective
barangay officials. During such debates, the following discussions took place:
MR. MAAMBONG:
Madam President and members of the Committee, I understand from the sponsorship speech that in matters of contests
of barangay, municipal and provincial officials, the jurisdiction is all exclusive to the Commission on Elections. Under the

present law that we have, cases involving election contests of barangay officials are initiated in the municipal trial court or
metropolitan trial court, subject to appeal to the Regional Trial Court whose decision is final. In other words, when it
comes to barangay officials, the COMELEC has nothing to do at all with the election contest. In the case, however, of
municipal officials, under the present law, the Omnibus Election Code, the original jurisdiction is with the Regional Trial
Court, and the decision is appealable to the Commission on Elections. We are suggesting and we would like the
Committee to take note of this that while we admit that in all contests, whether it be barangay, municipal, provincial or city
officials, the sole authority should be the Commission on Elections that there should be a two-tiered resolution of cases
in the sense that when it comes to barangay officials, the municipal trial court or the metropolitan trial court should have
jurisdiction first, then it is appealable to the COMELEC.
In the case of municipal officials, we are thinking that the regional trial court should have jurisdiction, and then it is
appealable to the COMELEC. And in the case of provincial or city officials, the first jurisdiction, which is exclusive, would
be the COMELEC. I wonder if the Committee would take that into consideration considering these facts. If we will allow
the COMELEC to have executive [sic] jurisdiction over cases involving barangay and municipal officials, one can just
imagine the difficulty of the COMELEC, considering that we have thousands of barangay and municipal officials. And as I
understand from my private conversation with the Chairman of the COMELEC, the Honorable Ramon Felipe, when it
comes to contests involving barangay and municipal officials, the COMELEC may have to send hearing officers; whereas
if we will allow the municipal trial court and the metropolitan trial court to have jurisdiction over these cases, they will be
given the proper consideration by the court. In the case of contest involving municipal officials, the regional trial court,
which is also a court, should have jurisdiction, not the hearing officers of the COMELEC. So we have a two-tiered situation
here which we lawyers think would be the best remedy considering again my allusion to the fact that there are so many
barangays and municipalities all over the country.
That is just my suggestion. I do not know if the Committee could respond to it so that we could perhaps present some
amendments.
REGALADO:
In other words, insofar as the appellate jurisdiction of the Commission on Elections is concerned, it is still preseved
despite the fact that it involves barangay, municipal, city or provincial officials.
MR. MAAMBONG:
Yes we would rather insist on that because that is a constitutional mandate.
MR. REGALADO:
The Commissioner's proposal is only with respect to the original jurisdiction; that is, insofar as election contests involving
barangay officials are concerned, the municipal trial courts have the original jurisdiction; whereas in the case of city and
provincial officials, the original jurisdiction is vested in the regional trial courts.
MR. MAAMBONG:
No, Madam President. In the case of provincial and city officials, the original and exclusive jurisdiction should be with the
Commission on Elections.
MR. REGALADO:
In the case of municipal officials, then it will be the regional trial courts which will exercise original jurisdiction.
MR. MAAMBONG:
That is correctly put, Madam President.
MR. REGALADO:
But altogether, in the ultimate analysis on appellate jurisdiction, they will all have to go to the Commission on Elections
eventually.

MR. MAAMBONG:
Yes, Madam President. They will still be the sole judge of all election contests.

14

xxx xxx xxx

MR. REGALADO:
May I ask Commissioner Maambong a question?
MR. MAAMBONG:
Yes, Madam President.
MR. REGALADO:
Is it his concern that we vest in the municipal trial courts the matter of election contests for barangay officials and in the
regional trial courts election contests involving municipal officials thereby requiring a judicial officer to handle these cases,
heightened by the fact that the decisions of the municipal trial court or the regional trial court in those election contests
involving barangay and municipal officials are final and immediately executory?
MR. MAAMBONG:
Under the present law, when it comes to appeals from the municipal trial court to the regional trial court, these become
final and executory, and we feel that in this regard, the jurisdiction of the COMELEC has been diluted; And we do not like
that, Madam President.
MR. REGALADO:
Thank you. 15
xxx xxx xxx
MR. MAAMBONG:
In that case, Madam President, may I proceed to propose this amendment in collaboration and with the advice and
consent of Commissioner de los Reyes and Commissioner Rodrigo.
THE PRESIDENT:
What is the amendment?
MA. MAAMBONG:
On line 9, Section 2(2), delete the words "Be the sole judge of" and in its instead insert the words EXERCISE
EXCLUSIVE JURISDICTION OVER. On line 11, before the word "provincial," insert the word REGIONAL and a comma
(,). After the word "provincial" on line 11, insert the word AND. After the word "city," delete the comma (,) and the words
"municipal and barangay." After the word "official," place a comma (,) and insert the following: AND OF ALL CONTESTS
INVOLVING MUNICIPAL AND BARANGAY OFFICIALS ON APPEAL FROM THE REGIONAL TRIAL COURTS AND
FROM THE METROPOLITAN OR MUNICIPAL TRIAL COURTS, RESPECTIVELY .
I move for the approval of the amendment, Madam President.
THE PRESIDENT:
Is this amendment accepted by the Committee?

MR. REGALADO:
Yes, Madam President.
THE PRESIDENT:
So, this is an amendment jointly submitted by Commissioners Rodrigo, Maambong and de los Reyes.
MR. MAAMBONG:
Yes, Madam President.
THE PRESIDENT:
Is there any objection to the amendment on Section 2(2), line 9 and 11? (Silence) The Chair hears none; the amendment
16
is approved.
In the light of the foregoing, it is indisputable that contests involving elections of SK (formerly KB) officials do not fall within
Section 252 of the Omnibus Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and that no law in
effect prior to the ratification of the Constitution had made the SK chairman an elective barangay official. His being an exofficio member of the sangguniang barangay does not make him one for the law specifically provides who are its elective
members, viz., the punong barangay and the seven regular sangguniang barangay members 17 who are elected at large
by those who are qualified to exercise the right of suffrage under Article V of the Constitution and who are duly registered
voters of the barangay.
The Court recognizes the consequences of the quasi-judicial acts performed by the BES pursuant to Section 24 of
COMELEC Resolution No. 2499 under the operative fact doctrine; thus, we hold that the Regional Trial Court is
competent to review the decision of the BES in election controversies within its level. As correctly stated by the petitioner,
it is a basic principle in administrative law that the absence of a provision for the review of an administrative action does
not preclude recourse to the courts.
It is generally understood that as to administrative agencies exercising quasi-judicial or legislative power there is an
underlying power in the courts to scrutinize the acts of such agencies on questions of law and jurisdiction even though no
right of review is given by statute. The purpose of judicial review is to keep the administrative agency within its jurisdiction
and protect substantial rights of parties affected by its decisions. it is part of the system of checks and balances which
restricts the separation of powers and forestalls arbitrary and unjust adjudications. 18
The Court further holds that there was no need for the petitioner to exhaust administrative remedies; firstly, because
Section 24 of COMELEC Resolution No. 2499 did not provide for recourse to a higher administrative body; and secondly,
the petitioner's cause falls within the exception to the rule in that his petition in Civil Case No. 3565, aside from raising
pure questions of law and jurisdiction. 19 also alleges deprivation of due process. 20
WHEREFORE, the instant petition is GRANTED The assailed orders of the Regional Trial Court of Batangas City, Branch
4, in Civil Case No. 3565 are hereby REVERSED and SET ASIDE. Civil Case No. 3565 is REINSTATED for further
proceedings The Hon. Judge Conrado R. Antona is directed to proceed with the case with deliberate dispatch, and if
necessary, to conduct a recount of the ballots to determine once and for all the true winner in the 4 December 1992
Sangguniang Kabataan Elections in Barangay Mabalor, Ibaan, Batangas. This decision is immediately executory. No
pronouncement as to cost.
SO ORDERED.

G.R. No. 126576 March 5, 1997

MAYOR RICARDO M. ANGOBUNG vs. COMMISSION ON ELECTIONS EN BANC, and ATTY. AURORA S. DE
ALBAN
SYLLABUS
1. POLITICAL LAW; ELECTIONS; RECALL; TIME BAR NOT APPLICABLE WHEN THE POSITION OF THE OFFICIAL
TO BE RECALLED IS NOT BEING CONTESTED IN THE SCHEDULED ELECTION; CASE AT BAR. Private
respondent is correct in saying that in the light of our pronouncement in Paras v. COMELEC, G.R. No. 123169,
promulgated on November 4, 1996, the recall election scheduled on December 2, 1996 in the instant case cannot be said
to be barred by the May 12, 1997 Barangay Elections. In construing the meaning of the term, "regular local election" in
Section 74 of the Local Government Code of 1991 which provides that "no recall shall take place within one (1) year . . .
immediately preceding a regular local election," we ruled that for the time bar to apply, the approaching regular local
election must be one where the position of the official to be recalled is to be actually contested and filled by the electorate.
Thus, in the instant case where the time bar is being invoked by petitioner mayor in view of the approaching Barangay
Elections in May 1997, there can be no application of the one year bar, hence no invalidity may be ascribed to Resolution
No. 96-2951 on this ground.
2. ID. ID.; ID.; DEFINED. Recall is a mode of removal of a public officer by the people before the end of his term of
office. The peoples prerogative to remove a public officer is an incident of their sovereign power and in the absence of
constitutional restraint, the power is implied in all governmental operations. Such power has been held to be
indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental
right of the people in a representative democracy.
3. ID.; ID.; ID.; MINIMUM REQUIREMENT FOR THE PETITION THEREOF. Section 69 (d) of the Local Government
Code of 1991 expressly provides that "recall of any elective . . . municipal . . . official may also be v alidly initiated upon
petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit
concerned during the election in which the local official sought to be recalled was elected." The law is plain and
unequivocal as to what initiates recall proceedings: only a petition of at least 25% of the total number of registered voters
may validly initiate recall proceedings. We take careful note of the phrase, "petition of at least twenty-five percent (25%)"
and point out that the law does not state that the petition must be signed by at least 25% of the registered voters; rather,
the petition must be "of" or by, at least 25% of the registered voters, i.e., the petition must be filed, not by one person only,
but by at least 25% of the total number of registered voters. This is understandable, since the signing of the petition is
statutorily required to be undertaken "before the election registrar or his representative, and in the presence of a
representative of the official sought to be recalled, and in a public place in the . . . municipality . . .." Hence, while the
initiatory recall petition may not yet contain the signatures of at least 25% of the total number of registered voters, the
petition must contain the names of at least 25% of the total number of registered voters in whose behalf only one person
may sign the petition in the meantime. We cannot sanction the procedure of the filing of the recall petition by a number of
people less than the foregoing 25% statutory requirement, much less, the filing thereof by just one person, as in the
instant case, since this is indubitably violative of clear and categorical provisions of subsisting law.
4. ID.; ID.; ID.; ID.; RATIONALE. Our legislators did not peg the voter requirement at 25% out of caprice or in a
vacuum. They knew that this is the requirement under a majority of the constitutions and recall statutes in various
American states to the same extent that they were aware of the rationale therefor. While recall was intended to be an
effective and speedy remedy to remove an official who is not giving satisfaction to the electorate regardless of whether or
not he is discharging his full duty to the best of his ability and as his conscience dictates, it is a power granted to the
people who, in concert, desire to change their leaders for reasons only they, as a collective, can justify. In other words,
recall must be pursued by the people, not just by one disgruntled loser in the elections or a small percentage of
disenchanted electors. Otherwise, its purposes as a direct remedy of the people shall be defeated by the ill motives of a
few among them whose selfish resort to recall would destabilize the community and seriously disrupt the running of
government. A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum voter
requirement in American recall statutes, unmistakably reveals the vigilance of lawmakers against the abuse of the power
of recall.
HERMOSISIMA, JR., J.:
Before us on certiorari is a petition seeking to annul and set aside Resolution No. 96-2951 1 dated October 15, 1996
issued by public respondent Commission on Elections (COMELEC) which (1) approved the Petition for Recall filed and
signed by only one registered voter herein private respondent Ma. Aurora Siccuan de Alban, against petitioner
incumbent Mayor Ricardo Angobung; (2) set the further signing of said petition by the rest of the registered voters of

Tumauini, Isabela on November 9, 1996; and (3) in case the said petition is signed by at least 25% of the total number of
registered votes in Tumauini, Isabela, scheduled the recall election on December 2, 1996.
2

On October 25, 1996, this court issued a Temporary Restraining Order enjoining public respondent COMELEC from
implementing and enforcing Resolution No. 96-2951.
The facts of this case are not disputed.
Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela in the local elections of 1995. He
garnered 55% of all the votes cast. Private respondent de Alban was also a candidate in said elections.
Sometime in early September, 1996, private respondent filed with the Local Election Registrar of Tumauini, Isabela, a
Petition for Recall 3 against petitioner. On September 12, 1996, petitioner received a copy of this petition. Subsequently
said petition was forwarded to the Regional Office in Tuguegarao, Cagayan and then to the main office of COMELEC in
Manila, for approval.
Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson submitted to the COMELEC En Banc, a
Memorandum 4 dated October 8, 1996 recommending approval of the petition for recall filed by private respondent and its
signing by other qualified voters in order to garner at least 25% of the total number of registered voters as required by
Section 69(d) of the Local Government Code of 1991.
In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson, the COMELEC en bancissued
the herein assailed Resolution No. 96-2951.
Petitioner now attacks the aforementioned resolution as being unconstitutional and therefore invalid, on two main
grounds: (1) that the resolution approved the Petition for Recall albeit same was signed by just one person in violation of
the statutory 25% minimum requirement as to the number of signatures supporting any petition for recall; and (2) that the
resolution scheduled the recall election within one (1) year from the May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent has sought the lifting of the Temporary Restraining Order issued
last October 25, 1996 on the twin grounds (1) that the issue of the one-year bar on recall elections has been resolved in
the case of Paras v. COMELEC 5, promulgated on November 4, 1996; and (2) that the procedure prescribed by
Resolution No. 96-2951 involving petition signing upon initiation of even just one person, is no different from that provided
for in COMELEC Resolution No. 2272 which was upheld as constitutional in the 1991 cases of Sanchez, et
al. v. COMELEC 6 and Evardone v. COMELEC 7.
Private respondent is correct in saying that in the light of our pronouncement in Paras v. COMELEC 8, the recall election
scheduled on December 2, 1996 in the instant case cannot be said to be barred by the May 12, 1997 Barangay Elections.
In construing the meaning of the term, "regular local election" in Section 74 of the Local Government Code of 1991 which
provides that "no recall shall take place within one (1) year . . . immediately preceding a regular local election," we ruled
that for the time bar to apply, the approaching regular local election must be one where the position of the official to be
recalled, is to be actually contested and filled by the electorate. Thus, in the instant case where the time bar is being
invoked by petitioner mayor in view of the approaching Barangay Elections in May 1997, there can be no application of
the one year bar, hence no invalidity may be ascribed to Resolution No. 96-2951 on this ground.
We, however, find petitioner's second ground to be impressed with merit.
Before the enactment of the 1991 Local Government Code, the recall of public officials voted for in popular elections, was
governed by Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code of 1983.
Pursuant to Section 59 thereof, which states that "the Commission on Elections shall conduct and supervise the process
of and election on recall . . . and, in pursuance thereof, promulgate the necessary rules and regulations," the COMELEC
promulgated Resolution No. 2272 Sections 4 and 5 of which provide as follows:
Sec. 4. How instituted. The recall of an elective provincial, city or municipal official shall be commenced by the filing of
a duly verified notice of recall containing the address and precinct number of the voter filing the notice, and the name of
the official sought to be recalled, his position, and the ground(s) for the recall. Each notice shall refer to only one official.

The notice shall be filed in triplicate with the local Election Registrar if the recall involves a city or municipal official, or with
the Provincial Election Supervisor if it involves a provincial official, one copy of which shall be posted upon receipt thereof
on the bulletin board in the city/municipal hall.
If the recall involves a provincial official, two additional copies of the notice shall also be furnished by the voter filing the
notice to the Election Registrar of each city and municipality in the province, one copy of which shall be posted upon
receipt thereof on the bulletin board in the city/municipal hall.
In every case, the voter filing the notice of recall shall furnish a copy thereof to the official sought to be recalled, the
Commission on Elections in Manila and the Election Records and Statistics Department of the Commission.
Sec. 5. Schedule and place of signing of the petition. The Election Registrar shall submit to the Commission on
Elections, not later than ten days from filing of the notice of recall, the schedule of the signing of the petition to recall for
9
approval and funding . . .
10

In the case of Sanchez v. COMELEC , petitioners therein contended that the aforegoing "Resolution No. 2272 is
unconstitutional there being no legislative enactment yet on [the] mechanism of recall as mandated under Sec. 3, Art. X of
the Constitution". 11 It is true, as private respondent asseverates, that we upheld the constitutionality of Resolution No.
2272, but not because we found nothing constitutionally infirm about the procedure of allowing the initiatory recall petition
to be filed by only one person. The issue in Sanchez was not this questioned procedure but the legal basis for the
exercise by the COMELEC of its rule-making power in the alleged absence of a grant of such power by an enabling
statute on recall. Thus we ruled:
While it is true that Sec. 3, Art. X of the Constitution mandates the Congress to enact a local government code providing
among others for an effective mechanism of recall, nothing in said provision could be inferred the repeal of BP 337, the
local government code existing prior to the adoption of the 1987 Constitution. Sec. 3, Art. X of the Constitution merely
provides that the local government code to be enacted by Congress shall be "more responsive" than the one existing at
present. Until such time that a more responsive and effective local government code is enacted, the present code shall
remain in full force and effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws, decrees, executive orders, proclamations,
letters of instructions and other executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
Considering that the present local government code (BP 337) is still in effect, respondent COMELEC's promulgation of
Resolution No. 2272 is therefore valid and constitutional, the same having been issued pursuant to Sec. 59 of BP 337. It
reads:
Sec. 59. Supervision by the Commission on Elections. The Commission on Elections shall conduct and supervise the
process of and election on recall . . . and, in pursuance thereof, promulgate the necessary rules and regulations. 12
We
reiterated
the
COMELEC 13 in this wise:

foregoing

ruling

in

the

case

of Evardone

v.

Article XVIII, Section 3 of the 1987 Constitution expressly provides that all existing laws not inconsistent with the 1987
Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided
in Sec. 534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case.
xxx xxx xxx
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59
expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the
exercise of such powers, promulgate the necessary rules and regulations. . . . Thus, pursuant to the rule-making power
vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional.
Consequently, the respondent COMELEC had the authority to approve the petition for recall and set the date for the
signing of said petition. 14

In Sanchez and Evardone, the COMELEC-prescribed procedure of (1) allowing the recall petition to be filed by at least
one person or by less than 25% of the total number of registered voters and then (2) inviting voters to sign said petition on
a date set for that purpose, was never put to issue. As this is the crux of the present constitutional challenge, the proper
time has come for this court to issue a definitive ruling on the matter.
Apropos for starters is the following chronicle of the evolution of the mechanism of recall as a mode of removing a public
15
officer by direct action of the people, essayed in the case of Garcia v. COMELEC :
Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative
to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power
is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of
public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative
democracy.
Recall as a mode of removal of elective local officials made its maiden appearance in section 2 of Article XI entitled Local
Government, viz.:
Sec. 2. The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a
majority vote of all its Members, defining a more responsive and accountable local government structure with an effective
system of recall . . .
The Batasang Pambansa then enacted BP 337 entitled, "The Local Government Code of 1983. Section 54 of its Chapter
3 provided only one mode of initiating the recall elections of local election officials, i.e., by petition of at least twenty-five
percent (25%) of the total number of registered voters in the local government unit concerned . . . .
Our legal history does not reveal any instance when this power of recall as provided by BP 337 was exercised by our
people.
In February, 1986, however, our people more than exercised their right of recall for they resorted to revolution and they
booted out of office the highest elective officials of the land. The successful use of people power to remove public officials
who have forfeited the trust of the electorate led to its firm institutionalization of the 1987 Constitution. Its Article XIII
expressly recognized the Role and Rights of People's Organizations . . . .
Section 3 of its Article X also reiterated the mandate for Congress to enact a local government code which "shall provide
for a more responsive and accountable local government structure instituted through a system of decentralization with
effective mechanisms of recall, initiative and referendum . . . . In response to this constitutional call, Congress enacted
R.A. 7160, otherwise known as the Local Government Code of 1991, which took effect on January 1, 1992." 16
Section 69 (d) of the Local Government Code of 1991 expressly provides that "recall of any elective . . . municipal . . .
official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered
voters in the local government unit concerned during the election in which the local official sought to be recalled was
elected". The law is plain and unequivocal as to what initiates recall proceedings: only a petition of at least 25% of the
total number of registered voters, may validly initiate recall proceedings. We take careful note of the phrase, "petition of at
least twenty-five percent (25%)" and point out that the law does not state that the petition must be signed by at least 25%
of the registered voters; rather, the petition must be "of" or by, at least 25% of the registered voters, i.e., the petition must
be filed, not by one person only, but by at least 25% of the total number of registered voters. This is understandable, since
the signing of the petition is statutorily required to be undertaken "before the election registrar or his representative, and in
17
the presence of a representative of the official sought to be recalled, and in a public place in the . . . municipality . . . " .
Hence, while the initiatory recall petition may not yet contain the signatures of at least 25% of the total number of
registered voters, the petition must contain the names of at least 25% of the total number of registered voters in whose
behalf only one person may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by a number of people less than the foregoing 25%
statutory requirement, much less, the filing thereof by just one person, as in the instant case, since this is indubitably
violative of clear and categorical provisions of subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice or in a vacuum. They knew that this is the
requirement under a majority of the constitutions and recall statutes in various American states to the same extent that
they were aware of the rationale therefor. While recall was intended to be an effective and speedy remedy to remove an
official who is not giving satisfaction to the electorate regardless of whether or not he is discharging his full duty to the best

of his ability and as his conscience dictates 18 it is a power granted to the people who, in concert, desire to change their
leaders for reasons only they, as a collective, can justify. In other words, recall must be pursued by the people, not just by
one disgruntled loser in the elections or a small percentage of disenchanted electors. Otherwise, its purposes as a direct
remedy of the people shall be defeated by the ill motives of a few among them whose selfish resort to recall would
destabilize the community and seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum voter requirement in
American recall statutes, unmistakably reveals the vigilance of lawmakers against the abuse of the power of recall. For
instance, the Supreme Court of Illinois held in the case of In Re Bower 19 that:
[t]he only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall
election is to prevent premature action on their part in voting to remove a newly elected official before having had
sufficient time to evaluate the soundness of his political policies and decisions. We view the statutory provision requiring
the number of petition signers to equal at least 45% of the total votes case in the last general election for mayor as a
further attempt to insure that an official will not have to defend his policies against frivolous attacks launched by a small
percentage of disenchanted electors. 20
Along the same lines, the Supreme Court of Colorado held in the case of Bernzen, v. City of Boulder 21 that:
[t]he framers, by requiring that a recall petition contain the signatures of at least 25% of all votes cast in the last election
for all candidates for the position which the person sought to be recalled occupies, assured that a recall election will not
be held in response to the wishes of a small and unrepresentative minority. However, once at least 25% of the electorate
have expressed their dissatisfaction, the constitution reserves the recall power to the will of the electorate. 22
And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan echoed the foregoing posturings in this wise:
Much of what has been said to justify a limit upon recall clearly not provided or contemplated by the Constitution has
revealed fears about an irresponsible electorate . . . . A much cited Nebraska case pertaining to a Nebraska recall statute
provides some answers which are equally applicable to the Michigan constitutional right of recall:
. . . Doubtless the provision requiring 30 per cent of the electors to sign the petition before the council [is] compelled to act
was designed to avoid such a contingency. The Legislature apparently assumed that nearly one-third of the electorate
would not entail upon the taxpayers the cost of an election unless the charges made approved themselves to their
understanding and they were seriously dissatisfied with the services of the incumbent of the office. 24
In the instant case, this court is confronted with a procedure that is unabashedly repugnant to the applicable law and no
less such to the spirit underlying that law. Private respondent who is a lawyer, knows that Section 69 (d) of the Local
Government Code plainly provides that recall is validly initiated by a petition of 25% of the total number of registered
voters. Notwithstanding such awareness, private respondent proceeded to file the petition for recall with only herself as
the filer and initiator. She claims in her petition that she has, together with many others in Tumauini, Isabela, lost
confidence in the leadership of petitioner. But the petition does not bear the names of all these other citizens of Tumauini
who have reportedly also become anxious to oust petitioner from the post of mayor. There is no doubt that private
respondent is truly earnest in her cause, and the very fact that she affixed her name in the petition shows that she claims
responsibility for the seeming affront to petitioner's continuance in office. But the same cannot be said of all the other
people whom private respondent claims to have sentiments similar to hers. While the people are vested with the power to
recall their elected officials, the same power is accompanied by the concomitant responsibility to see through all the
consequences of the exercise of such power, including rising above anonymity, confronting the official sought to be
recalled, his family, his friends, and his supporters, and seeing the recall election to its ultimate end. The procedure of
allowing just one person to file the initiatory recall petition and then setting a date for the signing of the petition, which
amounts to inviting and courting the public which may have not, in the first place, even entertained any displeasure in the
performance of the official sought to be recalled, is not only violative of statutory law but also tainted with an attempt to go
around the law. We can not and must not, under any and all circumstances, countenance a circumvention of the explicit
25% minimum voter requirement in the initiation of the recall process.
WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby GRANTED. COMELEC Resolution No.
96-2951 is hereby DECLARED NULL and VOID and accordingly SET ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made permanent.
Costs against private respondent.

SO ORDERED.

G.R. No. 140560 May 4, 2000

JOVITO O. CLAUDIO vs. COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT,
COMMISSION ON AUDIT and RICHARD ADVINCULA
G.R. No. 140714 May 4, 2000
PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented by its Chairman, RICHARD
ADVINCULA vs. THE COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT,
COMMISSION ON AUDIT and HON. JOVITO O. CLAUDIO
MENDOZA, J.:
These are petitions arising from the proceedings initiated by the Preparatory Recall Assembly of Pasay City (PRA) in the
Commission on Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE PREPARATORY RECALL ASSEMBLY
RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999 FOR THE RECALL OF MAYOR JOVITO CLAUDIO OF
PASAY CITY. G.R. No. 140560 is a petition for certiorari and prohibition, seeking the nullification of the resolution, 1 dated
October 18, 1999, of the COMELEC giving due course to the petition for the recall of petitioner Jovito O. Claudio as mayor
of Pasay City. On the other hand, G.R. No. 140714 is a petition for mandamus filed by the PRA, represented by its Chair,
Richard Advincula, to compel the COMELEC to set the date for the holding of recall elections in Pasay City pursuant to
the aforecited resolution of the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor of Pasay City in the May 11, 1998 elections.
He assumed office on July 1, 1998.
Sometime during the second week of May 1999, the chairs of several barangays in Pasay City gathered to discuss the
possibility of filing a petition for recall against Mayor Claudio for loss of confidence. On May 19, 1999, at the residence of
barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City, several barangay chairs formed an ad hoc
committee for the purpose of convening the PRA. Richard Advincula, private respondent in G.R. No. 140560 and
petitioner in G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and sangguniang kabataan
chairs of Pasay City, adopted Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE THE RECALL OF JOVITO
O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as
chair of the PRA, invited the Mayor, Vice-Mayor, Station Commander, and thirteen (13) Councilors of Pasay City to
witness the formal submission to the Office of the Election Officer on July 2, 1999 of the petition for recall.
As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of service of the petition on the
Office of the City Mayor. Pursuant to the rules of the COMELEC, copies of the petition were posted on the bulletin boards
of the local COMELEC office, the City Hall, the Police Department, the public market at Libertad St. and Taft Avenue, and
at the entrance of the Sta. Clara Church on P. Burgos St., all in Pasay City. Subsequently, a verification of the authenticity
of the signatures on the resolution was conducted by Ligaya Salayon, the election officer for Pasay City designated by the
COMELEC.
Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev. Ronald Langub, and Roberto L. Angeles,
alleging procedural and substantive defects in the petition, to wit: (1) the signatures affixed to the resolution were actually
meant to show attendance at the PRA meeting; (2) most of the signatories were only representatives of the parties
concerned who were sent there merely to observe the proceedings; (3) the convening of the PRA took place within the
2
one-year prohibited period; (4) the election case, filed by Wenceslao Trinidad in this Court, seeking the annulment of the
proclamation of petitioner Claudio as mayor of Pasay City, should first be decided before recall proceedings against
petitioner could be filed; and (5) the recall resolution failed to obtain the majority of all the members of the PRA,
considering that 10 were actually double entries, 14 were not duly accredited members of the barangays, 40 sangguniang
kabataan officials had withdrawn their support, and 60 barangay chairs executed affidavits of retraction.
In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed the oppositions against
it. On the issue of whether the PRA was constituted by a majority of its members, the COMELEC held that the 1,073
members who attended the May 29, 1999 meeting were more than necessary to constitute the PRA, considering that its
records showed the total membership of the PRA was 1,790, while the statistics of the Department of Interior and Local

Government (DILG) showed that the total membership of the PRA was 1,876. In either case, since only a majority is
required to constitute the PRA, clearly, a majority had been obtained in support of the recall resolution. Based on the
verification made by election officer Ligaya Salayon, the COMELEC found the signatures of 958 members of the PRA
sufficient. On whether the pendency of the case questioning the proclamation of petitioner was a prejudicial question
which must first be decided before any recall election could be held, the COMELEC ruled that it was not and that
petitioner was merely using the pendency of the case to delay the recall proceedings. Finally, on whether the petition for
recall violated the bar on recall within one year from the elective official's assumption of office, the COMELEC ruled in the
negative, holding that recall is a process which starts with the filing of the petition for recall. Since the petition was filed on
July 2, 1999, exactly one year and a day after petitioner Claudio's assumption of office, it was held that the petition was
filed on time.
Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000, after which the Court, by
3
the vote of 8 to 6 of its members, resolved to dismiss the petition in G.R. No. 140560 for lack of showing that the
COMELEC committed a grave abuse of discretion. On the other hand, the Court unanimously dismissed the petition in
G.R. No. 140714 on the ground that the issue raised therein had become moot and academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in Pasay City on April
15, 2000. Consequently, the petition for mandamus in G.R. No. 140714 to compel the COMELEC to fix a date for the
recall elections in Pasay City is no longer tenable. We are thus left with only petitioner Claudio's action for certiorari and
prohibition.
The bone of contention in this case is 74 of the Local Government Code (LCG) 4 which provides:
Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of
office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year
immediately preceding a regular local election.
As defined at the hearing of these cases on April 4, 2000, the issues are:
WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No. 7160) . . . .
A. The word "recall" in paragraph (b) covers a process which includes the convening of the Preparatory Recall Assembly
and its approval of the recall resolution.
B. The term "regular local election" in the last clause of paragraph (b) includes the election period for that regular election
or simply the date of such election.
(1)
On Whether the Word "Recall" in Paragraph (b) of 74 of the Local Government Code Includes the Convening of the
Preparatory Recall Assembly and the Filing by it of a Recall Resolution.
Petitioner contends that the term "recall" in 74(b) refers to a process, in contrast to the term "recall election" found in
74(a), which obviously refers to an election. He claims that "when several barangay chairmen met and convened on May
19, 1999 and unanimously resolved to initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for
the purpose of adopting a resolution "to initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of confidence,"
the process of recall began" and, since May 29, 1999 was less than a year after he had assumed office, the PRA was
illegally convened and all proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null
and void.
The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for recall and
ends with the conduct of the recall election, and that, since the petition for recall in this case was filed on July 2, 1999,
exactly one year and a day after petitioner's assumption of office, the recall was validly initiated outside the one-year
prohibited period.

Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in 74 refers to a process. They
disagree only as to when the process starts for purposes of the one-year limitation in paragraph (b) of 74.
We can agree that recall is a process which begins with the convening of the preparatory recall assembly or the gathering
of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall
resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall
5
election, and the holding of the election on the scheduled date. However, as used in paragraph (b) of 74, "recall" refers
to the election itself by means of which voters decide whether they should retain their local official or elect his
replacement. Several reasons can be cited in support of this conclusion.
First, 74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other hand, 69
provides that "the power of recall . . . shall be exercised by the registered voters of a local government unit to which the
local elective official belongs." Since the power vested on the electorate is not the power to initiate recall proceedings 6 but
the power to elect an official into office, the limitations in 74 cannot be deemed to apply to the entire recall proceedings.
In other words, the term "recall" in paragraph (b) refers only to the recall election, excluding the convening of the PRA and
the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a
petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions for recall filed with the
COMELEC there is no legal limit on the number of times such processes may be resorted to. These are merely
preliminary steps for the purpose of initiating a recall. The limitations in 74 apply only to the exercise of the power of
recall which is vested in the registered voters. It is this and not merely the preliminary steps required to be taken to
initiate a recall which paragraph (b) of 74 seeks to limit by providing that no recall shall take place within one year
from the date of assumption of office of an elective local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC 7 where two objections were raised against the legality of
PRAs: (1) that even the power to initiate recall proceedings is the sole prerogative of the electorate which cannot be
delegated to PRAs, and (2) that by vesting this power in a PRA, the law in effect unconstitutionally authorizes it to shorten
the term of office of incumbent elective local officials. Both objections were dismissed on the ground that the holding of a
PRA is not the recall itself. With respect to the first objection, it was held that it is the power to recall and not the power to
initiate recall that the Constitution gave to the people. With respect to the second objection, it was held that a recall
resolution "merely sets the stage for the official concerned before the tribunal of the people so he can justify why he
should be allowed to continue in office. [But until] the people render their sovereign judgment, the official concerned
remains in office . . . ."
If these preliminary proceedings do not produce a decision by the electorate on whether the local official concerned
continues to enjoy the confidence of the people, then, the prohibition in paragraph (b) against the holding of a recall,
except one year after the official's assumption of office, cannot apply to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose of the
limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall take place within
one year from the date of assumption of office of the official concerned, and (2) that no recall shall take place within one
year immediately preceding a regular local election.
The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective local official.
In the Bower case 8 cited by this Court in Angobung v. COMELEC, 9 it was held that "The only logical reason which we
can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action
on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his
policies and decisions." The one-year limitation was reckoned as of the filing of a petition for recall because the Municipal
Code involved in that case expressly provided that "no removal petition shall be filed against any officer or until he has
actually held office for at least twelve months." But however the period of prohibition is determined, the principle
announced is that the purpose of the limitation is to provide a reasonable basis for evaluating the performance of an
elective local official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before the end of the first year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated before the official concerned has been in office for oneyear would be to allow him to be judged without sufficient basis. As already stated, it is not the holding of PRA nor the
adoption of recall resolutions that produces a judgment on the performance of the official concerned; it is the vote of the
electorate in the election that does. Therefore, as long as the recall election is not held before the official concerned has
completed one year in office, he will not be judged on his performance prematurely.

Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of discussing
the performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of
assembly of its members. The people cannot just be asked on the day of the election to decide on the performance of
their officials. The crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first
limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and opinions among citizens is to
unduly curtail one of the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will
always eventuate in a recall election. To the contrary, they may result in the expression of confidence in the incumbent.
Our esteemed colleague Justice Puno says in his dissent that the purpose of the one-year period in paragraph (b) is to
provide the local official concerned a "period of repose" during which "[his] attention should not be distracted by any
impediment, especially by disturbance due to political partisanship." Unfortunately, the law cannot really provide for a
period of honeymoon or moratorium in politics. From the day an elective official assumes office, his acts become subject
to scrutiny and criticism, and it is not always easy to determine when criticism of his performance is politically motivated
and when it is not. The only safeguard against the baneful and enervating effects of partisan politics is the good sense
and self restraint of the people and its leaders against such shortcomings of our political system. A respite from partisan
politics may have the incidental effect of providing respite from partisanship, but that is not really the purpose of the
limitation on recall under the law. The limitation is only intended to provide a sufficient basis for evaluating and judging the
performance of an elected local official.
In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls initiated directly by the
people." Justice Puno cites the "embarrassing repudiation by the people of [Kaloocan City's] Preparatory Recall
Assembly" when, instead of ousting Mayor Rey Malonzo, they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing election the local official whose recall is sought is
actually reelected. Laws converting municipalities into cities and providing for the holding of plebiscites during which the
question of cityhood is submitted to the people for their approval are not always approved by the people. Yet, no one can
say that Congress is not a good judge of the will of the voters in the locality. In the case of recall elections in Kaloocan
City, had it been shown that the PRA was resorted to only because those behind the move to oust the incumbent mayor
failed to obtain the signatures of 25% of the voters of that city to a petition for his recall, there may be some plausibility for
the claim that PRAs are not as good a gauge of the people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot be more representative
of the sentiments of the people than those initiated by PRAs whose members represent the entire electorate in the local
government unit. Voters who directly initiate recalls are just as vulnerable to political maneuverings or manipulations as
are those composing PRAs.
The other point regarding Justice Puno's claim is that the question here is not whether recalls initiated by 25% of the
voters are better. The issue is whether the one-year period of limitation in paragraph (b) includes the convening of the
PRA. Given that question, will convening the PRA outside this period make it any more representative of the people, as
the petition filed by 25% of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate
recall
1. Because 74 speaks of limitations on "recall" which, according to 69, is a power which shall be exercised by the
registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear
that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b);
2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective
local official, and final judging is not done until the day of the election; and
3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail
freedom of speech and of assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office as mayor
of that city, we hold that there is no bar to its holding on that date.
(2)

On Whether the Phrase "Regular Local Election" in the Same Paragraph (b) of 74 of the Local Government Code
includes the Election Period for that Regular Election or Simply the Date of Such Election.
Petitioner contends, however, that the date set by the COMELEC for the recall election is within the second period of
prohibition in paragraph (b). He argues that the phrase "regular local elections" in paragraph (b) does not only mean "the
day of the regular local election" which, for the year 2001 is May 14, but the election period as well, which is normally at
least forty five (45) days immediately before the day of the election. Hence, he contends that beginning March 30, 2000,
no recall election may be held.
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year immediately preceding a
regular local election." Had Congress intended this limitation to refer to the campaign period, which period is defined in the
Omnibus Election Code, 10 it could have expressly said so.
Moreover, petitioner's interpretation would severely limit the period during which a recall election may be held. Actually,
because no recall election may be held until one year after the assumption of office of an elective local official,
presumably on June 30 following his election, the free period is only the period from July 1 of the following year to about
the middle of May of the succeeding year. This is a period of only nine months and 15 days, more or less. To construe the
second limitation in paragraph (b) as including the campaign period would reduce this period to eight months. Such an
interpretation must be rejected, because it would devitalize the right of recall which is designed to make local government
units "more responsive and accountable."
Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code, 11unless
otherwise fixed by the COMELEC, the election period commences ninety (90) days before the day of the election and
ends thirty (30) days thereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph (b)
includes the "election period" would emasculate even more a vital right of the people.
To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on the holding of recall elections. First, paragraph
(a) prohibits the holding of such election more than once during the term of office of an elective local official. Second,
paragraph (b) prohibits the holding of such election within one year from the date the official assumed office. And third,
paragraph (b) prohibits the holding of a recall election within one year immediately preceding a regular local election. As
succinctly stated in Paras v. COMELEC, 12 "[p]aragraph (b) construed together with paragraph (a) merely designates the
period when such elective local official may be subject to recall election, that is, during the second year of office."
(3)
On Whether the Recall RESOLUTION was Signed by a Majority of the PRA and Duly Verified.
Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering the holding of a
recall election. He contends that a majority of the signatures of the members of the PRA was not obtained because 74
members did not really sign the recall resolution. According to petitioner, the 74 merely signed their names on pages 94104 of the resolution to signify their attendance and not their concurrence. Petitioner claims that this is shown by the word
"Attendance" written by hand at the top of the page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not raised before
the COMELEC, in which the claim made by petitioner was that some of the names in the petition were double entries, that
some members had withdrawn their support for the petition, and that Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved before the petition for recall could be given due course. The order of the
COMELEC embodying the stipulations of the parties and defining the issues to be resolved does not include the issue
now being raised by petitioner.
Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake because it was
crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the attendance sheet which is a separate
document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their
attendance at the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence
in the recall resolution of which the pages in question are part.

The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly verified, because Atty.
Nelson Ng, who notarized it, is not commissioned as notary public for Pasay City but for Makati City. As in the case of the
first claim, this issue was not raised before the COMELEC itself. It cannot, therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the petition in G.R. No. 140714 is DISMISSED for
having been rendered moot and academic.
SO ORDERED.
Separate Opinions
PUNO, J., dissenting opinion;
The cases at bar are one of first impression. At issue is the meaning of Section 74 (b) of the Local Government Code
which provides: "No recall shall take place within one (1) year from the date of the official's assumption to office or one (1)
year immediately preceding a regular local election." Our interpretation of this provision is significant for, to a large extent,
it will determine the use or misuse of the right of recall. The right of recall is part of the cutting edge of the sword of the
sovereignty of our people, and its exercise should be shielded from abuses.
I begin with the baseline proposition that the proper interpretation of Section 74 (b) of the Local Government Code should
depend on the edifying intent of our legislators. With due respect to the majority, I wish to express my humble reading of
the intent of our lawmakers, when they engrafted the people's right of recall in the corpusof an laws. Our search should
start with the Constitution which provides the matrix of our rights. All our fundamental laws 1 set in stone the principle that
"the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them." An important component of this sovereign power is the right of the people to elect officials who will
wield the powers of government i.e., the power to make laws and the power to execute laws. These powers are enormous
and in the wrong hands can wreak havoc to the people. Our laws therefore regulate their exercise. Among others, they set
minimum qualifications for candidates to elective public office. They safeguard the integrity of the procedure of electing
these candidates. They also established an independent COMELEC to enhance the laboratory conditions under which
elections must be conducted.
Over the years, however, the country experienced the defilement of these ideals. The wrong officials were able to win the
scepters of power, the sanctity of our election process has been breached, and unscrupulous politicians perpetuated
themselves in public office. The authoritarian regime that prolonged its reign from 1972 to 1986 demonstrated the need to
address these problems with greater resolve. Various schemes were installed in the 1987 Constitution and our statutes.
Among them are the provisions limiting terms of offices, banning political dynasties, strengthening the power and
independence of the COMELEC, sharpening the accountability of public officials and institutionalizing the power or the
people to recall their elected officials.
2

In the ground breaking case of Garcia v. COMELEC we traced the metamorphosis of the people's right of recall from its
diaper days. In Angobung v. COMELEC 3 we articulated the rationale of the right of recall, viz.:
. . . While recall was intended to be an effective and speedy remedy to remove an official who is not giving satisfaction to
the electorate regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience
dictates, it is a power granted to the people who, in concert, desire to change their leaders for reasons only they, as a
collective, can justify. In other words, recall must be pursued by the people, not just by one disgruntled loser in the
elections or a small percentage of disenchanted electors. Otherwise, its purpose as a direct remedy of the people shall be
defeated by the ill motives of a few among them whose selfish resort to recall would destabilize the community and
seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum voter requirement in America
recall statutes, unmistakably reveals the vigilance of lawmakers against the abuse of the power of recall. For instance, the
Supreme Court of Illinois held in the case of In Re Bower that:
[t]he only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall
election is to prevent premature action on their part in voting to remove a newly elected official before having had
sufficient time to evaluate the soundness of his political policies and decisions. We view the statutory provision requiring
the number of petition signers to equal at least 45% of the total votes cast in the last general election for mayor as a
further attempt to insure that an official will not have to defend his policies against frivolous attacks launched by a small
percentage of disenchanted electors.

Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v. City of Boulderthat:
[t]he framers, by requiring that a recall petition contain the signatures of at least 25% of all votes cast in the last election
for all candidates for the position which the person sought to be recalled occupies, assured that a recall election will not
be held in response to the wishes of a small and unrepresentative minority. However, once at least 25% of the electorate
have expressed their dissatisfaction, the constitution reserves the recall power to the will of the electorate.
And in the case of Wallace v. Tripp, the Supreme Court of Michigan echoed the foregoing posturings in this wise:
Much of what has been said to justify a limit upon recall clearly not provided or contemplated by the Constitution has
revealed fears about an irresponsible electorate . . . A much cited Nebraska case pertaining to a Nebraska recall statute
provides some answers which are equally applicable to the Michigan constitutional right of recall:
. . . Doubtless the provision requiring 30 per cent of the electors to sign the petition before the council [is[ compelled to act
was designed to avoid such a contingency. The Legislature apparently assumed that nearly one-third of the electorate
would not entail upon the taxpayers the cost of an election unless the charges made approved themselves to their
understanding and they were seriously dissatisfied with the services of the incumbent of the office.
In fine, democratic experience, here and abroad, shows that the right of recall is a double-edged sword. Rightly used, it
can promote the greater good. Wrongly used, it can result in greater evil. There are recalls as pointed out in Angobung
that should be avoided: (1) recalls borne by the ill motive of a few; (2) recalls that disrupt the smooth running of
government; and (3) recalls that destabilize the local government unit. The standard mechanisms in recall statutes to
avoid these evils are: (1) the setting of a waiting period before a petition for recall can be initiated, and (2) the fixing of a
minimum percentage of voters signatures to kickstart a petition for recall. As clearly explained in Bowers, the reason for
fixing a waiting period is "to prevent premature action on their part in voting to remove a newly elected official before
having had sufficient time to evaluate the soundness of his political policies and decisions." On the other hand, the reason
for requiring a minimum number of voters signatures is "to insure that an official will not have to defend his policies against
frivolous attacks launched by a small percentage of disenchanted electors." It will further avoid expenditure of public funds
for frivolous elections.
I like to focus on the one-year waiting period provided by Section 74 (b) which is the bedrock issue in the cases at bar.
Beyond debate, the ideal interpretation of the waiting period must bring about this pristine purpose to give the
voters a sound basis for their decision to recall or not to recall an official whom they have elected just a year ago. The
sound basis cannot exist in a vacuum. "Sound basis requires affording the official concerned a fair and reasonable
opportunity to accomplish his program for the people. By no means will there be a reasonable opportunity if from Day One
after assumption of office, the process of recall can already be initiated against said official. For it cannot be gainsaid that
the more disquieting and destabilizing part of recall is its initiation more than the recall election itself. It is in the too early
initiatory process where the baseless criticisms and falsehoods of a few are foisted on the many. Premature initiatives to
recall an official are resisted with stronger vim and venom. The reasons are obvious to those whose political innocence
has long been slain. The incumbent would not like to lose power just recently won. The challenger, often a loser in the
previous election, would not want to lose a second time. To allow early recall initiative is to encourage divisive, expensive;
wasteful politics. It will also put a premium on the politics of compromise the politics where public interest always
comes out second best.
With due respect, the interpretation made by the majority of Section 74 (b) of the Local Government Code, which will
countenance recall initiatives right on Day One after an official starts his term of office, will breed these political evils. To
be sure, the interpretation is based on a narrow rationale and cannot inspire assent. It starts from the premise that recall is
a power given to registered voters and "since the voters do not exercise such right except in an election, it is clear that the
initiation of recall proceedings is not prohibited within the one-year period" provided by law. The reasoning is based on the
misleading perception that the only participation of the people in recall is on election day when they cast their vote electing
or rejecting an incumbent. But the role of the people in recall is not limited to being the judge on election day. In truth, the
people participate in the initiation of the recall process. There are two (2) kinds of recall recall initiated directly by
the people and recall initiated by the people thru the Preparatory Recall Assembly (PRA). In recall initiated by the people,
it is self-evident that the people are involved from beginning to the end of the process. But nothing less is true in recall
initiated by the PRA. In Garcia, 4 we scoured the history of recall and we held: "[p]etitioners have misconstrued the nature
of the initiatory process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by
the people. This is a misimpression for initiation by the PRAC is also initiation by the people, albeit done indirectly through
their representatives." We further ruled that "the members of the PRAC are in the PRAC not in representation of their
5
political parties but as representatives of the people."

There is another reason why I do not share the majority ruling that the one-year waiting period is a limitation on the right of
the people to judge an incumbent on election day itself but not a limitation on their right to initiate the recall process. I
submit that the rationale for fixing the election day one year after assumption of office is different from the rationale for
prohibiting premature recall initiative. The rationale of the first is for the benefit of the people, to give them sufficient time
to assess intelligently the performance of an incumbent. The rationale of the second is for the benefit of the incumbent, to
give him a fair chance to govern well, to serve the people minus the unnecessary distractions from the itch of too much
politics. The ruling of the majority recognizes the rationale of the first but not the rationale of the second. Its ruling that
sanctions too early a recall initiative, and worse, that allows endless recall initiatives will deprive an incumbent a fair
opportunity to prove himself thru the politics of performance.
The majority also holds that "to construe the limitation in paragraph (b) as including the initiation of recall proceedings
would unduly curtail freedom of speech and assembly." Again, I beg to disagree. A dredging even of the subterranean
meanings of freedom of speech and assembly will not yield this result. It is one thing to postulate that during the one-year
waiting period the people cannot legally start a recall process. It is entirely non sequitur to add that during the said period,
the people's freedom of speech and freedom of assembly are suspended. These rights are in no way restricted for critical
speeches during the one-year waiting period cam serve as valuable inputs in deciding after the said period whether to
initiate the recall process. They will assume more importance in the recall election date itself. To stress again, what the
law deems impermissible is formally starting the recall process right after Day One of an incumbent's term of office for the
purpose of ending his incumbency, an act bereft of any utility.
In my Preliminary Dissenting Opinion, I purveyed the view that the one-year waiting period is a period of repose, of respite
from divisive politics in order to give whoever is the sovereign choice of the people a fair chance to succeed in public
service. Rejecting this view, the majority holds that "unfortunately, the law cannot really provide for a period of honeymoon
or moratorium in politics." With due respect, the ruling betrays historical amnesia. By no means is the one-year waiting
period a new, startling legal mechanism. This legal mechanism has long been installed to regulate our labor-management
relations, a volatile relationship, then and now. One of the areas of concern in labor-management relations relates to the
choice of employee representative who shall bargain with the employer on the terms and conditions of employment. The
choice of the representative is determined in a certification election, a democratic exercise often forcefully contested by
unions for at stake is enormous power, both political and economic. In the infant years of our labor-management relations,
these representatives were the objects of frequent change thru repeated petitions for new certification elections. These
repeated petitions for certification elections weakened employee representatives and resulted in instability in labormanagement relations. The instability had a debilitating effect on the economy. As a remedial measure, the Industrial
Peace Act insulated the term of the employee representative from change for one year. This is known as the certification
year rule pursuant to which no petition for certification election can be ordered in the same bargaining unit more often than
once in twelve months. 6 Hence, for one year, the employee representative is shielded from any initiative calling for a
certification election to change representative. This progressive mechanism is still contained in Article 231 of our Labor
Code. To jog our memory, this legal mechanism was taken from the Wagner Act 7 of the United States which had a
provision that no election can be directed in any bargaining unit or in any subdivision, where in the preceding 12-months
period, a valid election has been held. This 12-month ban on certification election of the Wagner Act has never been
challenged as violative of freedom of speech and of assembly of members of minority unions who wish to be elected as
employee bargaining representative. Let us not miss the reason for the twelve-month ban. Authorities in labor law like
Professor Forkosch emphasize that the "concepts of political democracy were assimilated in these representation
elections in labor law." 8 Needless to state, our own laws and derivative foreign law repudiate the majority ruling that ". . .
the law cannot really provide for a period of honeymoon or moratorium in politics. . . The only safeguard against the
baneful . . . effects of partisan politics is the good sense and self restraint of the
people. . . ."
I do not have any competing vision to offer against the majority on the need to hike the efficacy of the power of our people
to recall elected officials who have lost their confidence. After all, our EDSA experience has taught us that it is the people
and the people alone who can end malgovernment when all else fail. Recall is a powerful weapon given to our people but,
like any power, it can be abused. For this reason, the legislature carefully defined its limitations for its misuse can bring
about the disuse of a valuable means to terminate the misrule of misfits in government. Our lawmakers know that the
paradox of power is that to be effective it must be restrained from running riot. Section 74 of the Local Government Code
spelled out these restraints. Section 74 (a) limits the number of times an official can be subjected to recall during his term
of office to only one time. Section 74 (b) limits the periods when the power can be exercised. It sets two periods: the first,
sets the beginning, i.e., one year after an officials' assumption of office; the second, sets the end, i.e., one year
immediately preceding a regular election. These limitations should be strictly followed considering the short 3-year term of
office of local officials.
It is in this light that the Court should interpret Section 74. Its interpretation should strengthen the right of recall and the
best way to do this is to interpret it to prevent its misuse. By way of summation, I respectfully submit that by holding that

recall initiatives can start right after Day One of an official's assumption to office, the majority failed to recognize the need
for stability of a public office. By holding that these initiatives can be undertaken not once, not twice but endlessly within
one year after an official's assumption to office, the majority exposed our people to an overdose of politics. By holding that
recall initiatives can be done prematurely, the majority forgot that such initiatives are meaningful only if they are used to
adjudge an official's performance in office. By holding that recall initiatives can be done even without giving an official a
fair chance to serve the people, the majority has induced incumbents to play the politics of compromise instead of the
politics of performance. By holding that recall initiatives can be done at any one's caprice, the majority has cast a blind
eye on the expenses that accompany such exercise. These expenses have to be repaid later, an undeniable cause of
cronyism and corruption in government.
The bottomline is that our law intends recall as a mechanism of good government. It can never fulfill that intent if we allow
its use to foment too much politics. We need not be adepts in the alleyways of politics to say that too much politics is the
root of a lot of evils in our country. Our 1987 Constitution sought to check this bad political cholesterol plaguing our
government. Any attempt to restore this fat should draw more than a phlegmatic posture.
I vote to grant the petition.
KAPUNAN, J., separate and dissenting opinion;
With utmost due respect, I am constrained to disagree with the main opinion that the term "recall" under Section 74(b) of
Republic Act No. 7160, otherwise known as the Local Government Code, refers to the recall election alone. Section 74
provides:
Sec. 74. Limitation on Recall.
(a) Any elective official may be the subject of a recall election only once during his term of office for loss of confidence;
(b) No recall shall take place within one year from the date of the official's assumption of office.
Mayor Claudio won the mayoralty race in Pasay City in the 11 May 1998 elections. He assumed office on 1 July
1998. 1 Less than 10 months thereafter, or on 29 May 1999, the People's Recall Assembly (PRA) of Pasay City convened
and passed a resolution to initiate the recall of Mayor Claudio. 2 On 2 July 1999, a petition for the recall of Mayor Claudio
3
was filed with the Commission on Elections (COMELEC). In a Resolution, promulgated on 18 October 1999, rendered in
E.M. No. 99-005 (RCL), the COMELEC resolved to approve and give due course to the petition for recall. The COMELEC,
construing that the word "recall" only begins upon the time of filing of the recall petition in the Office of the Election Officer
of Pasay City up to the date of recall election," 4 ruled that since the petition was filed on 2 July 1999, the same was
already outside the prohibited period of one (1) year after Mayor Claudio assumed his office on 1 July 1998. 5 Hence, the
present case where the majority fund that the COMELEC did not abuse its discretion in issuing the assailed resolution.
Contrary to the majority view, I humbly submit that "recall" under Section 74(b) is not limited to the election itself, but,
rather, it is a process which begins once the PRA makes its first affirmative acts towards the recall of the elective local
official concerned, i.e. the convening of the PRA and the passing by the PRA of a recall resolution during a session called
for the said purpose, and culminates with the holding of the recall election.
The majority opinion concedes that it "can agree that a process which begins with the convening of the preparatory recall
assembly on the gathering of the signatures at least 25% of the registered voters of a local government unit." Yet, it
maintains that "recall" as used in paragraph (b) of Section 74 "refers to the election itself by means of which the voters
decide whether they should retain their local official or elect his replacement."
The majority opines that the power of recall can be exercised solely by he electorate and not by the PRA through "the
filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25% of the voters for a
petition for recall." This is so since the majority equates the power of recall with the electorate's power to replace or retain
the local official concerned during the recall elections. In furtherance of this premise, the majority concludes that since the
"power vested on the electorate is not the power to initiate the recall proceedings but the power to elect an official into
office, the limitations in 74 cannot be deemed to apply to the entire recall proceedings." I beg to disagree.
Since our form of government is a representative democracy, it cannot be claimed that the initiation of the recall process
by the PRA is not an initiation by the people. This was explained by the Court in the case of Garcia vs. Commission on
6
Elections, wherein it was said:

Again, the contention cannot command our concurrence. Petitioners have misconstrued the nature of the initiatory
process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the
people. This is a misimpression for initiation by the PRAC is also initiation by the people, albeit done indirectly through
their representatives. It is not constitutionally impermissible for the people to act through their elected representatives.
Nothing less than the paramount task of drafting our Constitution is delegated by the people to their representatives,
elected either to act as a constitutional convention or as congressional constituent assembly. The initiation of a recall
process is a lesser act and there is no rhyme or a reason why it cannot be entrusted to and exercised by the elected
7
representatives of the people.
It must be noted that in the above quotation, as well as in all the discussions in the Garcia case, recall is always described
and referred to as a process. The Garcia case does not, either directly or impliedly; state that the term "recall" in Section
74(b) is confined solely to the recall election alone. Garcia explains that recall as a process which begins with the
8
convening of the PRA coupled with the passing of a recall resolution and culminating with the recall election itself. It is
the PRA resolution which paves the way for the official sought to be recalled to appear before the electorate so he can
justify why he should be allowed to continue in office. 9 Thereafter, to determine whether the elected official still retains the
confidence of the people, a recall election is held. Thus, the recall process may be considered as composed of two
distinct but continuous phases, namely: the initiatory phase and the election phase. As such, for purposes of determining
whether the recall was instituted within the allowable period under Section 74(b), the reckoning point should be the
initiatory phase which is the time of convening and passing of the recall resolution. This should be so since it is from this
moment that the process of recall comes into being. It is at this precise moment when the PRA, as representatives of the
electorate, concretizes its stand and makes an affirmative act of its intent to recall the elected local official. Nonetheless, it
is still up to the people to affirm or reject the move to recall the incumbent official during the election called for the
purpose.
The underlying reason behind the time bar provisions, as pronounced by the Court in Angobung vs. COMELEC10, is to
guard against the abuse of the power of recall. In so holding, the Court authoritatively cited the case of In Re Bower 11,
stating that "the only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a
recall is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient
time to evaluate the soundness of his policies and decisions." The phrase "premature action" logically refers to
any activity geared towards removing the incumbent official without waiting for sufficient time to elapse to evaluate his
performance in office. The convening of the PRA and the passing of the questioned recall resolution in this case were
actions or activities proscribed by law, rendering the entire recall process invalid. The term "recall" under Section 74(b)
being a process which begins with the convening of the PRA and the passing of the recall resolution, such initiatory
exercises within the prohibited period tend to disrupt the workings of a local government unit and are deleterious to its
development and growth.
In a political culture like ours where a losing candidate does not easily concede defeat as demonstrated by numerous
election protests pending before our courts and in the COMELEC, all that a disgruntled candidate has to do to undermine
the mandate of the victor is to court the other local officials in order to set the stage for the convening of a PRA and the
passage of a recall resolution. After this, all that needs to be done is to wait for the lapse of the first time bar and,
thereafter, file the petition for recall. In the meantime, the incumbent official sought to be removed and his political
opponents engage in a full-scale election campaign which is divisive, destabilizing and disruptive, with its pernicious
effects taking their toll on good governance.
In this regard, Senator Aquilino Pimentel, the main author of the Local Government Code of 1991, in his book entitled
"The Local Government Code of 1991: The Key to National Development," explained:
Recall resolutions or petitions may not be used whimsically. In fact, they can be resorted to only once during the term of
the elective official sought to be recalled. And since there is a prohibition against recalls within the first year of an official's
term of office, and within one year immediately preceding a regular local election, the move to recall can only be done in
the second year of the three year term of local elective officials. 12
It can readily be observed that Senator Pimentel used the phrase "move to recall" in describing the activity which can only
he undertaken during the freedom period. This is significant because the use of the phrase "move to recall" is instructive
of the concept envisioned by the primary author of the law in providing for the limitations on recall. It connotes a
progressive course of action or a step-by-step process. As such, the word "move," when used in conjunction with the word
"recall," can pertain to no other than the entire recall process which begins with the convening of the PRA and the passing
of the recall resolution and ending with the recall election. It cannot, by any stretch of imagination, be construed as
referring to the election alone.

I cannot subscribe to the observation of the majority that to construe the limitation in Section 74 (b) "as including the
initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed by the Constitution."
The people can assemble and discuss their opinions and grievances against the incumbent official, at any time during his
term and as often as they would like, because it is their right to do so. An exercise of their right to peaceably assemble
and exchange views about the governance of the local official would not be violative of the limitations set forth in Section
74(b). However, once notice is sent, during the prohibited period, stating that the purpose of the meeting is to convene the
PRA and to pass a recall resolution, and the same is actually approved, then Section 74(b) is transgressed. In this
instance, the limitation of the electorate's freedom of speech and assembly is not violated since the time bar provision is
imposed by the legislature in the exercise of its police power. The limitation in Section 74(b) is analogous to the prohibition
under Section 80 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, which prohibits a person
from engaging in any election campaign or partisan political activity except during the campaign period. 1 The limitation on
the freedom of speech and assembly imposed by Section 80 has never been questioned as being unconstitutional.
Finally, I do not find any logical reason to support the view that the recall process should be counted only from the time of
the filing of the recall resolution or petition with the COMELEC. Although the filing of the petition for recall with the
COMELEC is, admittedly, an important component in the recall process, it, however, cannot be considered as the starting
point of the same. The filing of the petition, being merely a consequential mechanical act, is just a next step in the process
of recall after PRA's acts of convening the recall assembly and passing the recall resolution. Once a petition for recall is
filed, the only role of the COMELEC is the verification of its authenticity and genuineness. After such verification the
COMELEC is mandated by law to set the date of the recall election. Clearly, the role of the COMELEC in the recall
process under Section 70 of R.A. 7160 is merely ministerial in nature. Such being the case, it cannot be correctly argued
that the crucial moment in the recall process is the actual filing of the petition with the COMELEC.
I vote, therefore, to grant the petition.

G.R. No. 141787

September 18, 2000

MANUEL H. AFIADO, JASMINIO B. QUEMADO, JR. AND GLESIE L. TANGONAN vs. COMMISSION ON ELECTIONS
(COMELEC)
DECISION
DE LEON, JR., J.:
Before us is a Petition for Mandamus with Prayer for Preliminary Mandatory Injunction, praying for the early resolution of
the petition for the "recall" of former Vice-Mayor Amelita S. Navarro (currently the Mayor) of Santiago City, which was filed
with respondent Commission on Elections (COMELEC).
The facts are as follows:
During the May 11, 1998 elections in Santiago City, Joel Miranda became the substitute candidate for his father, Jose
"Pempe" Miranda, for the position of Mayor. When the ballots were counted, Joel emerged as the winner over his
opponent Antonio Abaya and he was later proclaimed. Amelita S. Navarro also won and was proclaimed as the ViceMayor of Santiago City.
On May 13, 1998, the defeated candidate, Antonio Abaya, filed before the COMELEC against Joel Miranda a Petition to
Declare Null and Void Substitution with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining
Order, docketed as SPA No. 98-288, which was later amended. The amended petition sought the declaration of the
certificate of candidacy of Jose Miranda, the father of Joel, as null and void.
The petition, as amended, was granted by the COMELEC en banc, and consequently the election and proclamation of
Joel Miranda as Mayor of Santiago City was annulled. This ruling was affirmed by the Supreme Court in a Decision
promulgated on July 28, 1999 in G.R. No. 136531, entitled "Joel Miranda vs. Antonio Abaya and COMELEC." In that
decision, we ruled that since the certificate of candidacy of Jose Miranda was not valid, he could not be validly substituted
by his son, Joel Miranda, as a mayoralty candidate in Santiago City. Hence, Joel Miranda could not be validly proclaimed
as the winner in the mayoralty elections. Vice-Mayor Amelita S. Navarro thus became the new Mayor of Santiago City by
virtue of the law on succession.1 Joel Miranda filed a motion for reconsideration but this was denied with finality by the
Supreme Court in a Resolution dated September 28, 1999.
Navarro took her oath of office and assumed her position as Mayor of Santiago City on October 11, 1999.
Meanwhile, on July 12, 1999, while the said G.R. No. 136531 was still pending in the Supreme Court, petitioners Manuel
H. Afiado, Jasminio B. Quemado and Glesie L. Tangonan convened the barangay officials of Santiago City who compose
the Preparatory Recall Assembly (PRA) at the Santiago City People's Coliseum after giving them due notice. On the same
date, July 12, 1999, the PRA passed and adopted Preparatory Recall Assembly Resolution No. 1 for the recall of ViceMayor Amelita S. Navarro. The pertinent portions of the said Resolution No. 1 read as follows:
ASSEMBLY RESOLUTION NO. 1
-oOoRESOLUTION OF THE PREPARATORY RECALL ASSEMBLY OF THE BARANGAY OFFICIALS OF SANTIAGO CITY
FOR THE RECALL OF THE INCUMBENT VICE-MAYOR OF SANTIAGO CITY
xxx

xxx

xxx

WHEREAS, during the Preparatory Recall Assembly the official acts of City Vice Mayor Navarro that brought forth the
loss of confidence in her capacity and fitness to discharge the duties and to perform the functions of her public office were
recounted for the contemplation and evaluation of the members present, to wit:
1. Her lack of respect and due regard for superior authority
2. Her greed for political power which worked against public interest and the general welfare

3. Her lack of regard for public officials, subordinates and lowly employees, which is conduct unbecoming of a public
official and speaks of her unprofessionalism
4. Her constant insistence to usurp the powers or authority vested upon other public officials
5. Her application of delaying tactics in the SP actions on the City Government's annual budget
6. Her disregard of parliamentary rules by imposing her unsolicited and unnecessary opinion unto the city councilors
7. Because of her preoccupation towards matters other than those of public concerns, substantial part of the legislative
tasks of the Sangguniang Panlungsod brought to it for action have remained unacted unfinished (sic);
8. Her alleged malfeasance of corruption while she was still the City Mayor in acting capacity, specifically her direct hand
in the anomalous acquisition of six dump trucks, a request for investigation for (sic) which is pending at the Office of the
Ombudsman;
9. Her antagonistic attitude towards development concerns
WHEREAS, on accounts of the documented facts and stated hereinabove the members of the Preparatory Recall
Assembly present have lost, after due thought their confidence upon the incumbent City Vice Mayor Amelita S. Navarro.
NOW WHEREFORE, upon a motion duly seconded, be it RESOLVED, as it is hereby RESOLVED to INVOKE THE RESCISSION OF THE ELECTORAL MANDATE OF THE
INCUMBENT CITY VICE-MAYOR AMELITA S. NAVARRO for LOSS OF CONFIDENCE through a recall election to be
set by the COMMISSION ON ELECTION as provided for under Section 71 of the Local Government Code of 1991;
xxx

xxx

xxx

APPROVED by the majority of the members of the Preparatory Recall Assembly held on July 12, 1999 at the People's
Coliseum, Santiago City, Isabela.2
According to the petitioners, PRA Resolution No. 1 together with all the reglementary requirements, has been forwarded
and submitted to the office of respondent COMELEC at Santiago City and later to its Head Office in Manila through the
Provincial Elections Office and Regional Elections Office.
On September 9, 1999, while the subject Preparatory Recall Resolution No. 1 was under evaluation in the COMELEC's
Head Office, then Vice-Mayor Amelita S. Navarro filed a petition, docketed as EM No. 99-006, with the COMELEC which
sought the nullification of the said PRA Resolution No. 1. In Navarro's petition, the herein petitioners Afiado, Quemado
and Tangonan (as officers of the Preparatory Recall Assembly of Santiago City) were impleaded as the respondents
therein.
Hearings in EM No. 99-006 were then conducted at the COMELEC's head office.1wphi1 After the deadline for the
submission of memoranda on December 1, 1999, herein petitioners as the respondents in that case, alleged that they
were not informed nor were they aware of further developments. This prompted them to file on December 27, 1999 an
Urgent Motion for the Early Resolution of the Petition (EM No. 99-006). According to the herein petitioners, the act of
herein respondent COMELEC in not deciding the said petition violates Rule 18, Section 7 of the 1993 COMELEC Rules of
Procedure which provides that:
Sec. 7. Period to Decide by the Commission En Banc. - Any case or matter submitted to or heard by the
Commission en banc shall be decided within thirty (30) days from the date it is deemed submitted for decision or
resolution, except a motion for reconsideration of a decision or resolution of a Division in Special Actions and Special
cases which shall be decided within fifteen (15) days from the date the case or matter is deemed submitted for decision,
unless otherwise provided by law.
The herein petitioners allege that the act of respondent COMELEC in not resolving the petition, EM No. 99-006, within the
reglementary period constitutes neglect in the performance of its duties and responsibilities; and that the alleged inaction
of respondent COMELEC will render the said case and/or PRA Resolution No. 1 moot and academic inasmuch as recall

elections cannot be undertaken anymore come June 30, 2000 pursuant to Section 74 of the 1991 Local Government
Code, which provides that:
Sec. 74. Limitation on Recall. (a) any elective local official may be the subject of a recall election only once during his term of office for loss of
confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year
immediately preceding a regular local election.3
Finally, on February 18, 2000, sensing the urgency of the situation since PRA Resolution No. 1 was not yet acted upon by
the COMELEC, the herein petitioners filed the present petition for mandamus to compel respondent COMELEC to resolve
and deny immediately Navaro's petition, docketed therein as EM No. 99-006, and in effect to give due course to and
implement the said PRA Resolution.
The corollary issue in the case at bench is whether or not an elective official who became City Mayor by legal succession
can be the subject of a recall election by virtue of a Preparatory Recall Assembly Resolution which was passed or
adopted when the said elective official was still the Vice-Mayor.
We deny the petition.
On March 31, 2000 respondent COMELEC issued and promulgated in EM No. 99-006 a Resolution4 which denied due
course to the subject PRA Resolution No. 1. This development therefore rendered the present petition
for mandamus moot and academic. The record shows that herein petitioners' counsel of record was furnished copies of
the COMELEC's Resolution dated March 31, 2000 by registered mail on April 1, 2000.
Anent the corollary issue as to whether or not Mayor Navarro can be the subject of recall election by virtue of Resolution
No. 1 of the Preparatory Recall Assembly which was passed when she was still the elected City Vice-Mayor, the same
has become moot and academic. We quote below the pertinent portion of the COMELEC's Resolution dated March 31,
2000 in EM No. 99-006 and to which we agree, to wit:
The assumption by legal succession of the petitioner as the new Mayor of Santiago City is a supervening event which
rendered the recall proceeding against her moot and academic. A perusal of the said Resolution reveals that the person
subject of the recall process is a specific elective official in relation to her specific office. The said resolution is replete with
statements, which leave no doubt that the purpose of the assembly was to recall petitioner as Vice Mayor for her official
acts as Vice Mayor. The title itself suggests that the recall is intended for the incumbent Vice Mayor of Santiago City. The
third paragraph of the resolution recounted " the official acts of City Vice Mayor Navarro that brought forth the loss of
confidence in her capacity and fitness to discharge the duties and to perform the functions of her public office." And
because of such acts, the assembly "RESOLVED to invoke the rescission of the electoral mandate of the incumbent City
Vice Mayor." Clearly, the intent of the PRA as expressed in the said Resolution is to remove the petitioner as Vice Mayor
for they already lost their confidence in her by reason of her official acts as such. To recall, then, the petitioner when she
is already the incumbent City Mayor is to deviate from the expressed will of the PRA. Having, thus, succeeded to the
position of City Mayor, the petitioner was placed beyond the reach of the effects of the PRA Resolution. 5
The specific purpose of the Preparatory Recall Assembly was to remove Amelita S. Navarro as the elected Vice-Mayor of
Santiago City since PRA Resolution No. 1 dated July 12, 1999 expressly states that "it is hereby resolved to invoke the
rescission of the electoral mandate of the incumbent City Vice-Mayor Amelita S. Navarrofor loss of confidence through a
recall election to be set by the Commission on Election as provided for under Section 71 of the Local Government Code of
1991."6 However, the said PRA Resolution No. 1 is no longer applicable to her inasmuch as she has already vacated the
office of Vice-Mayor on October 11, 1999 when she assumed the position of City Mayor of Santiago City.
Even if the Preparatory Recall Assembly were to reconvene to adopt another resolution for the recall of Amelita Navarro,
this time as Mayor of Santiago City, the same would still not prosper in view of Section 74 (b) of the Local Government
Code of 1991 which provides that "No recall shall take place within one (1) year from the date of the official's assumption
of office or one (1) year immediately preceding a regular election." There is no more allowable time in the light of that law
within which to hold recall elections for that purpose. The then Vice-Mayor Amelita S. Navarro assumed office as Mayor of
Santiago City on October 11, 1999. One year after her assumption of office as Mayor will be October 11, 2000 which is
already within the one (1) year prohibited period immediately preceding the next regular election in May 2001.

WHEREFORE, the petition for mandamus is hereby DISMISSED.

SO ORDERED.

G.R. No. 163295

January 23, 2006

FRANCIS G. ONG vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents.
x---------------------x
G.R. No. 163354

January 23, 2006

ROMMEL G. ONG vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents.
DECISION
GARCIA, J.:
Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain
issuances of the Commission on Elections (COMELEC) en banc.
The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong impugning the
COMELEC en banc resolution1 dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley
Alegre's motion for reconsideration of the resolution dated March 31, 20042 of the COMELECs First Division.
The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for injunctive relief, filed by
petitioner Rommel Ong, brother of Francis, seeking, among other things, to stop the COMELEC from enforcing and
implementing its aforesaid May 7, 2004 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in
G.R. No. 163295.
Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions.
The recourse stemmed from the following essential and undisputed factual backdrop:
Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed
certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the
incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and
Cancel Certificate of Candidacy3 of Francis. Docketed as SPA Case No. 04-048, the petition to disqualify was predicated
on the three-consecutive term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001
mayoralty elections and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full
terms corresponding to those elections.
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San
Vicente, Camarines Norte, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre
subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet,
Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,4 albeit the
decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact
already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente.
Acting on Alegres petition to disqualify and to cancel Francis certificate of candidacy for the May 10, 2004 elections, the
First Division of the COMELEC rendered on March 31, 2004 a resolution5 dismissing the said petition of Alegre,
rationalizing as follows:
We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by
the Highest Court in the Borja case. Herein, one of the requisites for the application of the three term rule is not present.
Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The
mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC]
of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley
Alegre was the "legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte." This disposition
had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic.

xxx xxx xxx

On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench,
Ong could not be considered as having served as mayor from 1998 to 2001 because "he was not duly elected to the post;
he merely assumed office as a presumptive winner; which presumption was later overturned when [the RTC] decided
with finality that [he] lost in the May 1998 elections." (Words in bracket and emphasis in the original).
Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was a misapplication of the
three-term rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra.
On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution6 reversing the March 31, 2004
resolution of the COMELECs First Division and thereby (a) declaring Francis "as disqualified to run for mayor of San
Vicente, Camarines Norte in the May 10, 2004"; (b) ordering the deletion of Francis name from the official list of
candidates; and (c) directing the concerned board of election inspectors not to count the votes cast in his favor.
The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004 resolution, sending him
posthaste to seek the assistance of his political party, the Nationalist Peoples Coalition, which immediately nominated his
older brother, Rommel Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is past
the deadline for filing a certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as
substitute candidate for his brother Francis.
The following undisputed events then transpired:
1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel
Certificate of Rommel Ong.
2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter 7 to Provincial Election Supervisor (PES) of
Camarines Norte Liza Z. Cario and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the
COMELECs inaction on Alegre's petition to cancel Rommels certificate of candidacy, the name "Rommel Ong" be
included in the official certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was
granted by the PES Carino.
8

3. On May 10, 2004, Alegre wrote to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for
Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cario. Responding,
Commissioner Garcillano issued a Memorandum under date May 10, 20049addressed to PES Liza D. Zabala-Cario,
ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7,
2004.10 Said Memorandum partly stated:
The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote
your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the
Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course," and
elaborated further that:
"x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of
candidates unless the substitution is approved by the Commission.
In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong, should be
denied due course; and 2) the election officer be directed to delete his name from the list of candidates."
The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311
SCRA 617) which states:
"There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and
cancellation of his certificate of candidacy."
In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA
No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added].

4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of
Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting
the latter to file a protest with that Board.11
5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty
post in San Vicente, Camarines Norte.12
On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R. No. 163295. His
brother Rommels petition in G.R. No. 163354 followed barely a week after.
In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were consolidated.

13

Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent Alegres Petition to Deny Due
Course to or Cancel Certificate of Candidacy of Rommel Ong, for being moot and academic.14
The issues for resolution of the Court are:
In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing its en banc resolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for Mayor
of San Vicente, Camarines Norte in the May 10, 2004 elections and consequently ordering the deletion of his name from
the official list of candidates so that any vote cast in his favor shall be considered stray.
In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied due course to Rommels
certificate of candidacy in the same mayoralty election as substitute for his brother Francis.
A resolution of the issues thus formulated hinges on the question of whether or not petitioner Franciss assumption of
office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service
for the purpose of the three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He
argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive
terms, his proclamation as mayor-elect in the May 1998 election was contested and eventually nullified per the decision of
the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs.
Comelec15, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the
strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election
protest.
The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987 Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.
Section 43 (b) of the Local Government Code restates the same rule as follows:
Sec. 43. Term of Office.
xxx xxx xxx
(b) No local elective official shall serve for more than three consecutive years in the same position. Voluntary renunciation
of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for
which the elective official concerned was elected.
For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1)
that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2)
16
that he has fully served three (3) consecutive terms.

With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner
Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute
about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May
2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein
controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor
of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a
proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be
addressed, therefore, is whether or not Franciss assumption of office as Mayor of San Vicente, Camarines Norte from
July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term
limit rule.
We hold that such assumption of office constitutes, for Francis, "service for the full term", and should be counted as a full
term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra,
barring local elective officials from being elected and serving for more than three consecutive term for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, 17 that it was Francis opponent
(Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However,
that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the
term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998
mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation
by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by
his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally
be taken as service for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that
Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless
electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an
election.
Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in, Lonzanida vs. Comelec,18 citingBorja vs.
Comelec19. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San
Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections,
won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest
before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of elections and
declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate
the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998
elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed
and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to
the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary
relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to
1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term."
The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the
mayoralty election was declared a nullity for the stated reason of "failure of election", and, as a consequence thereof, the
proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was
actually no interruption or break in the continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida,
Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as
mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.
The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis
from running in the May 10, 2004 elections for the mayoralty post of San Vicente and denying due course to his certificate
of candidacy by force of the constitutional and statutory provisions regarding the three-term limit rule for any local elective
official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for
concurrence:

As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the
instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here.
Explicitly, the three-term limit was not made applicable in the cases of Borja and Lonzanida because there was an
interruption in the continuity of service of the three consecutive terms. Here, Respondent Ong would have served
continuously for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply
discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have
iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a
crown of victory. (Word in bracket added; emphasis in the original)
Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his
discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004
20
COMELEC en banc resolution even before its finality is now of little moment and need not detain us any longer.
Just as unmeritorious as Francis petition in G.R. No. 163295 is Rommels petition in G.R. No. 163354 in which he
(Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of
candidates for the May 10, 2004 elections. As it were, existing COMELEC policy 21 provides for the non-inclusion of the
name of substitute candidates in the certified list of candidates pending approval of the substitution.
Not to be overlooked is the Courts holding in Miranda vs. Abaya,22 that a candidate whose certificate of candidacy has
been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of
the former, thus:
While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a
candidate of the same party who had been disqualified for any cause, this does not include those cases where the
certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the
Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly
substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial
and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter
case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or
cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and
conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled
under the provisions of Section 78 of the Code.
xxx xxx xxx
A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person
who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.
xxx xxx xxx
After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista
vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at
all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that
only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any
possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.
In any event, with the hard reality that the May 10, 2004 elections were already pass, Rommel Ongs petition in G.R. No.
163354 is already moot and academic.
WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the
COMELEC, in SPA No. 04-048 AFFIRMED.
Costs against petitioners.
SO ORDERED.

G.R. No. 154512

November 12, 2002

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City vs. THE COMMISSION ON ELECTIONS, THE
PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK
DAVID HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding
Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR.
DECISION
CARPIO, J.:
The Case
Before us are consolidated petitions for certiorari 1 seeking the reversal of the resolutions issued by the Commission on
Elections ("COMELEC" for brevity) in relation to the recall election for mayor of Puerto Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened
themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of Barangay San Jose from 9:00
a.m. to 12:00 noon. The PRA was convened to initiate the recall 2 of Victorino Dennis M. Socrates ("Socrates" for brevity)
who assumed office as Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M.
Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which declared its loss of
confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for
mayor within 30 days from receipt of the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC), to nullify and deny due
course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for lack of merit Socrates' petition. The
COMELEC gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the calendar of activities and
periods of certain prohibited acts in connection with the recall election. The COMELEC fixed the campaign period from
August 27, 2002 to September 5, 2002 or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy for mayor in the recall
election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity) filed a petition before
the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from running in the recall election and to cancel his
certificate of candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-inintervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed
another petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and involving the
same issues. The petitions were all anchored on the ground that "Hagedorn is disqualified from running for a fourth
consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms
immediately prior to the instant recall election for the same post." Subsequently, SPA Nos. 02-492 and 02-539 were
consolidated.
4

In a resolution promulgated on September 20, 2002, the COMELEC's First Division dismissed for lack of merit SPA Nos.
02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in the recall election. The COMELEC also reset
the recall election from September 7, 2002 to September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for reconsideration of
Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn qualified to run in the recall election.
Hence, the instant consolidated petitions.

G.R. No. 154512

Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M. No. 02-010 (RC)
which gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. Socrates cites the
following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution:
(1) not all members of the PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice was
palpably and legally deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their
respective constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA
proceedings were conducted in a manner that violated his and the public's constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21, 2002 insofar as it
fixed the recall election on September 7, 2002, giving the candidates only a ten-day campaign period. He prayed that the
COMELEC be enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the
candidates at least an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from implementing Resolution No.
5673 insofar as it fixed the date of the recall election on September 7, 2002. The Court directed the COMELEC to give the
candidates an additional fifteen 15 days from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the candidates an
additional 15 days from September 7, 2002 within which to campaign. Thus, the COMELEC reset the recall election to
September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20, 2002 and September 23,
2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in the recall election. They likewise
prayed for the issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall
election.
Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's qualification to run for mayor
in the recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective
local officials.
In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from proclaiming any winning
candidate in the recall election until further orders from the Court. Petitioners were required to post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention seeking the same
reliefs as those sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238 votes. Rival
candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him
to assume office to give effect to the will of the electorate.
On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due course to the Recall
Resolution and scheduling the recall election for mayor of Puerto Princesa.

2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on
September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in fixing a campaign period
of only 10 days has become moot. Our Resolution of September 3, 2002 and COMELEC Resolution No. 5708 granted an
additional 15 days for the campaign period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution
despite the absence of notice to 130 PRA members and the defective service of notice to other PRA members. The
COMELEC, however, found that
"On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor Victorino Dennis M.
Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local
Government Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service
for each of the said notices were attached to the Petition and marked as Annex "G" of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos establishing the same were
attached to the Petition and marked as Annex "H". The proponents likewise utilized the broadcast mass media in the
dissemination of the convening of the PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial
elective officials, print and broadcast media practitioners, PNP officials, COMELEC city, regional and national officials,
and DILG officials].
xxx
The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a 'thorough and
careful verification of the signatures appearing in PRA Resolution 01-02, x x x the majority of all members of the PRA
concerned approved said resolution.' She likewise certified 'that not a single member/signatory of the PRA complained or
objected as to the veracity and authenticity of their signatures.'
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10 July 2002, stated, 'upon
proper review, all documents submitted are found in order.'
The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following recommendations:
'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and substance. That the PRA
was validly constituted and that the majority of all members thereof approved Resolution No. 01-02 calling for the recall of
Mayor Victorino Dennis M. Socrates.'
x x x ."
This Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the
COMELEC, unless the findings are patently erroneous. In Malonzo v. COMELEC,5 which also dealt with alleged defective
service of notice to PRA members, we ruled that
"Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the
determination of the same is therefore a function of the COMELEC. In the absence of patent error, or serious
inconsistencies in the findings, the Court should not disturb the same. The factual findings of the COMELEC, based on its
own assessments and duly supported by gathered evidence, are conclusive upon the court, more so, in the absence of a
substantiated attack on the validity of the same."
In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a
majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002.
This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their

terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to
participate in the recall assembly under Section 70 of the Local Government Code.
Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to
information on matters of public concern. Socrates, however, admits receiving notice of the PRA meeting and of even
sending his representative and counsel who were present during the entire PRA proceedings. Proponents of the recall
election submitted to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA
assembly, attendance sheets, notices sent to PRA members, and authenticated master list of barangay officials in Puerto
Princesa. Socrates had the right to examine and copy all these public records in the official custody of the COMELEC.
Socrates, however, does not claim that the COMELEC denied him this right. There is no legal basis in Socrates' claim that
respondents violated his constitutional right to information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall
Resolution and in scheduling the recall election on September 24, 2002.
Second Issue: Hagedorn's qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states:
"Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected."
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code,
which provides:
"Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official was elected."
These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot
serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the
three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt
the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts
continuity of service and prevents the service before and after the interruption from being joined together to form a
continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited
election refers to the next regular election for the same office following the end of the third consecutive term. Any
subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent
election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether
there would be no further election after three terms, or whether there would be "no immediate reelection" after three
terms. This is clear from the following deliberations of the Constitutional Commission:
"THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the blackboard, and these are Alternative
No. I where there is no further election after a total of three terms and Alternative No. 2 where there is no immediate
reelection after three successive terms."7
The Journal of the Constitutional Commission reports the following manifestation on the term of elective local officials:

"MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on
the term of Representatives and local officials, namely: 1) Alternative No. 1 (no further reelection after a total of three
8
terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms)."
The framers of the Constitution used the same "no immediate reelection" question in voting for the term limits of
9
10
Senators and Representatives of the House.
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The
Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not
immediately after the end of the third consecutive term. A recall election mid-way in the term following the third
consecutive term is a subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent
election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the
Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the
immediate reelection after the third term, not any other subsequent election.
If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term
limit, then Senators should also be prohibited from running in any election within the six-year full term following their twoterm limit. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local
officials, thus:
"No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." 11
In the debates on the term limit of Senators, the following exchange in the Constitutional Convention is instructive:
"GASCON:12 I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest
for a period of time before he can run again?
13

DAVIDE: That is correct.

GASCON: And the question that we left behind before - if the Gentleman will remember - was: How long will that period of
rest be? Will it be one election which is three years or one term which is six years?
DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view that during the election following the
expiration of the first 12 years, whether such election will be on the third or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of hibernation for six years. That was the Committee's stand.
GASCON: So, effectively, the period of rest would be three years at the least." 14 (Emphasis supplied)
15

The framers of the Constitution thus clarified that a Senator can run after only three years following his completion of two
terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to
any subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not
intend "the period of rest" of an elective official who has reached his term limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after
his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred
Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three
consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could
no longer run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn,
who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did
16
not run for mayor in the 2001 elections. Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After
Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24,
2002 when he won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During
the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of
Hagedorn's service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn's
three consecutive terms ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004
is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn's
previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not.
An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive
character of Hagedorn's service as mayor.
In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of service in this manner:
"x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any
length of time shall not be considered as an interruption in the continuity of service for the full term for which he was
elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service
of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full
term provided by law amounts to an interruption of continuity of service. x x x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years,
constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or
hiatus to be a full term of three years. The clear intent is that interruption "for any length of time," as long as the cause is
involuntary, is sufficient to break an elective local official's continuity of service.
In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the rule that an interruption
consisting of a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo, Ramon
Y. Talaga, Jr. had served two consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in
1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the
unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections,
Raymundo Adormeo, the other candidate for mayor, petitioned for Talaga's disqualification on the ground that Talaga had
already served three consecutive terms as mayor.
Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous two terms so that he was
deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the
2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the
continuity of his service as mayor. Talaga's recall term as mayor was not consecutive to his previous two terms because
of this interruption, there having been a break of almost two years during which time Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and
prevents his recall term from being stitched together as a seamless continuation of his previous two consecutive terms. In
the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of
service and prevents his recall term from being stitched together as a seamless continuation of his previous three
consecutive terms. The only difference between Adormeo and the instant case is the time of the interruption. In Adormeo,
the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first
three consecutive terms. In both cases, the respondents were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election.
Talaga's recall term did not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to
so retroact, then he would have been disqualified to run in the 2001 elections because he would already have served
three consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of
his predecessor but only the unexpired term. The period of time prior to the recall term, when another elective official
holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the
recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness
of an elective official's terms in office.
In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of Socrates. Hagedorn can
only be disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to June 30, 2001,
for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorn's recall term as a full term
of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is

to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually
are not.
Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of
the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign
will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest
possible effect to the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec:
"Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that the members of the
Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were
with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner
Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local
and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election following the expiration of the third
consecutive term. Monsod warned against 'prescreening candidates [from] whom the people will choose' as a result of the
proposed absolute disqualification, considering that the draft constitution contained provisions 'recognizing people's
power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption.
An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one
term for purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional
Commission:
"SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly elected would have to serve
the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered
one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned
from running? Is that the meaning of this provision on disqualification, Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only for the unexpired portion of
that particular term plus one more term for the Senator and two more terms for the Members of the Lower House." 21
Although the discussion referred to special elections for Senators and Representatives of the House, the same principle
applies to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for
more than nine consecutive years comprising of the recall term plus the regular three full terms. A local official who serves
a recall term should know that the recall term is in itself one term although less than three years. This is the inherent
limitation he takes by running and winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto
Princesa because:
1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June
30, 2001;
2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002
during which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to
make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their
leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The temporary restraining
order issued by this Court on September 24, 2002 enjoining the proclamation of the winning candidate for mayor of Puerto
Princesa in the recall election of September 24, 2002 is lifted. No costs.
SO ORDERED.
CONCURRING AND DISSENTING OPINION

DAVIDE, JR., C.J.:

I concur with the opinion and conclusion of Mr. Justice Antonio T. Carpio in G.R. No. 154512 and G.R. No. 154683. The
Commission on Elections (COMELEC) committed no grave abuse of discretion in giving due course to the Recall
Resolution. Dismissal then of G.R. No. 154512 is inevitable. This notwithstanding, I still hold on to my dissenting view in
G.R. No. 111511 (Garcia, et al. vs. COMELEC, et al., 227 SCRA 100, 121 [1993]) that the provision on the preparatory
recall assembly in Section 70 of the Local Government Code of 1991 is unconstitutional.
Our issuance of the Resolution of 3 September 2002 in G.R. No. 154683 enjoining the COMELEC from implementing its
Resolution No. 5673 insofar as it fixed the recall election on 7 September 2002, and the subsequent Resolution of the
COMELEC giving the candidates an additional campaign period of fifteen days from 7 September 2002 rendered moot
and academic the principal issue in G.R. No. 154683. The dismissal of the petition therein is also in order.
However, I regret I cannot concur with the argument and conclusion relative to G.R. Nos. 155083-84. I respectfully submit
that private respondent Edward S. Hagedorn is disqualified from running for the position of Mayor of Puerto Princesa City
in the recall election in question.
Section 8 of Article X of the Constitution expressly provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an Interruption In the continuity of his service for the full term for which he
was elected.
Paragraph (b), Section 43 of R.A. No. 7160 (The Local Government Code) restates this constitutional restriction, thus:
SEC. 43. Term of office.
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official was elected.
Section 8 of Article X of the Constitution was not found in the Report of the Committee on Local Governments of the
Constitutional Commission of 1986. It was introduced at the plenary session by Commissioner Hilario G. Davide, Jr.
Commenting thereon in his book entitled "The Intent of 1986 Constitution Writers" (1995 ed., p. 699), Commissioner
Joaquin Bernas states:
This provision was not found among the Committee's proposals but came as an amendment proposed by Commissioner
Davide. It was readily accepted without much discussion and formally approved.
Section 8 sets the duration of a term at three years, and prohibits elective local officials from serving for more than three
consecutive terms.
Pursuant to the second paragraph of Section 1 of Article XVIII (The Transitory Provision) of the Constitution, and
Executive Order No. 270, as amended by R.A. No. 6636, the first local election, that is, the election for the first term under
the Constitution for elective local officials, was on 18 January 1988. By express provision of Section 5 of R.A. No. 6636, in
relation to Section 2 of Article XVIII of the Constitution, that term expired at noon of 30 June 1992. The second election,
i.e., the election for the second term of elective local officials which expired at noon of 30 June 1995, for elective local
officials, was on the second Monday of May 1992 pursuant to R.A. No. 7166 (An Act Providing for Synchronized National
and Local Elections and for Electoral Reforms). The third election, i.e., for the third term which expired at noon of 30 June
1998, was on the second Monday of May 1995, pursuant to Section 2 of R.A. No. 7166. The fourth election, or for the
fourth term which expired at noon of 30 June 2001, was on the second Monday of May 1998. The fifth election, i.e., for the
fifth term which would expire at noon of 30 June 2004, was on the second Monday of May 2001.Conformably with Section
8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160, a local official elected in the first local election of 18
January 1988 may be reelected in the synchronized elections in May 1992 and in May 1995. He could not seek another
reelection in the May 1998 election because that would have been his fourth term. Similarly, a local official who was
elected in the May 1992 election could be reelected in the May 1995 and May 1998 elections.
Private respondent Hagedorn was first elected as City Mayor of Puerto Princesa City in the May 1992 election. He was
reelected in the May 1995 and May 1998 elections. His third term, by virtue of his election in the May 1998 election,

expired on 30 June 2001. Therefore, he was constitutionally and statutorily barred from seeking reelection In the May
2001 election, which would have been his fourth term.
The term of office covered by the May 2001 election is up to 30 June 2004. Section 8 of Article X of the Constitution and
Section 43(b) of R.A. No. 7160 are clear in what is prohibited, which is the fourth term. Nothing can be clearer from the
wordings thereof: "the term of office of elective local officials ... shall be three years and no such official shall serve for
more that three consecutive terms." In short, an elective local official who has served three consecutive terms, like
Hagedorn, is disqualified from seeking re-election for the succeeding fourth term. The provision bars the holding of four
consecutive terms.
The ponencia is then correct when it holds that the three-term limit bars an immediate reelection for a fourth term. But I
disagree when it rules that in the case of Hagedorn he did not seek an immediate reelection for a fourth term because he
was not a candidate for reelection in the May 2001 election. It forgets that what would have been his fourth term by virtue
of the May 2001 election was for the period from 30 June 2001 to 30 June 2004. The flaw in the ruling results from an
apparent confusion between term and election, the root cause of which is the attempt to distinguish "voluntary
renunciation" of office from "involuntary severance" from office and the term of office to which it relates.
Let me first discuss the matter of whether the Constitutional Commission did approve the rule of "no Immediate reelection
after three consecutive terms." In support of its affirmative conclusion the ponencia quotes the Manifestation of
Commissioner Romulo as entered in the Journal of the Constitutional Commission, thus:
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on
the term of Representatives and local officials, namely: a) Alternative No. 1 (no further reelection after a total of three
terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms).
This is inaccurate. What actually happened was that the issue was originally for elective national and local officials.
However, the Commission decided to consider first the term of the members of Congress; and to defer the discussion on
the term of elective local officials until the Commission would consider the report of the Committee on Local Governments.
On this point I quote the pertinent portions of Volume Two, pages 238-245 of the Record of the Constitutional Commission
of its proceedings on 25 July 1986:
THE PRESIDENT. Maybe it will be of help we Just remind ourselves that what we have before us now is the report of the
Committee on the Legislative. Therefore, maybe we should confine ourselves first to what is covered by the report which
is the term of office of the Senators and the Representatives.And with respect to the local officials, let us await the report
of the Committee on Local Governments as to its recommendation on this matter.
MR. RODRIGO. As a matter of fact, I will go further than that, it is my belief, as regards local officials, that we should
leave this matter to the legislative.
THE PRESIDENT. So what is the pleasure now of the Acting Floor Leader or of the Chairman of the Committee on the
Legislative?
MR. RODRIGO. I wonder if the two proponents, Madam President, will agree that we first talk about the term of office of
the Representatives because we are now discussing the legislative department.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I will agree really that this matter should relate only to the term of office of the Representatives.
THE PRESIDENT. But are we agreed on these two proposals - the one of Commissioner Garcia where there is no further
election after a total of three terms and the other where there is no Immediate reelection after three successive terms?
MR. OPLE. Madam President, originally if I remember right, the Commission decided to consider the synchronization of
elections. And from that original commitment, we proceeded to fix the terms and decided related questions within the
context of synchronization. Are we now abandoning the original task of synchronization which could only be fully settled in

terms of delimitations on the proposed terms of the President and the Vice-President, the Members of Congress and the
local officials, or do we want to postpone the synchronization task to a later time after we hear from the Committee on
Local Governments and the other concerned committees?
THE PRESIDENT. What does the Acting Floor Leader say to this particular question of Commissioner Ople?
MR. ROMULO. In a way, Madam President, we have settled the synchronization task, because we have decided on the
officials' absolute terms. All we are really talking about now is whether or not they are eligible for reelection, and I think
those are separable issues.
MR. OPLE. If they are separable, and we have already settled the synchronization task, then I think that is something to
be thankful about. But considering the immediate business at hand, is it the wish of the Acting Floor Leader that the
election of the local officials should be eliminated from the consideration of those two choices?
MR. ROMULO. Yes. I think the sense of the body now is to limit this choice to the Members of the House of
Representatives.
MR. OPLE. And do the manifestations of both Commissioners Garcia and Monsod still stand after the elimination of the
election of the local officials?
MR. ROMULO. Yes, I think so.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. Madam President, as worded, It is a personal disqualification.
MR. ROMULO. We are now ready to vote, Madam President.
SUSPENSION OF SESSION
THE PRESIDENT. We are now ready to vote by ballot. Let us distribute the ballots. Anyway the voting would take only
about 10 minutes.
The session is suspended.
It was 3:40 p.m.
At this juncture, pieces of paper were distributed, and the Commissioners wrote down their votes.
RESUMPTION OF SESSION
At 3:50 p.m., the session was resumed.
THE PRESIDENT. The session is resumed.
MR. GASCON. Madam President, may I have a clarification before we count the ballots. The voting now is just for
Representatives. We are not speaking of the term of office of the Senators yet. Is that correct?
THE PRESIDENT. The term of office of the Senators was disposed of this morning.
This voting now is only for Representatives.
MR. GASCON. I think the Issue of whether the Senators could run again for election after their two consecutive terms or
12 years after a lapse of a period of time has not yet been finalized.

THE PRESIDENT. I beg the Commissioner's pardon.

MR. GASCON. Is this voting just for Congressmen?
THE PRESIDENT. Yes.
The Secretary-General will now please proceed to count the votes.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We will now start the counting.
Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-//
Alternative No. 2 - no immediate reelection after three successive terms: /////-/////-/////-/////-/////-/
THE PRESIDENT. The results show 17 votes for Alternative No. 1 and 26 votes for Alternative No. 2; Alternative No. 2 is
approved.
What does the Acting Floor Leader say?
MR. ROMULO. Alternative No. 2 has won, Madam President. It seems there are some doubts as to the term of office of
the Senators, so I propose that we similarly vote on that to end any doubt. It was my understanding this morning that
when we voted for the term of office of the Senators, they would not be perpetually disqualified.
THE PRESIDENT. From the transcripts, it appears here that with respect to Senators, 22 votes went to Scheme No. II;
that is, with one reelection. This is already a majority. So, does the Acting Floor Leader propose that we vote again?
MR. ROMULO. The question is whether or not that will be perpetual, Madam President, or after resting for six years they
can run again. That is the question that is not answered. I am talking of the Senators.
THE PRESIDENT. This morning, Scheme No. I, without reelection, has 3 votes; Scheme No. II, with one reelection - 22
votes; Scheme No. III, no limit on reelection - 17 votes.
MR. REGALADO. Madam President.
MR. RODRIGO. Madam President.
THE PRESIDENT. May we first clarify this from the Secretary-General?
MR. ROMULO. The question is whether or not in voting for the term of six years with one reelection, the Senator is
perpetually disqualified, so that is a similar question to what we had posed with regard to the House of Representatives.
THE PRESIDENT. In other words, after serving with one reelection, whether or not he is perpetually disqualified after
serving 12 years?
MR. ROMULO. Yes, Madam President.
MR. RODRIGO. Madam President.
THE PRESIDENT. Yes, Commissioner Rodrigo is recognized.
MR. RODRIGO. Or, if after one reelection, he is perpetually disqualified or he can hibernate - the very word used - for six
years and then run again for reelection but not consecutive, not immediate. In other words, he is entitled to one immediate
reelection.
REV. RIGOS. Another point, Madam President.

MR. RODRIGO. And then, after that, if there is a gap, when he is not a Senator, then he can run for the same office.
REV. RIGOS. Madam President.
THE PRESIDENT. Yes, Commissioner Rigos is recognized.
REV. RIGOS. In relation to that, if he will be allowed to run again as Senator after a period of hibernation, we have to
clarify how long that should be. It could be three years, because in the proposed scheme, every three years we can elect
the Senators.
MR. RODRIGO. Yes, Madam President, it can be three years.
SUSPENSION OF SESSION
THE PRESIDENT. I will suspend the session again so as to allow the parties to compare with the Acting Floor Leader so
that we will know what we are going to vote on.
The session is suspended
It was 3:58 p.m.
RESUMPTION OF SESSION
At 4:05 p.m., the session was resumed.
THE PRESIDENT. The session is resumed.
The Acting Floor Leader is recognized.
MR. ROMULO. Madam President, we are now ready to vote on the question of the Senators, and the schemes are as
follows: The first scheme is, no further election after two terms; the - second scheme is, no immediate reelection after two
successive terms.
Madam President, inasmuch as the principles applicable here are the same as those for the House of Representatives, I
move that we go directly to the voting and forego any further discussions.
THE PRESIDENT. Please distribute the ballots for this particular item for Senators.
Are we ready now?
The Secretary-General will please count the ballots.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. We have 43 ballots here, Madam President. We shall now begin to count.
THE PRESIDENT. Please proceed.
THE SECRETARY-GENERAL, reading:
Scheme No. I - /////-/////-//
Scheme No. II - /////-/////-/////-/////-/////-/////-//
THE PRESIDENT. The results show 12 votes for Scheme No. I and 32 votes for Scheme No. II; Scheme No. II approved.
All the results will be considered by the Committee on the Legislative in preparation of their report.

So can we leave this matter now?

The corresponding proposal on the three-term limit for elective local officials without immediate reelection was taken up by
the Constitutional Commission much later or specifically on 16 August 1986. On this point, the pertinent portions of Vol.
Three, pages 406-408, Record of the Constitutional Commission, read as follows:
MR. RAMA. Madam President, I ask that Commissioner Davide be recognized.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. Thank you, Madam President.
After Section 4, I propose to Insert a new section to be denominated later as Section 5. It provides as follows: THE TERM
OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED
BY LAW, SHALL BE THREE YEARS AND NO SUCH OFFICIAL SHALL SERVE FOR MORE THAN THREE
CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT
BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR
WHICH HE WAS ELECTED. This is in accordance with the mandate of the Commission when we voted on the terms of
officials up to local officials, excluding the term of barangay officials which was a very specific exception.
MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of the office of barangay officials as
provided for?
MR. DAVIDE. As may be determined by law.
MR. NOLLEDO. As provided for in the Local Government Code.
MR. DAVIDE. Yes.
MR. NOLLEDO. We accept the amendment. The Committee accepts the amendment.

THE PRESIDENT. May we have the reaction of the Committee?

MR. NOLLEDO. The Committee accepts the amendment, as amended, Madam President.
THE PRESIDENT. Is there any other comment?
MR. OPLE. Madam President.
THE PRESIDENT. Commissioner Ople is recognized.'
MR. OPLE. May we ask the Committee to read the proposed amendment now.
MR. NOLLEDO. May we ask Commissioner Davide to read the new section.
MR. DAVIDE. THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH
SHALL BE DETERMINED BY LAW, SHALL BE THREE YEARS AND N SUCH OFFICIAL SHALL SERVE FOR MORE
THAN THREE CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME
SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM
FOR WHICH HE WAS ELECTED.

THE PRESIDENT. Then let us vote first on the Davide amendment.

Is there any objection to this new section proposed by Commissioner Davide which has been read to the body? (Silence)
The Chair hears none; the proposed section is approved.
I wish to add that the Constitutional Commission debates on the issue of "no immediate reelection" after three consecutive
terms for members of Congress clearly indicated that the "no immediate reelection" after the 3-term limit would equally
apply to the elective local officials. This accounted for the immediate acceptance by the Committee on Local Governments
of the aforementioned Amendment of Commissioner Davide, which is now Section 8 of Article X of the Constitution.
These debates clearly showed the Intent of the Commission that the ban against an immediate reelection after three
consecutive terms applies to the fourth term, i.e., the term immediately following the three consecutive terms, to be filled
up by the regular election for such fourth term. For one to be able to run again after three consecutive terms, he has to
restfor the entire immediately succeeding fourth term. On the next fifth term he can run again to start a new series of three
consecutive terms. We quote these pertinent portions of the debates, recorded in Volume Two, pages 232-233 of the
Record of the Constitutional Commission:
MR. ROMULO. Madam President, the following are the various alternatives:Scheme No. I is without reelection; Scheme
No. II is with one reelection; and Scheme No. III is reelection without limit. This is for 'the Senators.
At this juncture, pieces of paper were distributed and the Commissioners wrote down their votes.
THE PRESIDENT. The Chair asks the Chairman, Commissioner Davide, to please consolidate the results of the voting for
President and Vice-President.
THE SECRETARY-GENERAL. Madam President, we are ready. THE PRESIDENT. The Secretary-General will please
proceed.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL, reading:
Scheme No. I - ///
Scheme No. II - /////-/////-/////-/////-//
Scheme No. Ill - /////-/////-/////-//
THE PRESIDENT. The results show 3 votes for Scheme No. I; 22 votes for Scheme No. II; and 17 votes for Scheme No.
III; Scheme No. II is approved.
MR. ROMULO. Madam President, the next position is for the House of Representatives, the Congressmen. I would
assume we can use the same choices. Does any one want any variation?
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. For the record, I would like to ask Commissioner Romulo some questions.
MR. ROMULO. Yes.
MR. RODRIGO. Scheme No. II says "the Vice-President - with one reelection."
THE PRESIDENT. No, that is for Senators.'
MR. GUINGONA. Madam President.
THE PRESIDENT. Yes, Commissioner Guenon is recognized.

MR. GUINGONA. May I suggest one more scheme - with two reelections for the Members of the House of
Representatives?
THE PRESIDENT. So, we shall distribute ballots again.
MR. ROMULO. While the ballots are being distributed, may I read the following four propositions for Congressmen: '
Scheme No. I, without reelection.
Scheme No. II, with one reelection.
Scheme No. III, with two reelections.
Scheme No. IV, no limit on reelection. I
MR. DE LOS REYES. Madam President.
THE PRESIDENT. Commissioner de los Reyes is recognized.
MR. DE LOS REYES. The term of the Members of the House of Representatives will be three years, according to the first
voting; the term of the Senators, if they are entitled to one reelection, will be 12 years. So, in order for a Member of the
House of Representatives to have also 12 years, he must be entitled to three reelections. I propose another scheme with
three reelections to make it equal.
MR. RODRIGO. Will the Gentleman maintain the number there and add that as No. V. I filled up my ballot already and if I
erase, this might be disqualified as a marked ballot.
THE PRESIDENT. Commissioner Rodrigo may change his ballot.
MR. DE CASTRO. Madam President.
THE PRESIDENT. Commissioner de Castro Is recognized.
MR. DE CASTRO. The situation stated by Commissioner de los Reyes is apparently covered by Scheme No. II which we
agreed upon earlier. The situation will not happen, because both the Senators and the Congressmen will have five (5)
years on the first election. So, the possibility that the Senators will have a longer term than the Congressmen is remote.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Monsod is recognized.
MR. MONSOD. Madam President, it occurred to us that the three alternatives are not really mutually exclusive. Can we
have only these three: without reelection, with reelection and with unlimited reelection? We are asking here for plurality
only, Madam President. Can we eliminate?
THE PRESIDENT. In other words, we shall have the same schemes as those for Senators; without reelection, with one
reelection and unlimited reelection.
REV. RIGOS. Madam President, besides we have already submitted our ballots.
MR. MONSOD. I withdraw my proposal, Madam President.
MR. GARCIA. Madam President, I would suggest that the two schemes with the highest votes be voted upon to get the
key majority. For example, if the schemes with two reelections and no limit to election get the highest number of votes,
then we vote again to get the key majority.
THE PRESIDENT. We will do that. Are all the votes in?

COUNTING OF BALLOTS
THE SECRETARY-GENERAL. Madam President, we have 43 ballots.
THE PRESIDENT. The Secretary-General will please proceed. THE SECRETARY-GENERAL, reading:
Scheme No. I - 0
Scheme No. II - //
Scheme No. III - /////-/////-/////-/////-/
Scheme No. IV - /////-/////-////
Scheme No. V - /////-/
THE PRESIDENT. The results show no vote for Scheme No. I; 2 votes for Scheme No. II; 21 votes for Scheme No. III; 14
votes for Scheme No. IV; and 6 votes for Scheme No. V; Scheme No. III is approved.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO.. I would like to ask a question for clarification.
THE PRESIDENT. Please proceed.
MR. RODRIGO. If the Members of the Lower House can have two reelections, does this mean two immediate reelections,
or a term of nine consecutive years? Let us say that a Member of the Lower House has been reelected twice; that means
he will serve for nine years. Can he let three years elapse and then run again?
THE PRESIDENT. We will ask the Chairman of the Committee on the Legislative to answer the question.
MR. DAVIDE. That is correct, Madam President, because two reelections mean two successive reelections. So he cannot
serve beyond nine consecutive years.
MR. RODRIGO. Consecutively?
MR. DAVIDE. Consecutively.
MR. RODRIGO. But after nine years he can let one
MR. DAVIDE. He can rest. He can hibernate for three years.
MR. RODRIGO. And run again.
MR. DAVIDE. He can run again.
MR. RODRIGO. And again have nine years as a maximum.
MR. DAVIDE. I do not know if that is also the thinking of Commissioner Garcia who is the main proponent of this proposal
on two reelections. I would seek the opinion of Commissioner Garcia for the record. (underscoring supplied for emphasis.)
The dichotomy made in the ponencia between "voluntary renunciation of the office" as used in Section 8 of Article X of the
Constitution and Section 43(b) of R.A. No. 7160 and "involuntary severance from office" is unnecessary, if not misplaced.
From the discussion in the ponencia, the latter is made to apply to the banned term, i.e., the fourth term immediately
following three consecutive terms. Speaking now of Hagedorn, he cannot have suffered "involuntary severance from

office" because there was nothing to be severed; he was not a holder of an office either in a de jure or de facto capacity.
He knew he was disqualified from seeking a third reelection to office. Disqualification is, definitely, not synonymous with
involuntary severance. Even if we concede that involuntary severance is an act which interrupts the continuity of a term
for purposes of applying the three-term principle the rule laid down in Lonzanida vs. COMELEC (311 SCRA 609), cited in
the ponencia, page 17, is not applicable in the case of Hagedorn. The involuntary severance referred to in that case was
one that took place during any of the three terms; hence, the term during which it occurred should be excluded in the
computation. In the case of Hagedorn, no such involuntary severance took place during any of his three terms brought
about by his election in 1992 and reelections in 1995 and 1998.
More importantly, the voluntary renunciation referred to in Section 8, Article X of the Constitution and Section 43(b) of R.A.
No. 7160 is one that takes place at any time during either the first, second, or third term of the three consecutive terms.
This is very clear from the last clause of Section 8, Article X of the Constitution, which reads: "shall not be considered as
an interruption in the continuity of his service for the full term for which he was elected." The purpose of the provision is to
prevent an elective local official from voluntarily resigning from office for the purpose of circumventing the rule on the
belief that the term during which he resigned would be excluded in the counting of the three-term rule. In short, the
provision excluded is intended to impose a penalty on one who flouts the rule or make a mockery of it by the simple act of
resigning. Thus, applying it in the case of Hagedorn, even if he voluntarily resigned on his third term, he would still be
barred from seeking reelection in the May 2001 election.
Hagedorn cannot likewise avail of the ruling in Adormeo vs. COMELEC (G.R. No. 147927, 4 February 2002) because in
that case Talaga did not win in his second reelection bid, or for a third term, in the May 1998 elections. He won in the
recall election of 12 May 2000. Hagedorn, as earlier stated, fully served three successive terms.
Neither can we allow Hagedorn to take refuge under the exchange between Commissioner Suarez and Commissioner
Davide found on page 592, Vol. II of the Record of the Constitutional Commission and quoted on pages 19-20 of the
ponencia:
SUAREZ: For example, a special election is called for a Senator, and the Senator newly elected would have to serve the
unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one
term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from
running? Is that the meaning of this provision on disqualification, Madam President?
DAVIDE: Yes, because we speak of "term" And if there is a special election, he will serve only for the unexpired portion of
that particular term plus one more term for the Senator and two more terms for the Members of the Lower House.
On the contrary, it is clear from the views of Commissioners Suarez and Davide that the term of office of one who is
elected in a special election is considered one term for purposes of determining the three consecutive terms.
A declaration that Hagedorn is qualified to seek reelection in a recall election to remove the Mayor who was elected for a
term for which Hagedorn was constitutionally and statutorily disqualified to be reelected to or, to hold Is to subvert the
rationale of the three-consecutive-term rule and make a mockery of it. Worse, it abets destructive endless partisan politics
and unsound governance. An elective local official who is disqualified to seek a fourth term because of the three-term limit
but obsessed to hold on to power would spend the first year of the fourth term campaigning for the recall of the incumbent
in the second year of said term. This would' not be a problem If the disqualified official has a solid following and a strong
political machinery. Interestingly, in this case, as stated on page 3 of the ponencia, the President of the Association of
Barangay Captains of Puerto Princesa City is one Mark David M. Hagedorn and he was designated by the Preparatory
Recall Assembly as interim Chairman.
I therefore vote to grant the petition in G.R. Nos. 155083-84, to set aside the resolution of the COMELEC holding private
respondent Edward Hagedorn a qualified candidate for the position of Mayor of Puerto Princesa City in the recall election,
and to declare him DISQUALIFIED from seeking reelection for a fourth term or from being a candidate for Mayor in the
recall election in question.
CONCURRING OPINION
PUNO, J.:
The correctness of the decision so ably written by Mr. Justice Carpio speaks for itself. Nonetheless, the complex
constitutional dimensions of the issue for resolution compels this humble concurring opinion. The issue is whether private
respondent Hagedorn is disqualified from running in the September 24, 2002 recall election for mayor of Puerto Princesa

City and from serving the unexpired portion of the 2001-2004 mayoralty term considering that he has thrice been
consecutively elected and has served three full terms as Puerto Princesa City mayor from 1992-1998. In illuminating the
gray interstices of this election case, prudence dictates that ". . . where the sovereignty of the people is at stake, we must
1
not only be legally right but also politically correct."
Private respondent Hagedorn was elected mayor of Puerto Princesa City, Palawan in 1992, 1995 and 1998 and served
three full terms. In the May 14, 2001 national and local elections, he ran for governor for the Province of Palawan and lost.
Petitioner-intervenor Victorino Dennis M. Socrates was elected mayor of Puerto Princesa City.
On July 2, 2002, three hundred twelve (312) out of five hundred twenty-eight (528) members of the Barangay Officials of
Puerto Princesa City convened themselves into a Preparatory Recall Assembly to initiate the recall of Mayor Socrates. On
August 21, 2002, COMELEC promulgated Resolution No. 5673 prescribing a calendar of activities for the recall election.
Two days after, Hagedorn filed his certificate of candidacy for mayor in said election.
On August 27, 2002, petitioners Adovo and Gilo sought for Hagedorn's immediate disqualification on the ground that he
had served three consecutive full terms as mayor of Puerto Princesa City immediately prior to the recall election and was
thus proscribed by the Constitution from running in said election. On August 30, 2002, petitioner Ollave, Sr. intervened to
disqualify Hagedorn on the same ground.
The recall election was set on September 24, 2002. On September 20, 2002, public respondent COMELEC's First
Division denied the petitions for Hagedorn's disqualification. The following day, petitioners Adovo, Gilo and Ollave, Sr.
filed a motion for reconsideration imploring the COMELEC en banc to reverse the September 20 resolution. On
September 23, 2002, the COMELEC en banc affirmed the resolution of the First Division holding Hagedorn qualified to
run in the recall election.
On September 24, 2002, petitioners Adovo, Gilo and Ollave, Sr. sought recourse in this Court with a Very Urgent Petition
for Certiorari and Prohibition with Preliminary Injunction and Prayer for Temporary Restraining Order. On the same date,
Mayor Socrates filed a petition-in-intervention to nullify the September 23 resolution of the COMELEC.
The petitions before us raise the following issues:
"I.
THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT RESPONDENT HAGEDORN IS NOT
DISQUALIFIED FROM RUNNING FOR THE POSITION OF MAYOR OF PUERTO PRINCESA CITY IN THE
SCHEDULED RECALL ELECTION, THE CLEAR AND UNAMBIGUOUS CONSTITUTIONAL AND STATUTORY
PROHIBITION AGAINST A FOURTH CONSECUTIVE TERM FOR LOCAL ELECTIVE OFFICIALS
NOTWITHSTANDING.
II.
THE HONORABLE COMELEC GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT PROCEEDED TO
DIVIDE A SINGLE TERM OF OFFICE INTO TWO.
III.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AND VIOLATED THE INTENT AND
PURPOSE FOR HOLDING THE SCHEDULED RECALL ELECTIONS FOR THE POSITION OF MAYOR OF PUERTO
PRINCESA CITY AND THE CONSTITUTIONAL AND STATUTORY BAR AGAINST A FOURTH CONSECUTIVE TERM.
IV.
THE HONORABLE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT RESPONDENT
HAGEDORN IS NOT DISQUALIFIED FROM RUNNING IN THE UPCOMING RECALL ELECTIONS AS HIS
INELIGIBILITY IS NOT APPARENT UNDER SECTIONS 65 AND 68 OF THE OMNIBUS ELECTION CODE, SECTIONS
39 AND 40 OF RA 7160 (LOCAL GOVERNMENT CODE), AND RULES 23 AND 25 OF THE COMELEC RULES OF
PROCEDURE.
V.

THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT RESPONDENT
HAGEDORN IS QUALIFIED TO RUN IN THE RECALL ELECTION EVEN IF HE STANDS DISQUALIFIED FROM
SERVING UNDER A FOURTH CONSECUTIVE TERM AS SUCH IS ALLEGEDLY NOT THE PROVINCE OF THE
INSTANT DISQUALIFICATION PROCEEDINGS.
VI.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT ISSUED A DEFECTIVE AND
2
CLEARLY VOID RESOLUTION."
The foregoing issues may be reduced to the singular issue of whether or not private respondent Hagedorn is disqualified
from running in the September 24, 2002 recall election and serving as mayor of Puerto Princesa City considering that he
has been thrice consecutively elected and has served three full terms in that position from 1992 to 2001.
I find the petitions devoid of merit.
Art. X, Sec. 8 of the Constitution provides:
"Sec. 8: The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected."
This constitutional provision is restated in the Local Government Code of 1991, to wit:
"Sec. 43. Term of Office. -. . . (b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official concerned was elected."
We have not interpreted Art. X, Sec. 8 of the Constitution in the recall election context of the cases at bar. It is imperative
to distill the intent of the framers of the Constitution and the people who ratified it. 3 Mere reliance on the surface meaning
of the words of the above provision, however, will not suffice to capture this elusive intent. Thus, we turn to the
4
proceedings and debates of the Constitutional Commission (ConCom) as an extrinsic aid to interpretation. The Record of
the Constitutional Commission shows that Art. X. Sec. 8 was readily accepted by the Commissioners without much
discussion;5 nonetheless, their debates on setting the term limit for Representatives show that the rationale for the limit
applies to both Representatives and elective local officials. We quote at length the relevant portions of the debates, to wit:
"MR. GARCIA. I would like to advocate the proposition that no further election for local and legislative officials be allowed
after a total of three terms or nine years. I have four reasons why I would like to advocate this proposal, which are as
follows: (1) to prevent monopoly of political power; (2) to broaden the choice of the people; (3) so that no one is
indispensable in running the affairs of the country; (4) to create a reserve of statesmen both in the national and local
levels. May I explain briefly these four reasons.
First: To prevent monopoly of political power - Our history has shown that prolonged stay in public office can lead to the
creation of entrenched preserves of political dynasties. In this regard, I would also like to advocate that immediate
members of the families of public officials be barred from occupying the same position being vacated.
Second: To broaden the choice of the people - Although individuals have the right to present themselves for public office,
our times demand that we create structures that will enable more aspirants to offer to serve and to provide the people a
broader choice so that more and more people can be enlisted to the cause of public service, not just limited only to those
who may have the reason or the advantage due to their position.
Third: No one is indispensable in running the affairs of the country After the official's more than a decade or nearly a
decade of occupying the same public office, I think we should try to encourage a more team-oriented consensual
approach to governance favored by a proposal that will limit public servants to occupy the same office for three terms.
And this would also favor not relying on personalities no matter how heroic, some of whom, in fact, are now in our midst.
Lastly, the fact that we will not reelect people after three terms would also favor the creation of a reserve of statesmen
both in the national and local levels.

Turnovers in public office after nine years will ensure that new ideas and new approaches will be welcome. Public office
will no longer be a preserve of conservatism and tradition. At the same time, we will create a reserve of statesmen, both in
the national and local levels, since we will not deprive the community of the wealth of experience and advice that could
come from those who have served for nine years in public office.
Finally, the concept of public service, if political dynasty symbolized by prolonged stay in particular public offices is barred
will have fuller meaning. It will not be limited only to those who directly hold public office, but also to consultative bodies
organized by the people, among whom could be counted those who have served in public office with accomplishment and
distinction, for public service must no longer be limited only to public office.
xxx

xxx

xxx

MR. MONSOD. Madam President, I was reflecting on this issue earlier and I asked to speak because in this draft
Constitution, we are recognizing people power. We have said that now there is a new awareness, a new kind of voter, a
new kind of Filipino. And yet at the same time, we are prescreening candidates among whom they will choose. We are
saying that this 48-member Constitutional Commission has decreed that those who have served for a period of nine years
are barred from running for the same position.
The argument is that there may be other positions. But there are some people who are very skilled and good at
legislation, and yet are not of a national stature to be Senators. They may be perfectly honest, perfectly competent and
with integrity. They get voted into office at the age of 25, which is the age we provide for Congressmen. And at 34 years
old we put them to pasture.
Second, we say that we want to broaden the choices of the people. We are talking here only of congressional or
senatorial seats. We want to broaden the people's choice but we are making a prejudgment today because we exclude a
certain number of people. We are, in effect, putting an additional qualification for office - that the officials must not have
served a total of more than a number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but the future participation
of these statesmen is limited. Their skills may only be in some areas, but we are saying that they are going to be barred
from running for the same position.
Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing of his skills and
competence, in intellectual combat, in concern and contact with the people, and here we are saying that he is going to be
barred from the same kind of public service.
I do not think it is in our place today to make such a very important and momentous decision with respect to many of our
countrymen in the future who may have a lot more years ahead of them in the service of their country.
If we agree that we will make sure that these people do not set up structures that will perpetuate them, then let us give
them this rest period of three years or whatever it is. Maybe during that time, we would even agree that their fathers or
mothers or relatives of the second degree should not run. But let us not bar them for life after serving the public for a
number of years.
xxx

xxx

xxx

MR. OPLE. . . . The principle involved is really whether this Commission shall impose a temporary or a perpetual
disqualification on those who have served their terms in accordance with the limits on consecutive service as decided by
the Constitutional Commission. I would be very wary about the Commission exercising a sort of omnipotent power in order
to disqualify those who will already have served their terms from perpetuating themselves in office. I think the Commission
achieves its purpose in establishing safeguards against the excessive accumulation of power as a result of consecutive
terms. We do put a gap on consecutive service - in the case of the President, six years; in the case of the Vice-President,
unlimited; and in the case of the Senators, one reelection. In the case of the Members of Congress, both from the
legislative districts and from the party list and sectoral representation, this is now under discussion and later on the policy
concerning local officials will be taken up by the Committee on Local Governments. The principle remains the same. I
think we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from
the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate
those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their
families in a subsequent election. I think that is taken care of because we put a gap on the continuity or unbroken service
of all of these officials. But were we now (to) decide to put these prospective servants of the people or politicians, if we

want to use the coarser term, under a perpetual disqualification, I have a feeling that we are taking away too much from
the people, whereas we should be giving as much to the people as we can in terms of their own freedom of choice.
I think the veterans of the Senate and of the House of Representatives here will say that simply getting nominated on a
party ticket is a very poor assurance that the people will return them to the Senate or to the House of Representatives.
There are many casualties along the way of those who want to return to their office, and it is the people's decision that
matters. They judge whether or not a Soc Rodrigo, a Sumulong, a Padilla, an Alonto and a Rosales, after a first and
second term, should go back to the Senate. That is a prerogative of the people that we should not take away from them the right to judge those who have served. In any case, we already take away from the people the freedom to vote for the
third termers because we say that a Senator, say, Mr. Rodrigo, is only good for twelve years. But if he wants to be like
Cincinnatus, if he is called back by his people to serve again, let us say for a period of six years which Commissioner
Davide called a period of hibernation which is spent at his fishpond in Bulacan, Bulacan - because there is a new situation
in the country that fairly impels the people to summon him back, like Cincinnatus in the past, then there will no longer be
any Cincinnatus.
That is not perhaps a very important point, but I think we already have succeeded in striking a balance of policies, so that
the structures, about which Commissioner Garcia expressed a very legitimate concern, could henceforth develop to
redistribute opportunities, both in terms of political and economic power, to the great majority of the people, because very
soon, we will also discuss the multiparty system. We have unshackled the Philippine politics from the two-party system,
which really was the most critical support for the perpetuation of political dynasties in the Philippines. That is quite a
victory, but at the same time, let us not despise the role of political parties. The strength of democracy will depend a lot on
how strong our democratic parties are, and a splintering of all these parties so that we fall back on, let us say,
nontraditional parties entirely will mean a great loss to the vitality and resiliency of our democracy...
xxx

xxx

xxx

BISHOP BACANI. . . . I think when we voted on the provision that the illiterate be allowed to vote and when we proposed
in this Constitutional Commission for initiative as a way also of empowering our people to engage in the legislative
exercise, we are really presupposing the political maturity of our people. Why is it that that political maturity seems now to
be denied by asking that we should put a constitutional bar to a further election of any Representative after a term of three
years? Why should we not leave that to the premise accepted by practically everybody here that our people are politically
mature? Should we use this assumption only when it is convenient for us, and not when it may also lead to a freedom of
choice for the people and for politicians who may aspire to serve longer?
xxx

xxx

xxx

MR. GARCIA. I would like to answer Commissioner Bacani. We put a constitutional bar to reelection of any
Representative basically because of the undue advantage of the incumbent. It is not because of lack of trust in the people.
We realize from history that Mexico fought a revolution simply because of the issue of reelection. No reeleccion, sufragio
universal. Basically, it is because of the undue advantage of the incumbent that he accumulates power, money, party
machine or patronage. As regards what Commissioner Aquino has said, politics is not won by ideals alone; it is won by
solid organizing work by organizations that have the capacity to do so; and normally the incumbent has all the
advantages. . .
xxx

xxx

xxx

THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We will now start the counting.
Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-//
Alternative No. 2 - no immediate reelection after three successive terms: /////-/////-/////-/////-/////-/"6 (emphasis supplied)
In several cases, this Court was guided by the proceedings of the ConCom in construing Art. X, Sec. 8 of the Constitution
in relation to Section 43(b) of the Local Government Code of 1991. Different from the issue presented by the cases at bar,
however, the question in those cases was what constitutes a "term" for purposes of counting the three consecutive terms
allowed under Art. X, Sec. 8. It is apropos to revisit these cases to aid us in extracting the intent behind said Constitutional
provision and properly apply it to the unique case of private respondent Hagedorn.
7

The maiden case was Borja, Jr. v. Commission on Elections and Jose T. Capco which involved the 1998 mayoralty
election in Pateros. In 1989, private respondent Capco became mayor by operation of law upon the death of the

incumbent, Cesar Borja. In 1992, he was elected mayor for a term ending in 1995. In 1995, he was reelected mayor for
another term of three years ending in June 1998. In March 1998, he filed his certificate of candidacy for the May 1998
mayoralty election of Pateros. Petitioner Borja, Jr., another candidate for mayor, sought Capco's disqualification on the
ground that by June 30, 1998, Capco would have already served as mayor for three consecutive terms and would
therefore be ineligible to serve for another term. The COMELEC en banc declared Capco eligible to run for mayor, thus
Borja, Jr. sought recourse in this Court. In dismissing the petition, we considered the historical background of Art. X, Sec.
8 of the Constitution, viz:
"a consideration of the historical background of Article X, 8 of the Constitution reveals that the members of the
Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were
with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner
Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local
and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election following the expiration of the third
consecutive term (2 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 [Session of July 25, 1986] . . .).
Monsod warned against 'prescreening candidates [from] whom the people will choose' as a result of the proposed
absolute disqualification, considering that the draft constitution contained provisions 'recognizing people's power.'
xxx

xxx

xxx

Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion
of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The
second is the idea of election, derived from the concern that the right of the people to choose whom they wish to govern
them be preserved. (emphasis supplied)
xxx

xxx

xxx

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right
to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive
terms in an elective local office, he must also have been elected to the same position for the same number of times before
the disqualification can apply. This point can be made clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before
the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor by succession and subsequently resigned from office before
the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art.
X, 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full
term only if the term is one "for which he was elected." Since A is only completing the service of the term for which the
deceased and not he was elected, A cannot be considered to have completed one term. His resignation constitutes an
interruption of the full term.
xxx

xxx

xxx

...the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions
have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has
fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. .
.
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to
concur for the purpose of applying Art. X, 8. Suppose he is twice elected after that term, is he qualified to run again in
the next election?
Yes, because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation
of law. Neither had he served the full term because he only continued the service, interrupted by the death, of the
deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection
would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern

them. If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for
another term. But if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to
office (even if it is just the third time he is standing for reelection) if his service of the first term is counted as one for the
purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that
while the people should be protected from the evils that a monopoly of political power may bring about, care should be
8
taken that their freedom of choice is not unduly curtailed." (emphasis supplied)
9

We reiterated the Borja ruling in Lonzanida v. Commission on Elections, et al. which involved the election for mayor of
San Antonio, Zambales. Prior to the May 8, 1995 elections, petitioner Romeo Lonzanida served two consecutive terms as
municipal mayor of San Antonio, Zambales. In the May 1995 elections, he ran for mayor, was proclaimed winner, and
assumed office. His proclamation was, however, contested by his opponent Juan Alvez in an election protest filed before
the Regional Trial Court of Zambales which rendered a decision declaring a failure of elections. Upon appeal of the
decision to the COMELEC, Alvez was declared the duly elected mayor of San Antonio. In February 1998, the COMELEC
issued a writ of execution ordering Lonzanida to vacate the post, and Alvez served the remainder of the term.
Lonzanida filed his certificate of candidacy for the May 11, 1998 election for mayor of San Antonio. His opponent Eufemio
Muli filed with the COMELEC a petition to disqualify Lonzanida on the ground that he had already served three
consecutive terms in the same office and was thus prohibited from running in the upcoming election. On May 13, 1998,
Lonzanida was proclaimed winner. COMELEC ruled that Lonzanida was disqualified as his assumption to office in 1995,
although he was unseated before the expiration of the term, was considered one full term for purposes of counting the
three term limit under the Constitution and the Local Government Code of 1991.
On appeal to this Court, we ruled, viz:
"It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio,
Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio,
Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998
when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election
protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez
served the remaining portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as
having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 19951998 mayoral term by reason of voluntary relinquishment of office. After a re-appreciation and revision of the contested
ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections
and his previous proclamation as a winner was declared null and void. His assumption of office as mayor cannot be
deemed to have been by reason of a valid election but by reason of a void proclamation...
Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate
his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have
served one full term from May 1995- 1998 because he served the greater portion of that term has no legal basis to
support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three
consecutive terms.
In sum, the petitioner was not the duly elected mayor and he did not hold office for the full term; hence, his assumption of
office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term
limit."10 (emphasis supplied)
Finally, in the recent case of Adormeo v. COMELEC, et al., 11 we ruled that a mayor who assumed office via a recall
election and served the unexpired portion of the mayoralty term is not considered to have served a full term for purposes
of applying the three term limit. In this case, therein private respondent Ramon Talaga, Jr. was elected mayor in May
1992 and served the full term. In 1995, he was reelected and again served the full term. In 1998, he lost to Bernard G.
Tagarao. About two years later, a recall election was held where Talaga, Jr. ran against Tagarao. He (Talaga, Jr.) won
and served the remainder of Tagarao's term.
In view of the upcoming May 2001 mayoralty election, Talaga, Jr. filed his certificate of candidacy. On March 2, 2001,
therein petitioner Adormeo sought the cancellation of Talaga, Jr.'s certificate of candidacy and/or his disqualification on

the ground that he had been thrice elected and had served three consecutive terms as city mayor. Talaga, Jr., however,
was declared qualified for the position of city mayor. Adormeo thus sought recourse before this Court.
Citing the Borja and Lonzanida rulings, we ruled that Talaga, Jr. was not disqualified as the two conditions for
disqualification, namely (1) the elective official concerned was elected for three consecutive terms in the same post and
(2) he has fully served three consecutive terms, were not met. We did not consider Talaga, Jr.'s service of the unexpired
portion of Tagarao's term as service of a full term for purposes of the three term limit. We also ruled that he did not serve
for three consecutive terms as there was a break in his service when he lost to Tagarao in the 1998 elections. We held,
viz:
"COMELEC's ruling that private respondent was not elected for three (3) consecutive terms should be upheld. For nearly
two years, he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections.
Patently untenable is petitioner's contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998
election violates Article X, Section 8 of the 1987 Constitution. (footnote omitted) To bolster his case, respondent adverts to
the comment of Fr. Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that 'if
one is elected representative to serve the unexpired term of another, that unexpired (term), no matter how short, will be
considered one term for the purpose of computing the number of successive terms allowed.'
As pointed out by the COMELEC en banc, Fr. Bernas' comment is pertinent only to members of the House of
Representatives. Unlike local government officials, there is no recall election provided for members of Congress. (Rollo,
pp. 83-84)"12 (emphasis supplied)
The deliberations of the ConCom and the ruling case law of Borja, Lonzanida and Adormeo show that there are two
principal reasons for the three term limit for elective local officials: (1) to prevent political dynasties perpetuated by the
undue advantage of the incumbent and (2) to broaden the choice of the people by allowing candidates other than the
incumbent to serve the people. Likewise evident in the deliberations is the effort to balance between two interests,
namely, the prevention of political dynasties and broadening the choice of the people on the one hand, and respecting the
freedom of choice and voice of the people, on the other; thus, the calibration between perpetual disqualification after three
consecutive terms as proposed by Commissioner Garcia, and setting a limit on immediate reelection and providing for a
hibernation period.
In all three cases - Borja, Lonzanida and Adormeo - we ruled that the "term" referred to in the three term limit is service of
a full term of three years for elective local officials. This ruling furthers the intent of the ConCom to prevent political
dynasties as it is the service of consecutive full terms that makes service continuous and which opens the gates to
political dynasties limiting the people's choice of leaders. In the words Of Commissioner Ople, ". . . we want to prevent
future situations where, as a result of continuous service and frequent reelections, officials from the President down to the
municipal mayor tend to develop a proprietary interest in their positions and to accumulate those powers and perquisites
that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I
think that is taken care of because we put a gap on the continuity or unbroken service of all of these officials. (emphasis
supplied)" Thus, ConCom set the limit on consecutive full terms to no more than three. Otherwise stated, it is a fourth
consecutive full term that is prohibited.
In the cases at bar, however, private respondent Hagedorn will not serve a prohibited fourth consecutive full term as he
will be serving only the unexpired portion of the 2001-2004 mayoralty term. Similar to Talaga, Jr. in the Adormeo case,
Hagedorn's service as mayor will not be continuous from the third to a fourth consecutive full term as it was broken when
Socrates was elected in the 2001 regular mayoralty election and served for one year. In the same vein that Talaga, Jr.
was elected into office by recall election and his service of the unexpired portion of the incumbent's term was not
considered a consecutive full term for purposes of applying the three term limit, Hagedorn's service of the unexpired
portion of Socrates' term should not also be counted as a prohibited fourth consecutive full term. It should not make a
difference whether the recall election came after the second consecutive full term as in the Adormeo case or after the third
consecutive term as in the cases at bar because the intent to create a hiatus in service is satisfied in both instances.
Even a textual analysis of Art. X, Sec. 8 will yield the interpretation that what is prohibited is the service of a fourth
consecutive full term. Petitioners are correct in foisting the view that "term" is a fixed and definite period of time prescribed
by law or the Constitution during which the public officer may claim to hold the office as a right. It is a fixed and definite
period of time to hold office, perform its functions, and enjoy its privileges and emoluments until the expiration of the
13
period. In ascertaining what "term" means for elective local officials, the Constitution itself provides in Art. X, Sec. 8 that
it means a fixed, definite, and full period of three years, viz: "Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three years ..." Although one or more persons may

discharge the duties of the office during this fixed three-year period, the term is not divided into smaller terms by the
number of incumbents who may fill the office. It is one and indivisible, and term follows term in successive cycles of three
years each. If the incumbent or the one elected to the office fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the
functions of his office, thereby creating a permanent vacancy,14 the term would remain unbroken until the recurring
election for the office.15
The provisions on voluntary renunciation under Art. X, Sec. 8 and other articles of the Constitution bolster the
interpretation that for purposes of applying the three term limit, service of a full term of three years is contemplated, viz:
"Art. X, Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for
which he was elected."
"Art. VI, Sec. 4. . . . No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for
any length of time shall be considered as an interruption in the continuity of his service for the full term for which he was
elected.
xxx

xxx

xxx

Sec. 7. . . . No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
xxx

xxx

xxx

Art. VII, Sec. 4. . . . No Vice-President shall serve more than two successive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he
was elected." (emphasis supplied)
Similarly, the Local Government Code of 1991 provides in Sec. 43(b), viz:
"Sec. 43(b) . . . No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected." (emphasis supplied)
Likewise, because "term" is understood to be a fixed, definite, and full period, the Constitution, in Art. Vi, Sec. 9, uses the
qualifier "unexpired term" to refer to only a portion of a term, viz:
"Art. VI, Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to
fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus
elected shall serve only for the unexpired term." (emphasis supplied)
Similarly, Sec. 44 of the Local Government Code of 1991 uses the phrase "unexpired term" to mean the remainder of the
term, viz:
"Sec. 44(d). The successors as defined herein shall serve only the unexpired terms of his predecessors. . ." (emphasis
supplied)
Thus, when Art. X, Sec. 8 of the Constitution states that "...no such (local elective) official shall serve for more than three
consecutive terms," it consistently means that it allows service of a maximum of three consecutive full terms and prohibits
service of a minimum fourth consecutive full term.
In putting a cap on the number of consecutive full terms an elective local official can serve, the ConCom sought to curb
the undue advantage of the incumbent over other aspirants, which advantage makes it easier to found a political dynasty.
At the time of the September 24, 2002 recall election, however, Hagedorn was not the incumbent favored with this feared
"undue advantage of the incumbent." On the contrary, he ran against the incumbent Mayor Socrates who alone could be
the subject of recall election and who, by law, was automatically a candidate in the election. 16 Hagedorn did not run in the

2001 regular mayoralty election of Puerto Princesa City which Socrates won, precisely because he was aware of the three
term limit.
It is my respectful submission that the Constitution and the Local Government Code of 1991 proscribe a local official who
has been thrice consecutively elected in regular elections and has served three full terms in the same position, from
running in the regular election succeeding his third consecutive term. It is this situation that is prohibited because it makes
possible service of more than three consecutive and continuous full terms, i.e., service of a fourth consecutive full term.
We cannot overstress that it is this continuousness that the ConCom feared would open the gates to the two evils sought
to be avoided: the incumbent's use of his undue advantage to put up a political dynasty and limiting the people's choice of
leaders. It is in this context of regular elections that our obiter dictum in the Lonzanida case, which petitioners harp on,
should be understood. In that case, we opined that "[a]s finally voted upon, it was agreed that an elective local
government official should be barred from running for the same post after three consecutive terms. After a hiatus of at
17
least one term, he may again run for the same office." Indeed, insofar as regular local elections are concerned, which
were the elections involved in that case, there should be a hiatus of at least one full term of three years.
On the other hand, in the case of a local official who assumes office through a recall election - whether after his first,
second, or third consecutive term- there is a break in his service caused by the election of the incumbent who was
recalled. Even in the case of a local official who initially assumes office via recall election, then wins the two succeeding
regular elections and serves two full terms in the same post, he is not prohibited from seeking another reelection and
serving another full term. This is so because his service of the remainder of the incumbent's term via recall election is not,
in reality and in law, a full term continuing on to his three succeeding full terms. Local officials who assume office via recall
election serve only the unexpired portion of the incumbent's term and this service is not counted as a full term, despite the
Constitutional mandate that the term of office of elective local officials is three years. Such is the design because Art.
XVIII, Secs. 2 and 5 of the Constitution also prescribe synchronization of regular national and local elections beginning on
the second Monday of May 1992,18which is accomplished if the local official who assumes office through recall election
serves only the incumbent's unexpired term.
It is only in the case of Representatives (and Senators) that "if one is elected Representative to serve the unexpired term
of another, that unexpired term will be considered one term for purposes of computing the number of successive terms
allowed."19 The election herein contemplated is a special election thus this Constitutional intent does not apply to a recall
election which involves only elective local officials. The Record bear this out, viz:
"MR. SUAREZ. . . May we ask a clarificatory question regarding the interpretation of the provisions in Sections 3 and 6 in
relation to Section 9 regarding the disqualification on the part of the Senator to run for two consecutive terms, and in the
case of the Members of the House of Representatives, for three consecutive terms. For example, a special election is
called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the
correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this
provision on disqualification, Madam President?
MR. DAVIDE. Yes, because we speak of "term" and if there is a special election, he will serve only for the unexpired
portion of that particular term plus one more term for the Senator and two terms for the Members of the Lower House." 20
As we ruled in the Adormeo case, service of an unexpired term is considered service of a full term only with respect to
Representatives (and Senators) because unlike local government officials, Representatives cannot be recalled. It is
continuous prolonged stay in office that breeds political dynasties. Understandably therefore, insofar as Representatives
who cannot be recalled are concerned, service of an unexpired term is strictly counted as service of a full term because
the purpose of the ConCom was to limit the right to run and be elected in Congress.21
In allowing Hagedorn to participate in the September 24 recall election, we are not unmindful of the intent of the ConCom
to broaden the people's choice of leaders. The three term limit was adopted to allow the electorate to choose from other
candidates in the regular election succeeding the incumbent's third consecutive term. This is clear in the Commissioners'
alternatives for voting on the term limit for Representatives and the outcome of their voting where 17 voted for "no further
election after a total of three terms" and 26 voted for "no immediate reelection after three successive terms." A reelection
is immediate if a local official wins in the election succeeding the third consecutive term. 22 This is not the case with
Hagedorn who did not run in the 2001 regular mayoralty election and left that political arena to other contenders, thereby
upholding the intent of the ConCom to broaden the choice of the electorate.

The intent of the ConCom to create a hiatus in the service of elective local officials after three consecutive full terms
cannot be undermined through abuse of the power of recall. The Local Government Code of 1991 provides limitations on
recall in Section 74, viz:
"Section 74. Limitations on Recall. (a) any elective local official may be the subject of a recall election only once during his
term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year
immediately preceding a regular local election." (emphasis supplied)
Thus, an elective local official cannot perpetually hold on to his office through the mechanism of recall as at the very least,
there will be a hiatus of one year after an unbroken service of three terms. He could not simply create, in the words of
Commissioner Monsod, "structures that will perpetuate him (them)" in power with the assurance that they will not be
exposed because after serving three consecutive full terms, he will certainly be replaced. Within the one-year period
under Sec. 74, his successor could discover and begin to dismantle these manipulative structures. This one year period
also provides a reasonable basis for the electorate to judge the performance of the incumbent successor, thus obviating
fear of political maneuvering through initiation of recall proceedings by a Preparatory Recall Assembly dominated by
23
24
minions of the previous local official. In Claudio v. COMELEC, et al., we held, viz:
"In the Bower case (in re Bower 41 I11. 777, 242 N.E. 2d 252 [1968]) cited by this Court in Angobung v. COMELEC (269
SCRA 245, 256 [1997]), it was held that 'The only logical reason which we can ascribe for requiring the electors to wait
one year before petitioning for recall election is to prevent premature action on their part in voting to remove a newly
elected official before having had sufficient time to evaluate the soundness of his policies and decisions.'" 25
If, after one year in office, the incumbent proves himself to be worthy of his position, then his constituents will confirm this
should a recall election be called, as in the case of Mayor Reynaldo Malonzo of Caloocan City. If, on the other hand, the
incumbent turns out to be an ineffective leader, there is no reason why the electorate should not be allowed to make a
Cincinnatus of their past leader.
The imagined fear of abuse of the power of recall does not suffice to disqualify private respondent Hagedorn and should
not prevail over the resounding voice of the people of Puerto Princesa City. They have spoken and there is no mistaking
that Hagedorn is their overwhelming choice. We cannot subscribe to the petitioners' position and allow an overly literal
reading of the law to mute the electorate's cry and curtail their freedom to choose their leaders. This freedom was as
much a concern of the ConCom as was the prevention of political dynasties and broadening the choice of the people. This
Court has not just once admonished against a too literal reading of the law as this is apt to constrict rather than fulfill its
purpose and defeat the intention of the authors.26
In sum, private respondent Hagedorn is not disqualified from running in the September 24, 2002 recall election as the
disqualification under Art. X, Sec. 8 of the Constitution applies to the regular mayoralty election succeeding the third
consecutive term served. Nor is he precluded from serving the unexpired portion of the 2001-2004 mayoralty term as this
is not service of a prohibited fourth consecutive full term.
I vote to deny the petition, giving due consideration to the tenet of representative democracy that the people should be
27
allowed to choose whom they wish to govern them. In the end, ". . . more than judgments of courts of law, the judgment
of the tribunal of the people is final for 'sovereignty resides in the people and all government authority emanates from
them.'"

G.R. No. 181367

April 24, 2012

*

LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Mayor, HON. JEFFREY P. FERRER, and the
SANGGUNIANG PANLUNGSOD OF LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Vice-Mayor,
HON. DEMIE JOHN C. HONRADO,** vs. ATTY. REX G. ROJO
DECISION
CARPIO, J.:
This petition for review assails the 14 September 2007 Decision1 and the 18 January 2008 Resolution2 of the Court of
Appeals in CA-G.R. CEB-SP No. 01377. The Court of Appeals affirmed Resolution Nos. 0506543 and 0516464 of the Civil
Service Commission, which affirmed the Decision dated 20 September 2004 of the Civil Service Commission Regional
Office (CSCRO) No. VI, Iloilo City, approving the appointment of respondent Atty. Rex G. Rojo (respondent)
as Sangguniang Panlungsod Secretary under a permanent status.
The Facts
The facts as found by the Court of Appeals are as follows:
On March 18, 2004, [the] then Vice-Mayor Rex R. Jalandoon of La Carlota City, Negros Occidental appointed Atty. Rex G.
Rojo (or Rojo) who had just tendered his resignation as member of the Sangguniang Panlungsod the day preceding such
appointment, as Sangguniang Panlungsod Secretary. The status of the appointment was permanent. The next day, March
19, 2004, the Vice-Mayor submitted Rojos appointment papers to the Civil Service Commission Negros Occidental Field
Office (CSCFO-Negros Occidental) for attestation. In a Letter dated March 24, 2004, the said CSCFO wrote Jalandoon to
inform him of the infirmities the office found on the appointment documents, i.e. the Chairman of the Personnel Selection
Board and the Human Resource Management Officer did not sign the certifications, the latter relative to the completeness
of the documents as well as to the publication requirement. In view of the failure of the appointing authority to comply with
the directive, the said CSCFO considered the appointment of Rojo permanently recalled or withdrawn, in a subsequent
Letter to Jalandoon dated April 14, 2004.
Jalandoon deemed the recall a disapproval of the appointment, hence, he brought the matter to the CSC Regional Office
No. 6 in Iloilo City, by way of an appeal. He averred that the Human Resource Management Officer of La Carlota City
refused to affix his signature on Rojos appointment documents but nonetheless transmitted them to the CSCFO. Such
transmittal, according to Jalandoon, should be construed that the appointment was complete and regular and that it
complied with the pertinent requirements of a valid appointment. Before the said CSC Regional Office No. 6 [could resolve
the appeal], the City of La Carlota represented by the newly elected mayor, Hon. Jeffrey P. Ferrer and the Sangguniang
Panlungsod represented by the newly elected Vice-Mayor, Hon. Demie John C. Honrado, collectively, the petitioners
herein, intervened. They argued that Jalandoon is not the real party in interest in the appeal but Rojo who, by his inaction,
should be considered to have waived his right to appeal from the disapproval of his appointment; that the appointment
was made within the period of the election ban prior to the May 14, 2004 national and local elections, and finally, that the
resignation of Rojo as member of the Sangguniang Panlungsod is ineffective having not complied with the provision on
quorum under Section 82(d) of R.A. No. 7160.
In a Decision dated September 20, 2004, the CSC Regional Office No. 6 reversed and set aside the CSCFOs earlier
ruling. On the argument of the intervenors that the former Vice-Mayor lacked legal personality to elevate the case on
appeal, the regional office cited settled jurisprudence that the disapproval of an appointment affects the discretionary
authority of the appointing authority. Hence, he alone may request for reconsideration of or appeal the disapproval of an
appointment. The regional office likewise ruled that Rojos appointment on March 18, 2004 was made outside the period
of the election ban from March 26 to May 9, 2004, and that his resignation from the Sangguniang Panlungsod was valid
having been tendered with the majority of the council members in attendance (seven (7) out of the thirteen councilors
were present). Considering that the appointment of Rojo sufficiently complied with the publication requirement,
deliberation by the Personnel Selection Board, certification that it was issued in accordance with the limitations provided
for under Section 325 of R.A. 7160 and that appropriations or funds are available for said position, the regional office
approved the same. x x x
Mayor Ferrer and Vice-Mayor Honrado appealed the foregoing Decision of the CSC Regional Office No. 6 to the Civil
Service Commission (or Commission). On May 17, 2005, the Commission dismissed said appeal on the ground that the
appellants were not the appointing authority and were therefore improper parties to the appeal. Despite its ruling of

dismissal, the Commission went on to reiterate CSC Regional Offices discussion on the appointing authoritys compliance
with the certification and deliberation requirements, as well as the validity of appointees tender of resignation. x x x
It likewise denied the motion for reconsideration thereafter filed by the petitioners in a Resolution dated November 8,
5
2005.
Petitioners filed a petition for review with the Court of Appeals. On 14 September 2007, the Court of Appeals denied the
petition, and affirmed Resolution Nos. 050654 and 051646 of the Civil Service Commission, dated 17 May 2005 and 8
November 2005, respectively. Petitioners filed a Motion for Reconsideration, which the Court of Appeals denied in its
Resolution dated 18 January 2008.
Hence, this petition for review.
The Ruling of the Court of Appeals
Citing Section 9(h), Article V of Presidential Decree No. 8076 or the Civil Service Decree, the Court of Appeals held that
"in the attestation of an appointment made by a head of agency, the duty of the Civil Service Commission does not go
beyond ascertaining whether the appointee possesses the appropriate civil service eligibility and the minimum statutory
qualifications."7 In this case, the Court of Appeals found that respondent met the minimum qualifications for the position of
8
Secretary of the Sanggunian, as enumerated under Section 469(b), Article I, Title V of the Local Government Code. In
fact, the Court of Appeals held that respondent is more than qualified for the position considering that respondent is a
lawyer and an active member of the bar. Furthermore, the requirements for the appointment of respondent have been
substantially complied with: (a) publication; (b) Personnel Selection Board deliberation; and (c) certification from the
appropriate offices that appropriations or funds are available for the position. Thus, the Court of Appeals ruled that there
was no sufficient reason for the Commission to disapprove respondents appointment.
On the issue of the lack of signature of the Human Resource Management Officer of La Carlota City on respondents
appointment papers, the Court of Appeals held that such refusal of the officer to affix his signature should not affect the
validity of the appointment. Otherwise, "it would be tantamount to putting the appointing power under the mercy of a
department head who may without reason refuse to perform a ministerial function, as what happened in the instant case."9
The Court of Appeals also found that the appointment of respondent on 18 March 2004 did not violate the election ban
period which was from 26 March to 9 May 2004. Furthermore, there was no substantial evidence to show that the
appointment was a "midnight appointment."
Thus, the Court of Appeals concluded that since respondent possessed the minimum qualifications for the position
of Sangguniang Panlungsod Secretary, and the appointing authority has adequately complied with the other requirements
for a valid appointment, then the Civil Service Commissions approval of the appointment was only proper.
The Issues
Petitioners raise the following issues:
1. WHETHER THE APPOINTMENT OF RESPONDENT AS SANGGUNIANG PANLUNGSOD SECRETARY VIOLATED
THE CONSTITUTIONAL PROSCRIPTION AGAINST ELIGIBILITY OF AN ELECTIVE OFFICIAL FOR APPOINTMENT
DURING HIS TENURE; and
2. WHETHER RESPONDENTS APPOINTMENT AS SANGGUNIANG PANLUNGSOD SECRETARY WAS ISSUED
CONTRARY TO EXISTING CIVIL SERVICE RULES AND REGULATIONS. 10
The Ruling of the Court
Petitioners allege that respondents appointment as Sangguniang Panlungsod Secretary is void. Petitioners maintain that
respondents irrevocable resignation as a Sangguniang Panlungsod member was not deemed accepted when it was
presented on 17 March 2004 during the scheduled regular session of the Sangguniang Panlungsod of La Carlota City,
Negros Occidental for lack of quorum. Consequently, respondent was still an incumbent regular Sangguniang
Panlungsod member when then Vice Mayor Jalandoon appointed him as Sangguniang Panlungsod Secretary on 18
11
March 2004, which contravenes Section 7, Article IX-B of the Constitution.

The resolution of this case requires the application and interpretation of certain provisions of Republic Act No. 7160 (RA
7160), otherwise known as the Local Government Code of 1991. The pertinent provisions read:
Section 82. Resignation of Elective Local Officials. (a) Resignations by elective local officials shall be deemed
effective only upon acceptance by the following authorities:
(1) The President, in the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and
independent component cities;
(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component
cities;
(3) The sanggunian concerned, in case of sanggunian members; and
(4) The city or municipal mayor, in the case of barangay officials.
(b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid authorities,
shall be furnished the Department of Interior and Local Government.
(c) The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) working
days from receipt thereof.
(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an
open session of the sanggunian concerned and duly entered in its records: Provided, however,That this subsection
does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the
manner of acting upon such resignations.
Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the
city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the
punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.
(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present
and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10)
days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he
temporarily presided.
Section 52. Sessions. (a) On the first day of the session immediately following the election of its members, the
sanggunian shall, by resolution, fix the day, time, and place of its regular sessions. The minimum number of regular
sessions shall be once a week for the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan, and
twice a month for the sangguniang barangay.
(b) When public interest so demands, special session may be called by the local chief executive or by a majority of the
members of the sanggunian.
(c) All sanggunian sessions shall be open to the public unless a closed-door session is ordered by an affirmative vote of a
majority of the members present, there being a quorum, in the public interest or for reasons of security, decency, or
morality. No two (2) sessions, regular or special, may be held in a single day.
(d) In the case of special sessions of the sanggunian, a written notice to the members shall be served personally at the
members usual place of residence at least twenty-four (24) hours before the special session is held. Unless otherwise
concurred in by two-thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be
considered at a special session except those stated in the notice.
(e) Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the
sanggunian concerned.
Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified
shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the
presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

(b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted, or a
majority of the members present may adjourn from day to day and may compel the immediate attendance of any member
absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of
the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member
and present him at the session.
(c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be
transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the
session adjourned for lack of quorum.
Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of
the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the
liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the
sectoral representatives, as members.
(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be
determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from
the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural
communities, or disabled persons.
(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner
as may be provided for by law. (Boldfacing supplied)
Petitioners insist that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not be counted in
determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) out of the twelve (12) members of
the Sangguniang Panlungsod who were present on 17 March 2004. Since the required majority of seven (7) was not
reached to constitute a quorum, then no business could have validly been transacted on that day including the
acceptance of respondents irrevocable resignation.
On the other hand, respondent maintains that in this case, the Sangguniang Panlungsod consists of the presiding officer,
ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. Citing the Department of
Interior and Local Government (DILG) Opinion No. 28, s. 2000, 12 dated 17 April 2000, respondent asserts that the vicemayor, as presiding officer, should be included in determining the existence of a quorum. Thus, since there were six (6)
members plus the presiding officer, or a total of seven (7) who were present on the 17 March 2004 regular session of
the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly
accepted.
The 1987 Constitution mandates Congress to enact a local government code which provides, among others, the powers,
functions and duties of local officials and all other matters relating to the organization and operation of the local
government units. Section 3, Article X of the 1987 Constitution states:
Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanism of recall, initiative,
and referendum, allocate among the different local government units their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units. (Emphasis
supplied)
Thus, the Local Government Code "shall x x x provide for the x x x powers and functions and duties of local officials, and
all other matters relating to the organization and operation of the local units." In short, whether a vice-mayor has the
power, function or duty of a member of the Sangguniang Panlungsod is determined by the Local Government
Code.
On 10 October 1991, the Congress approved RA 7160 or the Local Government Code.1wphi1 Under RA 7160, the city
vice-mayor, as presiding officer, is a member of the Sangguniang Panlungsod, thus:
Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the
city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the
punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present
and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10)
days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he
temporarily presided.
Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of
the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the
liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the
sectoral representatives, as members.
(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be
determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from
the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural
communities, or disabled persons.
(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner
as may be provided for by law. (Boldfacing and underscoring supplied)
RA 7160 clearly states that the Sangguniang Panlungsod "shall be composed of the city vice-mayor as presiding
officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of
the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members." Blacks
Law Dictionary defines "composed of" as "formed of" or "consisting of." As the presiding officer, the vice-mayor can vote
only to break a tie. In effect, the presiding officer votes when it matters the most, that is, to break a deadlock in the votes.
Clearly, the vice-mayor, as presiding officer, is a "member" of the Sangguniang Panlungsod considering that he is
mandated under Section 49 of RA 7160 to vote to break a tie. To construe otherwise would create an anomalous and
absurd situation where the presiding officer who votes to break a tie during a Sanggunian session is not considered a
"member" of the Sanggunian.
The Senate deliberations on Senate Bill No. 155 (Local Government Code) show the intent of the Legislature to treat the
vice-mayor not only as the presiding officer of the Sangguniang Panlungsod but also as a member of the Sangguniang
Panlungsod. The pertinent portions of the deliberations read:
Senator Pimentel. Before Senator Rasul and Senator Lina take the floor, Mr. President, may I reiterate this observation,
that changes in the presiding officership of the local sanggunians are embodied for the municipality where the vice-mayor
will now be the presiding officer of the sanggunian and the province where the vice-governor will now be the presiding
officer. We did not make any change in the city because the city vice-mayor is already the presiding officer.
The President. All right.
Senator Rasul, Senator Lina, and Senator Gonzales.
Senator Gonzales. May I just add something to that statement of Senator Pimentel?
The President. All right.
Senator Gonzales. Reading this bill, there is also a fundamental change in the sense that the provincial governor,
the city mayor, the municipal mayor, as well as, the punong barangay are no longer members of their respective
sanggunian; they are no longer members. Unlike before, when they were members of their respective
sanggunian, now they are not only the presiding officers also, they are not members of their respective
sanggunian.
Senator Pimentel. May I thank Senator Gonzales for that observation. (Boldfacing supplied)
During the deliberations, Senator Pimentel, the principal author of the the Local Government Code of 1991, clearly agrees
with Senator Gonzales that the provincial governor, the city mayor, and the municipal mayor who were previously the
presiding officers of their respective sanggunian are no longer the presiding officers under the proposed Local
Government Code, and thus, they ceased to be members of their respective sanggunian.13 In the same manner that
under the Local Government Code of 1991, the vice-governor, the city vice-mayor, and the municipal vice-mayor, as

presiding officers of the Sangguniang Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan, respectively, are
members of their respective sanggunian.
14

In the 2004 case of Zamora v. Governor Caballero, the Court interpreted Section 53 of RA 7160 to mean that the entire
membership must be taken into account in computing the quorum of the sangguniang panlalawigan.The Court held:
"Quorum" is defined as that number of members of a body which, when legally assembled in their proper places, will
enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass
upon a law or ordinance or do any valid act. "Majority," when required to constitute a quorum, means the number greater
than half or more than half of any total. In fine, the entire membership must be taken into account in computing the
quorum of the sangguniang panlalawigan, for while the constitution merely states that "majority of each House shall
constitute a quorum," Section 53 of the LGC is more exacting as it requires that the "majority of all members of
the sanggunian . . . elected and qualified" shall constitute a quorum.
The trial court should thus have based its determination of the existence of a quorum on the total number of members of
the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may,
for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already
addressed by the grant of coercive power to a mere majority of sanggunian members present when there is no quorum.
A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the
participation of all its members so that they may not only represent the interests of their respective constituents but also
help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the
Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable
and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are
considered unofficial acts done during an unauthorized session.15
16

In stating that there were fourteen (14) members of the Sanggunian, the Court in Zamora clearly included the ViceGovernor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken
into account in computing the quorum.
DILG Opinions, which directly ruled on the issue of whether the presiding officer should be included to determine the
quorum of the sanggunian, have consistently conformed to the Courts ruling in Zamora.
In DILG Opinion No. 46, s. 2007, the Undersecretary for Local Government clearly stated that the vice-mayor is included
in the determination of a quorum in the sanggunian. The DILG Opinion reads:
DILG Opinion No. 46, s. 2007
02 July 2007
MESSRS. JAMES L. ENGLE,
FEDERICO O. DIMPAS, JR.,
MARIFE G. RONDINA,
PORFERIO D. DELA CRUZ, and
WINSTON B. MENZON
Sangguniang Bayan Membership
Babatngon, Leyte
Dear Gentlemen and Lady:
This has reference to your earlier letter asking our opinion on several issues, which we quoted herein in toto:
"(1) What is the number that would determine the quorum of our sanggunian that has a total membership of
eleven (11) including the vice-mayor?
(2) Are the resolutions adopted by a sanggunian without quorum valid?
In reply to your first query, may we invite your attention to Section 446 (a) of the Local Government Code of 1991 (RA
7160) which provides and we quote:

"SECTION 446. Composition. (a) The Sangguniang bayan, the legislative body of the municipality, shall be composed of
the municipal vice-mayor as the presiding officer, the regular sangguniang members, the president of the municipal
chapter of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and
the sectoral representatives, as members."
Based on the aforequoted provision, the Sangguniang Bayan is composed of eight (8) regular members, the Liga ng
mga Barangay President, the SK Federation President, the Vice-Mayor as Presiding Officer and the sectoral
representatives.
Under the old Local Government Code (Batas Pambansa Blg. 337), the Presiding Officer then of the sanggunian
was the Mayor. Thus, there was a dilemma as to whether or not the Vice-Mayor, as Presiding Officer, is to be
included in the determination of quorum in the Sangguniang Bayan. This issue was, however, resolved with the
advent of the new Local Government Code of 1991 (RA 7160) providing the aforequoted provision. Hence, the
vice-mayor is included in the determination of a quorum in the sanggunian.
Based on the aforequoted provision, sectoral representatives are also included in the determination of quorum in the
sangguniang bayan. Let it be noted however that sectoral representatives in the local sanggunian are, pursuant to Section
41 (c) of RA 7160 and Section 10 (b) of RA 9264, to be elected "in a manner as may be provided for by law." Meantime
however, Congress has yet to enact a law providing for the manner of electing sectoral representatives at the local
sanggunians. Such being the case, sectoral representatives are not, in the meantime, included in the determination of
quorum in the local sanggunians.
In view of the foregoing, the Sangguniang Bayan is composed of the 8 regular members, the Liga ng mga
Barangay President and the SK Federation President as ex-officio members, and the Vice-Mayor as Presiding
Officer. The total membership in that sanggunian, therefore, is eleven (11). Relative thereto, Section 53 of the Local
Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and
qualified shall constitute a quorum to transact official business. "Majority" has been defined in Santiago vs. Guingona, et
al.(G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body. Following the
said ruling, since the total membership of the sanggunian being 11, 11 divided by 2 will give us a quotient of 5.5. Let it be
noted however that a fraction cannot be considered as one whole vote, since it is physically and legally impossible to
divide a person or even his vote into a fractional part. Accordingly, we have to go up to the next whole number which is 6.
In this regard, 6 is more than 5.5 and therefore, more than one-half of the total membership of the sangguniang bayan in
conformity with the jurisprudential definition of the term majority. Thus, the presence of 6 members shall already constitute
a quorum in the sangguniang bayan for it to conduct official sessions.
xxxx
Very truly yours,
(signed)
AUSTERE A. PANADERO
17
OIC, OUSLG
In another DILG Opinion dated 9 February 2010, the Undersecretary for Local Government opined that the ViceGovernor, as a Presiding Officer of the Sangguniang Panlalawigan, is a composite member thereof and is included in the
determination of the quorum. DILG Opinion No. 13, s. 2010 reads:
DILG Opinion No. 13, s. 2010
09 February 2010
GOVERNOR JESUS N. SACDALAN
VICE-GOVERNOR EMMANUEL F. PIOL
Provincial Capitol Building
Province of Cotabato
Gentlemen:

This has reference to your earlier separate letters, which we herein consolidated, considering that they both pertain to one
subject matter.
Per your letters, the Sangguniang Panlalawigan held its regular session on 12 January 2010 where the August Body
embarked upon the approval of the Annual Budget. According to you, all fourteen (14) members of the Sangguniang
Panlalawigan attended said session, namely: ten (10) regular Sangguniang Panlalawigan Members, three (3) ex-officio
Sangguniang Panlalawigan Members and the Vice-Governor as the Presiding Officer. You further represented that when
said approval of the Annual Budget was submitted for votation of said August Body, the result was: seven (7) members
voted for the approval of the Annual Budget and six (6) voted against.
Specifically, you want us to shed light on the following issues:
"1) Whether or not the august body has reached the required majority of all the members of the Sangguniang
Panlalawigan as provided for in Sections 53 and 54 of the Local Government Code and in relation to Article 107 (g) of its
Implementing Rules and Regulations?
2) Whether or not the vice governor as the presiding officer is included in the count in determining the majority of
all the members of the sangguniang panlalawigan to validly pass an appropriation ordinance.
3) Whether or not the board member who signed the Committee Report endorsing the 2010 Proposed Annual
Performance Budget may withdraw without just and valid cause his signature thereon and vote against the approval
thereof?
4) In the event that the Province operates under a re-enacted budget, what are those expenditures included in the term
"essential operating expenses" that may be incurred by the Province?"
xxxx
For the sanggunian to officially transact business, there should be a quorum. A quorum is defined by Section 53 of the
Local Government Code of 1991 as referring to the presence of the majority of all the members of the sanggunian who
have been duly elected and qualified. Relative thereto, generally, ordinary measures require for its enactment only the
approval of a simple majority of the sanggunian members present, there being a quorum. These pertain to the normal
transactions of the sanggunian which are approved by the sanggunian through a vote of simple majority of those present.
On the other hand, there are certain measures where the Local Government Code requires for its approval the vote of
majority of all the members who were duly elected and qualified. This is what we call approval by the qualified majority of
the sanggunian. In this case, the approval is to be voted not just by the majority of those present in a session there being
a quorum but by the majority of all the members of the sanggunian duly elected and qualified regardless of whether all of
them were present or not in a particular session, there being a quorum.
xxxx
In determining a quorum, Section 53 of the Local Government Code of 1991 provides that a majority of all the
members of the sanggunian who have been elected and qualified shall constitute a quorum. Along this line, it
bears to emphasize that per Section 467 (a) of the Local Government Code of 1991, the Sangguniang
Panlalawigan is a composite body where the Vice-Governor as Presiding Officer is a composite member thereof.
As a composite member in the sangguniang panlalawigan, he is therefore included in the determination of a
quorum.
"Majority" has been defined by the Supreme Court in Santiago vs. Guingona, et al. (G.R. No. 134577, 18 November 1998)
as that which is greater than half of the membership of the body or that number which is 50% + 1 of the entire
membership. We note, however, that using either formula will give us the same result. To illustrate, using the 50% +1
formula, the 50% of a sanggunian composed of 14 members is 7. Hence 7 + 1 will give us a sum of 8. On the other hand,
if we use the second formula which is that number greater than half, then 8, in relation to 7, is definitely greater than the
latter. The simple majority of the sangguniang panlalawigan with fourteen (14) members where all of them were present in
that particular session is therefore 8.
xxxx
Very truly yours,

(signed)
AUSTERE A. PANADERO
Undersecretary18
In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the total composition of
the Sangguniang Panlungsod. In this case, the Sangguniang Panlungsod of La Carlota City, Negros Occidental is
composed of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13)
members. A majority of the 13 "members" of the Sangguniang Panlungsod, or at least seven (7) members, is needed to
constitute a quorum to transact official business. Since seven (7) members (including the presiding officer) were present
on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the
irrevocable resignation of respondent was validly accepted.
19

The Perez case cited in the Dissenting Opinion was decided in 1969 prior to the 1987 Constitution, and prior to the
enactment of RA 7160 or the Local Government Code of 1991. In fact, the Perez case was decided even prior to the old
Local Government Code which was enacted in 1983. In ruling that the vice-mayor is not a constituent member of the
municipal board, the Court in the Perez case relied mainly on the provisions of Republic Act No. 305 (RA 305) creating
20
the City of Naga and the amendatory provisions of Republic Act No. 2259 (RA 2259) making the vice-mayor the
presiding officer of the municipal board. Under RA 2259, the vice-mayor was the presiding officer of the City Council or
Municipal Board in chartered cities. However, RA 305 and 2259 were silent on whether as presiding officer the vicemayor could vote. Thus, the applicable laws in Perez are no longer the applicable laws in the present case.
On the other hand, the 2004 case of Zamora v. Governor Caballero,21 in which the Court interpreted Section 5322 of RA
7160 to mean that the entire membership must be taken into account in computing the quorum of the Sangguniang
Panlalawigan, was decided under the 1987 Constitution and after the enactment of the Local Government Code of 1991.
In stating that there were fourteen (14) members of the Sangguniang Panlalawigan of Compostela Valley,23 the Court
in Zamora clearly included the Vice- Governor, as presiding officer, as part of the entire membership of the Sangguniang
Panlalawigan which must be taken into account in computing the quorum.
On the issue that respondents appointment was issued during the effectivity of the election ban, the Court agrees with the
finding of the Court of Appeals and the Civil Service Commission that since the respondents appointment was validly
issued on 18 March 2004, then the appointment did not violate the election ban period which was from 26 March to 9 May
2004. Indeed, the Civil Service Commission found that despite the lack of signature and certification of the Human
Resource Management Officer of La Carlota City on respondents appointment papers, respondents appointment is
deemed effective as of 18 March 2004 considering that there was substantial compliance with the appointment
requirements, thus:
Records show that Atty. Rojos appointment was transmitted to the CSC Negros Occidental Field Office on March 19,
2004 by the office of Gelongo without his certification and signature at the back of the appointment. Nonetheless, records
show that the position to which Atty. Rojo was appointed was published on January 6, 2004. The qualifications of Atty.
Rojo were deliberated upon by the Personnel Selection Board on March 5, 2004, attended by Vice Mayor Jalandoon as
Chairman and Jose Leofric F. De Paola, SP member and Sonia P. Delgado, Records Officer, as members. Records
likewise show that a certification was issued by Vice Mayor Jalandoon, as appointing authority, that the appointment was
issued in accordance with the limitations provided for under Section 325 of RA 7160 and the said appointment was
reviewed and found in order pursuant to Section 5, Rule V of the Omnibus Rules Implementing Executive Order No. 292.
Further, certifications were issued by the City Budget Officer, Acting City Accountant, City Treasurer and City Vice Mayor
that appropriations or funds are available for said position. Apparently, all the requirements prescribed in Section 1, Rule
VIII in CSC Memorandum Circular No. 15, series of 1999, were complied with. 24
Clearly, the appointment of respondent on 18 March 2004 was validly issued considering that: (1) he was considered
resigned as Sangguniang Panlungsod member effective 17 March 2004; (2) he was fully qualified for the position
of Sanggunian Secretary; and (3) there was substantial compliance with the appointment requirements.
WHEREFORE, we DENY the petition. We AFFIRM the 14 September 2007 Decision and the 18 January 2008 Resolution
of the Court of Appeals in CA-G.R. CEB-SP No. 01377.
SO ORDERED.
CONCURRING OPINION
(In the Result)

BRION, J.:
The constitutional issue before us is whether Atty. Rex Rojos (Rojo) appointment violated the constitutional ban on
appointment.1 The answer to this question depends on the resolution of the prior and underlying question of whether
petitioner Rojo effectively resigned from his post as sanggunian member before he was appointed as sanggunian
secretary. This question, in turn, hinges on the much prior issue of the number of sanggunian members needed to validly
act on Rojos tender of resignation.
While I concur with the conclusion reached by the ponencia, I wish to emphasize that the Vice-Mayor as presiding officer
is considered a member of the sanggunian for purposes of quorum determination only. In particular, the majoritys ruling
should by no means be interpreted as including the Vice-Mayor (as presiding officer) as sanggunian member, where the
Local Government Code (LGC) itself prescribes a specific voting requirement that makes quorum determination irrelevant.
Brief Factual Antecedents
On March 10, 1994, Rojo, a member of the Sanggunian Panlungsod (SP) of La Carlota City, applied for the vacant
position of SP Secretary. On the March 17, 2004 session of the SP, Rojo tendered his irrevocable resignation as SP
Member. At that time, Vice-Mayor Rex Jalandoon (Jalandoon), as presiding officer, and six members of a twelve-member
sanggunian were present.
On March 18, 2004, Jalandoon appointed Rojo as SP Secretary and the latter immediately took his oath of office. On
March 26, 2004, the appointment ban for the May 2004 elections took effect. On April 27, 2004, the Civil Service
Commission (CSC) Field-Office disapproved Rojos appointment due to incomplete requirements. Jalandoon appealed
the disapproval to the CSC Regional Office.
The 2004 elections resulted in changes in the La Carlota local government. The newly elected Mayor and Vice-Mayor of
La Carlota City sought to affirm the disapproval of Rojos appointment, alleging that there had been no quorum when Rojo
tendered his resignation before the SP. Since Rojos resignation could not have been validly accepted for lack of quorum,
it was argued that Rojo continued to be an elective official who was ineligible for appointment to a public office under the
Constitution.2
Core Issue
I submit that the quorum issue in this case can be decided by approaching the problem from the point of the question: to
whom does the LGC vests the power to accept the resignation of a member of the sanggunian?
My Position
Article 82 of the LGC reads:
Section 82. Resignation of Elective Officials. (a) Resignations by elective local officials shall be deemed effective only
upon acceptance by the following authorities:
(1) The President, in case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and
independent component cities:
(2) The governor, in case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component
cities:
(3) The sanggunian concerned, in the case of sanggunian members; and
(4) The city or municipal mayor, in case of barangay officials.
xxxx
(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open
session of the sanggunian concerned and duly entered in its records: Provided, however, that this subsection does not

apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of
acting upon such resignations.
This Article lays down the rule on resignations and identifies the authorities with the power to accept the resignation of
particular local government officials. In the case of sanggunian members, that authority is the local legislative body
the sanggunian concerned of which the resignee is a member.
Before determining what the law exactly means in making reference to the "sanggunian concerned," Section 53 of the
LGC prescribes a quorum requirement before the sanggunian can validly transact its regular official business.
Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to
transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately
proceed to call the roll of the members and thereafter announce the results.
xxxx
On the other hand, Article 457 of the LGC identifies the composition of the sanggunian for the purpose of determining the
"sanggunian concerned" authorized to accept the resignation of its member. Article 457 reads:
Section 457. Composition. (a) The Sanggunian Panlungsod, the legislative body of the City shall be composed of the
city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga
barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral
representatives as members.
Based on these provisions, I believe that it is absurd not to include the presiding officer in determining whether a quorum
exists since (i) the law includes him as part of the body authorized to accept an elective local officials resignation and (ii)
this body - the "sanggunian concerned" - can validly act only if there is a quorum.
Moreover, while the Vice-Mayor as presiding officer cannot vote except in case of tie,3 the determination of the quorum for
purpose of accepting a resignation of a sanggunian member does not require an active participation on the part of any
member of the sanggunian.
Under the LGC, the only express prohibition against the resignation of an elective local official is when he is the subject of
an on-going recall process.4 Under the Anti-Graft and Corrupt Practices Act, a public officer who is the subject of a
pending investigation (administrative or criminal) or prosecution5 is likewise prohibited from resigning. This prohibition,
however, is for the sole purpose of preventing him from frustrating the ongoing investigation or prosecution, i.e., in order
to be consistent with an individuals constitutional right against involuntary servitude,6 a public official may resign from the
service but his act will not cause the dismissal of the on-going proceeding against him.7 In other words, in accepting a
resignation, the sanggunian, as a body, simply takes a passive stance on a matter that relates to the administrative duties
of the Vice-Mayor himself.
The dichotomy (i.e., the counting of the Presiding Officer for purpose of quorum but without giving him the right to vote
except in case of a tie) can be better appreciated if it is considered that, unlike in the old LGC, the presiding officer is
8
empowered, as a rule, to appoint all officials and employees of the sanggunian. In the present case, at issue is petitioner
Rojos resignation as a sanggunian member for the express purpose of applying for the position of sanggunian secretary
whom the Vice-Mayor can appoint. In other words, woven into the question of resignation is the function of appointment
that the law expressly assigned to the Vice-Mayor. These circumstances add to the reasons justifying the conclusion that
the Vice-Mayors presence in accepting the resignation is material.
Refutation of the dissents reliance on Perez
9

Justice Del Castillos Dissent relies on the 1969 case of Perez v. Hon. Dela Cruz. The use of the Perez ruling, in my view,
is misplaced.
In Perez, the Naga Vice-mayor Virginia Perez wanted to vote in the selection of (i) the secretary of the municipal board of
Naga and (ii) the chairmen of the boards various standing committees. The Court held that Perez does not possess any
voting right considering that she was not a member of the municipal board.

In order to fully appreciate Perez, proper consideration of its legal setting is critical. The pertinent laws then were:
a. Republic Act (RA) 305 (the Charter of Naga). This law did not provide for the position of Vice-Mayor; and
b. RA No. 2259 (An Act Making Effective the Offices of Mayor, Vice-Mayor and Councilors in Chartered Cities xxx). This
law created the position of vice-mayor in Naga, among others. Section 3 of this law, however, simply provides that "the
Vice-Mayor shall be the presiding officer of the City Council or Municipal Board in all chartered cities."
Based on these laws, Perez noted that "[RA 2259] does not decree that the vice-mayor is a member of the city council or
municipal board." Necessarily, not being a member, she could not have any direct and active participation in filling the
local appointive positions in Naga.
First, RA No. 2259, the applicable law at that time, did not provide for a similar provision under the LGC on the
composition of the sanggunian, aside from stating that the Vice-Mayor shall be the presiding officer of the city council or
municipal board of chartered cities. In fact, under RA No. 2259, the powers of the Vice-Mayor clearly show that aside
from being the presiding officer of the city council he was merely a "spare tire"10 who could assume the powers of the
11
Mayor only in case of the latters inability:
Section 3. x x x
The Vice-Mayor shall perform the duties and exercise the powers of the mayor in the event of the latters inability to
discharge the powers and duties of his office. In the event of a permanent vacancy in the office of mayor, the vice-mayor
shall become mayor for the completion of the unexpired term. x x x
Second, Perez resolved the question of whether the presiding officer could vote in the selection of local appointive
officials. In order to resolve this issue, the Court had to determine whether the presiding officer was also a member of the
municipal board/city council. As previously discussed, the present case does not involve the activerole of the sanggunian
as a body, exercising discretion whether to favorably vote or not; only the sanggunians passive role in accepting the
resignation of a sanggunian member is involved. Recall in this regard that under Section 82 of the LGC, the authority to
accept a resignation resides in the "sanggunian concerned," and that under Article 457, the Vice-Mayor is part of the
composition of the sanggunian. These distinctions can only lead to the conclusion that the Dissent cannot draw strength
from Perez in determining whether there was quorum for the purpose of acting on petitioner Rojos resignation.
Contrary to the Dissents posture, we are not here giving additional role and prerogative to a presiding officer. Nor does
our interpretation purport to give an active role to a presiding officer aside from what inheres to his position. We only
resolve the issue of whether he should be counted for purposes of quorum on an administrative matter which relates to
his duties and inheres to his position a passive participation in the affairs of the body over which he actually presides
and which he presumably influences for the common good.
The case of Zamora v. Caballero
12

In Zamora v. Caballero, the Court was confronted with the question of whether a regular sanggunian member, who filed
a leave of absence and whose alleged departure overseas was not proved, should be considered in determining whether
there was quorum at the time the sanggunian transacted official business. The Court ruled in the affirmative, holding that In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for
while the constitution merely states that "majority of each House shall constitute a quorum," Section 53 of the LGC is
more exacting as it requires that the "majority of all members of the sanggunianelected and qualified" shall constitute a
quorum.
The difference in the wordings of the Constitution and the LGC is not merely "a matter of style and writing" as respondents
would argue, but is actually a matter of "meaning and intention." The qualification in the LGC that the majority be based
on "those elected and qualified" was meant to allow sanggunians to function even when not all members thereof have
been proclaimed. And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to
function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily
applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave.
What should be important then is the concurrence of election to and qualification for the office. And election to, and
qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence.

Read in light of Zamora, the fact that the Vice-Mayor is "elected" and, by virtue of his position, "qualifies" as the
sanggunians presiding officer assumes added significance.
I submit, however, that the force of Zamora should not go beyond what the Court decreed in that case. The legality of the
Vice-Mayors (as presiding officer) inclusion as member of the sanggunian did not confront Zamora, which simply
assumed that the presiding officer was included in the determination of the number of members required to constitute a
quorum. For emphasis, Zamora resolved the issue of whether an absent regular member should be included in quorum
determination; it did not rule on the inclusion of the Vice-Mayor, as presiding officer, in the sanggunian membership. The
latter issue is what the Court now resolves.
13

The sanggunian is a collegial body performing several legislative and non-legislative functions. Under the LGC, the
voting requirement for an affirmative action on the part of the sanggunian varies depending on the particular power to be
exercised or the measure to be adopted. The voting requirement could be (i) two-thirds (2/3) of all its members;14 or (ii)
15
16
two-thirds (2/3) vote of the members present, there being quorum; or (iii) three-fourths (3/4) of all its members; or (iv)
17
18
majority vote of all the members; or (vi) simply concurrence of the sanggunian concerned; or (vii) affirmative vote of a
majority of the members present, there being a quorum;19 or (viii) unanimous vote of the sanggunian concerned.20
If the voting level required would engage the entirety of the sanggunian as a collegial body, making the quorum
requirement least significant, there is no rhyme or reason to include the presiding officers personality at all. The possibility
of that one instance where he may be allowed to vote is nil. To include him in sanggunian membership without this
qualification would adversely affect the statutory rule that generally prohibits him from voting.
To illustrate, in disciplining members of the sanggunian where the penalty involved is suspension or expulsion, the LGC
requires the concurrence of two-thirds (2/3) of all the members of the sanggunian.21 If the Sanggunian has thirteen (13)
regular members (excluding the presiding officer), the votes needed to impose either of the penalty is eight. However,
should the presiding officer be also included, therefore raising the membership to fourteen (14), on the premise that he
is also sanggunian member even if he cannot vote in this instance, an additional one vote is required i.e., nine votes
are required before the penalty is imposed. The presiding officers innocuous inclusion as sanggunian member
negatively impacts on the prohibition against him from voting since his mere inclusion affects the numerical value of the
required voting level on a matter where generally and by law he has no concern.
For the foregoing reasons and qualifications, I vote to DISMISS the petition and join the result of Justice Carpios
ponencia.
ARTURO D. BRION
Associate Justice

G.R. No. 212584

November 25, 2014

ALROBEN J. GOH vs. HON. LUCILO R. BAYRON and COMMISSION ON ELECTIONS

DECISION
CARPIO, J.:
The Case
This case is a Petition for Certiorari 1 with prayer for the issuance of a preliminary mandatory injunction filed by Alroben J.
Goh (Goh) assailing Resolution Nos. 9864 and 9882 issued by the Commission on Elections (COMELEC).
Resolution No. 9864,2 promulgated on 1 April 2014, affirmed the recommendation of the Office of the Deputy Executive
Director (ODEDO). The ODEDO found the petition seeking the recall (recall petition) of Mayor Lucilo R. Bayron (Mayor
Bayron), the incumbent mayor of Puerto Princesa City, sufficient in form and substance. However, Resolution No. 9864
suspended all proceedings under the recall petition because the Financial Services Department (FSD) of the COMELEC
raised an issue as to the funding of the entire process of recall. The COMELEC Chairman and all COMELEC
Commissioners3 signed Resolution No. 9864 without any separate opinion.
Resolution No. 9882,4 promulgated on 27 May 2014, suspended any proceeding relative to recall as the recall process, as
stated in said Resolution, does not have an appropriation in the General Appropriations Act of 2014 (2014 GAA)5 and the
2014 GAA does not provide the COMELEC with legal authority to commit public funds for the recall process. Unfike
Resolution No. 9864, five COMELEC Commissioners signed Resolution No. 9882 with a comment or a separate opinion. 6
The Facts
On 17 March 2014, Goh filed before the COMELEC a recall petition, docketed as SPA EM No. 14-004 (RCL),7against
Mayor Bayron due to loss of trust and confidence brought about by "gross violation of pertinent provisions of the Anti-Graft
and Corrupt Practices Act, gross violation of pertinent provisions of the Code of Conduct and Ethical Standards for Public
Officials, Incompetence, and other related gross inexcusable negligence/dereliction of duty, intellectual dishonesty and
emotional immaturity as Mayor of Puerto Princesa City."
On 1 April 2014, the COMELEC promulgated Resolution No. 9864. Resolution No. 9864 found the recall petition sufficient
in form and substance, but. suspended the funding of any and all recall elections until the resolution of the funding issue.
We reproduce the text of Resolution No. 9864 below:
WHEREAS, the Commission is mandated to enforce all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; WHEREAS, a petition for the recall of Mayor Lucilo Bayron of Puerto Princesa
City, Palawan, is pending before this Commission, and has been reviewed by the [ODEDO] and submitted to the en bane
through a Memorandum dated 24 March 2014, to wit:
After review of the reports/findings of EO Gapulao, the ODEDO recommends to the Commission the issuance of a
Resolution certifying to the SUFFICIENCY of the petition for recall of Mayor Lucilo R. Baron [sic] of Puerto Princesa City,
Palawan.
WHEREAS, Section 75 of the Local Government Code (LGC) of 1991 proyides for the source of funding for the conduct of
recall elections, to wit:
Section 75. Expenses Incident to Recall Elections. -All expenses incidental to recall elections shall be borne by the
COMELEC. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the
disposal of the COMELEC for the conduct of recall elections.
WHEREAS, Section 31 of COMELEC Resolution No. 7505 decrees that all expenses incident to recall elections shall be
borne by the Commission, pursuant to Section 75 of the LGC. WHEREAS, a Memorandum from the Finance Services
Department dated 24 March 2014 raised an issue as to the funding of the entire process of recall;
NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Local
Government Code, as amended, the Omnibus Election Code, Republic Act No. 9244, and other elections laws,

RESOLVED, as it hereby RESOLVES, to AFFIRM the recommendation of the ODEDO as to the SUFFICIENCY of the
Recall Petition filed against Mayor Lucilo R. Bayron of Puerto Princesa City, Palawan.
RESOLVED FURTHER, considering that the FSD has raised an issue as to the funding of any and all recall elections, any
proceeding in furtherance thereof, including the verification process, is hereby SUSPENDED until the funding issue shall
have been resolved.
SO ORDERED.

On 28 April 2014, Mayor Bayron filed with the COMELEC an Omnibus Motion for Reconsideration and for
Clarification9 which prayed for the dismissal of the recall petition for lack of merit.
On 19 May 2014, Goh filed a Comment/Opposition (To the 27 April 2014 Omnibus Motion for Reconsideration and for
Clarification) with Motion to Lift Suspension10 which prayed for the COMELEC's denial of Mayor Bayron's 27 April 2014
Omnibus Motion, as well as to direct COMELEC's authorized representative to immediately carry out the publication of the
recall petition against Mayor Bayron, the verification process, and the recall election of Mayor Bayron. On 27 May 2014,
COMELEC promulgated Resolution No. 9882, as follows:
This refers to the petition for recall against Mayor Lucilo Bayron of the City of Puerto Princesa, Province of Palawan. In
Resolution No. 9864, while the Commission en bane affirmed the recommendation of the Office of the Deputy Executive
Director for Operations (ODEDO) as to the sufficiency of the Recall Petition, it suspended further proceedings on recall
until the funding issue raised by the Finance Services Department shall have been resolved.
The power of recall for loss of confidence is exercised by the registered voters of a local government unit to which the
local elective official subject to such recall belongs [Footnote 1 -Sec. 69 of the Local Government Code]. The exercise of
this power is subject to the following limitations provided for by law: (a) any elective local official may be the subject of a
recall election only once during his term of office for loss of confidence; and (b) [n]o recall shall take place within one (1)
year from the date of the official's assumption to office or one (1) year immediately preceding a regular election [Footnote
2 - Section 74 of the Local Government Code]. Because of the cost implications involved, the achievability of pursuing a
recall proceeding to its conclusion will depend on the availability of funds at the disposal of the Commission on Elections
(the Commission).
The conduct of recall is one of several constitutional mandates of the Commission. Unfortunately, it cannot now proceed
with the conduct of recall elections as it does not have an appropriation or legal authority to commit public funds for the
purpose.
I. All expenses incident to Recall elections shall he for the account of the Commission.
It is important to note that the Local Government Code (LGC) specifically provides for the expenses in the conduct of
recall elections, to wit:
"SECTION 75. Expenses Incident to Recall Elections. -All expenses incident to recall elections shall be borne by the
COMELEC. for this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the
disposal of the COMELEC for the conduct ofrecall election."
Hence, the Commission is mandated to shoulder ALL expenses relative to the conduct of recall elections. Expenses in
recall elections, unlike the other exercises mandated by the (C]onstitution to be administered by the Commission, is
specifically treated in a special law -the LGC. Section 75 of the LGC likewise requires the annual General Appropriations
Act (GAA) to include a contingency fund at the disposal of the Commission for the conduct of recall elections. This leads
us to the crucial question: does the 2014 GAA [Footnote 3 - Republic Act No. 10633] include such contingency fund m the
Commission's appropriations?
II. The Commission does not have an appropriation or line item budget to serve as a contingency fund for the conduct of
recall elections under the 2014 CAA.
A careful review of the Commission's budget under the 2014 GAA reveals that it does not have any appropriation or line
item budget (line item) to serve as a contingency fund for the conduct of recall elections. While the Commission has a line
item for the "Conduct and supervision of elections, referenda, recall votes and plebiscites" under the Program cate~ory of
its 2014 budget in the amount of Phpl.401.501.000.00, the said amount cannot be considered as "an appropriation made

by law" as required by the Constitution [Footnote 4 -Art. VI, Section 29 (1)] nor a contingent fund provided under the LGC
considering that the said line item is legally intended to finance the basic continuing staff support and administrative
operations of the Commission such as salaries of officials and employees as well as essential office maintenance and
other operating expenses. As such, it cannot be used for the actual conduct of recall elections.
Under the Revised Administrative Code, an appropriation may be used only for the specific purpose for which they are
appropriated, to wit:
"SECTION 32. Use of Appropriated Funds. - All moneys appropriated for functions, activities, projects and programs shall
be available solely for the specific purposes for which these are appropriated. "
In prior years, including election years such as 2007, 2010 and 2013, the Commission had a line item for the "Conduct
and Supervision of Elections and other Political Exercises" under the Program category of its budget. However, the said
line item was never utilized for the actual conduct of any elections or other political exercises including recall elections.
Again, the said line item has been consistently spent for the basic continuing staff support and administrative operations
of the Commission. This is because on top of the line item for the "Conduct and Supervision of Elections and other
Polftical Exercises" under the Program category, separate line items were provided by Congress for the conduct of the
"National and Local Elections," "SK and Barangay Elections" as well as "Overseas Absentee Voting" under the Locally
Funded Projects (Project) category of the Commission's 2007, 2010 and 2013 budget, to wit:
Year/GAA
2007

2010

Item Budget
Under Program
Conduct and Supervision
of Elections and Other
Political Exercises

Conduct and Supervision

of Elections and Other
Political Exercises

Amount

Item Budget
under Projects

P957,294,000 National and Local

Elections
SK and Barangay
Elections

Conduct and Supervision

of Elections and Other
Political Exercises

P5,128,969,000
P2,130,969,000

Overseas Absentee
Voting

P238,421,000

P1, Automated National

101,072.000 and Local Elections

P5,216,536,000

SK and Barangay
Elections
Overseas Absentee
Voting

2013

Amount

P1,452,752,000 Synchronized National,

Local and ARMM
Elections
SK and Barangay
Elections
Overseas Absentee
Voting

P3,241,535,000
P188,086,000
P4,585,314,000

P1,175,098,000
P105,036,000

Thus, all expenses relative to the actual conduct of elections were charged against the specific line items for "National and
Local Elections," "SK and Barangay Elections" and "Overseas Absentee Voting" under the Locally Funded Projects
category and not against the separate line item for the "Conduct and Supervision of Elections and other Political
Exercises" under the Program category.
This brings us to the relevance of classifying an agency's budget into two major catego.ries - Programs and Projects.
Their definitions are found in the 2014 Budget of Expenditures and Sources of Financing (BESF) submitted by the
President to Congress as required by the Constitution [Footnote 5 -Article VII, Sec. 22]. In the Glossary of Terms attached
to the 2014 BESF, a "Program" [Footnote 6 - Page 1015] is defined as "a homogenous group of activities necessary for
the performance of a major purpose for which a government agency is established, for the basic maintenance of the
agency s administrative operations or for the provisions of staff support to agency s administrative operations or for the
provisions of staff support to the agency '.s line functions." On the other hand, "Projects" are defined as "[s}pecial agency

undertakings which are to be carried out within a definite time frame and which are intended to result [in] some predetermined measures of goods and services."
Moreover, in the Organizational Perfom1ance Indicator Framework (OPIF) Reference Guide issued by the Department of
Budget and Management (DBM) itself, a "Program" is defined as "an integrated group of activities that contribute to a
particular continuing objective of a department/agency." [Footnote 7 - Page 36]
Hence, a budget under the category of "Program" is intended to finance the regular day-to-day activities of the
Commission for the continuing basic maintenance of its administrative operations. Those activities are regularly
undertaken by the Commission regardless of whether or not an election or any political exercises are being administered
by the Commission. With respect to budget under the category of "Project", it is intended to fund the special undertakings
or activities of the Commission which are not carried out on a regular day-today basis such as the actual administration of
elections and other political exercises including recall elections. Hence, it is illegal to proceed with any activity falling
within the definition of "Project" by using the budget intended to finance the activities within the scope of "Program." The
only instance when the Constitution allows the budget intended for "Program" to be used for "Project" is when there is a
valid augmentation.
Clearly, thus, the Commission's appropriations in the 2014 GAA does [sic] not include any line item for a contingency fund
for the specific purpose of conducting recall elections. In fact, the same has been true for all appropriations of the
Commission since 2005.
Allocating funds for the purpose of conducting recall elections would not only be illegal under the Supreme Court ruling in
Brillantes, Jr. v. Commission on Elections [Footnote 8 - G.R. No. 163193, 15 June 2004], it would likewise, and more
importantly, run afoul [of] the prohibition under Article VI, Section 29 (1) of the 1987 Constitution that "No money shall be
paid out of the Treasury except in pursuance of an appropriation made by law." The same prohibition is reiterated in the
Government Auditing Code of the Philippines [Footnote 9 - Presidential Decree No. 1445].
III. Augmentation is Not Possible.
III. a.) There is no Line Item for Recall Elections in the 2014 GAA.
Article VI, Section 25 (5) of the Constitution empowers the Chairman of the Commission, along with other heads of the
Constitutional Departments and Commissions, to augment any item in the general appropriations law, to wit:
"No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate,
the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices
from savings in other items of their respective appropriations."
Clearly, there are three (3) requisites for the valid exercise of the power to augment, namely:
1. There must be a law authorizing the Chairman to augment;
2. There must be a deficient existing line item in the general appropriations law to be augmented; and
3. There must be savings on the part of the Commission.
While there is a law authorizing the Chairman to augment a deficient appropriation (Sec. 67, General Provisions of the
2014 GAA), there is no existing line item in the Commission's budget for the actual conduct of a recall elections [sic].
Thus, augmentation is not possible in this case. III. b.) Recall Elections is not one of the Specific Purposes and Priorities
for Augmentation under the 2014 GAA.
Granting arguendo that the line item for the "Conduct and supervision of elections, referenda, recall votes and plebiscites"
under the Program category of the Commission's 2014 budget is also a line item for the conduct of recall elections, still,
augmentation cannot be made within the bounds of the law. Under Sec. 69 of the General Provisions of the 2014 GAA,
there are priorities in the use of savings, and [the conduct of] recall elections is not one of them, to wit:
"Sec. 69. Priority in the Use of Savings. Tn the use of savings, priority shall he given to the augmentation of the amounts
set aside for the payment of compensation, year-end bonus and cash gifi, retirement gratuity, terminal leave benefits, old

age pension of veterans and other personnel benefits authorized by law. and those expenditure items authorized in
agency special provisions and in other sections of the General Provisions in this Act."
Most importantly, under the 2014 GAA's Special Provisions for the Commission, the Chairman's power to augment is
limited to specific purposes only, which purposes do not include recall elections, to wit:
"2. Use of Savings. The COMELEC, through its Chairperson, is authorized to use savings from its appropriations to cover
actual deficiencies incurred for the current year and for the following purposes: (i) printing and/ or publication of decisions,
resolutions, and training information materials: (ii) repair, maintenance and improvement (?l central and regional offices,
facilities and equipment; (iii) purchase of equipment, books, journals and periodicals; (iv) necessary expenses for the
employment of temporary, contractual and casual employees; and (v) payment of extraordinary and miscellaneous
expenses, representation and transportation allowances, and other authorized benefits of its officials and employees,
subject to pertinent budgeting, accounting and auditing rules and regulations. "
Notably, the latter restriction aforequoted under the 2014 GAA is new and absent from General Appropriations Acts of
previous years. Hence, in the past, the Chairman could augment ANY deficient items in the Commission's budget. But
with the present legislative restrictions, augmentation is limited to certain purposes which, unfortunately, do not include
recall elections. IV. Personal and Criminal liabilities for
Violation of the GAA and the Revised Penal Code.
Not only will the use of the Commission's current funds for the conduct of recall elections be unconstitutional, it would
likewise open the responsible officials to possible personal and criminal liabilities.
Section 17 of the General Provisions of the 2014 GAA provides for the use of the current year's appropriation and spells
out the liability that will 'be faced by any official or employee who will authorize, allow or permit, as well as those who are
negligent in the performance of their duties and functions which resulted in the incurrence of obligations or commitments
by the government in violation of the provision of law, to wit:
"Sec. 17. Use of the Current Years Appropriations. All departments, bureaus and offices of the National Government,
including Constitutional Offices enjoying fiscal autonomy and sues shall ensure that appropriations in this Act shall be
disbursed only for the purposes authorized herein and incurred during the current year. x x x.
Officials and employees who will authorize, allow or permit, as well as those who are negligent in the performance of their
duties and functions which resulted in the incurrence of obligations or commitments by the government in violation of this
provision shall be personally liable to the government for the full amount obligated or committed, and subject to
disciplinary actions in accordance with Section 43, Chapter 5 and Section 80, Chapter 7, Book VI of E.O. No. 292, and to
appropriate criminal action under existing laws. "
It should be emphasized that mere utilization of a public fund to any public use other than for which such fund was
appropriated by law is considered as a criminal act under Article 220 of the Revised Penal Code even if no damage has
resulted to the public, to wit:
"Article 220. Illegal use of public funds or property. - Any public officer who shall apply any public fund or property under
his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall
suffer the penalty of prision correcciona/ in its minimum period or a fine ranging from one-half to the total of the sum
misapplied, if by reason of such misapplication, any damages or embarassment shall have resulted to the public service.
In either case, the offender shall also suffer the penalty of temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the penally shall be a fine from 5 to 50 per cent of the
sum misapplied."
V. The Conduct of Recall Elections may adversely affect the Commissions preparation's [sic] for [the} 2016 National and
Local Elections.
It should be noted that the instant petition is not the only move for the conduct of recall elections. In fact, another petition
is pending for the conduct of recall in the Province of Bulacan. Thus, should the Commission allow the present petition to
push through, it is equivalent to opening the floodgates for numerous other recall petitions which will result in multiple
counts of violation of the existing appropriation laws. Furthermore, the conduct of several recall elections may adversely

affect the ongoing preparations for the conduct of the May 9, 2016 National, Local and ARMM Elections, which the
Commission has commenced as far back as December of 2013.
VI. The only Solution is the Enaclment of a Law that will Appropriate Funds for the Conduct of Recall Elections.
One solution to the Commission's predicament on recall is the inclusion in the 2015 GAA of a contingency fund that may
be used by the Commiss.ion for the conduct of recall elections pursuant to Section 75 of the LGC. Hence, in the
Commission's budget proposal for 2015, the Commission included a budget in the amount of Php321,570,000.00 for
possible recall elections in 2015 considering that recall elections can still be conducted up to May of 2015.
An alternative solution is for persons interested in pursuing recall elections to adopt actions that may lead to the passage
by Congress of a supplemental (special) appropriations law for the FY 2014 for the conduct of recall elections. The same
may be suppo1ted by the Commission by certifying that such funds, which are presently lacking, are necessary to defray
expenses for the holding of recall elections, pursuant l.o Section 11, Art. IX(C) of the Constitution.
Relative to this matter, it is unwise to request additional funding from the DBM. Again, Section 29(1), Article VI of the
Constitution is clear that the expenditure of public funds must be pursuant to an appropriation made by law. Since only
Congress can enact laws [Footnote 10 - Section l, Article VI, Philippine Constitution], the DBM has no power to set aside
funds, more so allot to the Commission said funds, for an item of expenditure that is not provided in the Commission's
appropriations in the 2014 GAA.
It is likewise unwise for the Commission to request the partial use of the One Billion Peso (PHP1,000,000,000.00)
Contingent Fund under the 2014 GAA [Footnote 11 - Page 853]. True, Special Provision No. 1 does say that the
contingent fund may be used for "new and/or urgent projects and activities that need to be implemented during the year."
However, it also says that such fund "shall be administered by the office of the President." Given the circumstances, not a
few may interpret the Commission's request to use such fund from the Office of the President as an affront to the
independence of this Commission. This may in turn lead some quarters to view any recall process funded by the said
Contingent Fund as tainted and biased. Going through with this proposal would do more harm than good.
WHEREFORE, in view of all the foregoing, the Commission RESOLVED, as it hereby RESOLVES, not to continue with
any proceedings relative to recall as it does not have a line item budget or legal authority to commit public funds for the
purpose. Hence, until a law is passed by Congress appropriating funds for recall elections - either by approving the
Commission's budget proposal for FY 2015 or through a supplemental (special) appropriations for FY 2014 - any
proceeding relative t9 the instant petition for recall should be suspended further.
RESOLVED, further, that this Resolution shall be applied consistently to all other petitions for recall now pending or to be
pursued by interested parties subsequent hereto.
SO ORDERED.11
Resolution No. 9882 was signed, without comment or separate opinion, by Chairman Sixto S. Brillantes, Jr. and
Commissioner Elias R. Yusoph. Commissioner Lucenito N. Tagle voted in favor of the resolution and filed a
comment.12 Commissioner Christian Robert S. Lim concurred in the resolution, with the comment that "malversation
should be under Article 217 not 220 [of the Revised Penal Code]."13 Commissioners Maria Gracia Cielo M. Padaca, 14 AI
A. Parreno,15 and Luie Tito F. Guia16 wrote separate options.
Commissioner Tagle stated that "in order for the Commission to effectively undertake actions relative to recall petitions,
First, the budget proposal to Congress for the FY 201 5 should contain a specific line item appropriated for the funding of
the conduct of recall elections; or Second, if feasible, we can request a supplemental budget from Congress for the FY
2014 to specifically answer for the funding of recall proceedings."17
Commissioner Padaca called for a holistic look of the GAA. She submitted that "the allocation for the Commission in the
GAA is primarily geared toward our Constitutional mandate, that is, the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiat.ive, referendum, and recall xx x." 18Therefore, the
interpretation of the provisions of the GAA should be read with the intent to pursue COMELEC's mandate. Commissioner
Padaca further pointed out that the COMELEC was "able to conduct special elections in the first district of !locos Sur in
2011, Zam bales in 2012, and a plebiscite for the creation of Davao Occidental in 2013, all of which lack a specific line
item in the applicable GAA. The lack of a specific appropriation or line item in the GAA did not deter [COMELEC] from
conducting and supervising an electoral exercise that was legally called upon by the people." 19 However, Commissioner
20
Padaca recognized the limitations set by Section 2 of the 2014 GAA on the COMELEC's use of its savings.

In his separate opinion, Commissioner Parreno agreed with the factual findings of the FSD of the COMELEC and the
Office of the Chairman that the budget for the conduct of recall elections was not in the 2014 GAA. He quoted from the 24
March 2014 Memorandum to the FSD which stated that the Department of Budget and Management (DBM) did not
include a provision for expenses for recall elections for Fiscal Years 2013 and 2014. The memorandum stated that:
Please be informed that for the FY 2013 and 2014, there is no provision made by the DBM for any expenses for the recall
elections. A provision was made only in the previous years in the total amount of P1,000,000.00. What was provided for in
our FY 2014 budget was the regular expenses for the election activities - regular salaries of field employees and the
corresponding expenses for the regular activities of our office.21
The Office of the Chairman, on the other hand, submits the COMELEC's annual budget for the COMELEC En Bane's
approval and directs and supervises the operations and internal administrations of the COMELEC.
Commissioner Guia states that the majority opinion suggests that recall elections can only be funded through a
supplemental budget law. He opines that the majority adopts a strict interpretation of the budget law when it states that
there is no 1ine item for the conduct of recall elections in the 2014 GAA. Commissioner Guia proposes a liberal approach:
that the 2014 GAA should be construed as merely failing to provide sufficient funds for the actual conduct of recall
elections, and not as preventing COMELEC from exercising its constitutional mandate of conducting recall elections.
Commissioner Guia's liberal approach to interpreting the budget law makes the remedy of funding recall elections by way
of augmenting an existing line item from savings a theoretical possibility. Commissioner Guia, however, recognizes that
the GAA's Sec. 69 of the General Provisions and Sec. 2 of the Special Provisions for the COMELEC22 limit the items that
can be funded from the COMELEC's savings. He suggests that curative legislation be made to enable COMELEC to
perform its constitutional mandate.
Goh filed the present Petition on 6 June 2014.
The Issues
In his Grounds for filing the Petition, Goh stated:
26. Petitioner respectfully moves for (a) the PARTIAL ANNULMENT and REVERSAL of Resolution No. 9864, insofar as
the same directed the suspension of further action on the instant Recall Petition, and (b) the ANNULMENT AND
REVERSAL of Resolution No. 9882, on the ground that in their issuance, the respondent Commission committed grave
abuse of discretion amounting to lack or excess of jurisdiction when it failed to rule that:
I. THE 2014 GAA PROVIDES FOR AN APPROPRIATION OR LINE ITEM BUDGET TO SERVE AS A CONTINGENCY
FUND FOR THE CONDUCT OF RECALL ELECTIONS.
II. THE RESPONDENT COMMISSION MAY LAWFULLY AUGMENT ANY SUPPOSED INSUFFICIENCY IN FUNDING
FOR THE CONDUCT OF RECALL ELECTIONS BY UTILIZING ITS SAVINGS.
III. THE PROPER, ORDERLY AND LAWFUL EXERCISE OF THE PROCESS OF RECALL IS WITHIN THE EXCLUSIVE
POWER AND AUTHORITY OF THE RESPONDENT COMMISSION. IV. THE FACTUAL BACKDROP OF THIS CASE
DOES NOT WARRANT NOR JUSTIFY THE DEFERMENT OF ALL PROCEEDINGS ON RECALL PETITJONS.
27. Petitioner respectfully submits that an examination of the merits of this case, as well as the applicable laws and
entrenched legal precepts on the legal issues presented, will clearly establish an undeniable basis for the reversal of the
questioned Resolution Nos. 9864 and 9882.
28. Indeed, notwithstanding its finding that the Recall Petition filed by Petitioner Goh is sufficient in form and substance,
Respondent Commission nevertheless suspended the holding of a recall election supposedly through Jack of funding.
Petitioner respectfully submits that the same is a grave abdication and wanton betrayal of the Constitutional mandate of
the Respondent Commission and a grievous violation of the sovereign power of the people. What the Resolution Nos.
9864 and 9882 have given with one hand (the affirmation of the sufficiency of the Recall Petition), they have taken away
with the other (the funding issue, later claimed the issue of lack funding). 23
In his comment, Mayor Bayron provided the following grounds for the dismissal of the petition:

I. THE 2014 GENERAL APPROPRIATIONS ACT DOES NOT CARRY ANY SPECIFIC PARTICULAR ITEM FOR THE
CONDUCT OF RECALL ELECTIONS IN THE ClTY OF PUERTO PRINCESA, PROVINCE OF PALAWAN OR
ELSEWHERE;
A. The "power of the purse" belongs to the Congress and not with the Commission on Elections; B. Fiscal autc.momy of
the Commission on Elections operates within the parameters of the Constitution; C. There is no particular item for the
Conduct of Recall Elections in which to apply the provision on budget augmentation; [and]
D: ft is the Commission, in line with the present budget, that has the authority to determine the presence and possibility of
augmentation.
II. PROGRAM AND PROJECT HAVE BEEN CLEARLY DIFFERENTIATED BY THE COMMISSION ON ELECTIONS;
III. THE 2014 GENERAL APPROPRIATIONS ACT PRESENTS A SPECIAL PROVISION WHICH WAS ABSENT IN THE
PREVIOUS GENERAL APPROPRIATIONS ACT THEREBY FURTHER LIMITING THE COMELEC'S EXERCISE OF
AUGMENTATION;
IV. BUDGET CAN STILL BE ALLOCATED BY CONGRESS THROUGH THE ENACTMENT AND PASSAGE OF A 2014
SUPPLEMENTAL BUDGET OR THROUGH THE 2015 GENERAL APPROPRIATIONS ACT;
V. GOVERNMENT FUNDS SHOULD NOT BE SPENT TO SUPPORT ILLEGAL AND PREMATURE INSTITUTION OF
RECALL; [and]
VI. POLITICS IS A PRACTICAL MATTER, AND POLITICAL QUESTIONS MUST BE DEALT WITH REALISTICALLY. 24
The COMELEC, through the Office of the Solicitor General, argued that;
I. RESPONDENT COMELEC EN BANC DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN SUSPENDING
PROCEEDINGS RELATIVE TO THE RECALL PETITION FILED AGAINST RESPONDENT MAYOR LUCTLO R.
BAYRON OF PUERTO PRINCESA CITY.
A. The 2014 GAA does not provide for an appropriation or line item to serve as contingency fund for the conduct of Recall
Elections.
B. Any activity falling within the definition of a "Project," such as Recall Elections, cannot validly proceed by using the
budget intended to finance the activities within the scope of "Programs." C. Respondent COMELEC may not lawfully
utilize its savings to augment any insufficiency in the funding for recall elections.
II. THE RECALL ELECTIONS BEING SOUGHT BY PETITIONER MAY PROCEED ONLY IF A LAW IS ENACTED
APPROPRIATING FUNDS THEREFOR.
III. PETITIONER IS NOT ENTITLED TO THE ISSUANCE OF A WRIT OF PRELIMINARY MANDATORY INJUNCTION. 25
The Court's Ruling
We grant the petition. We hold that the COMELEC committed grave abuse of discretion in issuing Resolution Nos. 9864
and 9882.1wphi1 The 2014 GAA provides the line item appropriation to allow the COMELEC to perform its constitutional
mandate of conducting recall elections. There is no need for supplemental legislation to authorize the COMELEC to
conduct recall elections for 2014.
The COMELEC's Fiscal Autonomy
The 1987 Constitution expressly provides the COMELEC with the power to "[e]nforce and administer alE laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." 26 The 1987 Constitution not
27
only guaranteed the COMELEC's fiscal autonomy, but also granted its head, as authorized by law, to augment items in
28
29
its appropriations from its savings. The 2014 GAA provides such authorization to the COMELEC Chairman.
The COMELECs budget in the 2014 CAA

Goh asserts that the 2014 GAA provided COMELEC with an appropriation for the conduct of recall elections in the total
amount of PhP2,735,321,000. As evidence, Goh reproduced the COMELEC's budget allocation in the 2014 GAA:
PS
PROGRAMS

MODE

CO

TOTAL

1,937,544,000

450,937,000

2,388,481,000

454,457,000

276,749,000

731,206,000

1,483,087,000

174,184,000

1,657,275,000

PROJECTS

500,000

120,816,000

225,524,000

346,840,000

Localty-funded
Projects

500,000

120,816,000

225,524,000

346,,840,000

1,938,044,000

571,753,000

225,524,000

2,735,321,00030

General
Administration
& Support
Operations

TOTAL NEW
APPRO.

Goh further pointed out that the COMELEC has PhP1,483,087,000 appropriated under Operations, and that the PhP
1,401,501,000 for current operating expenditure is allocated per region as follows:
National Capital Region

74,356,000

Region I - Ilocos

97,350,000

Region II - Cagayan Valley

69,302,000

Cordillera Administrative Region (CAR)

63,120,000

Region III - Central Luzon

1 I 2,896,000

Region IV-A - CALABARZON

183,390,000

Region V Bicol

92,944,000

Region VI - Western Visayas

23,252,000

Region VII - Central Visayas

108,093,000

Region VIII - Eastern Visayas

106,144,000

Region IX - Zamboanga Peninsula

56,636,000

Region X- Northern Mindanao

76,864,000

Region XI - Davao

51,639,000

Region XII - SOCCSKSARGEN

44,982,000

Region XIII - CARAGA

59,481,000

Autonomous Region in Muslim

Mindanao (ARMM)

81,052,00031

Goh further states that COMELEC's personnel themselves admitted to the existence of a contingency fund for the lawful
conduct of recall elections. Atty. Maria Lea R. Alarkon, Acting Director III of the COMELEC's FSD, during the 3 September
2013 budget hearing before the Senate's Subcommittee A of the Committee on Finance, stated:

Your Honors, for the specifics of our MFO [Major Final Output] budget, x x x conduct and supervision of elections,
referenda, recall and plebiscites, 1,527,815,000; x x x.32 (Emphasis supplied)
Goh also cited an online news article which quoted COMELEC spokesperson James Jimenez saying that "lack of budget
(should) not (be) an issue. xx x We always have a 'standby' budget for recall, plebiscite, etc." and adding that the
successful holding of any recall elections, referendum or plebiscite is the fundamental mandate of the COMELEC.33
Finally, Goh presented a letter dated 28 May 2014 from Rep. Isidro T. Ungab, Chairman of the House of Representatives'
Committee on Appropriations, addressed to Hon. Douglas S. Hagedorn, Representative of the Third District of Palawan.
The letter stated that "[t]he FY 2014 budget of the COMELEC as authorized in the FY 2014 General Appropriations Act
amounts to P2,735,321,000, of which P1,401,501,000 is appropriated for the conduct and supervision of elections,
referenda, recall votes and plebiscites."34
The COMELEC, through the Solicitor General, classifies Goh's assertions as misleading. To illustrate the lack of
appropriation or line item for a contingency fund for the conduct of recall elections in the 2014 GAA, the COMELEC
countered:
The amount of PhP 1,483,087,000 referred to by [Goh] allegedly for the conduct and supervision of election, referenda,
recall votes and plebiscites, actually refers to operating expenditures for "Personnel Services," under the program
"Regulation of Elections."
The amount of PhP 1,401,501,000, on the other hand, is the total amount allotted for "Personnel Services"
(PhP1,360,975,000) and "Maintenance and Other Operating Expenses" (PhP40,526,000) for Regional Allocation.35
The COMELEC reiterated pertinent portions of Resolution No. 9882,36 thus:
x x x While x x x the Commission has a line item for the "Conduct and supervision of elections, referenda, recall votes and
plebiscites" under the Program category of its 2014 budget in the amount of Php 1,401,501,000.00, the said amount
cannot be considered as "an appropriation made by law" as required by the Constitution [Footnote 17 -Art. VI, Section 29
(I)] nor a contingent fund provided under the LGC considering that the said line item is legally intended to finance the
basic continuing staff support and administrative operations of the Commission such as salaries of officials and
employees as well as essential office maintenance and other operating expenses. As such, it carmot be used for the
actual conduct of recall elections.
xxxx
In prior years, including election years such as 2007, 2010 and 2013, the Commission had a line item for the "Conduct
and Supervision of Elections and other Political Exercises" under the Program category of its budget. However, the said
line item was never utilized for the actual conduct of any elections or other political exercises including recall elections.
Again, the said line item has been consistently spent for the basic continuing staff support and administrative operations
of the Commission. This is because the top of the line item for the "Conduct and Supervision of Elections and other
Political Exercises" under the Program category, separate line items were provided by Congress for the conduct of the
"National and Local Elections," "SK and Barangay Elections" as well as "Overseas Absentee Voting" under the Locally
Funded Projects (Project) category of the Commission's 2007, 2010 and 2013 budget, to wit:

Year/GAA
2007

Item Budget
Under
Program
Conduct and Supervision of
Elections and
Other Political
Exercises

Amount

Item Budget
under Projects

P957,294,000 National and

Local Elections
SK and Barangay
Elections
Overseas
Absentee Voting

Amount
P5,128,969,000
P2,130,969,000
P238,421,000

2010

Conduct and Supervision of

Elections and
Other Political
Exercises

P1,101,072.000 Automated
National and
Local Elections
SK and Barangay
Elections
Overseas
Absentee Voting

2013

Conduct and Supervision of

Elections and
Other Political
Exercises

P5,216,536,000

P3,241,535,000
P188,086,000

P1,452,752,000 Synchronized
P4,585,314,000
National, Local
and ARMM Elections
SK and Barangay
Elections
Overseas
Absentee Voting

P1,175,098,000
P105,036,000

Despite Resolution No. 9882's statement about the alleged failure of the 2014 GAA to provide for a line item appropriation
for the conduct of recall elections, we hold that the 2014 GAA actually expressly provides for a line item appropriation for
the conduct and supervision of recall elections. This is found in the Programs category of its 2014 budget, which the
COMELEC admits in its Resolution No. 9882 is a "line item for the 'Conduct and supervision of elections, referenda, recall
votes and plebiscites.'" In addition, one of the specific constitutional functions of the COMELEC is to conduct recall
elections. When the COMELEC receives a budgetary appropriation for its "Current Operating Expenditures," such
appropriation includes expenditures to carry out its constitutional functions, including the conduct of recall elections. Thus,
37
in Socrates v. COMELEC (Socrates), recall elections were conducted even without a specific appropriation for recall
elections in the 2002 GAA.
In Socrates, the COMELEC conducted recall elections for mayor of Puerto Princesa City, Palawan on 24 September
2002. At the time, the COMELEC found no reason to raise any concern as to the funding of the 24 September 2002 recall
elections. The COMELEC's budget in the 2002 GAA provided for the following:
New Appropriations, by Program / Project
Current Operating Expenditures

Personal
Services
A. PROGRAMS
l. General
Administration and
Support
a. General
Administration and
Support Services
Sub-total, General
Administration and
Support
II. Support to
Operations
a. Conduct and
Supervision of
Elections and Other

Maintenance
and Other
Operating
Expenses

Capital
Outlays

Total

P171,608,000

P66,201,000

P237,809,000

171,608,000

66,201,000

237,809,000

6,739,000

7,830,000

14,569,000

Political Exercises
b. Legal Service.s and
Adjudication of
Election Contests
Sub-total, Support to
Operations
III. Operations
a. Conduct and
Supervision of
Elections and Other
Political Exercises
b. Legal Services and
Adjudication of
Election Contests
c. Conduct and
Supervision of
Elections and Other
Political Exercises

4,255,000

1,545,000

5,800,000

10,994,000

9,375,000

20,369,000

38,105,000

57,685,000

95,790,000

21,629,000

4,776,000

26,405,000

765,537,000

23,122,000

788,659,000

825,271,000

85,583,000

910,854,000

1,007,873,000

161,159,000

1, 169,032,000

Sub-total, Operations
Total, Programs.
B. PROJECT(S)
I. Locally-funded
Project(s)
a. For the
modernization of
Electoral System
b. Honorarium of
Election Registration
Board

500,000,000
24,480,000

500,000,000
24,480,000

c. For the Holding of

Barangay Elections

554,243,000

545,757,000

1,100,000,000

Sub-total, Locallyfunded Project(s)

578,723,000

545,757,000

500,000,000

578,723,000

545,757,000

500,000,000

P1,586,596,000

P706,916,000

P500,000,000

1,624,480,000

Total, Projects
TOTAL NEW
APPROPRIATIONS

P2,793,512,000

In the 2002 GAA, the COMELEC had PhP910,854,000 appropriated under Operations, and that the PhP788,659,000 for
current operating expenditure was allocated per region as follows:
National Capital Region

41,708,000

Region I

57,269,000

Cordillera Administrative Region (CAR)

34,975,000

Region II

40,813,000

Region III

63,799,000

Region IV

103 ,689 ,000

Region V

54,911,000

Region VI

68,236,000

Region VII

62,421,000

Region VIII

61,655,000

Region IX

48,318,000

Region X

57,308,000

Region XI - Davao

45,150,000

Region XII

48,407,000

Under these factual circumstances, we find it difficult to justify the COMELEC's reasons why it is unable to conduct recall
elections in 2014 when the COMELEC was able to conduct recall elections in 2002 despite lack of the specific words
"Conduct and supervision of x x x recall votes x x x" in the 2002 GAA. In the 2002 GAA, the phrase "Conduct and
supervision of elections and other political exercises" was sufficient to fund the conduct of recall elections. In the 2014
GAA, there is a specific line item appropriation for the "Conduct and supervision of x x x recall votes x x x."
More importantly, the COMELEC admits in its Resolution No. 9882 that the COMELEC has "a line item for the 'Conduct
and supervision of elections, referenda, recall votes and plebiscites.'" This admission of the COMELEC is a correct
interpretation of this specific budgetary appropriation. To be valid, an appropriation must indicate a specific amount and a
specific purpose. However, the purpose may be specific even if it is broken down into different related sub-categories of
the same nature. For example, the purpose can be to '"conduct elections," which even if not expressly spelled out covers
regular, special, or recall elections. The purpose of the appropriation is still specific - to fund elections, which naturally and
logically include, even if not expressly stated, not only regular but also special or recall elections.
The COMELECs Savings
Nowhere in the COMELEC's comment, however, does it dispute the existence of savings. In the transcript of the hearing
for the COMELEC's 2014 budget, the COMELEC estimated to have PhPl0.7 billion savings around the end of 2013.
However, since the DBM did not include a line budget for certain items,. Chairman Brillantes estimated that the PhP 10.7
billion savings will be reduced to about PhP2 billion after the COMELEC augments expenses for the purchase of its land,
warehouse, building, and the overseas absentee voting. This estimate was made under the assumption that the 2014
GAA will provide a line item budget for the COMELEC's land, warehouse, building, and the overseas absentee voting.
In his opening remarks before the Senate Committee on Finance, Chairman Brillantes underscored the need for a line
item budget for certain items that the COMELEC can subsequently augment based on its savings. Chairman Brillantes
was aware that an item without a line budget cannot be funded by savings.
MR. BRILLANTES. 2014 is a non-election year, your Honor. Therefore, the budget that the Commission on Elections
would be asking will not really be too much. We, in fact, asked for five billion, which is much, much lower than all of our
previous budgets but this has been cut by the DBM to only 2.8.
Now, 2.8 is already acceptable to the Commission on Elections. There are only some slight requests that we are going to
ask. Since the 2.8 reduction actually cut off our projects, like we intend to set up our own building and purchase land. All
that we are asking is that in previous years we have been given a line budget for one million at least which we can
augment based on our savings. All that we ask is that we be given another line item for land, building and warehouse.
Even at one million each or two million each and we will take care of the augmentation as we have enough savings which
we have tried to accumulate during the past years which we can set up our own land, building and warehouse. So we
would request that we realign, not necessarily getting from other agencies, the amount of three million or six million as the
case may be, but get it from the same budget that we have so that we will not touch the budget of other agencies. We
have special budget for JSSP, and this is at 226 million. We can reduce this to 220 million and put the six million to two
million each for land, building and warehouse so we can cover it.
THE CHAIRMAN (SEN. [FRANCIS G.] ESCUDERO). Noted.

Noted, Mr. Chairman. Thank you.

MR. BRILLANTES. Yes, Your Honor. In addition to this let me just point out, Your Honor, that this year, we are holding the
barangay elections this corning October 28. While we did, in fact, ask for a budget last year for the 2013 elections for
barangay, we were only given by Congress as well as the President 1.1 billion. What we intend [for] our budget for the
October 28 barangay elections is based on our computations, 3 .4 billion. So on the basis of that, we are going to have to
set aside from our own savings 2.3 billion to cover for the entire barangay elections. So we are setting aside 2.3 billion
from our own savings so that we can cover the 3.4 billion that we expect to actuaJly spend for the October 2013 barangay
elections, meaning that the I. I plus 2.3 would be the 3.4. Therefore, that would cut off into our savings but we are willing
to sacrifice for this.
With this, Your Honor, we are ready to present our budget which is not really much. It is only 2.8 billion.
Now, we are also - we would like also to mention by way of an addition [sic] final statement, Your Honor. We were given
zero budget for the COAV (Committee on Overseas Absentee Voting], the overseas voting, zero budget. We can
understand that there has been some, well, reservations in Congress as well as the President because of the poor
performance in the COAV. However, there is a new law now which requires the establishment of an office for the
overseas voting. And this new Jaw provides that the coverage is supposed to allocate a certain amount for the
appropriation for this new office for COAV. However, this law was passed after DBM had already submitted its budget to
Congress and therefore it is not allocated. It is not provided for under the submitted budget.
Now, we have some - we can provide for some amounts again for COAV but we would need at least another line item for
this no matter how big. We were asking for about 60 million which is reaJly not much. We can take it out from our own
savings but we have to have a line item also for this and then we would ask that Congress provide - as provided for by the
new law that new amounts be given to us, even another 60 million, so we can cover our preparations for the the overseas
voting for the 2016. x x x.
xxxx
THE CHAIRMAN (SEN. ESCUDERO). x x x. Second, Mr. Chairman, you were mentioning a while ago the savings of the
COMELEC. May we know how much exactly is the savings of the COMELEC? Kasi kaya n'yo palang punuan yung kulang
ng barangay election. Kaya n'yo palang magpagawa ng building.
MR. BRILLANTES. Tama ho iyon. Kaya ho namin kaya lang masasaktan ho yung bibilhin naman naming lupa at saka
building. Kasi ho 2.3 ang iaabono namin sa barangay. That is why if you will notice, as soon as we finished the May
elections, May 2013 elections, I immediately announced that we were praying na kung pwede i-postpone na natin yung
barangay saka SK.
THE CHAIRMAN (SEN. ESCUDERO). I heard that but how?
MR. BRILLANTES. Pero sinabi ng Presidente tuloy, so tuloy tayo kako. Because we only have l. J billion budget and we
need about three billion plus, so we know it will cut on our savings. Yung savings ho namin pag titgnan ho, mahaba hong
kwento yung savings namin. Pag makikita ninyo yung notes ninyo, nag-uurnpisa sa 10. 7 billion, parang napakalaki. Pero
hindi ho totoo iyon. Ten point seven billion, marami hong natatanggal diyan. Natanggalan kami ng 2.3 sa barangay,
rnararni pa ho kaming utang na hindi binabayaran, sa Smartmatic meron pa
THE CHAIRMAN (SEN. ESCUDERO). Wala pa ho tayo duon. Sa ngayon Jang ho, magkano ho yung savings ng
COMELEC?
MR. BRILLANTES. Ngayon ho siguro mga 2B.
THE CHAIRMAN (SEN. ESCUDERO). Binawas n'yo na yung 2.4 sa barangay.
MR. BRILLANTES. Tanggal ng lahat po yung barangay, yung mga utang na dapat naming bayaran, obligasyon. At saka
iyon ni-reserve namin, in-obligate na namin para sa lupa at saka sa building ...
THE CHAIRMAN (SEN. ESCUDERO). Sa building.
MR. BRILLANTES .... which is about three.

xxxx
THE CHAIRMAN (SEN. ESCUDERO). Now, two more points, Mr. Chairman. On the use of savings within the NEP as
provided for, nakalagay ho di to yung reuse of savings ninyo for repair, for printing, for purchase of equipme'nt. Ang
sinasabi niyo po, ang kailangan may prov'ision. Are you asking for a provision in the special provisions to allow you to use
savings for your building or do you want an item or is it the same?
MR. BRTLLANTES. We need a line item for it, Your Honor, because we had some debates with then - of the Senate
President, who was then the Committee Finance chairman during previous proceedings ...
THE CHAIRMAN (SEN. ESCUDERO). Na?
MR. BRILLANTES .... na meron - bumibili na ho kami ng lupa, nakapag-down payment na nga kami ng 200 million, pero
wala pala kaming line budget for purchase of land.
THE CHAIRMAN (SEN. ESCUDERO). But was there a use of savings provisions similar to what we have in the proposed
2014 budget in 2013?
MR. BRILLANTES. Meron ho kami, yeah, we have the savings.
THE CHAIRMAN (SEN. ESCUDERO). May use of savings provision din?
MR. BRILLANTES. Yes, we can use to augment but there has to be a line budget. We cannot augment if it is zero. Yun
ang naging argument nun. So we ask for the Committee on Finance then for a one million kuwan, kami na ang bahalang
mag-augment. Binigyan naman kami for 2013 for the land at saka warehouse. Binigyan kami tigwa-one million, so we can
augment. But we did not have time to work on it ngayong 2013 because of the elections at saka meron pa hong barangay.
So we might have to make - apply this in 2014 ...
THE CHAIRMAN (SEN. ESCUDERO). For that matter
MR. BRILLANTES .... If we don't have any line item now, we might have a problem in 2014. THE CHAIRMAN (SEN.
ESCUDERO). For that matter, pwede rin naman piso po yun, 'di ba? Pareho Jang naman. It's the same.
MR. BRILLANTES. Pwede rin ho. Pero sinasabi nga namin
THE CHAIRMAN (SEN. ESCUDERO). All you need is an item, right?
MR. BRILLANTES. Sina-suggest ko nga ho kanina sa opening statement ko, meron kami dun sa ISSP na 226 million ...
THE CHAIRMAN (SEN. ESCUDERO). Yun na lang din ang pagkunan.
MR. BRILLANTES. . .. yung six million na lang ang tanggalin, gawin na lang 220, kasya na yun dun sa ISSP namin,
bigyan na lang kami ng tigto-two million dun sa six, hindi kami kukuha sa ibang agencies, sa amin din.
THE CHAIRMAN (SEN. ESCUDERO). Within the agency din?
MR. BRILLANTES. Yes, para hindi ho tayo magkaproblema.
THE CHAIRMAN (SEN. ESCUDERO). That's for two items, right?
MR. BRILLANTES. Yes.
THE CHAIRMAN (SEN. ESCUDERO). Two or three items?
MR. BRILLANTES. Actually, four ho yun, tatlo sa
THE CHAIRMAN (SEN. ESCUDERO). Land, building

MR. BRILLANTES. Land, building and warehouse, tapos yung

overseas kasarna pa ho.
THE CHAIRMAN (SEN. ESCUDERO). Pang-apat yung OAV?
MR. BRILLA TES. Pang-apat ho yun.

38

The COMELEC s Alleged Lack of Authority

to Augment the "Project" "Recall Elections" from Savings
Despite the PhP2 billion to PhP10.7 billion savings ex1stmg in the COMELEC's coffers, the COMELEC asserts that it
cannot legally fund the exercise of recall elections. The power to augment from savings lies dormant until authorized by
39
law. Flexibility in the use of public funds operates only upon legislative fiat.
x x x However, to afford the heads of the different branches of the government and those of the constitutional
commissions considerable flexibility in the use of public funds and resources, the constitution allowed the enactment of a
law authorizing the transfer of funds for the purpose of augmenting an item from savings in another item in the
appropriation of the government branch or constitutional body concerned. The leeway granted was thus limited. The
purpose and conditions for which funds may be transferred were specified, i.e. transfer may be allowed for the purpose of
augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the
government branch or constitutional body.40
The COMELEC cited the following provisions in the 2014 GAA to justify its lack of authority to augment expenses for the
conduct of recall elections from its existing savings:
Special Provisions for the COMELEC
2. Use of Savings. The COMELEC, through ils Chairperson, is hereby authorized to use savings from its appropriations to
cover actual deficiencies incurred for the current year and for the following purposes: (i) printing and/or publication of
decisions, resolutions, and training information materials; (ii) repair, maintenance and improvement of central and regional
offices, facililies and equipment; (iii) purchase of equipment, books, journals and periodicals; (iv) necessary expenses for
the employment of temporary, contractual and casual employees; and (v) payment of extraordinary and miscellaneous
expenses, representation and transportation allowances, and other authorized benefits of its officials and employees,
subject to pertinent budgeting, accounting and auditing rules and regulations.
General Provisions in the 2014 GAA
Sec. 67. Use pf Savings. The President of the Philippines, the Senate President, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in their respective appropriations to augment actual
deficiencies incurred for the current year in any item of their respectiv:e appropriations.
Sec. 68. Meaning of Savings and Augmentation. Savings refer to portions or balances of any programmed appropriation
in this Act free from any obligation or encumbrance which are (i) still available after the completion or final discontinuance
or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriation balances
arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and
(iii) from appropriation balances realized from the implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services
approved in this Act at a lesser cost.
Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon
implementation or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a nonexistent program.,activity, or project be funded by augmentation from savings or by the use of appropriations otherwise
authorized in this Act.
Sec. 69. Priority in the Use of Savings. In the use of savings, priority shall be given to the augmentation of the amounts
set aside for the payment of compensation, year-end bonus and cash gift, retirement gratuity, terminal leave benefits, old-

age pension of veterans and other personnel benefits authorized by law, and those expenditure items authorized in
agency special provisions and in other sections of the General Provisions in this Act. (Boldfacing and underscoring
supplied)
Commissioner Guia, in his Separate Opinion, stressed the disconnection between the COMELEC's mandate and the lack
of a line budget item for the conduct of recall elections.
At this point Jet it be stated that there is a provision in the GAA limiting the items that can be funded from realignment of
savings. See Section 69 of the General Provisions and Section 2 of the Special Provision for COMELEC in the 2014 GAA.
Providing for the conduct of recall votes is not one of them. This limitation effectively establishes a clash between the
COMELEC's constitutional mandate as an independent constitutinnal body to administer recall elections and the power of
Congress to appropriate public funds.
This clash can simply be avoided by a curative legislation that would enable COMELEC to perform its constitutional
mandate while at the same time recognizing the power of Congress to allocate public funds. Unless there are other lawful
means by which the conduct of recall elections can be funded, COMELEC's hands are tied by the way the GAA is worded.
41
The ball is now in the hands of Congress.
Resolution No. 9882 proposed alternative sources for funding recall elections:
One solution to the Commission's predicament on recall is the inclusion in the 2015 GAA of a contingency fund that may
be used by the Commission for the conduct of recall elections pursuant to Section 75 of the LGC. Hence, in the
Commission's budget proposal for 2015, the Commission included a budget in the amount of Php321,570,000.00 for
possible recall elections in 2015 considering that recall elections can still be conducted up to May of 2015.
An alternative solution is for persons interested in pursuing recall elections to adopt actions that may lead to the passage
by Congress of a supplemental (special) appropriations law for the FY 2014 for the conduct of recall elections. The same
may be supported by the Commission by certifying that such funds, which are presently lacking, are necessary to defray
expenses for the holding of recall elections, pursuant to Section 11, Art. IX(C) of the Constitution. 42
There is no clash between the COMELEC and Congress. We reiterate that the 2014 GAA provides a line item
appropriation for the COMELEC's conduct of recall elections. Since the COMELEC now admits that it does not have
sufficient funds from its current line item appropriation for the "Conduct and supervision of x x x recall votes xx x" to
conduct an actual recall election, then there is therefore an actual deficiency in its operating funds for the current year.
This is a situation that allows for the exercise of the COMELEC Chairman's power to augment actual deficiencies in the
item for the "Conduct and supervision of x x x recall votes x x x" in its budget appropriation.1wphi1
The COMELEC, in Resolution No. 9882, admitted the existence of a line item appropriation for the "Conduct and
supervision of x x x recall votes x x x":
A careful review of the Commission's budget under the 2014 GAA reveals that it does not have any appropriation or line
item budget (line item) to serve as a contingency fund for the conduct of recall elections. While the Commission has a line
item for the "Conduct and supervision of elections, referenda, recall votes and plebiscites" under the Program category of
its 2014 budget in the amount of Phpl,401,501,000.00, the said amount cannot be considered as "an appropriation made
by law" as required by the Constitution lFootnote 4 - Arl. VI, Section 29 (I)] nor a contingent fund provided under the LGC
considering that the said line item is legally intended to finance the basic continuing staff support and administrative
operations of the Commission such as salaries of officials and employees as well as essential office maintenance and
other operating expenses. As such, it cannot be used for the actual conduct of recall elections. (Emphasis supplied)
However, contrary to the COMELEC's assertion, the appropriations for personnel ser-Vices and maintenance and other
operating expenses falling under "Conduct and supervision of elections, referenda, recall votes and plebiscites" constitute
a line item which can be augmented from the COMELEC's savings to fund the conduct of recall elections in 2014. The
conduct of recall elections requires only operating expenses, not capital outlays. The COMELEC's existing personnel in
Puerto Princesa are the same personnel who will evaluate the sufficiency of the recall petitions. and conduct the recall
elections.43
Moreover, the line item appropnation for the "Conduct and supervision of x x x recall votes x x x" in the 2014 GAA is
sufficient to fund recall elections. There is no constitutional requirement that the budgetary.appropriation must be loaded
in "contingent funds." The Congress has plenary power to lodge such appropriation in current operating expenditures.
Going back to the circumstances of the 2002 recall elections in Puerto Princesa, the 2002 GAA provided for the following:

1. Special Audit. The appropnat1ons herein authorized for the Commission for registration, plebiscite, referendum and
election purposes shall be used exclusively for the purpose for which these are intended. Special Audit shall be
undertaken by the Commission on Audit (COA) on all expenses for printing jobs, materials and paraphernalia to be used
for registration, plebiscite, referendum and election purposes. Copies of the COA report shall be furnished the Legislature
within one month after such audit.
2. Augmentation of the Appropriations for Barangay Elections. The appropriations authorized herein for the holding of
barangay elections may be augmented by COMELEC savings not exceeding Three Hundred Million Pesos
(P300,000,000.00) if upon implementation or subsequent evaluation, the needed resources for the holding of said election
is determined to be deficient.
3. Appropriations for Programs and Specific Activities. The amounts herein appropriated for the programs of the agency
shall be used specifically for the following activities in the indicated amounts and conditions: x x x.
General Provisions in the 2002 GAA
Sec. 51. Modification of Expenditure Components. Unless specifically authorized in this Act, no change or modification
shall be made in the expenditure items authori:t.ed in this Act and other appropriations laws unless in cases of
augmentations from savings in appropriations as authorized under Section 25(5), Article Vl of the 1987 Philippine
Constitution.
53. Use of Savings. The President of the Philippines, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions under Article IX of the
1987 Constitution, the Ombudsman, and the Chairman of the Commission on Human Rights are hereby authorized to
augment any item in this Act for their respective offices from savings in other items of their respective appropriations. Sec.
54. Meaning of Savings and Augmentation. Savings refer to portions or balances of any programmed appropriation in this
Act free from any obligation or encumbrance still available after the completion or final discontinuance or abandonment of
the work, activity or purpose for which the appropriation is authorized, or arising from unpaid compensation and related
costs pertaining to vacant positions and leaves of absence without pay.
Augmentation implies the existence in this Act of an item, project, activity, or purpose with an appropriation which upon
implementation or subsequent evaluation of needed resources is determined to be deficient. In no case, therefore, shall a
non-existent item, project, activity, purpose or object of expenditure be funded by augmentation from savings or by the
use of appropriations otherwise authorized in this Act.
Sec. 55. Priority in the Use of Savings. Jn the use of savings, priority shall be given to the augmentation of the amounts
set aside for compensation, year-end bonus and cash gift, retirement gratuity, terminal leave benefit, old-age pension of
veterans and other personnel benefits authorized by law, and those expenditure items authorized in agency Special
Provisions and in Section 16 and in other Sections of the General Provisions of this Act. (Boldfacing and underscoring
supplied)
We thus find unnecessary the COMELEC's protests regarding the difference between "Projects" and "Programs" for their
failure to allocate funds for any recall process in 2014.
x x x The constitutional test for validity is not how itemized the appropriation is down to the project level but whether the
purpose of the appropriation is specific enough to al low the President to exercise his lineitem veto power. Section 23,
Chapter 4, Book VI of the Administrative Code provides a stricter requirement by mandating that there must be a
corresponding appropriation for each program and for each project. A project is a component of a program which may
have several projects. A program is equivalent to the specific purpose of an appropriation. An item of appropriation for
school-building is a program, while the specific schools to be built, being the identifiable outputs of the program, are the
projects. The Constitution only requires a corresponding appropriation for a specific purpose or program, not for the sub44
set of projects or activitics. (Emphasis supplied)
Considering that there is an existing line item appropriation for the conduct of recall elections in the 2014 GAA, we see no
reason why the COMELEC is unable to perform its constitutional mandate to "enforce and administer all laws and
45
regulations relative to the conduct of x x x recall." Should the funds appropriated in the 2014 GAA be deemed
insufficient, then the COMELEC Chairman may exercise his authority to augment such line item appropriation from the
COMELEC's existing savings, as this augmentation is expressly authorized ]n the 2014 GAA.
WHEREFORE, the petition is GRANTED.

We PARTIALLY REVERSE and SET ASIDE Resolution No. 9864 insofar as it directed the suspension of any and all
proceedings in the recall petition. We REVERSE and SET ASIDE Resolution No. 9882, and DIRECT the Commission on
Elections to immediately carry out the recall elections of Mayor Lucilo R. Bayron of Puerto Princesa City, Palawan in
accordance with the provisions of the Local Government Code and COMELEC Resolution No. 7505.
This Decision is immediately executory.
SO ORDERED.

F. Local Initiative and Referendum (Secs. 120 127, Arts. 133 153 IRR)
G.R. No. 111230 September 30, 1994
ENRIQUE T. GARCIA, ET AL. vs. COMMISSION ON ELECTIONS and SANGGUNIANG BAYAN OF MORONG,
BATAAN
PUNO, J.:
The 1987 Constitution is borne of the conviction that people power can be trusted to check excesses of government. One
of the means by which people power can be exercised is thru initiatives where local ordinances and resolutions can be
enacted or repealed. An effort to trivialize the effectiveness of people's initiatives ought to be rejected.
1

In its Pambayang Kapasyahan Blg. 10, Serye 1993, the Sangguniang Bayan ng Morong, Bataan agreed to the inclusion
of the municipality of Morong as part of the Subic Special Economic Zone in accord with Republic Act
No. 7227.
On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan
Blg. 10, Serye 1993. The petition states:
I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye 1993 ng Sangguniang Bayan para sa
pag-anib ng Morong sa SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang Kapasiyahan na aanib lamang ang Morong sa SSEZ kung ang mga sumusunod na
kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng Morong at Bataan:
(A). Ibalik sa Bataan ang "Virgin Forests" isang bundok na hindi nagagalw at punong-puno ng malalaking punongkahoy at iba'-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan.
(K). Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkakaloob ng
pamahalaang national o "Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa Lalawigan.
(D). Payagang magtatag rin ng sariling "special economic zones" ang bawat bayan ng Morong, Hermosa at Dinalupihan.
(E). Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.
(G). Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.
(H). Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa magbukas pa ng pinto sa
hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin ang mga nasabing bayan,
pati na rin ng iba pang bayan ng Bataan.
(I). Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa kabutihan ng
mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan.
(J). Magkaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa at Bataan.
The municipality of Morong did not take any action on the petition within thirty (30) days after its submission. Petitioners
3
then resorted to their power of initiative under the Local Government Code of 1991. They started to solicit the required
4
number of signatures to cause the repeal of said resolution. Unknown to the petitioners, however, the Honorable
Edilberto M. de Leon, Vice Mayor and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June
11, 1993 to the Executive Director of COMELEC requesting the denial of " . . . the petition for a local initiative and/or
referendum because the exercise will just promote divisiveness, counter productive and futility." 5 We quote the letter, viz:

The
C
O
Intramuros, Metro Manila

Executive
E

Director
C

S i r:
In view of the petition filed by a group of proponents headed by Gov. Enrique T. Garcia, relative to the conduct of a local
initiative and/or referendum for the annulment of Pambayang Kapasyahan Blg. 10, Serye 1993, may we respectfully
request to deny the petition referred thereto considering the issues raised by the proponents were favorably acted upon
and endorsed to Congress and other government agencies by the Sangguniang Bayan of Morong.
For your information and guidance, we are enumerating hereunder the issues raised by the petitioners with the
corresponding actions undertaken by the Sangguniang Bayan of Morong, to wit:
ISSUES RAISED BY PROPONENTS
I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye ng taong 1993.
II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ kung:
a) Ibabalik sa Morong ang pag-aaring Grande Island, kabundukan at Naval Reservation;
b) Ibase sa aring Lupa ng LGU ang kikitain at mapapasok na manggagawa nila sa SSEZ;
c) Isama ang nasabing lupa sa pagkukuwenta ng "IRA" ng Morong, Hermosa at Dinalupihan;
d) Makapagtatag ng sariling "economic zones" ang Morong, Hermosa at Dinalupihan;
e) Pabayaan bukas ang pinto ng Morong patungong SSEZ at magbukas ng dalawang (2) pinto pa;
(f) Konkretohin ang daang Morong papunta sa Orani at Dinalupihan;
g) Pumili ng SBMA Chairman na taga-ibang lugar.
ACTIONS UNDERTAKEN BY THE SB OF MORONG
1. By virtue of R.A. 7227, otherwise known as the Bases Conversion Development Act of 1992, all actions of LGU's
correlating on the above issues are merely recommendatory in nature when such provisions were already embodied in
the statute.
2. Corollary to the notion, the Sangguniang Bayan of Morong passed and approved Pambayang Kapasyahan Blg. 18,
Serye 1993, requesting Congress of the Philippines to amend certain provisions of R.A. 7227, wherein it reasserted its
position embodied in Pambayan Kapasyahan Blg. 08 and Blg. 12, Serye ng taong 1992, (Attached and marked as Annex
"A:) which tackled the same issues raised by the petitioners particularly items a), b), c), e), and g).
3. Item d) is already acted upon by BCDA Chairman Arsenio Bartolome III in its letter to His Excellency President Fidel V.
Ramos, dated May 7, 1993 (Attached and marked as Annex "B") with clarifying letter from BCDA Vice-Chairman Rogelio
L. Singson regarding lands on Mabayo and Minanga dated June 3, 1993 that only lands inside the perimeter fence are
envisioned to be part of SBMA.
4. Item f), President Ramos in his marginal note over the letter request of Morong, Bataan Mayor Bienvenido L. Vicedo,
the Sangguniang Bayan and Congressman Payumo, when the Resolution of Concurrence to SBMA was submitted last
April 6, 1993, order the priority implementation of completion of Morong-Dinalupihan (Tasik-Road) Project, including the
Morong-Poblacion-Mabayo Road to DPWH. (Attached and marked as Annex "C").
Based on the foregoing facts, the Sangguniang Bayan of Morong had accommodated the clamor of the petitioners in
accordance with its limited powers over the issues. However, the Sangguniang Bayan of Morong cannot afford to wait for

amendments by Congress of R.A. 7227 that will perhaps drag for several months or years, thereby delaying the
development of Morong, Bataan.
Henceforth, we respectfully reiterate our request to deny the petition for a local initiative and/or referendum because the
exercise will just promote divisiveness, counter productive and futility.
Thank you and more power.
Very truly yours,
(SGD.) EDILBERTO M. DE LEON
Mun. Vice Mayor/Presiding Officer
In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local initiative on the ground that its
6
subject is "merely a resolution (pambayang kapasyahan) and not an ordinance." On July 13, 1993, the COMELEC en
banc further resolved to direct Provincial Election Supervisor, Atty. Benjamin N. Casiano, to hold action on the
7
authentication of signatures being gathered by petitioners.
These COMELEC resolutions are sought to be set aside in the petition at bench. The petition makes the following
submissions:
5. This is a petition for certiorari and mandamus.
5.01 For certiorari, conformably to Sec. 7, Art. IX of the Constitution, to set aside Comelec Resolution Nos. 93-1676 and
93-1623 (Annexes "E" and "H") insofar as it disallowed the initiation of a local initiative to annul PAMBAYANG
KAPASYAHAN BLG. 10, SERYE 1993 including the gathering and authentication of the required number of signatures in
support thereof.
5.01.1 As an administrative agency, respondent Comelec is bound to observe due process in the conduct of its
proceedings. Here, the subject resolutions, Annexes "E" and "H", were issued ex parte and without affording petitioners
and the other proponents of the initiative the opportunity to be heard thereon. More importantly, these resolutions and/or
directives were issued with grave abuse of discretion. A Sangguniang Bayan resolution being an act of the
aforementioned local legislative assembly is undoubtedly a proper subject of initiative. (Sec. 32, Art. VI, Constitution)
5.02 For mandamus, pursuant to Sec. 3, Rule 65, Rules of Court, to command the respondent Comelec to schedule
forthwith the continuation of the signing of the petition, and should the required number of signatures be obtained, set a
date for the initiative within forty-five (45) days thereof.
5.02.1 Respondent Comelec's authority in the matter of local initiative is merely ministerial. It is duty-bound to supervise
the gathering of signatures in support of the petition and to set the date of the initiative once the required number of
signatures are obtained.
If the required number of signatures is obtained, the Comelec shall then set a date for the initiative during which the
proposition shall be submitted to the registered voters in the local government unit concerned for their approval within
sixty (60) days from the date of certification by the Comelec, as provided in subsection (g) hereof, in case of provinces
and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then
be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec. (Sec. 22, par. (h)
R.A. 7160.
Respondent COMELEC opposed the petition. Through the Solicitor General, it contends that under the Local Government
Code of 1991, a resolution cannot be the subject of a local initiative. The same stance is assumed by the respondent
Sangguniang Bayan of Morong. 8
We grant the petition.
The case at bench is of transcendental significance because it involves an issue of first impression delineating the
extent of the all important original power of the people to legislate. Father Bernas explains that "in republican systems,
there are generally two kinds of legislative power, original and derivative. Original legislative power is possessed by the

sovereign people. Derivative legislative power is that which has been delegated by the sovereign people to legislative
9
bodies and is subordinate to the original power of the people."
Our constitutional odyssey shows that up until 1987, our people have not directly exercised legislative power, both the
constituent power to amend or revise the Constitution or the power to enact ordinary laws. Section 1, Article VI of the
1935 Constitution delegated legislative power to Congress, thus "the legislative power shall be vested in a Congress of
the Philippines, which shall consist of a Senate and a House of Representatives." Similarly, section 1, Article VIII of the
1973 Constitution, as amended, provided that "the Legislative power shall be vested in a Batasang Pambansa." 10
Implicit in the set up was the trust of the people in Congress to enact laws for their benefit. So total was their trust that the
people did not reserve for themselves the same power to make or repeal laws. The omission was to prove unfortunate. In
the 70's and until the EDSA revolution, the legislature failed the expectations of the people especially when former
President Marcos wielded lawmaking powers under Amendment No. 6 of the 1973 Constitution. Laws which could have
bridled the nation's downslide from democracy to authoritarianism to anarchy never saw the light of day.
In February 1986, the people took a direct hand in the determination of their destiny. They toppled down the government
of former President Marcos in a historic bloodless revolution. The Constitution was rewritten to embody the lessons of
their sad experience. One of the lessons is the folly of completely surrendering the power to make laws to the legislature.
The result, in the perceptive words of Father Bernas, is that the new Constitution became "less trusting of public officials
11
than the American Constitution."
For the first time in 1987, the system of people's initiative was thus installed in our fundamental law. To be sure, it was a
late awakening. As early as 1898, the state of South Dakota has adopted initiative and referendum in its
constitution 12 and many states have followed suit. 13 In any event, the framers of our 1987 Constitution realized the value
of initiative and referendum as an ultimate weapon of the people to negate government malfeasance and misfeasance
and they put in place an overarching system. Thus, thru an initiative, the people were given the power to amend the
Constitution itself. Sec. 2 of Art. XVII provides: "Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum of the registered voters therein." Likewise, thru
an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative
body. Sections 1 and 32 of Article VI provide:
Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a
House of Representatives except to the extent reserved to the people by the provisions on initiative and referendum.
xxx xxx xxx
Sec. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per
centum of the total number of registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters thereto.
The COMELEC was also empowered to enforce and administer all laws and regulations relative to the conduct of an
initiative and referendum. 14 Worthwhile noting is the scope of coverage of an initiative or referendum as delineated by
section 32 Art. VI of the Constitution, supra any act or law passed by Congress or local legislative body.
In due time, Congress respondent to the mandate of the Constitution. It enacted laws to put into operation the
constitutionalized concept of initiative and referendum. On August 4, 1989, it approved Republic Act No. 6735 entitled "An
Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Liberally borrowed from
15
16
American laws, R.A. No. 6735, among others, spelled out the requirements for the exercise of the power of initiative
17
18
and referendum, the conduct of national initiative and referendum; procedure of local initiative and referendum; and
19
their limitations. Then came Republic Act No. 7160, otherwise known as The Local Government Code of 1991. Chapter
2, Title XI, Book I of the Code governed the conduct of local initiative and referendum.
In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang Kapasyahan
Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Respondents take
the negative stance as they contend that under the Local Government Code of 1991 only an ordinance can be the subject
of initiative. They rely on section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides:

"Local Initiative Defined. Local initiative is the legal process whereby the registered voters of a local government unit
may directly propose, enact, or amend any ordinance."
We reject respondents' narrow and literal reading of the above provision for it will collide with the Constitution and will
subvert the intent of the lawmakers in enacting the provisions of the Local Government Code of 1991 on initiative and
referendum.
The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section
32 of Article VI provides in luminous language: "The Congress shall, as early as possible, provide for a system of initiative
and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress, or local legislative body . . ." An act includes a resolution.
20
Black defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature,
including not merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations . . . ."
21
It is basic that a law should be construed in harmony with and not in violation of the constitution. In line with this
postulate, we held in In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words or
provisions are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be
adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard
the more usual or apparent import of the language used." 22
The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was implemented by
Congress when it enacted Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor." Thus, its section 3(a) expressly includes resolutions as subjects of initiatives on local
legislations, viz:
Sec. 3. Definition of Terms For purposes of this Act, the following terms shall mean;
(a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations
through an election called for the purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution.
a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or
barangay law, resolution, or ordinance. (Emphasis ours)
Similarly, its section 16 states: "Limitations Upon Local Legislative Bodies Any proposition on ordinance
or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified
or amended, by the local legislative body concerned within six (6) months from the date therefrom . . . ." On January 16,
1991, the COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and Regulations Governing the
Conduct of Initiative on the Constitution, and Initiative and Referendum, on National and Local Laws." It likewise
recognized resolutions as proper subjects of initiatives. Section 5, Article I of its Rules states: "Scope of power of initiative
The power of initiative may be exercised to amend the Constitution, or to enact a national legislation, a regional,
provincial, city, municipal or barangay law, resolution or ordinance."
There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend resolutions to be proper
subjects of local initiatives. The debates confirm this intent. We quote some of the interpellations when the Conference
Committee Report on the disagreeing provisions between Senate Bill No. 17 and House Bill No. 21505 were being
considered in the House of Representatives, viz:
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the
consolidated House Bill No. 21505 which refers to the system providing for the initiative ad referendum, fundamentally,
Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The
Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for
initiative and referendum on the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a
provision for local initiative and referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version,
we provided purely for national and constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated.?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it
mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is
it five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years.

23

Contrary to the submission of the respondents, the subsequent enactment of the local Government Code of 1991 which
also dealt with local initiative did not change the scope of its coverage. More specifically, the Code did not limit the
coverage of local initiatives to ordinances alone. Section 120, Chapter 2, Title IX Book I of the Code cited by respondents
merely defines the concept of local initiative as the legal process whereby the registered voters of a local government unit
may directly propose, enact, or amend any ordinance. It does not, however, deal with the subjects or matters that can be
taken up in a local initiative. It is section 124 of the same Code which does. It states:
Sec. 124. Limitations on Local Initiatives. (a) The power of local initiative shall not be exercised more than once a year.
(b) Initiative shall extend only to subjects or matters which are within the legal powers of the Sanggunians to enact.
xxx xxx xxx
This provision clearly does not limit the application of local initiatives to ordinances, but to all "subjects or matters which
are within the legal powers of the Sanggunians to enact," which undoubtedly includes resolutions. This interpretation is
supported by Section 125 of the same Code which provides: "Limitations upon Sanggunians. Any proposition or
ordinance approved through the system of initiative and referendum as herein provided shall not be repealed, modified or
amended by the sanggunian concerned within six (6) months from the date of the approval thereof . . . ." Certainly, the
inclusion of the wordproposition is inconsistent with respondents' thesis that only ordinances can be the subject of local

initiatives. The principal author of the Local Government Code of 1991, former Senator Aquilino Pimentel, espouses the
24
same view. In his commentaries on the said law, he wrote, viz:
4. Subject Matter Of Initiative. All sorts of measures may be the subject of direct initiative for as long as these are within
the competence of the Sanggunian to enact. In California, for example, direct initiatives were proposed to enact a fishing
control bill, to regulate the practice of chiropractors, to levy a special tax to secure a new library, to grant a franchise to a
railroad company, and to prevent discrimination in the sale of housing and similar bills.
Direct initiative on the local lever may, therefore, cover all kinds of measures provided that these are within the power of
the local Sanggunians to enact, subject of course to the other requisites enumerated in the Section.
5. Form of Initiative. Regarding the form of the measure, the section speaks only of "ordinance," although the measure
may be contained in a resolution. If the registered voters can propose ordinances, why are they not allowed to propose
resolutions too? Moreover, the wording of Sec. 125, below, which deals not only with ordinances but with "any
proposition" implies the inclusion of resolutions. The discussion hereunder will also show support for the conclusion that
resolutions may indeed be the subject of local initiative.
We note that respondents do not give any reason why resolutions should not be the subject of a local initiative. In truth,
the reason lies in the well known distinction between a resolution and an ordinance i.e., that a resolution is used
whenever the legislature wishes to express an opinion which is to have only a temporary effect while an ordinance is
intended to permanently direct and control matters applying to persons or things in general. 25 Thus, resolutions are not
normally subject to referendum for it may destroy the efficiency necessary to the successful administration of the business
affairs of a city. 26
In the case at bench, however, it can not be argued that the subject matter of the resolution of the municipality of Morong
merely temporarily affects the people of Morong for it directs a permanent rule of conduct or government. The inclusion of
Morong as part of the Subic Special Economic Zone has far reaching implications in the governance of its people. This is
apparent from a reading of section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military
Reservations Into Other Productive Uses, Creating the Bases Conversion and Development Authority For This Purpose,
Providing Funds Therefor and For Other Purposes." to wit:
Sec. 12. Subic Special Economic Zone. Subject to the concurrence by resolution of the sangguniang panlungsod of the
City of Olongapo and the sangguniang bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby
created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province
of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced, covered, and
defined by the 1947 Military Bases Agreement between the Philippines and the United States of America as amended,
and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred
to a as the Subic Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be issued by
the President of the Philippines. Within thirty (30) days after the approval of this Act, each local government unit shall
submit its resolution of concurrence to join the Subic Special Economic Zone to the Office of the President. Thereafter, the
President of the Philippines shall issue a proclamation defining the metes and bounds of the zone as provided herein.
The abovementioned zone shall be subject to the following policies:
(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the
Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial,
commercial, financial and investment center to generate employment opportunities in and around the zone and to attract
and promote productive foreign investments;
(b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow
or movement of goods and capital within, into a exported out of the Subic Special Economic Zone, as well as provide
incentives such as tax and duty-free importations of raw material, capital and equipment. However, exportations or
removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall
be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines:
(c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall
be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the of the gross
income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the
National Government one percent (1%) each to the local government units affected by the declaration of the zone in
proportion to their population area, and other factors. In addition, there is hereby established a development fund of one

percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be
utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other
municipalities contiguous to the base areas.
In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic
Zone, the same shall be resolved in favor of the latter;
(d) No exchange control policy shall be applied and free markets for foreign exchange, gold, securities and futures shall
be allowed and maintained in the Subic Special Economic Zone;
(e) The Central Bank, through the Monetary Board, shall supervise and regulate the operations of banks and other
financial institutions within the Subic Special Economic Zone;
(f) Banking and finance shall be liberalized with the establishment of foreign currency depository units of local commercial
banks and offshore banking units of foreign banks with minimum Central Bank regulation;
(g) Any investor within the Subic Special Economic Zone whose continuing investment shall not be less than Two hundred
fifty thousand dollars ($250,000), his/her spouse and dependent children under twenty-one (21) years of age, shall be
granted permanent resident status within the Subic Special Economic Zone. They shall have freedom of ingress and
egress to and from the Subic Special Economic Zone without any need of special authorization from the Bureau of
Immigration and Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this Act may also issue
working visas renewable every two (2) years to foreign executives and other aliens possessing highly-technical skills
which no Filipino within the Subic Special Economic Zone possesses, as certified by the Department of Labor and
Employment. The names of aliens granted permanent residence status and working visas by the Subic Bay Metropolitan
Authority shall be reported to the Bureau of Immigration and Deportation within thirty (30) days after issuance thereof.
(h) The defense of the zone and the security of its perimeters shall be the responsibility of the National Government in
coordination with the Subic Bay Metropolitan Authority. The Subic Bay Metropolitan Authority shall provide and establish
its own internal security and fire fighting forces; and
(i) Except as herein provided, the local government units comprising the Subic Special Economic Zone shall retain their
basic autonomy and identity. The cities shall be governed by their respective charters and the municipalities shall operate
and function in accordance with Republic Act No. 7160, otherwise known as the Local Government Code of 1991.
In relation thereto, section 14 of the same law provides:
Sec. 14. Relationship with the Conversion Authority and the Local Government Units.
(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall
exercise administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zone in
conformity with the oversight function of the Conversion Authority.
(b) In case of conflict between the Subic Authority and the local government units concerned on matters affecting the
Subic Special Economic zone other than defense and security, the decision of the Subic Authority shall prevail.
Considering the lasting changes that will be wrought in the social, political, and economic existence of the people of
Morong by the inclusion of their municipality in the Subic Special Economic Zone, it is but logical to hear their voice on the
matter via an initiative. It is not material that the decision of the municipality of Morong for the inclusion came in the form
of a resolution for what matters is its enduring effect on the welfare of the people of Morong.
Finally, it cannot be gained that petitioners were denied due process. They were not furnished a copy of the letter-petition
of Vice Mayor Edilberto M. de Leon to the respondent COMELEC praying for denial of their petition for a local initiative on
Pambayang Kapasyahan Blg. 10, Serye 1993. Worse, respondent COMELEC granted the petition without affording
petitioners any fair opportunity to oppose it. This procedural lapse is fatal for at stake is not an ordinary right but the
sanctity of the sovereignty of the people, their original power to legislate through the process of initiative. Ours is the duty
to listen and the obligation to obey the voice of the people. It could well be the only force that could foil the mushrooming
abuses in government.

IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 93-1623 dated July 6, 1993 and Resolution
93-1676 dated July 13, 1993 are ANNULLED and SET ASIDE. No costs.
SO ORDERED.

G.R. No. 125416 September 26, 1996

SUBIC BAY METROPOLITAN AUTHORITY vs. COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and
CATALINO A. CALIMBAS
PANGANIBAN, J.:
The 1987 Constitution is unique in many ways. For one thing, it institutionalized people power in law-making. Learning
from the bitter lesson of completely surrending to Congress the sole authority to make, amend or repeal laws, the present
Constitution concurrently vested such prerogatives in the electorate by expressly recognizing their residual and sovereign
authority to ordain legislation directly through the concepts and processes of initiative and of referendum.
In this Decision, this Court distinguishes referendum from initiative and discusses the practical and legal implications of
such differences. It also sets down some guidelines in the conduct and implementation of these two novel and vital
features of popular democracy, as well as settles some relevant questions on jurisdiction all with the purpose of
nurturing, protecting and promoting the people's exercise of direct democracy.
In this action for certiorari and prohibition, petitioner seeks to nullify the respondent Commission on Elections' Ruling
1
dated April 17, 1996 and Resolution No. 2848 promulgated on June 27, 1996 denying petitioner's plea to stop the
holding of a local initiative and referendum on the proposition to recall Pambayang Kapasyahan Blg. 10, Serye 1993, of
the Sangguniang Bayan of Morong, Bataan.
The Facts
On March 13, 1992, Congress enacted Republic Act No. 7227 (The Bases Conversion and Development Act of 1992),
which among others, provided for the creation of the Subic Economic Zone, thus:
Sec. 12. Subic Special Economic Zone. Subject to the concurrence by resolution of the Sangguniang Panlugnsod of
the City of Olongapo and the Sangguniang Bayan of the Municipalities of Subic. Morong and Hermosa, there is hereby
created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province
of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced, covered and
defined by the 1947 Military Bases Agreement between the Philippines and the United States of America as amended,
and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred
to as the Subic Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be issued by
the President of the Philippines. Within thirty (30) days after the approval of this Act, each local government unit shall
submit its resolution of concurrence to join the Subic Special Economic Zone to the Office of the President. Thereafter, the
President of the Philippines shall issue a proclamation defining the metes and bounds of the zone as provided herein."
(Emphasis supplied)
RA 7227 likewise created petitioner to implement the declared national policy of converting the Subic military reservation
into alternative productive uses. 2 Petitioner was organized with an authorized capital stock of P20 billion which was fully
subscribed and fully paid up by the Republic of the Philippines with, among other assets, "(a)ll lands embraced, covered
and defined in Section 12 hereof, as well as permanent improvements and fixtures upon proper inventory not otherwise
alienated, conveyed, or transferred to another government agency". 3
On November 24, 1992, the American navy turned over the Subic military reservation to the Philippines government.
Immediately, petitioner commenced the implementation of its task, particularly the preservation of the sea-ports, airport,
buildings, houses and other installations left by the American navy.
In April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang Kapasyahan Bilang 10, Serye 1993,
expressing therein its absolute concurrence, as required by said Sec. 12 of RA 7227, to join the Subic Special Economic
Zone. On September 5, 1993, the Sangguniang Bayan of Morong submitted Pambayang Kapasyahan Bilang 10, Serye
1993 to the Office of the President.
On May 24, 1993, respondents Garcia, Calimbas and their companions filed a petition with the Sangguniang Bayan of
Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The petition prayed for the following:
I. Bawiin, nulipikahin at pawalang-bisa and Pambayang Kapasyahang Blg. 10, Serye 1993 ng Sangguniang Bayan para
sa pag-anib ng Morong sa SSEFZ na walang kundisyon.

II. Palitan ito ng isang Pambayang kapasyahan na aanib lamang ang Morong sa SSEFZ kung ang mga sumusunod na
kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interest ng Morong at Bataan:
(A) Ibalik sa Bataan ang "Virgin Forests" isang bundok na hindi nagagalaw at punong-puno ng malalaking punongkahoy at iba't-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEFZ at ibalik ito sa Bataan.
(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkaloob ng pamahalaang
national o "Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa Lalawigan.
(D) Payagang magtatag rin ng sariling "special economic zones" and bawat bayan ng Morong, Hermosa at Dinalupihan.
(E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.
(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.
(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa magbukas pa ng pinto sa
hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin ang mga nasabing bayan,
pati na rin ng iba pang bayan ng Bataan.
(I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa kabutihan ng mga
taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan.
(J) Magkakaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa at Bataan.
The Sangguniang Bayan ng Morong acted upon the petition of respondents Garcia, Calimbas, et al. by
promulgating Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines so amend certain
provisions of RA 7227, particularly those concerning the matters cited in items (A), (B), (K), (E), and (G) of private
respondent's petition. The Sangguniang Bayan of Morong also informed respondents that items (D) and (H) had already
been referred to and favorably acted upon by the government agencies concerned, such as the Bases Conversion
Development Authority and the Office of the President.
Not satisfied, and within 30 days from submission of their petition, herein respondents resorted to their power initiative
under the Local Government Code of 1991, 4 Sec. 122 paragraph (b) of which provides as follows:
Sec. 122. Procedure in Local Initiative.
xxx xxx xxx
(b) If no favorable action thereon is taken by the sanggunian concerned, the proponents, through their duly authorized and
registered representatives, may invoke their power of initiative, giving notice thereof to the sangguniang concerned.
xxx xxx xxx
On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-1623 denied the petition for local
initiative by herein private respondents on the ground that the subject thereof was merely a resolution (pambayang
kapasyahan) and not an ordinance. On July 13, 1993, public respondent Comelec En Banc (thru Comelec Resolution no.
93-1676) further directed its Provincial Election Supervisor to hold action on the authentication of signatures being
solicited by private respondents.
On August 15, 1993, private respondents instituted a petition for certiorari and mandamus 5 before this Court against the
Commission on Elections and the Sangguniang Bayan of Morong, Bataan, to set aside Comelec Resolution No. 93-1623
insofar as it disallowed the conduct of a local initiative to annul Pambayang Kapasyahan Bilang 10, Serye 1993, and
Comelec Resolution No. 93-1676 insofar as it prevented the Provincial Election Supervisor of Bataan from proceeding
with the authentication of the required number of signatures in support of the initiative and the gathering of signatures.

On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the Philippines issued Proclamation No. 532
defining the metes and bounds of the SSEZ. Said proclamation included in the SSEZ all the lands within the former Subic
Naval Base, including Grande Island and that portion of the former naval base within the territorial jurisdiction of the
Municipality of Morong.
On June 18, 19956, respondent Comelec issued Resolution No. 2845, adopting therein a "Calendar of Activities for local
referendum on certain municipal ordinance passed by the Sangguniang Bayan of Morong, Bataan", and which indicated,
among others, the scheduled Referendum Day (July 27, 1996, Saturday). On June 27, 1996, the Comelec promulgated
the assailed Resolution No. 2848 providing for "the rules and guidelines to govern the conduct of the referendum
proposing to annul or repeal Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan".
On July 10, 1996, petitioner instituted the present petition for certiorari and prohibition contesting the validity of Resolution
No. 2848 and alleging, inter alia, that public respondent "is intent on proceeding with a local initiative that proposes an
amendment of a national law. . . .
The Issues
The petition 6 presents the following "argument":
Respondent Commission on Elections committed a grave abuse of discretion amounting to lack of jurisdiction in
scheduling a local initiative which seeks the amendment of a national law.
In his Comment, private respondent Garcia claims that (1) petitioner has failed to show the existence of an actual case of
controversy: (2) . . . petitioner seeks to overturn a decision/judgment which has long become final and executory; (3) . . .
public respondent has not abused its discretion and has in fact acted within its jurisdiction; (and) (4) . . . the concurrence
of local government units is required for the establishment of the Subic Special Economic Zone."
Private respondent Calimbas, now the incumbent Mayor of Morong, in his Reply (should be Comment) joined petitioner's
cause because "(a)fter several meetings with petitioner's Chairman and staff and after consultation with legal counsel,
respondent Calimbas discovered that the demands in the petition for a local initiative/referendum were not legally
feasible." 7
The Solicitor General, as counsel for public respondent, identified two issues, as follows:
1. Whether or not the Comelec can be enjoined from scheduling/conducting the local initiative proposing to annul
Pambayang Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan.
2. Whether or not the Comelec committed grave abuse of discretion in denying the request of petitioner SBMA to stop the
local initiative.
On July 23, 1996, the Court heard oral argument by the parties, after which, it issued the following Resolution:
The Court Resolved to: (1) GRANT the Motion to Admit the Attachment Comment filed by counsel for private respondent
Enrique T. Garcia, dated July 22, 1996 and (2) NOTE the: (a) Reply (should be comment) to the petition for certiorari and
prohibition with prayer for temporary restraining order and/or writ of preliminary injunction, filed by counsel for respondent
Catalino Calimbas, date July 22, 1996; (b) Separate Comments on the petition, filed by: (b-1) the Solicitor General for
respondent Commission on Elections dated July 19, 1996 and (b-2) counsel for private respondent Enrique T. Garcia,
dated July 22, 1996, all filed in compliance with the resolution of July 16, 1996 and (c) Manifestation filed by counsel for
petitioner, dated July 22, 1996.
At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared and argued for petitioner Subic Bay
Metropolitan Authority (SBMA) while Atty. Sixto Brillantes for private respondent Enrique T. Garcia, and Atty. Oscar L.
Karaan for respondent Catalino Calimbas. Solicitor General Raul Goco, Assistant Solicitor General Cecilio O. Estoesta
and Solicitor Zenaida Hernandez-Perez appeared for respondent Commission on Elections with Solicitor General Goco
arguing.
Before the Court adjourned, the Court directed the counsel for both parties to INFORM this Court by Friday, July 26, 1996,
whether or not Commission on Elections would push through with the initiative/referendum this Saturday, July 27, 1996.

Thereafter, the case shall be considered SUBMITTED for resolution.

At 2:50 p.m., July 23, 1996, the Court received by facsimile transmission an Order dated also on July 23, 1996 from the
respondent Commission on Elections En Banc inter alia "to hold in abeyance the scheduled referendum (initiative) on July
27, 1996 pending resolution of G.R. No. 125416." In view of this Order, the petitioner's application for a temporary
restraining order and/or writ of preliminary injunction has become moot and academic and will thus not be passed upon by
this Court at this time. Puno, J., no part due to relationship. Bellosillo, J., is on leave.
After careful study of and judicious deliberation on the submissions and arguments of the parties, the Court believes that
the issues may be restated as follows:
(1) Whether this petition "seeks to overturn a decision/judgment which has long become final and executory"; namely,
G.R. No. 111230, Enrique Garcia, et al. vs. Commission on Elections, et al.;
(2) Whether the respondent Comelec committed grave abuse of discretion in promulgating and implementing its
Resolution No. 2848 which "govern(s) the conduct of the referendum proposing to annul or repeal Pambayang
Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan;" and
(3) Whether the questioned local initiative covers a subject within the powers of the people of Morong to enact; i.e.,
whether such initiative "seeks the amendment of a national law."
First Issue: Bar by Final Judgment
Respondent Garcia contends that this Court had already ruled with finality in Enrique T. Garcia, et al. vs. Commission on
Elections, et al. 8 on "the very issue raised in (the) petition: whether or not there can be an initiative by the people of
Morong, Bataan on the subject proposition the very same proposition, it bears emphasizing, the submission of which to
the people of Morong, Bataan is now sought to be enjoined by petitioner . . .".
We disagree. The only issue resolved in the earlier Garcia case is whether a municipal resolution as contra-distinguished
from an ordinance may be the proper subject of an initiative and/or referendum. We quote from our said Decision: 9
In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang Kapasyahan
Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Respondents take
the negative stance as they contend that under the Local Government Code of 1991 only an ordinance can be the subject
of initiative. They rely on Section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides:
"Local
Initiative
Defined. Local initiative is the legal process whereby the registered voters of a local government until may directly
propose, enact, or amend any ordinance."
We reject respondents' narrow and literal reading of the above provision for it will collide with the Constitution and will
subvert the intent of the lawmakers in enacting the provisions of the Local Government of 1991 on initiative and
referendum.
The Constitution clearly includes not only ordinance but resolutions as appropriate subjects of a local initiative. Section 32
of Article VI provides in luminous language: "The Congress shall, as early as possible, provide for a system of initiative
and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress, or local legislative body . . .". An act includes a resolution.
Black defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature, including
not merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations . . .". It is basic
that a law should be construed in harmony with and not in violation of the Constitution. In line with this postulate, we held
in In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words or provisions are
obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted which will
avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or
apparent import of the language used."
Moreover, we reviewed our rollo in said G.R. No. 111230 and we found that the sole issue presented by the pleadings
was the question of "whether or not a Sangguniang Bayan Resolution can be the subject of a valid initiative or
referendum". 10

In the present case, petitioner is not contesting the propriety of a municipal resolution as the form by which these two new
constitutional prerogatives of the people may be validly exercised. What is at issue here is whether Pambayang
Kapasyahan Blg. 10, Serye 1993, as worded, is sufficient in form and substance for submission to the people for their
approval; in fine, whether the Comelec acted properly and juridically in promulgating and implementing Resolution No.
2848.
Second Issue: Sufficiency of Comelec Resolution No. 2848
The main issue in this case may be re-stated thus: Did respondent Comelec commit grave abuse of discretion in
promulgating and implementing Resolution No. 2848?
We answer the question in the affirmative.
To begin with, the process started by private respondents was an INITIATIVE but respondent Comelec made preparations
for a REFERENDUM only. In fact, in the body of the Resolution 11 as reproduced in the footnote below, the word
"referendum" is repeated at least 27 times, but "initiative" is not mentioned at all. The Comelec labeled the exercise as a
"Referendum"; the counting of votes was entrusted to a "Referendum Committee"; the documents were called
"referendum returns"; the canvassers, "Referendum Board of Canvassers" and the ballots themselves bore the
description "referendum". To repeat, not once was the word "initiative" used in said body of Resolution No. 2848. And yet,
this exercise is unquestionably an INITIATIVE.
There are statutory and conceptual demarcations between a referendum and an initiative. In enacting the "Initiative and
Referendum Act, 12 Congress differentiated one term from the other, thus:
(a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations
through an election called for the purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or
barangay law, resolution or ordinance.
(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to Congress or the local legislative
body for action.
(c) "Referendum" is the power of the electorate to approve or reject a legislation through an election called for the
purpose. It may be of two classes, namely:
c.1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof, passed by
Congress; and
c.2 Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by
regional assemblies and local legislative bodies.
Along these statutory definitions, Justice Isagani A. Cruz 13 defines initiative as the "power of the people to propose bills
and laws, and to enact or reject them at the polls independent of the legislative assembly." On the other hand, he explains
that referendum "is the right reserved to the people to adopt or reject any act or measure which has been passed by a
legislative body and which in most cases would without action on the part of electors become a law." The foregoing
definitions, which are based on Black's 14 and other leading American authorities, are echoed in the Local Government
Code (RA 7160) substantially as follows:
Sec. 120. Local Initiative Defined. Local initiative is the legal process whereby the registered voters of local government
unit may directly propose, enact, or amend any ordinance.

Sec. 126. Local Referendum Defined. Local referendum is the legal process whereby the registered voters of the local
government units may approve, amend or reject any ordinance enacted by the sanggunian.
The local referendum shall be held under the control and direction of the Comelec within sixty (60) days in case of
provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of baranggays.
The Comelec shall certify and proclaim the results of the said referendum.
Prescinding from these definitions, we gather that initiative is resorted to (or initiated) by the people directly either because
the law-making body fails or refuses to enact the law, ordinance, resolution or act that they desire or because they want to
amend or modify one already existing. Under Sec. 13 of R.A. 6735, the local legislative body is given the opportunity to
enact the proposal. If it refuses/neglects to do so within thirty (30) days from its presentation, the proponents through their
duly-authorized and registered representatives may invoke their power of initiative, giving notice thereof to the local
legislative body concerned. Should the proponents be able to collect the number of signed conformities within the period
granted by said statute, the Commission on Elections "shall then set a date for the initiative (not referendum) at which the
proposition shall be submitted to the registered voters in the local government unit concerned . . .".
On the other hand, in a local referendum, the law-making body submits to the registered voters of its territorial jurisdiction,
for approval or rejection, any ordinance or resolution which is duly enacted or approved by such law-making authority.
15
Said referendum shall be conducted also under the control and direction of the Commission on Elections.
In other words, while initiative is entirely the work of the electorate, referendum is begun and consented to by the lawmaking body. Initiative is a process of law-making by the people themselves without the participation and against the
wishes of their elected representatives, while referendum consists merely of the electorate approving or rejecting what
has been drawn up or enacted by a legislative body. Hence, the process and the voting in an initiative are understandably
more complex than in a referendum where expectedly the voters will simply write either "Yes" of "No" in the ballot.
[Note: While the above quoted laws variously refer to initiative and referendum as "powers" or "legal processes", these
can be also be "rights", as Justice Cruz terms them, or "concepts", or "the proposal" itself (in the case of initiative) being
referred to in this Decision.]
From the above differentiation, it follows that there is need for the Comelec to supervise an initiative more closely, its
authority thereon extending not only to the counting and canvassing of votes but also to seeing to it that the matter or act
submitted to the people is in the proper form and language so it may be easily understood and voted upon by the
electorate. This is especially true where the proposed legislation is lengthy and complicated, and should thus be broken
down into several autonomous parts, each such part to be voted upon separately. Care must also be exercised that "(n)o
petition embracing more than one subject shall be submitted to the electorate," 16 although "two or more propositions may
be submitted in an initiative". 17
It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary of Local Government or his designated
representative shall extend assistance in the formulation of the proposition."
In initiative and referendum, the Comelec exercises administration and supervision of the process itself, akin to its powers
over the conduct of elections. These law-making powers belong to the people, hence the respondent Commission cannot
control or change the substance or the content of legislation. In the exercise of its authority, it may (in fact it should have
done so already) issue relevant and adequate guidelines and rules for the orderly exercise of these "people-power"
features of our Constitution.
Third Issue: Withdrawal of Adherence and
Imposition of Conditionalities Ultra Vires?
Petitioner maintains that the proposition sought to be submitted in the plebiscite, namely, Pambayang Kapasyahan Blg.
18
10, Serye 1993, is ultra vires or beyond the powers of the Sangguniang Bayan to enact, stressing that under Sec. 124
(b) of RA 7160 (the Local Government Code), "local initiative shall cover only such subjects or matters as are within the
legal powers of the sangguniang to enact." Elsewise stated, a local initiative may enact only such ordinances or
resolutions as the municipal council itself could, if it decided to so enact. 19 After the Sangguniang Bayan of Morong and
the other municipalities concerned (Olongapo, Subic and Hermosa) gave their resolutions of concurrence, and by reason
of which the SSEZ had been created, whose metes and bounds had already been delineated by Proclamation No. 532
issued on February 1, 1995 in accordance with Section 12 of R.A. No. 7227, the power to withdraw such concurrence
and/or to substitute therefor a conditional concurrence is no longer within the authority and competence of the Municipal

Council of Morong to legislate. Furthermore, petitioner adds, the specific conditionalities included in the questioned
municipal resolution are beyond the powers of the Council to impose. Hence, such withdrawal can no longer be enacted
or conditionalities imposed by initiative. In other words, petitioner insists, the creation of SSEZ is now a faith accompli for
the benefit of the entire nation. Thus, Morong cannot unilaterally withdraw its concurrence or impose new conditions for
such concurrence as this would effectively render nugatory the creation by (national) law of the SSEZ and would deprive
the entire nation of the benefits to be derived therefrom. Once created. SSEZ has ceased to be a local concern. It has
become a national project.
On the other hand, private respondent Garcia counters that such argument is premature and conjectural because at this
point, the resolution is just a proposal. If the people should reject it during the referendum, then there is nothing to declare
as illegal.
Deliberating on this issue, the Court agrees with private respondent Garcia that indeed, the municipal resolution is still in
the proposal stage. It is not yet an approved law. Should the people reject it, then there would be nothing to contest and to
adjudicate. It is only when the people have voted for it and it has become an approved ordinance or resolution that rights
and obligations can be enforced or implemented thereunder. At this point, it is merely a proposal and the writ or
prohibition cannot issue upon a mere conjecture or possibility. Constitutionally speaking, courts may decide only actual
controversies, not hypothetical questions or cases. 20
We also note that the Initiative and Referendum Act itself provides 21 that "(n)othing in this Act shall prevent or preclude
the proper courts from declaring null and void any proposition approved pursuant to this Act . . . ."
So too, the Supreme Court is basically a review court. 22 It passes upon errors of law (and sometimes of fact, as in the
case of mandatory appeals of capital offenses) of lower courts as well as determines whether there had been grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any "branch or instrumentality" of government. In the
present case, it is quite clear that the Court has authority to review Comelec Resolution No. 2848 to determine the
commission of grave abuse of discretion. However, it does not have the same authority in regard to the proposed initiative
since it has not been promulgated or approved, or passed upon by any "branch or instrumentality" or lower court, for that
matter. The Commission on Elections itself has made no reviewable pronouncements about the issues brought by the
pleadings. The Comelec simply included verbatim the proposal in its questioned Resolution No. 2848. Hence, there is
really no decision or action made by a branch, instrumentality or court which this Court could take cognizance of and
acquire jurisdiction over, in the exercise of its review powers.
Having said that, we are in no wise suggesting that the Commelec itself has no power to pass uponproposed resolutions
in an initiative. Quite the contrary, we are ruling that these matters are in fact within the initiatory jurisdiction of the
Commission to which then the herein basic questions ought to have been addressed, and by which the same should
have been decided in the first instance. In other words, while regular courts may take jurisdiction over
"approved propositions" per said Sec. 18 of R.A. 6735, the Comelec in the exercise of its quasi-judicial and administrative
powers may adjudicate and pass upon such proposals insofar as their form and language are concerned, as discussed
earlier; and it may be added, even as to content, where the proposals or parts thereof are patently and clearly outside the
"capacity of the local legislative body to enact." 23 Accordingly, the question of whether the subject of this initiative is within
the capacity of the Municipal Council of Morong to enact may be ruled upon by the Comelec upon remand and after
hearing the parties thereon.
While on the subject of capacity of the local lawmaking body, it would be fruitful for the parties and the Comelec to plead
and adjudicate, respectively, the question of whether Grande Island and the "virgin forest" mentioned in the proposed
initiative belong to the national government and thus cannot be segregated from the Zone and "returned to Bataan" by the
simple expedient of passing a municipal resolution. We note that Sec. 13 (e) of R.A. 7227 speaks of the full subscription
and payment of the P20 billion authorized capital stock of the Subic Authority by the Republic, with, aside from cash and
other assets, the ". . . lands embraced, covered and defined in Section 12 hereof, . . ." which includes said island and
forests. The ownership of said lands is question of fact that may be taken up in the proper forum the Commission on
Elections.
Another question which the parties may wish to submit to the Comelec upon remand of the initiative is whether the
proposal, assuming it is within the capacity of the Municipal Council to enact, may be divided into several parts for
purposes of voting. Item "I" is a proposal to recall, nullify and render without effect (bawiin, nulipikahin at pawalangbisa)
Municipal Resolution No. 10, Series of 1993. On the other hand, Item "II" proposes to change or replace (palitan) said
resolution with another municipal resolution of concurrence provided certain conditions enumerated thereunder would be
granted, obeyed and implemented (ipagkakaloob, ipatutupad at isasagawa) for the benefit and interest of Morong and
Bataan. A voter may favor Item I i.e., he may want a total dismemberment of Morong from the Authority but may not

agree with any of the conditions set forth in Item II. Should the proposal then be divided and be voted upon separately and
independently?
All told, we shall not pass upon the third issue of ultra vires on the ground of prematurity.
Epilogue
In sum, we hold that (i) our decision in the earlier Garcia case is not a bar to the present controversy as the issue raised
and decided therein is different from the questions involved here; (iii) the respondent Commission should be given an
opportunity to review and correct its errors in promulgating its Resolution No. 2848 and in preparing if necessary for
the plebiscite; and (iii) that the said Commission has administrative and initiatory quasi-judicial jurisdiction to pass upon
the question of whether the proposal is sufficient in form and language and whether such proposal or part or parts thereof
are clearly and patently outside the powers of the municipal council of Morong to enact, and therefore violative of law.
In deciding this case, the Court realizes that initiative and referendum, as concepts and processes, are new in our
country. We are remanding the matter to the Comelec so that proper corrective measures, as above discussed, may be
undertaken, with a view to helping fulfill our people's aspirations for the actualization of effective direct sovereignty. Indeed
we recognize that "(p)rovisions for initiative and referendum are liberally construed to effectuate their purposes, to
facilitate and not to hamper the exercise by the voters of the rights granted thereby." 24 In his authoritative treatise on the
Constitution, Fr. Joaquin G. Bernas, S. J. treasures these "instruments which can be used should the legislature show
itself indifferent to the needs of the people." 25Impelled by a sense or urgency, Congress enacted Republic Act No. 6735
to give life and form to the constitutional mandate. Congress also interphased initiative and referendum into the workings
of local governments by including a chapter on this subject in the Local Government Code of 1991. 26 And the
Commission on Elections can do no less by seasonably and judiciously promulgating guidelines and rules, for both
national and local use, in implementation of these laws. For its part, this Court early on expressly recognized the
revolutionary import of reserving people power in the process of law-making. 27
Like elections, initiative and referendum are powerful and valuable modes of expressing popular sovereignty. And this
Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise. For
it is but sound public policy to enable the electorate to express their free and untrammeled will, not only in the election of
their anointed lawmakers and executives, but also in the formulation of the very rules and laws by which our society shall
be governed and managed.
WHEREFORE the petition is GRANTED. Resolution No. 2848 is ANNULLED and SET ASIDE. The initiative on
Pambayang Kapasyahan Blg. 10, Serye 1993 is REMANDED to the Commission on Elections for further proceeding
consistent with the foregoing discussion. No costs.
IT IS SO ORDERED.

G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS vs. THE
COMMISSION ON ELECTIONS
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC")
denying due course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino
1
Group"), with other groups and individuals, commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify
their initiative petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per
centum (12%) of all registered voters, with each legislative district represented by at least three per centum(3%) of its
registered voters. The Lambino Group also claimed that COMELEC election registrars had verified the signatures of the
6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative
Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit
the following proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERALPARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the
proposed Article XVIII (Transitory Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of
an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling
in Santiago v. Commission on Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to
amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the
COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The
Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition
since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties
to that case, and their petition deserves cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to
show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for "entertaining"
the Lambino Group's petition despite the permanent injunction in Santiago. The Court treated the Binay Group's petition
as an opposition-in-intervention.

In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the Court
to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its
implementing rules "as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's petition.
10
The supporting intervenors uniformly hold the view that the COMELEC committed grave abuse of discretion in relying
on Santiago. On the other hand, the opposing intervenors11 hold the contrary view and maintain that Santiago is a
binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the Lambino Group's compliance with the minimum
requirement for the percentage of voters supporting an initiative petition under Section 2, Article XVII of the 1987
12
Constitution; (4) the nature of the proposed changes as revisions and not mere amendments as provided under Section
2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the requirement in Section 10(a) of
RA 6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties'
memoranda, the Court considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments
to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in
essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's
initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling
in Santiago, no grave abuse of discretion is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by
the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to
propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters of which every legislative district must be
represented by at least three per centum of the registered voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by
the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is
the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to
sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who
prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or
not they want to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for
13
signature. (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be
"ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign
there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal
itself because the proponents must "prepare that proposal and pass it around for signature."
The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire
proposal on its face is a petition by the people. This means two essential elements must be present. First, the people
must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative
upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first shown to the people who
express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people sign on a petition that contains the full text of the
proposed amendments.
The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached,
the petition must state the fact of such attachment. This is an assurance that every one of the several millions of
signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically
impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the
proposed amendments before signing.
14

The framers of the Constitution directly borrowed the concept of people's initiative from the United States where various
State constitutions incorporate an initiative clause. In almost all States15 which allow initiative petitions, the unbending
requirement is that the people must first see the full text of the proposed amendments before they sign to signify
their assent, and that the people must sign on an initiative petition that contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus,
in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of
Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the signature has not first seen what it
is that he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose
a significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential
signer, without the signer having actually examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger
seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who
obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot.17 (Boldfacing
and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x x x
(The purpose of the full text requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition."); x x x (publication of full text of amended constitutional
provision required because it is "essential for the elector to have x x x the section which is proposed to be added to or
subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be
required to vote in the dark.") (Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed"
19
and failure to do so is "deceptive and misleading" which renders the initiative void.
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the
proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers
intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the
proposed amendments before they sign, and that the people must sign on a petition containing such full text.
Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as
valid, requires that the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their
private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the
advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their
proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters,
often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures.
The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the
signatures - that the petition contained, or incorporated by attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as
their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral arguments
of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during
the oral arguments was the signature sheet attached 21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's
Memorandum are the same. We reproduce below the signature sheet in full:
Province:
Legislative District:

City/Municipality:
Barangay:

No. of
Verified
Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO
A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of the
petition for initiative to amend the Constitution signifies my support for the filing thereof.
Precinct
Number

Name
Last Name, First
Name, M.I.

1
2
3
4
5
6
7
8

Address

Birthdate
MM/DD/YY

Signature

Verification

9
10
_________________
Barangay Official
(Print Name and Sign)

_________________
Witness
(Print Name and Sign)

__________________
Witness
(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the
signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it.
Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of the
proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition"
that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of the
Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the
Lambino Group circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition which
they later filed on 25 August 2006 with the COMELEC. When asked if his group also circulated the draft of their amended
petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated both. However,
Atty. Lambino changed his answer and stated that what his group circulated was the draft of the 30 August 2006
amended petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended
petition almost seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B.
Aumentado's "Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended
petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and
on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto
attached, and as representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the "Official
Website of the Union of Local Authorities of the Philippines"22 has posted the full text of Resolution No. 2006-02, which
provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER
CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987
CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the
approach to support the proposals of the People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo
for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of
the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend
amendments to the 1987 Constitution has submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as
a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's
Initiative and Referendum without prejudice to other pragmatic means to pursue the same;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE

UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE
PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel,
Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the
30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals
(sic) of the Consulatative (sic) Commission on Charter Change through people's initiative and referendum as a mode
24
of amending the 1987 Constitution." The proposals of the Consultative Commission are vastly different from the
proposed changes of the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the
COMELEC.
For example, the proposed revisions of the Consultative Commission affect all provisions of the existing
Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the
Judiciary and the National Patrimony provisions of the existing Constitution, provisions that the Lambino Group's
proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the
existing Constitution, including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25
August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 200602 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition, together with the
signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts
grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature
sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's
proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more
specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated
and failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because the amended petition was what they had
shown to the people during the February to August 2006 signature-gathering. Instead, the Lambino Group alleged that the
petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the
COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the
Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the draft
petition together with the signature sheets. The signature sheets do not also contain any indication that the draft petition is
attached to, or circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they
circulated the "petition for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the
measure attached to a referendum petition cannot question his signature on the ground that he did not
understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the
registered voters who signed the signature sheets circulated together with the petition for initiative filed with the
COMELEC below, are presumed to have understood the proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC"
appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu
Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed
changes. In their Consolidated Reply, the Lambino Group alleged that they circulated "the petition for initiative" but
failed to mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments that
what they circulated was the draft of the amended petition of 30 August 2006.

The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the
measure attached to a referendum petition cannot question his signature on the ground that he did not understand the
nature of the act." The Lambino Group quotes an authority that cites a proposed change attached to the petition
signed by the people. Even the authority the Lambino Group quotes requires that the proposed change must be
attached to the petition. The same authority the Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to, the
initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not
incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the
rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the
signature-gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The Lambino
Group are less than candid with this Court in their belated claim that they printed and circulated, together with the
signature sheets, the petition or amended petition. Nevertheless, even assumingthe Lambino Group circulated the
amended petition during the signature-gathering period, the Lambino Group admitted circulating only very
limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft
petition they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked other
supporters to print additional copies of the draft petition but he could not state with certainty how many additional copies
the other supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000 copies because
he himself caused the printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits that
"petitioner Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative x x
25
x." This admission binds the Lambino Group and establishes beyond any doubt that the Lambino Group failed
to show the full text of the proposed changes to the great majority of the people who signed the signature
sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the
petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the
petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature
sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the
attached petition, the maximum number of people who saw the petition before they signed the signature sheets would not
exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3
million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is
that the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If ever,
not more than one million signatories saw the petition before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the
face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner
Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is
also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of
the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional
requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the
proposed changes before signing. They could not have known the nature and effect of the proposed changes, among
which are:
1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected
indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members
of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will
27
determine the expiration of their own term of office;

3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose
28
further amendments or revisions to the Constitution.
These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people
who signed the signature sheets had no idea that they were proposing these amendments. These three proposed
changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a
reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the
signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if
the proposed changes were ratified before the 2007 local elections. However, the text of the proposed
changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis
supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local
elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the
local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the
word "next" before the phrase "election of all local government officials." This would have insured that the elections for the
regular Parliament would be held in the next local elections following the ratification of the proposed changes. However,
the absence of the word "next" allows the interim Parliament to schedule the elections for the regular Parliament
simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent
members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even
beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty.
Lambino and his group deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed
amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on
the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of
the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the
proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local
elections.
The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed
changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed
Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to
propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should
simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the UnicameralParliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition
incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer
only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one
of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated
29
subject matter. Thus, in Fine v. Firestone, the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is
to mean anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because
the electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of
the iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The
ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it
will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis
supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,
warned against "inadvertence, stealth and fraud" in logrolling:

30

the Supreme Court of Alaska

Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to
prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the
likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the
enactment-by-initiative process. The drafters of an initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex or
less appealing) provisions, when communicating to the public. x x x Indeed, initiative promoters typically use
simplistic advertising to present their initiative to potential petition-signers and eventual voters. Many voters will
never read the full text of the initiative before the election. More importantly, there is no process for amending or splitting
the several provisions in an initiative proposal. These difficulties clearly distinguish the initiative from the legislative
process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the
interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known that
their signatures would be used to propose an amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise
again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the
absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again the
Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the
Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents
want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are
again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not
"directly proposed by the people" because the people do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The proposed
Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of
June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does
not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the
present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years
earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the
interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the
President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime
Minister will come only from the present members of the House of Representatives to the exclusion of the present
Senators.

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the
signature sheets could not have known that their signatures would be used to discriminate against the Senators.
They could not have known that their signatures would be used to limit, after 30 June 2010, the interim
Parliament's choice of Prime Minister only to members of the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the people the full text of the proposed
amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution
requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must
sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's
fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general
or special power of attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts
the wisdom of the people even if the members of this Court do not personally know the people who sign the
petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is
first shown to the people before they sign the petition, not after they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement
of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through
initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In
contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article
XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x.
(Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress
upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is
through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this
Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this
Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last
night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing
the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the
Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution
thru initiative upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory
that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated

from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should be limited to amendments to the Constitution and should not extend to the
revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is limited to
the matter of amendment and should not expand into a revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in
Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the
public, would only apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to
"amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar
as initiative is concerned, it can only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between
"amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional
convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's initiative may
propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the
people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are
empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,32 the
Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing
and the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a
constitutional revision. x x x x It is thus clear that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined
hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now before
us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected,
then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be
altered by those who favor amendments, revision, or other change only through the use of one of the specified means.
The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from
an examination of the measure here in question that it is not an amendment as that term is generally understood and as it

is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution drafted
by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to the
1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses required by
Article XVII, Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a
thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the
initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the
Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the
constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million
signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:

34

It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the
instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the
instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally
conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at
will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And
where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an
attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis
supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty
to insure compliance with the clear command of the Constitution that a people's initiative may only amend, never
revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the
Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the
scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest
cases that recognized the distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained
therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as
the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will
35
effect an improvement, or better carry out the purpose for which it was framed. (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of
separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial
entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other
hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle
involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the constitution just like in our
Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test
asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the
constitution by the deletion or alteration of numerous existing provisions."36 The court examines only the number of
provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is
whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount
to a revision."37 Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a
change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental
powers of its Branches."38 A change in the nature of the basic governmental plan also includes changes that "jeopardize
the traditional form of government and the system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an
amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature
40
and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed
changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a
unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution.
A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus
constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of
checks-and-balances within the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary
system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond
doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father
Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of
an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine how and to what extent they should be
altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision
because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system
to a unicameral system be because of its effect on other important provisions of the Constitution.41 (Emphasis
supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a
bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized
where [the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme Court of
Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral
Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the
legislative branch of government, which has been in existence in the United States Congress and in all of the states of
the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The
concept of a House and a Senate is basic in the American form of government. It would not only radically change the
whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even
affect the physical facilities necessary to carry on government.
xxxx
We conclude with the observation that if such proposed amendment were adopted by the people at the General Election
and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should
refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could
be other examples too numerous to detail. These examples point unerringly to the answer.

The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in
bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable,
accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it could
43
be amended in the manner proposed in the initiative petition here. (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not
only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative
departments. The initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the
shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions
44
of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo, Sr. There is no
doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than the
initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of
substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of the deliberative body work full-time on the changes.
However, the same substantive changes, when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such
endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and
"revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience
of the people, that on one hand the common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain
only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional
provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the
substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed
changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the
Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a
revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as
private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino
Group trivializes the serious matter of changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory.
Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate
45
from such categorical intent and language. Any theory espousing a construction contrary to such intent and language
deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the
Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change
involving a radical structural change in government does not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to
advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory
is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be
enacted through the initiative process. They assert that the distinction between amendment and revision is determined by
reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of
the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the
government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure "will
refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated Article XVII,
section 2, and cannot appear on the ballot without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative.
In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by
initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which
provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place
such a measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions
proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain
language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red
for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision
begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal
departments of government, requiring far-reaching amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or
article, the change may generally be considered an amendment and not a revision. For example, a change reducing the
voting age from 18 years to 15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision. 48 Also, a
change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a
revision.49
The changes in these examples do not entail any modification of sections or articles of the Constitution other than the
specific provision being amended. These changes do not also affect the structure of government or the system of checksand-balances among or within the three branches. These three examples are located at the far green end of the
spectrum, opposite the far red end where the revision sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of
one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word
50
"republican" with "monarchic" or "theocratic" in Section 1, Article II of the Constitution radically overhauls the entire
structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to
be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of
government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with
recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions,
but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies
like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow
people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake
only amendments and not revisions.

In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim
up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law
prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the
Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable inconsistency,
the earlier provision "shall be amended to conform with a unicameral parliamentary form of government." The effect is to
freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a future separate
constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral
arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the
rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency.
However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a
provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a
provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency
shall be resolved in favor of a "unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the
Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries with unicameral
parliaments? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of
government the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for
amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing
several provisions in many articles of the Constitution. Revision of the Constitution through a people's initiative will only
result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the
present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the
scope of a people's initiative to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the
Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this
Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to
cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiagowill not change the outcome
of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not
comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be
resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not
51
pass upon the constitutionality of a statute if the case can be resolved on some other grounds.
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the
Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the
Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution
even before complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the
1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories."
Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with
the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition
and amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC,
the Lambino Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the
petition and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with
the basic requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more
than one (1) subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the Transitory
Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject
matter totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject
matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling
in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For following this
Court's ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition
warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this
nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly
specified modes of amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and
turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside
the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of
changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of
law in this country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast53 approved our
Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people,
the full expression of the people's sovereign will. That approval included the prescribed modes for amending or
revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our
Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the
Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign will and
discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the
Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the
real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of
changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental
covenant that provides enduring stability to our society becomes easily susceptible to manipulative changes by political
groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's
stability.

The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in
ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains
its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms."
The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the incumbent
President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign
will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the
people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow
this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the
Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this
Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.

G. Disciplinary Action (Article 124 IRR)

2. Grounds for suspension and removal (Section 60 LGC)
G.R. No. 100874 February 13, 1992
GOVERNOR BENJAMIN I. ESPIRITU vs. NELSON B. MELGAR and HON. JUDGE MARCIANO T. VIROLA
SYLLABUS
1.
ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; PREVENTIVE SUSPENSION; MAY BE ISSUED BY
PROVINCIAL GOVERNOR AGAINST A MUNICIPAL MAYOR; GROUND THEREFOR. The provincial governor of
Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of Naujan at anytime after the issues
had been joined and any of the following grounds were shown to exist: 1. when there is reasonable ground to believe that
the respondent has committed the act or acts complained of; 2. When the evidence of culpability is strong; 3. When the
gravity of the offense so warrants; or 4. When the continuance in office of the respondent could influence the witnesses or
pose a threat to the safety and integrity of the records and other evidence.
2.
ID.; ID.; ID.; MAY BE ISSUED BEFORE THE CHARGES ARE HEARD AND BEFORE ACCUSED IS GIVEN
OPPORTUNITY TO PROVE HIS INNOCENCE; PURPOSE THEREOF. There is nothing improper in suspending an
officer before the charges against him are heard and before he is given an opportunity to prove his innocence (Nera v.
Garcia and Elicao, 106 1031) Preventive suspension is allowed so that the respondent may not hamper the normal
cause of the investigation through the use of his influence and authority over possible witnesses (Lacson v. Roque, 92
Phil. 456).
3.
ID.; ID.; ID.; PROPER REMEDY OF PARTY SUSPENDED; RULE. Since respondent mayor believed that his
preventive suspension was unjustified and politically motivated, he should have sought relief first from the Secretary of
Interior and Local government, not from the courts. Mayor Melgars direct recourse to the courts without exhausting
administrative remedies was premature (Aboitiz & co., Inc. v. Collector of Customs, 83 SCRA 265; Garcia v. Teehankee,
27 SCRA 937; Manuel v. Jimenez, 17 SCRA 55; Bongcawil v. Provincial Board of Lanao del Norte, 10 SCRA 327; The
Phil. Veterans Affairs Office v. Farias, Et Al., AC-G.R. SP No. 05937, July 5, 1985; Bonafe v. Zurbano, 131 SCRA 9).
4.
ID.; ID.; ID.; FINDINGS OF THE OFFICE OR BODY ISSUING THEREOF; RULE. There may exist honest
differences of opinions with regard to the seriousness of the charges, or as to whether they warrant disciplinary action.
However, as a general rule, the office or body that is invested with the power of removal or suspension should be the sole
judge of the necessity and sufficiency of the cause (17 R.C.L. Sec. 233 cited in Attorney General v. Doherty, 13 Am. Rep.
132). So, unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the
principle of separation of powers demand that the action of said officer or body should be left undisturbed.
5.
ID.; ID.; ID.; RULE AFTER AN OFFICER HAS SERVED THE SIXTY (60) DAY SUSPENSION; CASE AT BAR.
In this particular case, since the 60-day preventive suspension of Mayor Melgar was maintained by the Temporary
Restraining Order which we issued on August 6, 1991, and therefore has already been served, he is deemed reinstated in
office without prejudice to the continuation of the administrative investigation of the charges against him (Sec. 63, subpar.
3, Local Government Code).
GRIO-AQUINO, J.:
The issue in this special civil action of certiorari and prohibition is the jurisdiction of respondent Judge of the Regional Trial
Court of Oriental Mindoro to stop the provincial governor from placing a municipal mayor under preventive suspension
pending the investigation of administrative charges against the latter.
On April 11, 1991, one Ramir Garing of Naujan, Oriental Mindoro, filed a sworn letter-complaint with Secretary Luis
Santos of the Department of Interior and Local Government charging Mayor Nelson Melgar of Naujan, Oriental Mindoro,
with grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the
best interest of the public service. The charge against Mayor Melgar reads:
On or about 4:30 in the afternoon of March 26, 1991, in the Municipality of Naujan, Oriental Mindoro, the aforementioned
person, Nelson Melgar, being the Municipal Mayor of Naujan, Oriental Mindoro, with abuse of official function, did then

and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of Ramir Garing,
by then and there boxing and kicking thereby inflicting upon the latter physical injuries on different parts of his body and
not being contented ordered his arrest and detention in the municipal jail of Naujan, Oriental Mindoro without filing any
charges until he was released the following day March 27, 1991 at about 8:30 in the morning. (p. 30, Rollo.)
An identical letter-complaint was filed by Garing with the Provincial Governor of Oriental Mindoro (herein petitioner
Governor Benjamin I. Espiritu) accusing Mayor Melgar of the same violations of law and requesting that the mayor be
placed under preventive suspension pending investigation of the charges.
A third complaint filed by Garing with the Presidential Action Center, Office of the President of the Philippines, was
forwarded to Governor Espiritu with a request for prompt action (Annex "C", p. 36, Rollo).
On April 22, 1991, the Sangguniang Panlalawigan of Oriental Mindoro required Mayor Melgar to answer the complaint,
which was docketed as Adm. Case No. 91-01 (Annex "D", p. 37, Rollo).
On May 22, 1991, Mayor Melgar submitted his answer in which he recounted the events of March 26, 1991 that led to the
filing of Garing's complaint against him:
At around 6:30 in the evening of 26 March 1991, while I was in the middle of my speech at the Naujan Public Gymnasium,
this Municipality, where the Jose L. Basa Memorial graduation ceremonies were then being held, a prolonged but
nonetheless loud and intermittent clapping suddenly erupted from one of the numerous people then in attendance. I
paused. The handclapping stopped. I resumed my speech. The fellow started all over again.
The audience was visibly disturbed and I found myself unable to proceed not because I could not collect my thoughts but
because I felt the solemnity of the occasion had irreversibly been shattered by a rudeness so totally unexpected.
I ended my speech and instructed a policeman to investigate the culprit who turned out to be Ramir Garing. He was
drunk. I did not hurt him as can be gathered from his medical certificate (Annex "B" to the complaint) which palpably
contradicts his affidavit (Annex "A" to the complaint).
I was informed that said Ramir Garing was momentarily placed in custody for his own protection because he was drunk.
An open knife (balisong) was taken from him. I was likewise informed that after he had sobered up, he was told to go
home, but he refused to go and only did so the following morning.
Certainly under the circumstances, charges could have been filed against Ramir Garing under the provisions of Article
153 of the Revised Penal Code and also for possession and concealment of a deadly weapon. Still, as a local Chief
Executive, who to most people represent (sic) a sovereign government, and who, at the cost of foregoing personal
vindication must avoid any appearance of vindictiveness, I instructed my policemen not to file charges against him.
Attached hereto for your further reference are the joint affidavit of teachers of the J.L. Basa Memorial School as Annex
"A", the joint affidavit of the Municipal Jailer and the Police Investigator as Annex "B", the affidavit of Fireman 1st Class
Roy Lomio as Annex "C", and a xerox copy of the pages in the Police Blotter where the incident in question was entered.
(pp. 40-41, Rollo).
After evaluating the complaint and its supporting documents, as well as the Mayor's answer and the affidavits of his
witnesses, the Sangguniang Panlalawigan of Oriental Mindoro passed Resolution No. 55 on May 9, 1991, recommending
to the Provincial Governor that respondent Mayor be preventively suspended for forty-five (45) days pending the
investigation of the administrative complaint (Annex "H, p. 49, Rollo).
On May 23, 1991, Mayor Melgar filed a motion to dismiss the administrative complaint (Annex "I", pp. 51-55, Rollo). It was
opposed by Garing.
On June 6, 1991, the Sangguniang Panlalawigan denied the motion to dismiss (Res. No. 72, p. 62 Rollo; Annex "L" to the
Petition).
Meanwhile, pursuant to the recommendation of the Sangguniang Panlalawigan in its Resolution No. 55, Governor Espiritu
placed Mayor Melgar under preventive suspension on May 28, 1991 on the ground that:

. . . there is reasonable ground to believe that respondent Mayor Nelson B. Melgar of Naujan, Oriental Mindoro, has
committed the acts stated in the complaint and affidavit of Ramir Garing and corroborated by the affidavits (Exhibits A, C
& D) of his witnesses, namely: Lydia V. Garing, Nelson Tabor and Javier Dagdagan, all of Poblacion II, Naujan, Oriental
Mindoro. (p. 63, Rollo)
On June 3, 1991, Mayor Melgar received the Order of Suspension (Annex "M", p. 63, Rollo). He forthwith filed a "Petition
for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the Regional Trial Court of Oriental Mindoro
(Spl. Civil Action No. R-5003) alleging that "the order of suspension was an arrogant, despotic and arbitrary abuse of
power" by the Governor (pp. 68-69, Rollo).
On June 24, 1991, RTC Judge Virola issued a writ of preliminary injunction enjoining Governor Espiritu from implementing
the Order of suspension against Mayor Melgar for:
The Court is more inclined to believe the answer under oath of the respondent and the sworn statements of his witnesses
attached to the Answer in the administrative case than the complaint under oath in the administrative case which are the
evidence to be considered in determining whether or not the order of preventive suspension was issued in accordance
with law. There is no reason to doubt the sworn statements of the numerous public school teachers and members of the
PNP. Besides, the medical certificate issued in connection with the treatment of the complainant in the administrative case
tends to corroborate the theory of the respondent and contradict that of the complaint in the administrative case. The
abrasions on the right arm of the complainant in the administrative case tend to show that said complainant was held
tightly by the hands by the PNP because he was then drunk, in possession of a balisong knife and causing serious
disturbance and not because he was boxed and kicked by herein petitioner. (pp. 75-76, Rollo.)
Governor Espiritu filed a motion to dismiss and/or for reconsideration which Judge Virola denied on July 16, 1991. Hence,
this petition for certiorari and prohibition.
Without giving due course to the petition, we required the private respondent to comment and we issued a Temporary
Restraining Order commanding respondent Judge to cease and desist from further proceeding in Special Civil Action No.
R-5003 (pp. 106-107, Rollo). On August 22, 1991, Mayor Melgar filed an "Urgent Motion to Lift Temporary Restraining
Order" which the petitioner opposed and the Court denied (p. 127-155, Rollo).
Petitioner submits that respondent Judge Virola acted without jurisdiction or with grave abuse of discretion in issuing: (1)
the writ of preliminary injunction restraining Governor Espiritu from implementing the order of preventive suspension, and
(2) in denying petitioner's motion to dismiss Special Civil Action No. R-5003, for:
a Petitioner, as Provincial Governor, is empowered by Section 63 of the Local Government Code to place an elective
municipal official under preventive suspension pending decision of an administrative case against the elective municipal
official:
b) Petitioner did not commit a grave abuse of discretion in placing respondent mayor under preventive suspension; if at
all, his error was an error of judgment which is not correctible by certiorari;
c) By express provision of Section 61 of the Local Government Code, the Sangguniang Panlalawigan has jurisdiction over
complaints against any elective municipal official; on the other hand, Section 19(c) of the Judiciary Reorganization Act of
1980 withdraws from regional trial courts jurisdiction over cases within the exclusive jurisdiction of any person, tribunal or
body exercising judicial or quasi-judicial functions. Thus, by practically deciding the administrative case on the merits, the
respondent court acted without jurisdiction; and
d) Respondent Mayor had a remedy of appeal under Section 66 of the Local Government Code.
Section 63, Chapter IV of the Local Government Code provides:
Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the
respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by
the city or municipal mayor if the respondent is an elective barangay official.
(2) Preventive suspension may be imposed at anytime after the issues are joined, when there is reasonable ground to
believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when
the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses

or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not
extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty-days, the suspended official shall be deemed reinstated in office without prejudice to the
continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is
due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of the suspension.
Clearly, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of
Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist:
1. When there is reasonable ground to believe that the respondent has committed the act or acts complained of;
2. When the evidence of culpability is strong;
3. When the gravity of the offense so warrants; or
4. When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence.
There is nothing improper in suspending an officer before the charges against him are heard and before he is given an
opportunity to prove his innocence (Nera vs. Garcia and Elicao, 106 Phil. 1031). Preventive suspension is allowed so
that the respondent may not hamper the normal course of the investigation through the use of his influence and authority
over possible witnesses (Lacson vs. Roque, 92 Phil. 456).
Since respondent mayor believed that his preventive suspension was unjustified and politically motivated, he should have
sought relief first from the Secretary of Interior and Local Government, not from the courts. Mayor Melgar's direct recourse
to the courts without exhausting administrative remedies was premature (Aboitiz & Co. Inc. vs. Collector of Customs, 83
SCRA 265; Garcia vs. Teehankee, 27 SCRA 937; Manuel vs. Jimenez, 17 SCRA 55; Bongcawil vs. Provincial Board of
Lanao del Norte, 10 SCRA 327; The Phil Veterans Affairs Office vs. Farias, et al., AC-G.R. SP No. 05937, July 5, 1985;
Bonafe vs. Zurbano, 131 SCRA 9). The regional trial court had no jurisdiction over Special Civil Action No. R-5003 and
gravely abused its discretion in refusing to dismiss the case.
There may exist honest differences of opinion with regard to the seriousness of the charges, or as to whether they warrant
disciplinary action. However, as a general rule, the office or body that is invested with the power of removal or suspension
should be the sole judge of the necessity and sufficiency of the cause ( 17 R.C.L. Sec. 233 cited in Attorney General vs.
Doherty, 13 Am. Rep. 132). So, unless a flagrant abuse of the exercise of that power is shown, public policy and a
becoming regard for the principle of separation of powers demand that the action of said officer or body should be left
undisturbed.
However, in this particular case, since the 60-day preventive suspension of Mayor Melgar was maintained by the
Temporary Restraining Order which we issued on August 6, 1991, and therefore has already been served, he is deemed
reinstated in office without prejudice to the continuation of the administrative investigation of the charges against him
(Sec. 63, subpar. 3, Local Government Code).
WHEREFORE, the petition for certiorari and prohibition is granted. The writ of preliminary injunction dated June 24, 1991
in Special Civil Action No. R-5003 is hereby annulled and set aside. Said Special Civil Action No. R-5003 is dismissed.
SO ORDERED.
G.R. No. 99031 October 15, 1991
RODOLFO D. LLAMAS vs. EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III
PARAS, J.:p
The case before Us calls for a determination of whether or not the President of the Philippines has the power to grant
executive clemency in administrative cases. In connection therewith, two important questions are also put in issue,
namely, whether or not the grant of executive clemency and the reason therefore, are political questions beyond judicial

review, and whether or not the questioned act was characterized by grave abuse of discretion amounting to lack of
jurisdiction.
Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he
assumed, by virtue of a decision of the Office of the President, the governorship (p. 1, Petition). Private respondent
Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended from office for a period
of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this petition and is
being impleaded herein in that official capacity for having issued, by authority of the President, the assailed Resolution
granting executive clemency to respondent governor.
Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed on
June 13, 1989 a verified complaint dated June 7, 1989 against respondent governor before the then Department of Local
Government (DLG, for short), charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas
Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other appropriate laws, among them,
the Anti-Graft and Corrupt Practices ACt. Prior to that, petitoner filed with the Office of the Omdusman a verified
complainant dated November 10, 1988 against respondent governor for the latter's alleged viloation of Section 3-G of
Republic Act. (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
The complaint before the DLG, docketed as Administrative Case 10459, was subsequently tried, where both petitioner
and respondent govemor presented their respective evidence.
Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity as Provincial Governor
Tarlac, entered into and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock and non-profit
organization headed by the governor himself as chairman and controlled by his brother-in-law as executive director,
trustee, and secretary; that the said Loan Agreement was never authorized and approved by the Provincial Board, in
direct contravention of the provisions of the Local Government Code; that the said Agreement is wholly one-sided in favor
of the Foundation and grossly inimical to the interest of the Provincial Government (because it did not provide for interest
or for any type security and it did not provide for suretyship and comptrollership or audit to control the safe disbursement
of said loan); that a total amount of P20,000,000.00 was disbursed to the aforesaid Foundation; that the transactions
constitute a fraudulent scheme to defraud the Provincial Government; and that the said Agreement is wholly
unconstitutional, illegal, a immoral. (Annex "A", Petition)
On the other hand, it is the contention of respondent governor that "the funds were intended to generate livelihood project
among the residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was authorized by law and considered
the best alternative as a matter of judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the said
Foundation in order to forestall any suspicion that he would influence it; that it is not true that the Loan Agreement did not
provide for continuing audit by the Provincial Government because the Memorandum of Agreement provides otherwise;
and that the Agreement is not manifestly and grossly disadvantageous to the Provincial Government and respondent
governor did not and would not profit thereby because it provided sufficient safeguards for repayment. (Annex "A",
Petition)
After trial, the Secretary of the then Department of Local Government rendered a decision dated September 21, 1990,
dispositive portion of which reads:
WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated Section 3(g) of Republic
Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which act amounts to serious neglect of duty
and/or abuse of authority, for which tilp penalty of suspension from office for a period of ninety (90) days, effective upon
the finality of this Decision, is hereby imposed upon him. (p. 3, Petition)
Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a penalty of suspension.
Respondent govemor moved for a reconsideration of the abovequoted decision but the same was denied on October 19,
1990. Aggrieved, he appealed the DLG decision dated September 21, 1990 and the order of denial dated October 19,
1990 to the Office of the President (O.P. Case No. 4480).
On February 26, 1991, herein public respondent Executive Secretary issued a Resolution dismissing respondent
governor's appeal and affirming the September 21, 1990 DLG decision.
Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision of the Office of the
President in administrative suspension of local officials shall be immediately executory without prejudice to appeal to

appropriate courts, petitioner, on March 1, 1991, took his oath of office as acting governor. Under the administrative
suspension order, petitioner had up to May 31, 1991 as acting governor. On the same date (March 1, 1991), respondent
govemor moved for a reconsideration of the Executive Secretary's Resolution, to which petitioner filed an opposition.
From the allegations of the petitioner in his petition, respondent govemor accepted his suspension and turned over his
office to petitioner.
To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an "administrative order" dated
March 8, 1991, in which the latter signified his intention to "(continue, as I am bound to exercise my fimctions as govemor
and shall hold office at my residence," in the belief that "the pendency of my Motion for Reconsideration precludes the
coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10, Comment). And, as categorically stated in
the petition, the reassumption ceremony by respondent governor was held on May 21, 1991 (p. 8, Petition).
Without ruling on respondent governor's Motion for Reconsideration, public respondent issued a Resolution dated May
15, 1991, in O.P. Case No. 4480, which reads:
This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency, interposed in connection with
the decision of the Secretary of then Department of Local Governmen (DLG) dated 21 September 1990, as affirmed in a
Resolution of this Office dated 26 February 1991, suspending petitioner from office for period of ninety (90) days upon the
finality of said decision.
As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that petitioner was guilty of
serious neglect of duty and/or abuse of authority for entering into a loan contract with the Lingkod Tarlac Foundation,
Inc. (LTFI) grossly/manifestly disadvantageous to Tarlac Province. In his letter-petition of 10 May 1991, thereby
pleading for a thirty (30)-day reduction of his suspension, petitioner invited attention to the DLG Secretary's decision
clearing him of having personally benefitted from the questioned transaction. In the same letter, petitioner manifests
serving more than sixty (60) days of the ninety-day suspension. Previously, petitioner submitted documents and letters
from his constituents tending to show the relative success of his livelihood loan program pursue under the aegis of the
LTFI and/or the Foundation's credible loan repayment record. To cite some:
1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the full payment of its loan
(P15.05 M) plus interest with LTFI;
2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual liquidation of the loan granted
to family-borrowers out of funds provided by LTFI;
3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export activities by LTFI;
4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from LTFI have bee utilized in
hybrid com production; and
5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing of the payment of 76 of
the amount (P203,966.00) loaned to the Federation for tobacco production.
Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to accelerate the delivery of
livelihood services to his provincemates. As the truism goes, however, the end does not always justify the means. Be that
as it may, but without belaboring the propriety of the loan agreement aforementioned, some measure of leniency may be
accorded petitioner as the purpose of his suspen sion may have made its mark.
WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the sense that his ninety-day
suspension is hereby reduced to the period already served.
SO ORDERED.
(Annex "F", Petition; pp. 25-26, Rollo)
By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, allegedly
withou any notification made to the petitioner.

Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, capricious and
despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," (p. 6, petition) basically on the ground
th executive clemency could be granted by the President only in criminal cases as there is nothing in the statute books or
even in the Constitution which allows the grant thereof in administrative cases. Petitioner also contends that since
respondent governor refused to recognize his suspension (having reassumed the governorship in gross defiance of the
suspension order), executive clemency cannot apply to him; that his rights to due process were violated because the
grant of executive clemency was so sudden that he was not even notified thereof; and that despite a finding by public
respondent of impropriety in the loan transaction entered into by respondent governor, the former failed to justify the
reduction of the penalty of suspension on the latter. Petitioner further alleges that the exftutive clemency granted by public
respondent was "the product of a hocus-pocus strategy" (p. 1, Manifestation with Motion, etc.) because there was
allegedly no real petition for the grant of executive clemency filed by respondent govemor.
Batas Pambansa Blg. 337 provides:
Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the
respondent is a provincial or city official, ...
(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to
believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when
the gravity of the offense s warrants, or when the continuance in office of the respondent coul influence the witnesses or
pose a threat to the safety and integrity the records and other evidence. In all cases, preventive suspension shall not
extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the
continuation the proceedings against him until its termination. (Emphasis supplied)
It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A portion of the petition is hereon
der quoted as follows:
7. [On February 28, 1991], and in accordance with the provisions of the Local Government Code (Sec. 66, Chapter 4,
Batas Pambansa Blg. 337), to the effect that the decision of the Office of the President in an administrative suspension of
local officials shall be immediately executory without prejudice to appeal to appropriate courts, Petitioner Llamas took his
oath of office as acting govemor. Under the administrative suspension order, Llamas had up to May 31 [sic 29] 1991 as
acting governor;
8. A copy of this oath of office is attached and made a part hereof as Annex B;
9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos of the newly created
Department Interior and Local Government, as shown by the lower portion Annex B, and by a picture of the oathtaking
itself, attached and mad a part hereof as Annex B-1;
10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was shown Llamas' oath of office.
During meeting, held in the presence of all department heads at the provi cial capitol and in the presence of various local
government offici and representatives of the media, Ocampo agreed to turn over reigns of the provincial government to
Petitioner;
11. In fact, Ocampo had asked the department heads and all other officials of the provincial government of Tarlac to
extend their cooperation to Llamas, during the ninety days that the latter would assume the governorship;
12. And, as if this was not enough, Ocampo even made announcements in the media that he was allowing Petitioner
Llamas to perform his functions as acting governor at the Office of the Govern at the Capitol where he (Ocampo) used to
hold office (true enough Ocampo has subsequently allowed Llamas to hold office at the of the Governor, with Ocampo
even escorting the acting therein last March 4, 1991);
l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his office to Petitioner Llamas
was published, front page, in the March 5, 1991 issue of the Manila Bulletin. A copy of this news account is attached and
made a part hereof as Annex C);

14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included, have extended recognition to
Petitions Llamas' assumption of the governorship. Llamas met with President Aquino and Rep. Cojuangco and, during this
meeting, the two highest officials of the land have asked Llamas to discharge his duties acting governor;
15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board Member Aganon, dated March 18,
1991, a pointing bim as acting vice governor of the province, "in view of the suspension of Gov. Mariano Un Ocampo III,
and the assumption Vice Governor Rodolfo Llamas as acting governor." A copy of this designation is attached and made
a part hereof as Annex D;
xxx xxx xxx
30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May 21, 1991 ... (pp- 2-4 & 7,
Petition; pp. 3-5 & 8, Rollo)
It is prayed in the instant petition dated May 21, 1991 that:
b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a temporary restraining order be
issued stopping the Respondents from enforcing, in any manner, the aforesaid contested resolution, and Respondent
Ocampo, firom continuing with his reassumption of the governorship. IN THE ALTERNATIVE, that a cease and desist
order be issued against Respondent Ocampo stopping him from continuing with hiii reassumption of the governorship.
Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the Constitution fiffl
discretionary authority is granted to the President on the exercise of executive clemency, the same constitutes a political
question which is beyond judicial review.
Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the
issue involved concerns the validity of such discretionary powers or whether said powers are within the limits prescribed
by the Constitution, We will not decline to exercise our power of judicial review. And such review does not constitute a
modification or correction of the act of the President, nor does it constitute interference with the functions of the President.
In this connection, the case of Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051, is very enlightening, and We
quote:
Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of
the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are
granted by the Consfitution or by statute, the manner in which those powers are exercised is not subject to judicial review.
The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary
powers.
As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of
government because in very many cases their action is necessarily dictated by considerations of public or political policy.
These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions,
or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do
permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists,
and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts.
(Willoughby on the Constitution of the United States, Vol. 3, p. 1326).
xxx xxx xxx
What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the goverrunent, with discretionary power to act. See State vs. Cunningham, 81 Wis.
497, 51 L.R.A. 561; In Re Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519; Green vs. Mills, 69 Fed. 852, 16, C. CA
516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature
may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people.
The courts have no judicial control over such matters, not merely because they involve political question, but because
they are matters which the people have by the Constitute delegated to the Legislature. The Governor may exercise the
powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power
conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because
the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional

government must act according to law and subject him to the restraining and controlling power of the people, acting
through the courts, as well as through the executive or the Legislature. One department is just as representative as the
other, and the judiciary the department which is charged with the special duty of determinining the limitations which the
law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is
necessary, to "the end that the government may be one of laws and not men" words which Webster said were the
greatest contained in any written constitutional document.
Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded jurisdiction" to review the
decisions of the other branches and agencies of the government to determine whether or not they have acted within the
bounds of the Constitution (See Art. VIII, Sec. 1, Constitution). "Yet, in the exercise thereof, the Court is to merely check
whether or not the govermental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it
erred or has a different view" (Co vs. Electoral Tribunal of the House of Representatives & Ong, G.R. Nos. 92191-92 and
Balanquit vs. Electoral Tribunal of the House of Representatives & Ong, G.R Nos. 92202-03, July 30, 1991).
In the case at bar, the nature of the question for determination is not purely political. Here, we are called upon to decide
whether under the Constitution the President may grant executive clemency in administrative cases. We must not
overlook the fact that the exercise by the President of her power of executive clemency is subject to constitutional
l'um'tations. We will merely check whether the particular measure in question has been in accordance with law. In so
doing, We will not concern ourselves with the reasons or motives which actuate the President as such is clearly beyond
our power of judicial review.
Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on Article VII,
Section 19 of the Constitution which reads:
Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President may grant
reprieves, commu tations, and pardons, and remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress.
(Emphasis supplied)
According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal cases, and
no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in an administrative
case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however,
describes in his very own words, respondent governor as one who has been "convicted in an administrative case" (par.
22-a, petition). Thus, petitioner concedes that the word "conviction" may be used either in a criminal case or in an
administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536, We ruled:
For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively or ... criminally. In
either case, his culpability must be established ...
It is also important to note that respondent govemor's Motion for Reconsideration filed on March 1, 1991 was withdrawn in
his petition for the grant of executive clemency, which fact rendered the Resolution dated February 26, 1991 affirming the
DLG Decision (which found respondent governor guilty of neglect of duty and/or abuse of authority and which suspended
him for ninety (90) days) final.
Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain petitioner's view.
In other words, if the law does not distinguish, so We must no distinguish. The Constitution does not distinguish between
which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By
the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following
petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not
necessarily involve criminal offenses.
In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive
clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and
pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in
administrative cases, which are clearly less serious than criminal offenses.
A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in administrative
cases.

Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove administrative penalties or
disabilities issued upon officers and employees, in disciplinary cases, subject to such terms and conditions as he may
impose in the interest of the service."
During the deliberations of the Constitutional Commission, a subject of deliberations was the proposed amendment to Art.
VII, Sec. 19 which reads as follows: "However, the power to grant executive clemency for violation of corrupt practices
laws may be limited by legislation."The Constitutional Commission, however, voted to remove the amendment, since it
was in derogation of the powers of the President. As Mr. Natividad stated:
I am also against this provision which will again chip more powers from the President. In case of other criminals convicted
in our society we extend probation to them while in this case, they have already been convicted and we offer mercy. The
only way we can offer mercy to them is through this executive clemency extended to them by the President. If we still
close this avenue to them, they would be prejudiced even worse than the murderers and the more vicious killers in our
society ....
The proposal was primarily intended to prevent the President from protecting his cronies. Manifestly, however, the
Commission preferred to trust in the discretion of Presidents and refrained from putting additional limitations on his
clemency powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-525)
It is evident from the intent of the Constitutional Commission, therefore, that the President's executive clemency powers
may not be limited in terms of coverage, except as already provided in the Constitution, that is, "no pardon, amnesty,
parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President
without the favorable recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If those already adjudged
guilty criminally in court may be pardoned, those adjudged guilty administratively should likewise be extended the same
benefit.
In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt, but the
Constitution grants to the President the power to pardon the act done by the proved criminal and in the process exempts
him from punishment therefor. On the other hand, in administrative cases, the quantum of evidence required is mere
substantial evidence to support a decision, not to mention that as to the admissibility of evidence, administrative bodies
are not bound by the technical and rigid rules of admissibility prescribed in criminal cases. It will therefore be unjust and
unfair for those found guilty administratively of some charge if the same effects of pardon or executive clemency cannot
be extended to them, even in the sense of modifying a decision to subserve the interest of the public. (p. 34, Comment of
public respondent)
Of equal importance are the following provisions of Executive Order No. 292, otherwise known as the Administrative Code
of 1987, Section I, Book III of which provides:
SECTION 1. Power of Control. The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed.
SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly stated in the Code or in other laws
defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as
follows:
(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function
is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of
plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of
particular agencies the word "control" shall encompass supervision and control as defined in this paragraph. ... (emphasis
supplied)
The disciplinary authority to investigate, suspend, and remove provincial or city officials devolves at the first instance on
the Department of Interior and Local Government (Secs. 61 and 65, B.P. Blg. 337) and ultimately on the President (Sec.
66). Implicit in this authority, however, is the "supervision and control" power of the President to reduce, if circumstances
so warrant, the imposable penalty or to modify the suspension or removal order, even "in the sense" of granting executive
clemency. "Control," within the meaning of the Constitution, is the power to substitute one's own judgment for that of a
subordinate. Under the doctrine of Qualified Political Agency, the different executive departments are mere adjuncts of the
President. Their acts are presumptively the acts of the President until countermanded or reprobated by her (Vinena v.
Secretary, 67 Phil. 451; Free Telephone Workers Union vs. Minister of Labor and Employment, 108 SCRA 767 [1981]).

Replying upon this view, it is urged by the Solicitor General that in the present case, the President, in the exercise of her
power of supervision and control over all executive departments, may substitute her decision for that of her subordinate,
most especially where the basis therefor would be to serve the greater public interest. It is clearly within the power of the
President not only to grant "executive clemency" but also to reverse or modify a ruling issued by a subordinate against an
erring public official, where a reconsideration of the facts alleged would support the same. It is in this sense that the
alleged executive clemency was granted, after adducing reasons that subserve the public interest. "the relative
success of . . . livelihood loan program." (pp. 39-40, Comment of public respondent)
We wish to stress however that when we say the President can grant executive clemency in administrative cases, We
refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the
government.
Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for reconsideration and the same may
be regarded as implicitly resolved, not only because of its withdrawal but also because of the executive clemency which in
effect reduced the penalty, conformably with the power of "control."
On petitioner's argument that private respondent's motion for reconsideration has abated the running of the reglementary
period for finality of judgment in O.P. Case No. 4480 (that is, there being no final judgment to speak of, the pardon
granted was premature and of no effect, We reiterate the doctrine that upon acceptance of a presidential pardon, the
grantee is deemed to have waived any appeal which he may have filed. Thus, it was held that:
The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency embraced
in the pardoning power. According to the Constitution: "The President may except in cases of impeachment, grant
reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa,
grant amnesty. "Once granted, it is binding and effective. It serves to put an end to this appeal." (Mansanto v. Factoran,
Jr., G.R. No. 78239, 170 SCRA 190. 196). (See also Peo v. Crisola, 129 SCRA 13)
Consequently, respondent governor's acceptance of the presidential pardon "serves to put an end" to the motion for
reconsideration and renders the subject decision final, that of the period already served.
Finally, petitioner's argument that his constitutional rights to due process were violated is uruneritorious. Pardon has been
defined as "the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is
intended and not communicated officially to the court. ..." (Bernas, The Constitution of the Philippines, Vol. II, First Ed.
1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was not notified of the
subject pardon, it is only because said notice is unnecessary. Besides, petitioner's claim that respondent governor has not
begun serve sentence is belied by his very own factual allegations in his petition, more particularly that he served as
Acting Governor of Tarlac effective from the date he took his Oath of Office on February 28, 1991 up to the time
respondent govemor reassumed the governorship of Tarlac on May 21, 1991 (par. 30 petition). It is, therefore, error to say
that private respondent did not serve any portion of the 90-day suspension meted upon him.
We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction committed by public respondent.
WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act arbitrarily or with abuse,
much less grave abuse of discretion in issuing the May 15, 1991 Resolution granting on the grounds mentioned therein,
executive clemency to respondent governor and that, accordingly, the same is not unconstitutional (without prejudice to
criminal proceedings which have been filed or may be filed against respondent governor), and (2) DENYING the rest of
the prayers in the petition for being unmeritorious, moot and academic. No costs.
SO ORDERED.
Separate Opinions
CRUZ, J., dissenting:
I concur in the result and would s the challenged resolution of May 18, 1991, on the basis only of the Fresident's control
power. I think the discussion of the pardoning power is unnecessary and may even be misleading as theponencia itself
says that it was not by virtue thereof that the private respondent's penalty was reduced. The correct approach, if I may
spectfully suggest it, is to uphold the resolution solely on strength of the President's power of "control of all the executive
departments, bureaus and offices" under Article VII, Sect 17, of the Constitution.

We have held in many cases that a Cabinet member is an alter ego of the President whose acts may be affirmed,
modified reversed by the latter in his discretion. (Villena v. Sec. of Interior, 67 Phil. 451; Lacson-Magallanes v. Pao, 21
SC 895; Gascon v. Arroyo, 178 SCRA 582; De Leon v. Carpio, 1 SCRA 457). What happened in this case was that
President Aquino saw fit to amend the decision rendered by the Secretary of Local Government on September 21, 1990,
by reducing 90-day suspension imposed on Gov. Ocampo. The President had the authority to do this, and she could
exercise it through Executive Secretary. His act, not having been "reprobated disauthorized" by her, is presumed to be the
act of the Preside herself.
The Court is not concerned with the wisdom of that act, on its legality. I believe the act is legal but reserve judgment on its
wisdom.
PADILLA, J., dissenting:
I vote to grant the petition which seeks to annul the 15 May 1991 resolution of the Office of the President, for the reason
that the respondent Executive Secretary, presumably acting on behalf of the President, had acted in excess of his
jurisdiction in granting executive clemency to private respondent Ocampo III by reducing the ninety-day suspension
imposed upon him to the period he had already served.
Under the Local Government Code (BP 337), the law in force at the time material to this case, the authority of the
President over local governments is one of general supervision only, to ensure that local affairs are administered
according law. General supervision over local governments includes the authority to order an investigation of the conduct
of local officials whenever necessary. 1 The 1987 Constitution as well as the Administrative Code of 1987 also grants to
the President the power of general supervision over local governments. 2
In taking disciplinary action against local elective officials, the President has no inherent power to suspend or remove
them unless authorized by law and on grounds set forth by the latter. 3 Section 60 of the Local Government
Code 4enumerates the acts for which an elective local official may be suspended or removed. The Secretary of Interior
and Local Government is given the authority to try complaints filed against any elective city or provincial official. 5 The
decision of removal or suspension by the Secretary of Interior and Local Government is appealable to the Office of the
President. 6 The appellate jurisdiction of the President to review, reverse or modify the decision of the Secretary of Interior
and Local Government does not carry with it the power to grant executive clemency. Neither does the Local Government
Code expressly vest upon the President the power to commute or lift the administrative sanctions imposed upon erring,
local elective officials after the decision has become final.
The suspension of private respondent Ocampo III for ninety (90) days was imposed after investigation and hearing of the
complaint against him. The decision of suspension was rendered after a finding by the Secretary of Interior and Local
Government that private respondent had committed and which was manifestly and grossly disadvantageous to the
Provincial
Government
of
Tarlac.
Thus,
the
suspension
meted
o
to
private
respondent
is
entirely distinct and separate from preventive suspension imposed on local elective officials prior the final determination of
the complaint filed against them, which is limited to only sixty (60) days under the Local Government Code. A preventive
suspension may be imposed after issues have been joined and before the termination of the case when there is
reasonable ground to believe that respondent had committed the act complained of and the evidence of culpability is
strong, when the gravity of the offense warrants such preventive suspension; or when the continuance in office of the
respondent could influence the witnesses or pose a threat to the safe and integrity of the records and other evidence. 7
In contrast, the administrative sanction of suspension imposed after the case has been heard is subject to the limitation
that it must not exceed the unexpired term of the respondent nor bar the respondent from an elective public office for as
long as he meets the qualifications required by law. 8 Considering that private respondent's suspension was not a
preventive one but a punitive sanction, the limitation of sixty (60) days does not apply.
At the time the questioned grant of executive clemency was issued by respondent Secretary to private respondent, a
motion for reconsideration by private respondent Ocampo III was pending. Assuming (without admitting) that the
constitutional power of the President to grant executive clemency extends to administrative sanctions imposed in an
administrative proceeding such reduction of the period of suspension of private respondent was premature under the
circumstances. Had respondent Secretary, acting for the President, really believed that the origin 90-day period of
suspension imposed upon private respondent was too harsh, the President could have modified the imposed penalty by
reducing the same or entirely lifting such suspension in resolving the pending motion for reconsideration. Furthermore,
private respondent had already served eighty one (81) days out of the 90-day suspension when the executive clemency
was extended. With only nine (9) days left unserved of the suspension imposed, the reason behind the grant of such
executive clemency to private respondent appears dubious, if not entirely whimsical.

It is the contention of private respondent that the reduction of his suspension was granted in accordance with the
Constitution. I disagree. It is my opinion that the constitutional grant of power to the President to accord executive
clemency, does not extend to administrative sanctions imposed, in an administrative proceeding. Sec. 19, Art. VII of the
1987 Constitution clearly provides that
Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.
(Emphasis supplied)
The philosophy behind the grant of power to the President to grant executive clemency is founded on the recognition that
human institutions are imperfect and that there are infirmities, deficiencies or flaws in the administration of justice. The
power exists as an instrument or means for correcting these infirmities and also for mitigating whatever harshness might
be generated by a too strict an application of the law. 9 This principle applies to all criminal offenses committed against
the state.
Pardon is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the
individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is a voluntary act of
the sovereign, granting outright remission of guilt and declaring record that a particular individual is to be relieved of the
legal consequences of a particular crime. 10 Amnesty commonly d notes a general pardon to rebels for their treason or
other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended
by some breach the law of nations. 11
A commutation of sentence is the reduction of penalty imposed 12 while reprieve is defined as the temporary suspension
of the execution of a sentence, especially of a sentence of death. 13 The object of commutation of sentence is the
rehabilitation the criminal offender. 14 The law of respite or reprieve appeal to apply only to capital sentences. 15
From the foregoing definitions of the different forms by which the President may exercise the power to grant executive
clemency, it is plainly evident that the intention of the Constitution is to empower and enable the President to afford relief
from enforcement of the criminal law which imposes penalty and which appears unduly harsh. However, the President's
pardoning power cannot be used to release or destroy the civil rights or remedies of private individuals, 16 or to relieve
against private obligations, civil penalties and forfeitures, or an order or judgment in a civil action or proceeding, or an
administrative proceeding. 17
In order that the President may be able to exercise the power to commute or remove administrative penalties or
disabilities in an administrative proceeding for violation of the Local Government Code, such power must be expressly
provided for by law. It may not just be inferred from the President's authority to exercise general supervision over local
governments nor from the President's power of control over the acts of the Secretary of Interior and Local Government.
In the case at bar, private respondent entered into and executed a loan agreement with a non-stock and non-profit
organization known as Lingkod Tarlac Foundation, Inc. without instituting adequate safeguards in the loan document,
without a time frame for repayments, reasonable repayment schedule and security or surety for the amount of the loan.
Such act of private respondent was found by the Secretary of Interior and Local Government as manifestly and grossly
disadvantageous to the Provincial Government of Tarlac, amounting to serious neglect of duty and/or abuse of authority,
punishable by suspension or removal under Sec. 60 of the Local Government Code.
The administrative sanction of suspension imposed upon private respondent does not affect the criminal complaint also
filed against him before the Office of the Ombudsman for violation of the Anti-Graft Law (Rep. Act 3019). The
administrative finding of the Secretary of Interior and Local Government, as affirmed by the Office of the President, that
private respondent had committed neglect of duty and/or abuse of authority while in office, was not by virtue of a criminal
proceeding. Thus, it cannot be said that there was a criminal conviction of the private respondent by final judgment. Nor
can it be said that the disciplinary action suspending private respondent is an execution and/or enforcement of the
criminal laws of the land. Therefore, the President's power to grant executive clemency is not applicable or even relevant
in the case at bar.
From the deliberations of the Constitutional Commission which drafted the 1987 Constitution, it is clear that the intention
of the framers of the fundamental law was to extend to the President the power to grant pardons, reprieves, or
commutations in cases involving criminal offenses, which include violations of the Anti-Graft Law. There is no indication at
all that such power to grant executive clemency by the President may be extended to administrative sanctions imposed in

an administrative proceeding. In this connection, it is timely to once more re-state that in a constitutional republic, such as
ours, sovereignty resides in the people and all government authority emanates from them. The people, through the
Constitution, have delegated to the President and other institutions of government certain powers and those not delegated
remain with the people. The President, in the Constitution, has been delegated the power to grant reprieves,
commutations and pardons "after conviction by final judgment". This power can not be stretched even by fiction or
imagination to include the authority to grant similar reprieves, commutations or pardons over sanctions in administratives
proceedings.
ACCORDINGLY, I vote to annul the resolution of the respondent Executive Secretary dated 15 May 1991, as having been
issued clearly in excess of jurisdiction or with grave abuse or discretion amounting to lack or excess of jurisdiction.
# Separate Opinions
CRUZ, J., dissenting:
I concur in the result and would s the challenged resolution of May 18, 1991, on the basis only of the Fresident's control
power. I think the discussion of the pardoning power is unnecessary and may even be misleading as theponencia itself
says that it was not by virtue thereof that the private respondent's penalty was reduced. The correct approach, if I may
spectfully suggest it, is to uphold the resolution solely on strength of the President's power of "control of all the executive
departments, bureaus and offices" under Article VII, Sect 17, of the Constitution.
We have held in many cases that a Cabinet member is an alter ego of the President whose acts may be affirmed,
modified reversed by the latter in his discretion. (Villena v. Sec. of Interior, 67 Phil. 451; Lacson-Magallanes v. Pao, 21
SC 895; Gascon v. Arroyo, 178 SCRA 582; De Leon v. Carpio, 1 SCRA 457). What happened in this case was that
President Aquino saw fit to amend the decision rendered by the Secretary of Local Government on September 21, 1990,
by reducing 90-day suspension imposed on Gov. Ocampo. The President had the authority to do this, and she could
exercise it through Executive Secretary. His act, not having been "reprobated disauthorized" by her, is presumed to be the
act of the Preside herself.
The Court is not concerned with the wisdom of that act, on its legality. I believe the act is legal but reserve judgment on its
wisdom.
PADILLA, J., dissenting:
I vote to grant the petition which seeks to annul the 15 May 1991 resolution of the Office of the President, for the reason
that the respondent Executive Secretary, presumably acting on behalf of the President, had acted in excess of his
jurisdiction in granting executive clemency to private respondent Ocampo III by reducing the ninety-day suspension
imposed upon him to the period he had already served.
Under the Local Government Code (BP 337), the law in force at the time material to this case, the authority of the
President over local governments is one of general supervision only, to ensure that local affairs are administered
according law. General supervision over local governments includes the authority to order an investigation of the conduct
of local officials whenever necessary. 1 The 1987 Constitution as well as the Administrative Code of 1987 also grants to
the President the power of general supervision over local governments. 2
In taking disciplinary action against local elective officials, the President has no inherent power to suspend or remove
them unless authorized by law and on grounds set forth by the latter. 3 Section 60 of the Local Government
Code 4enumerates the acts for which an elective local official may be suspended or removed. The Secretary of Interior
and Local Government is given the authority to try complaints filed against any elective city or provincial official. 5 The
decision of removal or suspension by the Secretary of Interior and Local Government is appealable to the Office of the
President. 6 The appellate jurisdiction of the President to review, reverse or modify the decision of the Secretary of Interior
and Local Government does not carry with it the power to grant executive clemency. Neither does the Local Government
Code expressly vest upon the President the power to commute or lift the administrative sanctions imposed upon erring,
local elective officials after the decision has become final.
The suspension of private respondent Ocampo III for ninety (90) days was imposed after investigation and hearing of the
complaint against him. The decision of suspension was rendered after a finding by the Secretary of Interior and Local
Government that private respondent had committed and which was manifestly and grossly disadvantageous to the
Provincial
Government
of
Tarlac.
Thus,
the
suspension
meted
o
to
private
respondent
is
entirely distinct and separate from preventive suspension imposed on local elective officials prior the final determination of

the complaint filed against them, which is limited to only sixty (60) days under the Local Government Code. A preventive
suspension may be imposed after issues have been joined and before the termination of the case when there is
reasonable ground to believe that respondent had committed the act complained of and the evidence of culpability is
strong, when the gravity of the offense warrants such preventive suspension; or when the continuance in office of the
respondent could influence the witnesses or pose a threat to the safe and integrity of the records and other evidence. 7
In contrast, the administrative sanction of suspension imposed after the case has been heard is subject to the limitation
that it must not exceed the unexpired term of the respondent nor bar the respondent from an elective public office for as
long as he meets the qualifications required by law. 8 Considering that private respondent's suspension was not a
preventive one but a punitive sanction, the limitation of sixty (60) days does not apply.
At the time the questioned grant of executive clemency was issued by respondent Secretary to private respondent, a
motion for reconsideration by private respondent Ocampo III was pending. Assuming (without admitting) that the
constitutional power of the President to grant executive clemency extends to administrative sanctions imposed in an
administrative proceeding such reduction of the period of suspension of private respondent was premature under the
circumstances. Had respondent Secretary, acting for the President, really believed that the origin 90-day period of
suspension imposed upon private respondent was too harsh, the President could have modified the imposed penalty by
reducing the same or entirely lifting such suspension in resolving the pending motion for reconsideration. Furthermore,
private respondent had already served eighty one (81) days out of the 90-day suspension when the executive clemency
was extended. With only nine (9) days left unserved of the suspension imposed, the reason behind the grant of such
executive clemency to private respondent appears dubious, if not entirely whimsical.
It is the contention of private respondent that the reduction of his suspension was granted in accordance with the
Constitution. I disagree. It is my opinion that the constitutional grant of power to the President to accord executive
clemency, does not extend to administrative sanctions imposed, in an administrative proceeding. Sec. 19, Art. VII of the
1987 Constitution clearly provides that
Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.
(Emphasis supplied)
The philosophy behind the grant of power to the President to grant executive clemency is founded on the recognition that
human institutions are imperfect and that there are infirmities, deficiencies or flaws in the administration of justice. The
power exists as an instrument or means for correcting these infirmities and also for mitigating whatever harshness might
be generated by a too strict an application of the law. 9 This principle applies to all criminal offenses committed against
the state.
Pardon is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the
individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is a voluntary act of
the sovereign, granting outright remission of guilt and declaring record that a particular individual is to be relieved of the
legal consequences of a particular crime. 10 Amnesty commonly d notes a general pardon to rebels for their treason or
other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended
by some breach the law of nations. 11
A commutation of sentence is the reduction of penalty imposed 12 while reprieve is defined as the temporary suspension
of the execution of a sentence, especially of a sentence of death. 13 The object of commutation of sentence is the
rehabilitation the criminal offender. 14 The law of respite or reprieve appeal to apply only to capital sentences. 15
From the foregoing definitions of the different forms by which the President may exercise the power to grant executive
clemency, it is plainly evident that the intention of the Constitution is to empower and enable the President to afford relief
from enforcement of the criminal law which imposes penalty and which appears unduly harsh. However, the President's
pardoning power cannot be used to release or destroy the civil rights or remedies of private individuals, 16 or to relieve
against private obligations, civil penalties and forfeitures, or an order or judgment in a civil action or proceeding, or an
administrative proceeding. 17
In order that the President may be able to exercise the power to commute or remove administrative penalties or
disabilities in an administrative proceeding for violation of the Local Government Code, such power must be expressly

provided for by law. It may not just be inferred from the President's authority to exercise general supervision over local
governments nor from the President's power of control over the acts of the Secretary of Interior and Local Government.
In the case at bar, private respondent entered into and executed a loan agreement with a non-stock and non-profit
organization known as Lingkod Tarlac Foundation, Inc. without instituting adequate safeguards in the loan document,
without a time frame for repayments, reasonable repayment schedule and security or surety for the amount of the loan.
Such act of private respondent was found by the Secretary of Interior and Local Government as manifestly and grossly
disadvantageous to the Provincial Government of Tarlac, amounting to serious neglect of duty and/or abuse of authority,
punishable by suspension or removal under Sec. 60 of the Local Government Code.
The administrative sanction of suspension imposed upon private respondent does not affect the criminal complaint also
filed against him before the Office of the Ombudsman for violation of the Anti-Graft Law (Rep. Act 3019). The
administrative finding of the Secretary of Interior and Local Government, as affirmed by the Office of the President, that
private respondent had committed neglect of duty and/or abuse of authority while in office, was not by virtue of a criminal
proceeding. Thus, it cannot be said that there was a criminal conviction of the private respondent by final judgment. Nor
can it be said that the disciplinary action suspending private respondent is an execution and/or enforcement of the
criminal laws of the land. Therefore, the President's power to grant executive clemency is not applicable or even relevant
in the case at bar.
From the deliberations of the Constitutional Commission which drafted the 1987 Constitution, it is clear that the intention
of the framers of the fundamental law was to extend to the President the power to grant pardons, reprieves, or
commutations in cases involving criminal offenses, which include violations of the Anti-Graft Law. There is no indication at
all that such power to grant executive clemency by the President may be extended to administrative sanctions imposed in
an administrative proceeding. In this connection, it is timely to once more re-state that in a constitutional republic, such as
ours, sovereignty resides in the people and all government authority emanates from them. The people, through the
Constitution, have delegated to the President and other institutions of government certain powers and those not delegated
remain with the people. The President, in the Constitution, has been delegated the power to grant reprieves,
commutations and pardons "after conviction by final judgment". This power can not be stretched even by fiction or
imagination to include the authority to grant similar reprieves, commutations or pardons over sanctions in administratives
proceedings.
ACCORDINGLY, I vote to annul the resolution of the respondent Executive Secretary dated 15 May 1991, as having been
issued clearly in excess of jurisdiction or with grave abuse or discretion amounting to lack or excess of jurisdiction.

G.R. No. 9415 August 21, 1992

RODOLFO E. AGUINALDO vs. HON. LUIS SANTOS, as Secretary of the Department of Local Government, and
MELVIN VARGAS, as Acting Governor of Cagayan
SYLLABUS

1. ADMINISTRATIVE LAW; PUBLIC OFFICERS; AS RULE, CANNOT BE REMOVED FOR MISCONDUCT COMMITTED
DURING A PRIOR TERM; NOT APPLICABLE TO CRIMINAL CASES PENDING AGAINST HIM. The rule is that a
public official can not be removed for administrative misconduct committed during a prior term, since his re-election to
office operates as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him
therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may
have committed during the failed coup.
2. ID.; ID.; ACTS OF DISLOYALTY TO THE REPUBLIC AS A GROUND FOR REMOVAL THEREOF; NEED NOT BE
PROVED BEYOND REASONABLE DOUBT. The power of respondent Secretary to remove local government officials
is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided
by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive
departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that
the acts of the department head are presumptively the acts of the President unless expressly rejected by him. The
statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa
pursuant to Article XI of the 1973 Constitution, Section 2. A similar provision is found in Section 3, Article X of the 1987
Constitution. Equally without merit is petitioners claim that before he could be suspended or removed from office, proof
beyond reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is
defined and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under
the provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly
elected Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only
substantial evidence.
3. LOCAL GOVERNMENT; POWER OF THE SECRETARY OF THE LOCAL GOVERNMENT TO REMOVE LOCAL
GOVERNMENT OFFICIAL; ANCHORED ON BOTH THE CONSTITUTION AND A STATUTORY GRANT FROM THE
LEGISLATIVE BRANCH. Inasmuch as the power and authority of the legislature to enact a local government code,
which provides for the manner of removal of local government officials, is found in the 1973 Constitution as well as in the
1987 Constitution, then it can not be said that B.P. Blg. 337 was repealed by the effectivity of the present Constitution.
Moreover, in Bagabuyo Et. Al. v. Davide, Jr., Et Al., this Court had the occasion to state that B.P. Blg. 337 remained in
force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is
approved.
4. ID.; PERMANENT VACANCY IN THE OFFICE OF GOVERNOR; SHALL BE FILED BY THE VICE-GOVERNOR. As
to petitioners argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as
Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg. 337 to show the fallacy of the same, to wit In
case a permanent vacancy arises when a governor .. refuses to assume office, fails to qualify, dies or is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the vicegovernor . . . shall assume the office for the unexpired term of the former.
NOCON, J.:
In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner
Rodolfo E. Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm.
Case No. P-10437-89 dismissing him as Governor of Cagayan on the ground that the power of the Secretary of Local
Government to dismiss local government official under Section 14, Article I, Chapter 3 and Sections 60 to 67, Chapter 4
of Batas Pambansa Blg. 337, otherwise known as the Local Government Code, was repealed by the effectivity of the
1987 Constitution.
The pertinent facts are as follows: Petitioner was the duly elected Governor of the province of Cagayan, having been
elected to said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom. He
took his oath sometimes around March 1988.

Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and a
letter, both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or remove
from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof.
On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed
by Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao
and Lasam, all in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was required to file
a verified answer to the complaint.
On January 5, 1990, the Department of Local Government received a letter from petitioner dated December 29, 1989 in
reply to respondent Secretary's December 4, 1989 letter requiring him to explain why should not be suspended or
removed from office for disloyalty. In his letter, petitioner denied being privy to the planning of the coup or actively
participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers. 1
Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep and
2
others. On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice,
pending the outcome of the formal investigation into the charges against him.
During the hearing conducted on the charges against petitioner, complainants presented testimonial and documentary
evidence to prove the charges. Petitioner neither presented evidence nor even cross-examined the complainant's
witnesses, choosing instead to move that respondent Secretary inhibit himself from deciding the case, which motion was
denied.
Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his
removal from office. Installed as Governor of Cagayan in the process was respondent Melvin Vargas, who was then the
Vice-Governor of Cagayan.
Petitioner relies on three grounds for the allowance of the petition, namely: (1) that the power of respondent Secretary to
suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987
Constitution; (2) that since respondent Secretary no longer has power to suspend or remove petitioner, the former could
not appoint respondent Melvin Vargas as Governor of Cagayan; and (3) the alleged act of disloyalty committed by
petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it
is an act punishable as rebellion under the Revised Penal Code.
While this case was pending before this Court, petitioner filed his certificate of candidacy for the position of Governor of
Cagayan for the May 11, 1992 elections. Three separate petitions for his disqualification were then filed against him, all
based on the ground that he had been removed from office by virtue of the March 19, 1990 resolution of respondent
Secretary. The commission on Elections granted the petitions by way of a resolution dated May 9, 1992. On the same
day, acting upon a "Motion to Clarify" filed by petitioner, the Commission ruled that inasmuch as the resolutions of the
Commission becomes final and executory only after five (5) days from promulgation, petitioner may still be voted upon as
a candidate for governor pending the final outcome of the disqualification cases with his Court.
Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30,
entitled Rodolfo E. Aguinaldo v. Commission on Elections, et al., seeking to nullify the resolution of the Commission
ordering his disqualification. The Court, in a resolution dated May 14, 1992, issued a temporary restraining order against
the Commission to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the disqualification
case, thereby allowing the canvassing of the votes and returns in Cagayan to proceed. However, the Commission was
ordered not to proclaim a winner until this Court has decided the case.
On June 9, 1992, a resolution was issued in the aforementioned case granting petition and annulling the May 9, 1992
resolution of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and is
still pending review with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the way
for his eventual proclamation as Governor of Cagayan.
Under the environmental circumstances of the case, We find the petition meritorious.
Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before Us
moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among
the candidates for governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al., supra,:

. . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF CANDIDATES", attached to the "VERY URGENT
MOTION FOR THE MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by petitioner shows that he
received 170,382 votes while the other candidates for the same position received the following total number of votes: (1)
Patricio T. Antonio 54,412, (2) Paquito F. Castillo 2,198; and (3) Florencio L. Vargas 48,129.
xxx xxx xxx
Considering the fact narrated, the expiration of petitioner's term of office during which the acts charged were allegedly
committed, and his subsequent reelection, the petitioner must be dismissed for the reason that the issue has become
academic. In Pascual v. Provincial Board of Nueva Ecija, L-11959, October 31, 1959, this Court has ruled:
The weight of authority, however, seems to incline to the ruled denying the right to remove from office because of
misconduct during a prior term to which we fully subscribe.
Offenses committed, or acts done, during a previous term are generally held not to furnish cause for removal and this is
especially true were the Constitution provides that the penalty in proceeding for removal shall not extend beyond the
removal from office, and disqualification from holding office for a term for which the officer was elected or appointed. (6
C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40 S.W. 23rd 418; People ex rel Bashaw v.
Thompson, 130 P. 2nd 237; Board of Com'rs Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re
Fedula, 147 A 67; State v. Wald, 43 S.W. 217)
The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a
condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45,
citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R.
332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553.
The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would be to
deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed
that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if
he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overrule the will of the
people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57 SCRA 163 [1974]) 3
Clear then, the rule is that a public official can not be removed for administrative misconduct committed during a prior
term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting
off the right to remove him therefor. The foregoing rule, however, finds no application to criminalcases pending against
petitioner for acts he may have committed during the failed coup.
The other grounds raised by petitioner deserve scant consideration. Petitioner contends that the power of respondent
Secretary to suspend or remove local government officials as alter ego of the President, and as embodied in B.P. Blg. 337
has been repealed by the 1987 Constitution and which is now vested in the courts.
We do not agree. The power of respondent Secretary to remove local government officials is anchored on both the
Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and
X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus
and offices and the power of general supervision over local governments, and by the doctrine that the acts of the
department head are presumptively the acts of the President unless expressly rejected by him. 4 The statutory grant found
in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI
of the 1973 Constitution, Section 2 of which specifically provided as follows
Sec. 2. The National Assembly shall enact a local government code which may not thereafter be amended except by a
majority vote of all its Members, defining a more responsive and accountable local government structure with an effective
system of recall, allocating among the different local government units their powers, responsibilities, and resources, and
providing for the qualifications, election and removal, term, salaries, power, functions, and duties of local government
officials, and all other matters relating to the organization and operation of the local units. However, any change in the
existing form of local government shall not take effect until ratified by a majority of the votes cast in the plebiscite called for
5
the purpose.
A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads:

Sec. 3. The Congress shall enact a local government code which shall provided for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local government units their powers, responsibilities, and resources, and
provide for thequalifications, election, appointment, and removal, term and salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units. 6
Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner
of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it can
not be said that BP Blg. 337 was repealed by the effective of the present Constitution.
Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the occasion to state that B.P. Blg. 337 remained in
force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is
approved.
The power of respondent Secretary of the Department of Local Government to remove local elective government officials
is found in Secs. 60 and 61 of B.P. Blg. 337. 8
As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as
Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ
In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or is removed
from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the vicegovernor . . . shall assume the office for the unexpired term of the former. 9
Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond
reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined
and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the
provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected
Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only
substantial evidence. 10
WHEREFORE, petitioner is hereby GRANTED and the decision of public respondent Secretary of Local Government
dated March 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby
REVERSED.
SO ORDERED.

G.R. Nos. 217126-27, November 10, 2015

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN v. COURT OF APPEALS (SIXTH
DIVISION) AND JEJOMAR ERWIN S. BINAY, JR.
DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially acknowledged so to be[.]"
The Case
2

Before the Court is a petition for certiorari and prohibition filed on March 25, 2015 by petitioner Conchita Carpio Morales,
in her capacity as the Ombudsman (Ombudsman), through the Office of the Solicitor General (OSG), assailing: (a) the
3
Resolution dated March 16, 2015 of public respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which
granted private respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary restraining
order (TRO) against the implementation of the Joint Order4 dated March 10, 20,15 of the Ombudsman in OMB-C-A-150058 to 0063 (preventive suspension order) preventively suspending him and several other public officers and employees
5
of the City Government of Makati, for six (6) months without pay; and (b) the Resolution dated March 20, 2015 of the CA,
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt 6 in CA-G.R. SP No. 139504.
Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction8 (WPI) in CA-G.R. SP No.
139453 which further enjoined the implementation of the preventive suspension order, prompting the Ombudsman to file a
supplemental petition9 on April 13, 2015.
The Facts
On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI before the
Office of the Ombudsman against Binay, Jr. and other public officers and employees of the City Government of Makati
(Binay, Jr., et al), accusing them of Plunder11 and violation of Republic Act No. (RA) 3019,12 otherwise known as "The
Anti-Graft and Corrupt Practices Act," in connection with the five (5) phases of the procurement and construction of the
Makati City Hall Parking Building (Makati Parking Building).13
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators14 to conduct a fact-finding
investigation, submit an investigation report, and file the necessary complaint, if warranted (1st Special Panel).15 Pursuant
to the Ombudsman's directive, on March 5, 2015, the 1st Special Panel filed a complaint 16 (OMB Complaint) against
Binay, Jr., et al, charging them with six (6) administrative cases17 for Grave Misconduct, Serious Dishonesty, and Conduct
Prejudicial to the Best Interest of the Service, and six (6) criminal cases18 for violation of Section 3 (e) of RA 3019,
Malversation of Public Funds, and Falsification of Public Documents (OMB Cases). 19
As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending the following
procurement and construction phases of the Makati Parking Building project, committed during his previous and present
terms as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013)20
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati Parking Building project to
Hilmarc's Construction Corporation (Hilmarc's), and consequently, executed the corresponding contract 22 on September
23
24
28, 2010, without the required publication and the lack of architectural design, and approved the release of funds
25
therefor in the following amounts as follows: (1) P130,518,394.80 on December 15, 2010; (2) P134,470,659.64 on
26
27
27
January 19, 2011; (3) P92,775,202. on February 25, 2011; (4) P57,148,625.51 on March 28, 2011;28(5)
P40,908,750.61 on May 3, 2011;29 and (6) P106,672,761.90 on July 7, 2011;30
31

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award for Phase IV of the Makati Parking Building project to
Hilmarc's, and consequently, executed the corresponding contract32 on August 18, 2011,33 without the required
publication and the lack of architectural design,34 and approved the release of funds therefor in the following amounts as
follows: (1) P182,325,538.97 on October 4, 2O11;35 (2) P173,132,606.91 on October 28,2011;36 (3) P80,408,735.20 on
December 12, 2011;37(4) P62,878,291.81 on February 10, 2012;38 and (5) P59,639,167.90 on October 1, 2012;39

40

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award for Phase V of the Makati Parking Building project to
41
42
Hilmarc's, and consequently, executed the corresponding contract on September 13, 2012, without the required
43
publication and the lack of architectural design, and approved the release of the funds therefor in the amounts of
P32,398,220.0544 and P30,582,629.3045 on December 20, 2012; and
Binay, Jr.'s Second Term (2013 to 2016)46
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining balance of the September
13, 2012 contract with Hilmarc's for Phase V of the Makati Parking Building project in the amount of
P27,443,629.97;47 and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the contract 48 with MANA
Architecture & Interior Design Co. (MANA) for the design and architectural services covering the Makati Parking Building
49
project in the amount of P429,011.48.
On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a preliminary investigation
nd
50
nd
and administrative adjudication on the OMB Cases (2 Special Panel). Thereafter, on March 9, 2015, the 2 Special
51
Panel issued separate orders for each of the OMB Cases, requiring Binay, Jr., et al. to file their respective counteraffidavits.52
nd

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the recommendation of the 2 Special
Panel, issued on March 10, 2015, the subject preventive suspension order, placing Binay, Jr., et al. under preventive
suspension for not more than six (6) months without pay, during the pendency of the OMB Cases. 53 The Ombudsman
ruled that the requisites for the preventive suspension of a public officer are present, 54 finding that: (a) the evidence of
Binay, Jr., et al.'s guilt was strong given that (1) the losing bidders and members of the Bids and Awards Committee of
Makati City had attested to the irregularities attending the Makati Parking Building project; (2) the documents on record
negated the publication of bids; and (3) the disbursement vouchers, checks, and official receipts showed the release of
funds; and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if proven to be true, warrant removal from public
service under the Revised Rules on Administrative Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s
respective positions give them access to public records and allow them to influence possible witnesses; hence, their
continued stay in office may prejudice the investigation relative to the OMB Cases filed against them. 55 Consequently, the
Ombudsman directed the Department of Interior and Local Government (DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the preventive suspension order against Binay, Jr., et al., upon receipt of the
same.56
On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City Mayor, and received by
Maricon Ausan, a member of Binay, Jr.'s staff.57
The Proceedings Before the CA
On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP No. 139453, seeking the
nullification of the preventive suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its
implementation.60Primarily, Binay, Jr. argued that he could not be held administratively liable for any anomalous
activity attending any of the five (5) phases of the Makati Parking Building project since: (a) Phases I and II were
undertaken before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired during his first term and
that his re-election as City Mayor of Makati for a second term effectively condoned his administrative liability
therefor, if any, thus rendering the administrative cases against him moot and academic. 61In any event, Binay, Jr.
claimed that the Ombudsman's preventive suspension order failed to show that the evidence of guilt presented
against him is strong, maintaining that he did not participate in any of the purported irregularities. 62 In support of his
prayer for injunctive relief, Binay, Jr. argued that he has a clear and unmistakable right to hold public office, having won by
landslide vote in the 2010 and 2013 elections, and that, in view of the condonation doctrine, as well as the lack of
evidence to sustain the charges against him, his suspension from office would undeservedly deprive the electorate of the
services of the person they have conscientiously chosen and voted into office. 63
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the preventive suspension order
through the DILG National Capital Region - Regional Director, Renato L. Brion, CESO III (Director Brion), who posted a
copy thereof on the wall of the Makati City Hall after failing to personally serve the same on Binay, Jr. as the points of
entry to the Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C. Evangelista
administered the oath of office on Makati City Vice Mayor Romulo V. Pea, Jr. (Pea, Jr.) who thereupon assumed office
as Acting Mayor.64

65

At noon of the same day, the CA issued a Resolution (dated March 16, 2015), granting Binay, Jr.'s prayer for a
TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day. 67 Citing the case of Governor
68
Garcia, Jr. v. CA, the CA found that it was more prudent on its part to issue a TRO in view of the extreme urgency of the
matter and seriousness of the issues raised, considering that if it were established that the acts subject of the
administrative cases against Binay, Jr. were all committed during his prior term, then, applying the condonation doctrine,
Binay, Jr.'s re-election meant that he can no longer be administratively charged.69 The CA then directed the Ombudsman
to comment on Binay, Jr.'s petition for certiorari .70
71

On March 17, 2015, the Ombudsman manifested that the TRO did not state what act was being restrained and that
since the preventive suspension order had already been served and implemented, there was no longer any act to
restrain.72
On the same day, Binay, Jr. filed a petition for contempt, 73 docketed as CA-G.R. SP No. 139504, accusing Secretary
Roxas, Director Brion, the officials of the Philippine National Police, and Pena, Jr. of deliberately refusing to obey the CA,
thereby allegedly impeding, obstructing, or degrading the administration of justice. 74 The Ombudsman and Department of
Justice Secretary Leila M. De Lima were subsequently impleaded as additional respondents upon Binay, Jr.'s filing of the
75
76
amended and supplemental petition for contempt (petition for contempt) on March 19, 2015. Among others, Binay, Jr.
accused the Ombudsman and other respondents therein for willfully and maliciously ignoring the TRO issued by the CA
against the preventive suspension order.77
78

In a Resolution dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP
No. 139504, and, without necessarily giving due course to Binay, Jr.'s petition for contempt, directed the
Ombudsman to file her comment thereto.79 The cases were set for hearing of oral arguments on March 30 and 31, 2015.80
The Proceedings Before the Court
Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed the present petition
before this Court, assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP
No. 139453, and the March 20, 2015 Resolution directing her to file a comment on Binay, Jr.'s petition for contempt in CAG.R. SP No. 139504.81 The Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO,
citing Section 14 of RA 6770,82 or "The Ombudsman Act of 1989," which states that no injunctive writ could be issued to
delay the Ombudsman's investigation unless there is prima facie evidence that the subject matter thereof is outside the
latter's jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay, Jr.'s petition for contempt is
illegal and improper, considering that the Ombudsman is an impeachable officer, and therefore, cannot be subjected to
contempt proceedings.84
In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987 Constitution specifically
grants the CA judicial power to review acts of any branch or instrumentality of government, including the Office of the
Ombudsman, in case of grave abuse of discretion amounting to lack or excess of jurisdiction, which he asserts was
committed in this case when said office issued the preventive suspension order against him. 86 Binay, Jr. posits that it was
incumbent upon the Ombudsman to1 have been apprised of the condonation doctrine as this would have weighed heavily
in determining whether there was strong evidence to warrant the issuance of the preventive suspension order. 87 In this
relation, Binay, Jr. maintains that the CA correctly enjoined the implementation of the preventive suspension order given
his clear and unmistakable right to public office, and that it is clear that he could not be held administratively liable for any
of the charges against him since his subsequent re-election in 2013 operated as a condonation of any administrative
offenses he may have committed during his previous term. 88 As regards the CA's order for the Ombudsman to comment
on his petition for contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable officer and, hence,
cannot be removed from office except by way of impeachment, an action for contempt imposes the penalty of fine and
imprisonment, without necessarily resulting in removal from office. Thus, the fact that the Ombudsman is an impeachable
officer should not deprive the CA of its inherent power to punish contempt. 89
Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it were held,91 granting
Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of the preventive suspension order. In so ruling,
the CA found that Binay, Jr. has an ostensible right to the final relief prayed for, namely, the nullification of the preventive
92
suspension order, in view of the condonation doctrine, citing Aguinaldo v. Santos. Particularly, it found that the
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-election in 2013 as City Mayor
of Makati condoned any administrative liability arising from anomalous activities relative to the Makati Parking Building
93
project from 2007 to 2013. In this regard, the CA added that, although there were acts which were apparently committed
94
by Binay, Jr. beyond his first term namely, the alleged payments on July 3, July 4, and July 24, 2013, corresponding
to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable therefor based on the cases
of Salalima v. Guingona, Jr.,95 and Mayor Garcia v. Mojica96 wherein the condonation doctrine was still applied by the
Court although the payments were made after the official's re-election, reasoning that the payments were merely effected

97

pursuant to contracts executed before said re-election. To this, the CA added that there was no concrete evidence of
98
Binay, Jr.'s participation for the alleged payments made on July 3, 4, and 24, 2013.
In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the Ombudsman filed a
supplemental petition99 before this Court, arguing that the condonation doctrine is irrelevant to the determination of
whether the evidence of guilt is strong for purposes of issuing preventive suspension orders. The Ombudsman also
maintained that a reliance on the condonation doctrine is a matter of defense, which should have been raised by Binay,
Jr. before it during the administrative proceedings, and that, at any rate, there is no condonation because Binay, Jr.
100
committed acts subject of the OMB Complaint after his re-election in 2013.
On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties. Thereafter, they were
required to file their respective memoranda.102 In compliance thereto, the Ombudsman filed her Memorandum 103 on May
20, 2015, while Binay, Jr. submitted his Memorandum the following day.104
105

Pursuant to a Resolution dated June 16, 2015, the Court directed the parties to comment on each other's memoranda,
and the OSG to comment on the Ombudsman's Memorandum, all within ten (10) days from receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each other's memoranda. 106Meanwhile, on July 16,
2015, the OSG filed its Manifestation In Lieu of Comment,107 simply stating that it was mutually agreed upon that the
108
Office of the Ombudsman would file its Memorandum, consistent with its desire to state its "institutional position." In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded, among others, that this Court
abandon the condonation doctrine.109 In view of the foregoing, the case was deemed submitted for resolution.
The Issues Before the Court
Based on the parties' respective pleadings, and as raised during the oral arguments conducted before this Court, the main
issues to be resolved in seriatim are as follows:
I.

Whether or not the present petition, and not motions for reconsideration of the assailed CA issuances in CA-G.R.
SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's plain, speedy, and adequate remedy;

II.

Whether or not the CA has subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP No.
139453;
Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining the implementation of
a preventive suspension order issued by the Ombudsman;
Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the WPI in CA-G.R. SP
No. 139453 enjoining the implementation of the preventive suspension order against Binay, Jr. based on the
condonation doctrine; and
Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition for contempt in CAG.R. SP No. 139504 is improper and illegal.

III.
IV.

V.

The Ruling of the Court

The petition is partly meritorious.chanrobleslaw
I.
A common requirement to both a petition for certiorari and a petition for prohibition taken under Rule 65 of the 1997 Rules
of Civil Procedure is that the petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law.
Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts r with certainty and praying that judgment be rendered commanding the respondent to desist from
further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
x x x x (Emphases supplied)
Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to resorting to the
extraordinary remedy of certiorari or prohibition since a motion for reconsideration may still be considered as a plain,
speedy, and adequate remedy in the ordinary course of law. The rationale for the pre-requisite is to grant an opportunity
for the lower court or agency to correct any actual or perceived error attributed to it by the re-examination of the legal and
factual circumstances of the case.110
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal remedies and the danger
of failure of justice without the writ, that must usually determine the propriety of certiorari [or prohibition]. A remedy is
plain, speedy[,] and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment, order, or
111
resolution of the lower court or agency, x x x."
In this light, certain exceptions were crafted to the general rule requiring a prior motion for reconsideration before the filing
of a petition for certiorari, which exceptions also apply to a petition for prohibition.112 These are: (a) where the order is a
patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings
have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower
court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the
interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the
circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there
is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h)
where the proceedings were ex parte or in which the petitioner had no opportunity to object; and (i) where the issue
raised is one purely of law or where public interest is involved.113
In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first time, the question on the
authority of the CA - and of this Court, for that matter - to enjoin the implementation of a preventive suspension order
issued by the Office of the Ombudsman is put to the fore. This case tests the constitutional and statutory limits of the
fundamental powers of key government institutions - namely, the Office of the Ombudsman, the Legislature, and the
Judiciary - and hence, involves an issue of transcendental public importance that demands no less than a careful but
expeditious resolution. Also raised is the equally important issue on the propriety of the continuous application of the
condonation doctrine as invoked by a public officer who desires exculpation from administrative liability. As such, the
Ombudsman's direct resort to certiorari and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the CA, is
justified.
II.
Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is nonetheless proper to resolve the issue on
the CA's lack of subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP No. 139453, in view of the
well-established rule that a court's jurisdiction over the subject matter may be raised at any stage of the proceedings. The
rationale is that subject matter jurisdiction is conferred by law, and the lack of it affects the very authority of the court to
take cognizance of and to render judgment on the action.115 Hence, it should be preliminarily determined if the CA indeed
had subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, as the same determines the validity of all
subsequent proceedings relative thereto. It is noteworthy to point out that Binay, Jr. was given the opportunity by this
116
Court to be heard on this issue, as he, in fact, duly submitted his opposition through his comment to the Ombudsman's
117
Memorandum. That being said, the Court perceives no reasonable objection against ruling on this issue.
The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main petition, and her corollary
118
prayer for its dismissal, is based on her interpretation of Section 14, RA 6770, or the Ombudsman Act, which reads in
full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an investigation being conducted by
the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is
outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law.
The subject provision may be dissected into two (2) parts.
119

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme Court ) from
issuing a writ of injunction to delay an investigation being conducted by the Office of the Ombudsman. Generally
speaking, "[injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a
certain act. It may be the main action or merely a provisional remedy for and as an incident in the main
120
action." Considering the textual qualifier "to delay," which connotes a suspension of an action while the main case
remains pending, the "writ of injunction" mentioned in this paragraph could only refer to injunctions of the provisional kind,
consistent with the nature of a provisional injunctive relief.
The exception to the no injunction policy is when there is prima facie evidence that the subject matter of the investigation
is outside the office's jurisdiction. The Office of the Ombudsman has disciplinary authority over all elective and appointive
officials of the government and its subdivisions, instrumentalities, and agencies, with the exception only of impeachable
121
officers, Members of Congress, and the Judiciary. Nonetheless, the Ombudsman retains the power to investigate any
serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified
complaint for impeachment, if warranted.122 Note that the Ombudsman has concurrent jurisdiction over certain
administrative cases which are within the jurisdiction of the regular courts or administrative agencies, but has primary
jurisdiction to investigate any act or omission of a public officer or employee who is under the jurisdiction of the
Sandiganbayan.123
On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or application for remedy
may be heard against the decision or findings of the Ombudsman, with the exception of the Supreme Court on pure
questions of law. This paragraph, which the Ombudsman particularly relies on in arguing that the CA had no jurisdiction
over the main CA-G.R. SP No. 139453 petition, as it is supposedly this Court which has the sole jurisdiction to conduct a
judicial review of its decisions or findings, is vague for two (2) reasons: (1) it is unclear what the phrase "application for
remedy" or the word "findings" refers to; and (2) it does not specify what procedural remedy is solely allowable to this
Court, save that the same be taken only against a pure question of law. The task then, is to apply the relevant principles
of statutory construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the legislature should be sought in the words employed to
express it, and that when found[,] it should be made to govern, x x x. If the words of the law seem to be of doubtful import,
it may then perhaps become necessary to look beyond them in order to ascertain what was in the legislative mind at the
time the law was enacted; what the circumstances were, under which the action was taken; what evil, if any, was meant to
be redressed; x x x [a]nd where the law has contemporaneously been put into operation, and in doing so a construction
has necessarily been put upon it, this construction, especially if followed for some considerable period, is entitled to great
respect, as being very probably a true expression of the legislative purpose, and is not lightly to be overruled, although it
124
is not conclusive."
As an aid to construction, courts may avail themselves of the actual proceedings of the legislative body in interpreting a
statute of doubtful meaning. In case of doubt as to what a provision of a statute means, the meaning put to the provision
125
12
during the legislative deliberations may be adopted, albeit not controlling in the interpretation of the law.
A. The
Senate
Ombudsman
do
paragraph of Section 14, RA 6770.

not

deliberations
pertain

cited
to

by
the

the
second

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the matter of judicial
12
review of her office's decisions or findings, is supposedly clear from the following Senate deliberations:
Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition for" delete the word
"review" and in lieu thereof, insert the word CERTIORARI. So that, review or appeal from the decision of the Ombudsman
would only be taken not on a petition for review, but on certiorari.
The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to reverse the
decision
under
review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts of the Ombudsman
would be almost conclusive if supported by substantial evidence. Second, we would not unnecessarily clog the
docket of the Supreme Court. So, it in effect will be a very strict appeal procedure.
xxxx
Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive remedies available to a
respondent, the respondent himself has the right to exhaust the administrative remedies available to him?
Senator Angara. Yes, Mr. President, that is correct.
Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme Court only
on certiorari ?
Senator Angara. On question of law, yes.
Senator Guingona. And no other remedy is available to him?
Senator Angara. Going to the Supreme Court, Mr. President?
Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential appointee who is the
respondent, if there is f no certiorari available, is the respondent given the right to exhaust his administrative remedies first
before the Ombudsman can take the appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law principle that before one
can go to court, he must exhaust all administrative remedies xxx available to him before he goes and seeks judicial
review.
xxxx
Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of appeal from one
of a petition for review to a petition for certiorari ?
Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the effect that
the finding of facts of the Ombudsman is conclusive if supported by substantial evidence.
Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I concur, that in an appeal
by certiorari , the appeal is more difficult. Because in certiorari it is a matter of discretion on the part of the court,
whether to give due course to the petition or dismiss it outright. Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not the Ombudsman here has
acted without jurisdiction and has committed a grave abuse of discretion amounting to lack of jurisdiction. Is that
not the consequence, Mr. President.
Senator Angara. That is correct, Mr. President.
Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to make it harder to have a
judicial review, but should be limited only to cases that I have enumerated.
Senator Angara. Yes, Mr. President.
Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a petition for review and a
petition for certiorari ; because before, under the 1935 Constitution appeal from any order, ruling or decision of the
COMELEC shall be by means of review. But under the Constitution it is now by certiorari and the Supreme Court said that
by this change, the court exercising judicial review will not inquire into the facts, into the evidence, because we will not go
deeply by way of review into the evidence on record but its authority will be limited to a determination of whether the

administrative agency acted without, or in excess of, jurisdiction, or committed a grave abuse of discretion. So, I assume
that that is the purpose of this amendment, Mr. President.
Senator Angara. The distinguished Gentleman has stated it so well.
Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated, Mr. President.
xxxx
The President. It is evident that there must be some final authority to render decisions. Should it be the
Ombudsman
or
should
it
be
the
Supreme
Court?
Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and has to be the Supreme
Court to make the final determination.
The President. Then if that is so, we have to modify Section 17.
Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to introduce an
appropriate change during the period of Individual Amendments.
xxxx
The President. All right. Is there any objection to the amendment inserting the word CERTIORARI instead of "review"?
[Silence] Hearing none, the same is approved.128
Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the provision debated on was
Section 14, RA 6770, as the Ombudsman invokes. Note that the exchange begins with the suggestion of Senator Angara
to delete the word "review" that comes after the phrase "petition for review" and, in its stead, insert the word "certiorari" so
that the "review or appeal from the decision of the Ombudsman would not only be taken on a petition for review, but
on certiorari" The ensuing exchange between Senators Gonzales and Angara then dwells on the purpose of changing the
method of review from one of a petition for review to a petition for certiorari - that is, to make "the appeal x x x more
difficult." Ultimately, the amendment to the change in wording, from "petition for review" to "petition for certiorari" was
approved.
Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are nowhere to be found in
the text of Section 14, RA 6770. In fact, it was earlier mentioned that this provision, particularly its second paragraph,
does not indicate what specific procedural remedy one should take in assailing a decision or finding of the Ombudsman; it
only reveals that the remedy be taken to this Court based on pure questions of law. More so, it was even commented
upon during the oral arguments of this case129 that there was no debate or clarification made on the current formulation of
the second paragraph of Section 14, RA 6770 per the available excerpts of the Senate deliberations. In any case, at least
for the above-cited deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that the CA
had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.
On the contrary, it actually makes greater sense to posit that these deliberations refer to another Ombudsman Act
provision, namely Section 27, RA 6770. This is because the latter textually reflects the approval of Senator Angara's
suggested amendment, i.e., that the Ombudsman's decision or finding may be assailed in a petition for certiorari to this
Court (fourth paragraph), and further, his comment on the conclusive nature of the factual findings of the Ombudsman, if
supported by substantial evidence (third paragraph)
Section 27. Effectivity and Finality of Decisions. (1) All provisionary orders of the Office of the Ombudsman are
immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five
(5) days after receipt of written notice and shall be entertained only on any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for
reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall
be entertained.

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order,
directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month's
salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written
notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of
the Rules of Court.
The above rules may be amended or modified by the Office of the ' Ombudsman as the interest of justice may require.
(Emphasis and underscoring supplied)
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition for certiorari" should be
taken in accordance with Rule 45 of the Rules of Court, as it is well-known that under the present 1997 Rules of Civil
Procedure, petitions for certiorari are governed by Rule 65 of the said Rules. However, it should be discerned that the
130
Ombudsman Act was passed way back in 1989 and, hence, before the advent of the 1997 Rules of Civil
131
Procedure. At that time, the governing 1964 Rules of Court,132 consistent with Section 27, RA 6770, referred to the
appeal taken thereunder as a petition for certiorari , thus possibly explaining the remedy's textual denomination, at least in
the provision's final approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court
SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a judgment of the Court of
Appeals, by filing with the Supreme Court a petition for certiorari , within fifteen (15) days from notice of judgment or of
the denial of his motion for reconsideration filed in due time, and paying at the same time, to the clerk of said court the
corresponding docketing fee. The petition shall not be acted upon without proof of service of a copy thereof to the Court of
Appeals. (Emphasis supplied)
B. Construing
Section

the

second
14,

paragraph
RA

of
6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770 notwithstanding, the other
principles of statutory construction can apply to ascertain the meaning of the provision.
To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any appeal or application
for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of
law." ;
As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of remedies against
issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision or finding of the Ombudsman, and (b)
"any application of remedy" (subject to the exception below) against the same. To clarify, the phrase "application for
remedy," being a generally worded provision, and being separated from the term "appeal" by the disjunctive "or", 133 refers
to any remedy (whether taken mainly or provisionally), except an appeal, following the maxim generalia verba sunt
generaliter intelligenda: general words are to be understood in a general sense. 134 By the same principle, the word
"findings," which is also separated from the word "decision" by the disjunctive "or", would therefore refer to any finding
made by the Ombudsman (whether final or provisional), except a decision.
The subject provision, however, crafts an exception to the foregoing general rule. While the specific procedural vehicle is
not explicit from its text, it is fairly deducible that the second paragraph of Section 14, RA 6770 excepts, as the only
allowable remedy against "the decision or findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the
only remedy taken to the Supreme Court on "pure questions of law," whether under the 1964 Rules of Court or the
1997 Rules of Civil Procedure:
Rule 45, 1964 Rules of Court
RULE 45
Appeal from Court of Appeals to Supreme Court
xxxx

Section 2. Contents of Petition. The petition shall contain a concise statement of the matters involved, the assignment
of errors made in the court below, and the reasons relied on for the allowance of the petition, and it should be
accompanied with a true copy of the judgment sought to be reviewed, together with twelve (12) copies of the record on
appeal, if any, and of the petitioner's brief as filed in the Court of Appeals. A verified statement of the date when notice of
judgment and denial of the motion for reconsideration, if any, were received shall accompany the petition.
Only questions of law may be raised in the petition and must be distinctly set forth. If no record on appeal has been
filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of the petition, shall demand from the Court
of Appeals the elevation of the whole record of the case. (Emphasis and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed
in the same action or proceeding at any time during its pendency. (Emphasis and underscoring supplied)
That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition for certiorari under Rule 65
of the 1964 Rules of Court or the 1997 Rules of Procedure is a suggestion that defies traditional norms of procedure. It is
basic procedural law that a Rule 65 petition is based on errors of jurisdiction, and not errors of judgment to which the
classifications of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and law, relate to. In fact, there is
no procedural rule, whether in the old or new Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it
is also a statutory construction principle that the lawmaking body cannot be said to have intended the establishment of
conflicting and hostile systems on the same subject. Such a result would render legislation a useless and idle ceremony,
and subject the laws to uncertainty and unintelligibility.135 There should then be no confusion that the second paragraph of
Section 14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum, the appropriate construction of this
Ombudsman Act provision is that all remedies against issuances of the Office of the Ombudsman are prohibited, except
the above-stated Rule 45 remedy to the Court on pure questions of law.
C. Validity of the second paragraph of
Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on remedies is inappropriate since
a Rule 45 appeal -which is within the sphere of the rules of procedure promulgated by this Court - can only be taken
against final decisions or orders of lower courts,136and not against "findings" of quasi-judicial agencies. As will be later
elaborated upon, Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of a Rule 45
appeal so as to apply to interlocutory "findings" issued by the Ombudsman. More significantly, by confining the remedy
to a Rule 45 appeal, the provision takes away the remedy of certiorari, grounded on errors of jurisdiction, in denigration of
the judicial power constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770 also
increased this Court's appellate jurisdiction, without a showing, however, that it gave its consent to the same. The
provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as above-cited), which was invalidated in
the case of Fabian v. Desiertoni137 (Fabian).138
In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional since it had the effect of
increasing the appellate jurisdiction of the Court without its advice and concurrence in violation of Section 30, Article VI of
the 1987 Constitution.139 Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of the present
1997 Rules of Procedure which, as above-intimated, applies only to a review of "judgments or final orders of the Court of
Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts authorized by law;" and
not of quasi-judicial agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the
140
Court of Appeals. In Ruivivar v. Office of the Ombudsman, the Court's ratiocinations and ruling in Fabian were
recounted:
The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of R.A. No. 6770 (The
Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the Ombudsman) on the
availability of appeal before the Supreme Court to assail a decision or order of the Ombudsman in administrative
cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other

rules implementing the Act) insofar as it provided for appeal by certiorari under Rule 45 from the decisions or
orders of the Ombudsman in administrative cases. We held that Section 27 of R.A. No. 6770 had the effect, not
only of increasing the appellate jurisdiction of this Court without its advice and concurrence in violation of
Section 30, Article VI of the Constitution; it was also inconsistent with Section 1, Rule 45 of the Rules of Court
which provides that a petition for review on certiorari shall apply only to a review of "judgments or final orders of
the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts
authorized by law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997
Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary
cases should be taken to the CA under the provisions of Rule 43. 141 (Emphasis supplied)
Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or findings" of the Ombudsman to
a Rule 45 appeal and thus - similar to the fourth paragraph of Section 27, RA 6770142 - attempts to effectively increase the
143
Supreme Court's appellate jurisdiction without its advice and concurrence, it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's posturing, 144Fabian should squarely
apply since the above-stated Ombudsman Act provisions are in part materia in that they "cover the same specific or
145
particular subject matter," that is, the manner of judicial review over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence of the CA's subject
matter jurisdiction over the main CA-G.R. SP No. 139453 petition, including all subsequent proceedings relative thereto,
as the Ombudsman herself has developed, the Court deems it proper to resolve this issue ex mero motu (on its own
motion146). This procedure, as was similarly adopted in Fabian, finds its bearings in settled case law
The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to the case,
neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the judiciary and other departments of the government and the
judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands or
countenance evasions thereof. When it is clear , that a statute transgresses the authority vested in a legislative body, it is
the duty of the courts to declare that the constitution, and not the statute, governs in a case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings, the rule has
been recognized to admit of certain exceptions. It does not preclude a court from inquiring into its own jurisdiction or
compel it to enter a judgment that it lacks jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding
depends is unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine whether or not it
has jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute.
Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless
the jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any
time or on the court's own motion. The Court ex mero motu may take cognizance of lack of jurisdiction at any point in
the case where that fact is developed. The court has a clearly recognized right to determine its own jurisdiction in any
proceeding.147(Emphasis supplied)
D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr. before the CA in order to
nullify the preventive suspension order issued by the Ombudsman, an interlocutory order, 148 hence, unappealable.149
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari against unappelable
issuances150 of the Ombudsman should be filed before the CA, and not directly before this Court:
In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension order issued by the Office
of the Ombudsman was - similar to this case - assailed through a Rule 65 petition for certiorari filed by the public officer
before the CA, the Court held that "[t]here being a finding of grave abuse of discretion on the part of the Ombudsman, it
was certainly imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65."152
In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition for certiorari assailing a final
and unappealable order of the Office of the Ombudsman in an administrative case, the Court remarked that "petitioner
employed the correct mode of review in this case, i.e., a special civil action for certiorari before the Court of Appeals."154 In
this relation, it stated that while "a special civil action for Certiorari is within the concurrent original jurisdiction of the

Supreme Court and the Court of Appeals, such petition should be initially filed with the Court of Appeals in observance of
the doctrine of hierarchy of courts." Further, the Court upheld Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was ruled
that the remedy against final and unappealable orders of the Office of the Ombudsman in an administrative case was a
156
Rule 65 petition to the CA. The same verdict was reached in Ruivivar (September 16, 2008).
Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court, consistent with existing
jurisprudence, concludes that the CA has subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition. That
being said, the Court now examines the objections of the Ombudsman, this time against the CA's authority to issue the
assailed TRO and WPI against the implementation of the preventive suspension order, incidental to that main case.
III.
From the inception of these proceedings, the Ombudsman has been adamant that the CA has no jurisdiction to issue any
provisional injunctive writ against her office to enjoin its preventive suspension orders. As basis, she invokes the first
paragraph of Section 14, RA 6770 in conjunction with her office's independence under the 1987 Constitution. She
advances the idea that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it from judicial
intervention,"157 particularly, "from injunctive reliefs traditionally obtainable from the courts,"158claiming that said writs may
159
work "just as effectively as direct harassment or political pressure would."
A. The concept of Ombudsman independence.
Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the Ombudsman:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be
known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas[,] and Mindanao. A separate
Deputy for the military establishment may likewise be appointed. (Emphasis supplied)
In Gonzales III v. Office of the President
Ombudsman:

160

(Gonzales III), the Court traced the historical underpinnings of the Office of the

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the people's
medium for airing grievances and for direct redress against abuses and misconduct in the government. Ultimately,
however, these agencies failed to fully realize their objective for lack of the political independence necessary for the
effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated office to give it
political independence and adequate powers to enforce its mandate. Pursuant to the ( 1973 Constitution, President
Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating
the Office of the Ombudsman to be known as Tanodbayan. It was tasked principally to investigate, on complaint or motu
proprio, any administrative act of any administrative agency, including any government-owned or controlled corporation.
When the Office of the Tanodbayan was reorganized in 1979, the powers previously vested in the Special Prosecutor
were transferred to the Tanodbayan himself. He was given the exclusive authority to conduct preliminary investigation of
all cases cognizable by the Sandiganbayan, file the corresponding information, and control the prosecution of these
cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional fiat. Unlike in the
1973 Constitution, its independence was expressly and constitutionally guaranteed. Its objectives are to enforce
the state policy in Section 27, Article II and the standard of accountability in public service under Section 1, Article XI of
the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest
161
lives. (Emphasis supplied)
More significantly, Gonzales III explained the broad scope of the office's mandate, and in correlation, the impetus behind
its independence:
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the "protector of
the people" against the inept, abusive, and corrupt in the Government, to function essentially as a complaints and action
bureau. This constitutional vision of a Philippine Ombudsman practically intends to make the Ombudsman an authority to

directly check and guard against the ills, abuses and excesses , of the bureaucracy. Pursuant to Section 13 (8), Article XI
of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the Constitution.
Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities, and agencies,
including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions, although not squarely
falling under the broad powers granted [to] it by the Constitution and by RA No. 6770, if these actions are reasonably in
line with its official function and consistent with the law and the Constitution.
The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and
nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their tenure. To
support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the pressures
and influence of officialdom and partisan politics and from fear of external reprisal by making it an "independent"
office, x x x.
xxxx
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government constitutional
agency that is considered "a notch above other grievance-handling investigative bodies." It has powers, both
constitutional and statutory, that are commensurate , with its daunting task of enforcing accountability of public
officers.162 (Emphasis and underscoring supplied)
Gonzales III is the first case which grappled with the meaning of the Ombudsman's independence vis-a-vis the
independence of the other constitutional bodies. Pertinently, the Court observed:
(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares certain
characteristics - they do not owe their existence to any act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to the extent that the absence of 'independence' would
result in the impairment of their core functions"163;
(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only [of] the express mandate of the Constitution, but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is
based";164 and
(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for independence. In the deliberations
of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a constitutionally-created Civil
Service Commission, instead of one created by law, on the premise that the effectivity of this body is dependent on
its freedom from the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution on the
Commission on Audit highlighted the developments in the past Constitutions geared towards insulating the Commission
on Audit from political pressure."165
At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the Ombudsman, as
well as that of the foregoing independent bodies, meant freedom from control or supervision of the Executive
Department:
[T]he independent constitutional commissions have been consistently intended by the framers to be independent from
executive control or supervision or any form of political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the Constitutional
Commissions, which have been characterized under the Constitution as "independent," are not under the control of the
President, even if they discharge functions that are executive in nature. The Court declared as unconstitutional the
President's act of temporarily appointing the respondent in that case as Acting Chairman of the [Commission on Elections]
"however well-meaning" it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the tenure of the

commissioners of the independent Commission on Human Rights could not be placed under the discretionary power
of the President.
xxxx
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior - but is similar in degree
and kind - to the independence similarly guaranteed by the Constitution to the Constitutional Commissions since all these
offices fill the political interstices of a republican democracy that are crucial to its existence and proper
166
functioning. (Emphases and underscoring supplied)
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy or the Special
Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the
Ombudsman, and after due process," partially unconstitutional insofar as it subjected the Deputy Ombudsman to the
disciplinary authority of the President for violating the principle of independence. Meanwhile, the validity of Section 8 (2),
RA 6770 was maintained insofar as the Office of the Special Prosecutor was concerned since said office was not
considered to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence the
167
latter enjoys under the Constitution.
As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's independence covers three
(3) things:
First: creation by the Constitution, which means that the office cannot be abolished, nor its constitutionally specified
functions and privileges, be removed, altered, or modified by law, unless the Constitution itself allows, or an amendment
thereto is made;cralawlawlibrary
Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to use or dispose of [its]
funds for purposes germane to [its] functions;168hence, its budget cannot be strategically decreased by officials of the
political branches of government so as to impair said functions; and
Third: insulation from executive supervision and control, which means that those within the ranks of the office can
only be disciplined by an internal authority.
Evidently, all three aspects of independence intend to protect the Office of the Ombudsman from political harassment
and pressure, so as to free it from the "insidious tentacles of politics."169
That being the case, the concept of Ombudsman independence cannot be invoked as basis to insulate the Ombudsman
from judicial power constitutionally vested unto the courts. Courts are apolitical bodies, which are ordained to act as
impartial tribunals and apply even justice to all. Hence, the Ombudsman's notion that it can be exempt from an incident of
judicial power - that is, a provisional writ of injunction against a preventive suspension order - clearly strays from the
concept's rationale of insulating the office from political harassment or pressure.
B. The first paragraph of Section 14, RA
6770 in light of the powers of Congress and the
Court under the 1987 Constitution.
The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it remains that the first paragraph
of Section 14, RA 6770 textually prohibits courts from extending provisional injunctive relief to delay any investigation
conducted by her office. Despite the usage of the general phrase "[n]o writ of injunction shall be issued by any court," the
Ombudsman herself concedes that the prohibition does not cover the Supreme Court.170 As support, she cites the
following Senate deliberations:
Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I would just like to inquire
for the record whether below the Supreme Court, it is understood that there is no injunction policy against the
Ombudsman by lower courts. Or, is it necessary to have a special paragraph for that?
Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction against the Ombudsman
being issued.
Senator Maceda. In which case, I think that the intention, this being one of the highest constitutional bodies, is to
subject this only to certiorari to the Supreme Court. I think an injunction from the Supreme Court is, of course, in
order but no lower courts should be allowed to interfere. We had a very bad experience with even, let us say, the
Forestry Code where no injunction is supposed to be issued against the Department of Natural Resources. Injunctions

are issued right and left by RTC judges all over the country.
The President. Why do we not make an express provision to that effect?
Senator Angara. We would welcome that, Mr. President.
The President. No [writs of injunction] from the trial courts other than the Supreme Court.
Senator Maceda. I so move, Mr. President, for that amendment.
The President. Is there any objection? [Silence] Hearing none, the same is approved.171
Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987 Constitution, acts of the
Ombudsman, including interlocutory orders, are subject to the Supreme Court's power of judicial review As a corollary, the
Supreme Court may issue ancillary mjunctive writs or provisional remedies in the exercise of its power of judicial review
over matters pertaining to ongoing investigations by the Office of the Ombudsman. Respecting the CA, however, the
172
Ombudsman begs to differ.
With these submissions, it is therefore apt to examine the validity of the first paragraph of Section 14, RA 6770 insofar as
it prohibits all courts, except this Court, from issuing provisional writs of injunction to enjoin an Ombudsman investigation.
That the constitutionality of this provision is the lis mota of this case has not been seriously disputed. In fact, the issue
anent its constitutionality was properly raised and presented during the course of these proceedings. 173 More importantly,
its resolution is clearly necessary to the complete disposition of this case. 174
In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the "Constitution has blocked
out with deft strokes and in bold lines, allotment of power to the executive, the legislative[,] and the judicial departments of
the government."176 The constitutional demarcation of the three fundamental powers of government is more commonly
177
known as the principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica), the Court held
that "there is a violation of the separation of powers principle when one branch of government unduly encroaches on the
domain of another."178 In particular, "there is a violation of the principle when there is impermissible (a) interference with
and/or (b) assumption of another department's functions."179
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme Court and all such
lower courts:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
This Court is the only court established by the Constitution, while all other lower courts may be established by laws
180
passed by Congress. Thus, through the passage of Batas Pambansa Bilang (BP) 129, known as "The Judiciary
181
182
Reorganization Act of 1980," the Court of Appeals, the Regional Trial Courts, and the Metropolitan Trial Courts,
183
Municipal Trial Courts, and Municipal Circuit Trial Courts were established. Later, through the passage of RA
184
185
1125, and Presidential Decree No. (PD) 1486, the Court of Tax Appeals, and the Sandiganbayan were respectively
established.
In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987 Constitution empowers
Congress to define, prescribe, and apportion the jurisdiction of all courts, except that it may not deprive the
186
Supreme Court of its jurisdiction over cases enumerated in Section 5 of the same Article:
Section 2. The Congress shall have the power to define, prescribe, ' and apportion the jurisdiction of the various courts but
may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.
xxxx
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter of an action. In The
Diocese ofBacolod v. Commission on Elections,187 subject matter jurisdiction was defined as "the authority 'to hear and
determine cases of the general class to which the proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this Court (subject to the
aforementioned constitutional limitations), the Court of Appeals, and the trial courts, through the passage of BP 129, as
amended.
In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition for certiorari in CA-G.R.
SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:
Section 9. Jurisdiction. - The Court of Appeals shall exercise:
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and
auxiliary writs or processes, whether or not in aid of its appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrentwith the Regional Trial
Courts (under Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section 5, Article VIII of the 1987
Philippine Constitution). In view of the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine of
hierarchy of courts should be followed. In People v. Cuaresma,188 the doctrine was explained as follows:
[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of
courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the
Regional Trial Court, and those against the latter, with the Court of Appeals. 189
When a court has subject matter jurisdiction over a particular case, as conferred unto it by law, said court may
then exercise its jurisdiction acquired over that case, which is called judicial power.
Judicial power, as vested in the Supreme Court and all other courts established by law, has been defined as the "totality
of powers a court exercises when it assumes jurisdiction and hears and decides a case."190 Under Section 1,
Article VIII of the 1987 Constitution, it includes "the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government."
In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the 1987 Constitution:
The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting
rights as conferred by law. The second part of the authority represents a broadening of f judicial power to enable the
courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the
wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of
jurisdiction because they are tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse
of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. 192
Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired over a particular
case conforms to the limits and parameters of the rules of procedure duly promulgated by this Court. In other
words, procedure is the framework within which judicial power is exercised. In Manila Railroad Co. v. Attorney193
General, the Court elucidated that "[t]he power or authority of the court over the subject matter existed and was fixed
before procedure in a given cause began. Procedure does not alter or change that power or authority; it simply
directs the manner in which it shall be fully and justly exercised. To be sure, in certain cases, if that power is not
exercised in conformity with the provisions of the procedural law, purely, the court attempting to exercise it loses the
power to exercise it legally. This does not mean that it loses jurisdiction of the subject matter." 194
While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional design,
vested unto Congress, the power to promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts belongs exclusively to this Court. Section 5 (5), Article VIII of
the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
(Emphases and underscoring supplied)
In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-making authority, which,
196
197
198
under the 1935 and 1973 Constitutions, had been priorly subjected to a power-sharing scheme with Congress. As
it now stands, the 1987 Constitution textually altered the old provisions by deleting the concurrent power of
Congress to amend the rules, thus solidifying in one body the Court's rule-making powers, in line with the Framers'
vision of institutionalizing a "[s]tronger and more independent judiciary."199
The records of the deliberations of the Constitutional Commission would show200 that the Framers debated on whether or
not the Court's rule-making powers should be shared with Congress. There was an initial suggestion to insert the
sentence "The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the
Supreme Court", right after the phrase "Promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal
assistance to the underprivileged^" in the enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S.
Aquino proposed to delete the former sentence and, instead, after the word "[underprivileged," place a comma (,) to be
followed by "the phrase with the concurrence of the National Assembly." Eventually, a compromise formulation was
reached wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the phrase "the
National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court"
and (b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the phrase with the concurrence of the
National Assembly." The changes were approved, thereby leading to the present lack of textual reference to any
form of Congressional participation in Section 5 (5), Article VIII, supra. The prevailing consideration was that
"both bodies, the Supreme Court and the Legislature, have their inherent powers."201
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading, practice, and
procedure. As pronounced in Echegaray:
The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules
concerning the protection and enforcement of constitutional rights. The Court was also r granted for the first time the
power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987
Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice
and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by
this Court with Congress, more so with the Executive.202 (Emphasis and underscoring supplied)
Under its rule-making authority, the Court has periodically passed various rules of procedure, among others, the current
1997 Rules of Civil Procedure. Identifying the appropriate procedural remedies needed for the reasonable exercise
of every court's judicial power, the provisional remedies of temporary restraining orders and writs of preliminary
injunction were thus provided.
A temporary restraining order and a writ of preliminary injunction both constitute temporary measures availed of during the
pendency of the action. They are, by nature, ancillary because they are mere incidents in and are dependent upon the
result of the main action. It is well-settled that the sole object of a temporary restraining order or a writ of preliminary
203
injunction, whether prohibitory or mandatory, is to preserve the status quo until the merits of the case can be
heard. They are usually granted when it is made to appear that there is a substantial controversy between the parties and
one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or
destroy the status quo of the controversy before a full hearing can be had on the merits of the case. In other words, they
are preservative remedies for the protection of substantive rights or interests, and, hence, not a cause of action in itself,
but merely adjunct to a main suit.204 In a sense, they are regulatory processes meant to prevent a case from being
mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and a WPI. A
205
206
preliminary injunction is defined under Section 1, Rule 58, while Section 3 of the same Rule enumerates the grounds
207
for its issuance. Meanwhile, under Section 5 thereof, a TRO may be issued as a precursor to the issuance of a writ of
preliminary injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to issue all auxiliary
writs, processes, and other means necessary to carry its acquired jurisdiction into effect under Section 6, Rule
135 of the Rules of Court which reads:
Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or judicial officer, all
auxiliary writs, f processes and other means necessary to carry it into effect may be employed by such court or officer;
208
and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these
rules, any suitable process or mode of proceeding may be adopted which appears comfortable to the spirit of the said law
or rules.
In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or jurisdiction of the [Court of Tax
Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction"210 over "decisions, orders or resolutions of the
RTCs in local tax cases originally decided or resolved by them in the exercise of their original or appellate
jurisdiction,"211 the Court ruled that said power "should coexist with, and be a complement to, its appellate jurisdiction to
review, by appeal, the final orders and decisions of the RTC, in order to have complete supervision over the acts of the
212
latter:"
A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it effectively, to
make all orders that ; will preserve the subject of the action, and to give effect to the final determination of the
appeal. It carries with it the power to protect that jurisdiction and to make the decisions of the court thereunder effective.
The court, in aid of its appellate jurisdiction, has authority to control all auxiliary and incidental matters necessary to the
efficient and proper exercise of that jurisdiction. For this purpose, it may, when necessary, prohibit or restrain the
performance of any act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before
it.213 (Emphasis supplied)
In this light, the Court expounded on the inherent powers of a court endowed with subject matter jurisdiction:
[A] court which is endowed with a particular jurisdiction should have powers which are necessary to enable it to act
effectively within such jurisdiction. These should be regarded as powers which are inherent in its jurisdiction and
the court must possess them in order to enforce its rules of practice and to suppress any abuses of its process
and to t defeat any attempted thwarting of such process.
xxxx
Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in
addition to those expressly conferred on them. These inherent powers are such powers as are necessary for the
ordinary and efficient exercise of jurisdiction; or are essential to the existence, dignity and functions of the
courts, as well as to the due administration of justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to maintain the court's jurisdiction and render it
effective in behalf of the litigants.214 (Emphases and underscoring supplied)
Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional principle, articulated way
back in the 1936 case of Angara, that "where a general power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the other is also conferred."215
In the United States, the "inherent powers doctrine refers to the principle, by which the courts deal with diverse matters
over which they are thought to have intrinsic authority like procedural [rule-making] and general judicial housekeeping. To
justify the invocation or exercise of inherent powers, a court must show that the powers are reasonably necessary to
achieve the specific purpose for which the exercise is sought. Inherent powers enable the judiciary to
accomplish its constitutionally mandated functions."216
217

In Smothers v. Lewis (Smothers), a case involving the constitutionality of a statute which prohibited courts from
218
enjoining the enforcement of a revocation order of an alcohol beverage license pending appeal, the Supreme Court of
Kentucky held:
[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably necessary for the
administration of justice within the scope of their jurisdiction. x x x [W]e said while considering the rule making
power and the judicial power to be one and the same that ". . . the grant of judicial power [rule making power] to the
courts by the constitution carries with it, as a necessary incident, the right to make that power effective in the
administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an exercise of the court's
inherent power, and to this end, stated that any attempt on the part of Congress to interfere with the same was
constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt the language framework of 28 Am.Jur.2d, Injunctions,
Section 15, and once and for all make clear that a court, once having obtained jurisdiction of a cause of action, has, as an
incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the administration of
justice in the case before it. In the exercise of this power, a court, when necessary in order to protect or preserve
the subject matter of the litigation, to protect its jurisdiction and to make its judgment effective, may grant or
issue a temporary injunction in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this particular instance the injunction, is exclusively within the
constitutional realm of the courts. As such, it is not within the purview of the legislature to grant or deny the
power nor is it within the purview of the legislature to shape or fashion circumstances under which this
inherently judicial power may be or may not be granted or denied.
This Court has historically recognized constitutional limitations upon the power of the legislature to interfere with or to
inhibit the performance of constitutionally granted and inherently provided judicial functions, x x x
xxxx
We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a cause of action, has, as
incidental to its general jurisdiction, inherent power to do all things reasonably necessary f to the administration of justice
in the case before it. . ." This includes the inherent power to issue injunctions.(Emphases supplied)
Smothers also pointed out that the legislature's authority to provide a right to appeal in the statute does not necessarily
mean that it could control the appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this appeal does not give it the right to encroach upon the
constitutionally granted powers of the judiciary. Once the administrative action has ended and the right to appeal
arises the legislature is void of any right to control a subsequent appellate judicial proceeding. The judicial rules
have come into play and have preempted the field.219 (Emphasis supplied)
With these considerations in mind, the Court rules that when Congress passed the first paragraph of Section 14, RA 6770
and, in so doing, took away from the courts their power to issue a TRO and/or WPI to enjoin an investigation conducted
by the Ombudsman, it encroached upon this Court's constitutional rule-making authority. Clearly, these issuances, which
are, by nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court, are matters of
procedure which belong exclusively within the province of this Court. Rule 58 of the Rules of Court did not create, define,
and regulate a right but merely prescribed the means of implementing an existing right 220 since it only provided for
temporary reliefs to preserve the applicant's right in esse which is threatened to be violated during the course of a pending
litigation. In the case of Fabian,211it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be
classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals
merely with procedure.
Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative power, to amend the
Rules of Court, as in the cases of: (a) In Re: Exemption of The National Power Corporation from Payment of Filing/
Docket Fees;222 (b) Re: Petition for Recognition of the Exemption of the Government Service Insurance System (GSIS)
from Payment of Legal Fees;223 and (c) Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. CabatoCortes224 While these cases involved legislative enactments exempting government owned and controlled corporations
and cooperatives from paying filing fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees),
225
it was, nonetheless, ruled that the prerogative to amend, repeal or even establish new rules of procedure solely
belongs to the Court, to the exclusion of the legislative and executive branches of government. On this score, the
Court described its authority to promulgate rules on pleading, practice, and procedure as exclusive and "[o]ne of the
226
safeguards of [its] institutional independence."
That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of the various courts
under Section 2, Article VIII supra, as well as to create statutory courts under Section 1, Article VIII supra, does not result
in an abnegation of the Court's own power to promulgate rules of pleading, practice, and procedure under Section 5 (5),
Article VIII supra. Albeit operatively interrelated, these powers are nonetheless institutionally separate and distinct, each

to be preserved under its own sphere of authority. When Congress creates a court and delimits its jurisdiction, the
procedure for which its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The first
227
paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman misconceives, because it
does not define, prescribe, and apportion the subject matter jurisdiction of courts to act on certiorari cases;
the certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP 129 which were not shown
to have been repealed. Instead, through this provision, Congress interfered with a provisional remedy that was
created by this Court under its duly promulgated rules of procedure, which utility is both integral and inherent to
every court's exercise of judicial power. Without the Court's consent to the proscription, as may be manifested
by an adoption of the same as part of the rules of procedure through an administrative circular issued therefor,
there thus, stands to be a violation of the separation of powers principle.
In addition, it should be pointed out that the breach of Congress in prohibiting provisional injunctions, such as in the first
paragraph of Section 14, RA 6770, does not only undermine the constitutional allocation of powers; it also practically
dilutes a court's ability to carry out its functions. This is so since a particular case can easily be mooted by
supervening events if no provisional injunctive relief is extended while the court is hearing the same. Accordingly,
the court's acquired jurisdiction, through which it exercises its judicial power, is rendered nugatory. Indeed, the force of
judicial power, especially under the present Constitution, cannot be enervated due to a court's inability to regulate what
occurs during a proceeding's course. As earlier intimated, when jurisdiction over the subject matter is accorded by law and
has been acquired by a court, its exercise thereof should be undipped. To give true meaning to the judicial power
contemplated by the Framers of our Constitution, the Court's duly promulgated rules of procedure should therefore remain
unabridged, this, even by statute. Truth be told, the policy against provisional injunctive writs in whatever variant should
only subsist under rules of procedure duly promulgated by the Court given its sole prerogative over the same.
The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) and the Acting
Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors the foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.
JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under the rubric of what is called
provisional remedies, our resident expert because Justice Peralta is not here so Justice Bersamin for a while. So
provisional remedy you have injunction, x x x.
xxxx
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, if you have a copy of
the Constitution, can you please read that provision? Section 5, Article VIII the Judiciary subparagraph 5, would you kindly
read that provision?
ACTING SOLICTOR GENERAL HILBAY.
"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in
all courts..."
JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all courts. This is the power,
the competence, the jurisdiction of what constitutional organ?
ACTING SOLICITOR GENERAL HILBAY:
The Supreme Court, Your Honor.
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been discussed with you by
my other colleagues, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in an ordinary case?
ACTING SOLICITOR GENERAL HILBAY:
It is an ancillary remedy, Your Honor.
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be rendered moot and
academic, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?
ACTING SOLICITOR GENERAL HILBAY:
No, Your Honor.
xxxx
JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?
ACTING SOLICITOR GENERAL HILBAY:
Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.
JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the supplemental pleading
called the bill of t particular [s]? It cannot, because that's part of procedure...
ACTING SOLICITOR GENERAL HILBAY:
That is true.
JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct.
JUSTICE LEONEN:
So what's different with the writ of injunction?
ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was created by Congress. In
the absence of jurisdiction... (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special agrarian court it has all
procedures with it but it does not attach particularly to that particular court, is that not correct?
ACTING SOLICTOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court...
JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A rule of procedure and
the Rules of Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Yes, Your Honor.
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a particular injunction in a court,
is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
xxxx228 (Emphasis supplied)
In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that "[i]t is through the Constitution that the
fundamental powers of government are established, limited and defined, and by which these powers are distributed
among the several departments. The Constitution is the basic and paramount law to which all other laws must conform
and to which all persons, including the highest officials of the land, must defer." It would then follow that laws that do not
conform to the Constitution shall be stricken down for being unconstitutional. 230
However, despite the ostensible breach of the separation of powers principle, the Court is not oblivious to the policy
considerations behind the first paragraph of Section 14, RA 6770, as well as other statutory provisions of similar import.
Thus, pending deliberation on whether or not to adopt the same, the Court, under its sole prerogative and authority over
all matters of procedure, deems it proper to declare as ineffective the prohibition against courts other than the Supreme
Court from issuing provisional injunctive writs to enjoin investigations conducted by the Office of the Ombudsman, until it
is adopted as part of the rules of procedure through an administrative circular duly issued therefor.
Hence, with Congress interfering with matters of procedure (through passing the first paragraph of Section 14, RA 6770)
without the Court's consent thereto, it remains that the CA had the authority to issue the questioned injunctive writs
enjoining the implementation of the preventive suspension order against Binay, Jr. At the risk of belaboring the point,
these issuances were merely ancillary to the exercise of the CA's certiorari jurisdiction conferred to it under Section 9 (1),
Chapter I of BP 129, as amended, and which it had already acquired over the main CA-G.R. SP No. 139453 case.
IV.
The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in issuing the TRO and
WPI in CA-G.R. SP No. 139453 against the preventive suspension order is a persisting objection to the validity of said
injunctive writs. For its proper analysis, the Court first provides the context of the assailed injunctive writs.
A. Subject matter of the CA's iniunctive writs is the preventive suspension order.
By nature, a preventive suspension order is not a penalty but only a preventive measure. In Quimbo v. Acting
231
Ombudsman Gervacio, the Court explained the distinction, stating that its purpose is to prevent the official to be
suspended from using his position and the powers and prerogatives of his office to influence potential witnesses
or tamper with records which may be vital in the prosecution of the case against him:
Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as
penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have
different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The
purpose of the suspension order is to prevent the accused from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the
prosecution of the case against him. If after such investigation, the charge is established and the person investigated is
found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the
penalty.
That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service
Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a
preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary
Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual
penalty of suspension. So Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer or employee charged is placed under preventive suspension shall not
be considered part of the actual penalty of suspension imposed upon the employee found guilty.232 (Emphases
supplied)
The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:
Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge
against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued
stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than
six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due
to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis and underscoring supplied)
In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of an order of preventive
suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;
(b) The charge would warrant removal from the service; or
(c) The respondent's continued stay in office may prejudice the case filed against him.
B. The basis of the CA's injunctive writs is the condonation doctrine.
Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the Ombudsman's noncompliance with the requisites provided in Section 24, RA 6770 was not the basis for the issuance of the assailed
injunctive writs.
The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on the case
of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were established in the
CA that the acts subject of the administrative complaint were indeed committed during petitioner [Garcia's] prior term,
235
then, following settled jurisprudence, he can no longer be administratively charged." Thus, the Court, contemplating the
application of the condonation doctrine, among others, cautioned, in the said case, that "it would have been more prudent
for [the appellate court] to have, at the very least, on account of the extreme urgency of the matter and the seriousness of
236
the issues raised in the certiorari petition, issued a TRO x x x" during the pendency of the proceedings.
Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was based on the
condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that Binay, Jr. has an ostensible right to the
final relief prayed for, i.e., the nullification of the preventive suspension order, finding that the Ombudsman can hardly
impose preventive suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati condoned any
administrative liability arising from anomalous activities relative to the Makati Parking Building project from 2007 to

238

2013. Moreover, the CA observed that although there were acts which were apparently committed by Binay, Jr. beyond
his first term , i.e., the alleged payments on July 3, 4, and 24, 2013,239corresponding to the services of Hillmarc's and
MANA - still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima v. Guingona,
240
241
Jr., and Mayor Garcia v. Mojica, wherein the condonation dobtrine was applied by the Court although the payments
were made after the official's election, reasoning that the payments were merely effected pursuant to contracts executed
before said re-election.242
The Ombudsman contends that it was inappropriate for the CA to have considered the condonation doctrine since it was a
matter of defense which should have been raised and passed upon by her office during the administrative disciplinary
proceedings.243 However, the Court agrees with the CA that it was not precluded from considering the same given that it
was material to the propriety of according provisional injunctive relief in conformity with the ruling in Governor Garcia, Jr.,
which was the subsisting jurisprudence at that time. Thus, since condonation was duly raised by Binay, Jr. in his petition
244
in CA-G.R. SP No. 139453, the CA did not err in passing upon the same. Note that although Binay, Jr. secondarily
argued that the evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453,245 it appears that
the CA found that the application of the condonation doctrine was already sufficient to enjoin the implementation of the
preventive suspension order. Again, there is nothing aberrant with this since, as remarked in the same case of Governor
Garcia, Jr., if it was established that the acts subject of the administrative complaint were indeed committed during Binay,
Jr.'s prior term, then, following the condonation doctrine, he can no longer be administratively charged. In other words,
with condonation having been invoked by Binay, Jr. as an exculpatory affirmative defense at the onset, the CA deemed it
unnecessary to determine if the evidence of guilt against him was strong, at least for the purpose of issuing the subject
injunctive writs.
With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court now proceeds to
determine if the CA gravely abused its discretion in applying the condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness of an offense,
[especially] by treating the offender as if there had been no offense."246
The condonation doctrine - which connotes this same sense of complete extinguishment of liability as will be herein
elaborated upon - is not based on statutory law. It is a jurisprudential creation that originated from the 1959
case of Pascual v. Hon. Provincial Board ofNueva Ecija,247 (Pascual),which was therefore decided under the 1935
Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, sometime in November 1951,
and was later re-elected to the same position in 1955. During his second term, or on October 6, 1956, the Acting
Provincial Governor filed administrative charges before the Provincial Board of Nueva Ecija against him for grave abuse
of authority and usurpation of judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on December
18 and 20, 1954. In defense, Arturo Pascual argued that he cannot be made liable for the acts charged against him since
they were committed during his previous term of office, and therefore, invalid grounds for disciplining him during his
second term. The Provincial Board, as well as the Court of First Instance of Nueva Ecija, later decided against Arturo
Pascual, and when the case reached this Court on appeal, it recognized that the controversy posed a novel issue - that is,
whether or not an elective official may be disciplined for a wrongful act committed by him during his immediately
preceding term of office.
As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to American
authorities and "found that cases on the matter are conflicting due in part, probably, to differences in statutes and
constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the
248
subsequent election or appointment condones the prior misconduct." Without going into the variables of these
conflicting views and cases, it proceeded to state that:
The weight of authorities x x x seems to incline toward the rule denying the right to remove one from office
because of misconduct during a prior term, to which we fully subscribe.249 (Emphasis and underscoring supplied)
The conclusion is at once problematic since this Court has now uncovered that there is really no established weight of
authority in the United States (US) favoring the doctrine of condonation, which, in the words of Pascual, theorizes that an
official's re-election denies the right to remove him from office due to a misconduct during a prior term. In fact, as pointed
out during the oral arguments of this case, at least seventeen (17) states in the US have abandoned the condonation
250
doctrine. The Ombudsman aptly cites several rulings of various US State courts, as well as literature published on the
matter, to demonstrate the fact that the doctrine is not uniformly applied across all state jurisdictions. Indeed, the
treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from his current term or office for
misconduct which he allegedly committed in a prior term of office is governed by the language of the statute or
constitutional provision applicable to the facts of a particular case (see In Re Removal of Member of Council
Coppola).251 As an example, a Texas statute, on the one hand, expressly allows removal only for an act committed during
a present term: "no officer shall be prosecuted or removed from office for any act he may have committed prior to his
election to office" (see State ex rel. Rowlings v. Loomis).252 On the other hand, the Supreme Court of Oklahoma allows
removal from office for "acts of commission, omission, or neglect committed, done or omitted during a previous or
253
preceding term of office" (see State v. Bailey) Meanwhile, in some states where the removal statute is silent or unclear,
the case's resolution was contingent upon the interpretation of the phrase "in office." On one end, the Supreme Court of
Ohio strictly construed a removal statute containing the phrase "misfeasance of malfeasance in office" and thereby
declared that, in the absence of clear legislative language making, the word "office" must be limited to the single term
during which the offense charged against the public officer occurred (see State ex rel. Stokes v. Probate Court of
254
Cuyahoga County) Similarly, the Common Pleas Court of Allegheny County, Pennsylvania decided that the phrase "in
office" in its state constitution was a time limitation with regard to the grounds of removal, so that an officer could not be
removed for misbehaviour which occurred; prior to the taking of the office (see Commonwealth v. Rudman)255The
opposite was construed in the Supreme Court of Louisiana which took the view that an officer's inability to hold an office
resulted from the commission of certain offenses, and at once rendered him unfit to continue in office, adding the fact that
the officer had been re-elected did not condone or purge the offense (see State ex rel. Billon v. Bourgeois).256 Also, in the
Supreme Court of New York, Apellate Division, Fourth Department, the court construed the words "in office" to refer not to
a particular term of office but to an entire tenure; it stated that the whole purpose of the legislature in enacting the statute
in question could easily be lost sight of, and the intent of the law-making body be thwarted, if an unworthy official could not
be removed during one term for misconduct for a previous one (Newman v. Strobel).257
(2) For another, condonation depended on whether or not the public officer was a successor in the same office for which
he has been administratively charged. The "own-successor theory," which is recognized in numerous States as an
exception to condonation doctrine, is premised on the idea that each term of a re-elected incumbent is not taken as
separate and distinct, but rather, regarded as one continuous term of office. Thus, infractions committed in a previous
term are grounds for removal because a re-elected incumbent has no prior term to speak of 258 (see Attorney-General v.
Tufts;259State v. Welsh;260Hawkins v. Common Council of Grand Rapids;261Territory v. Sanches;262and Tibbs v. City of
Atlanta).263
(3) Furthermore, some State courts took into consideration the continuing nature of an offense in cases where the
condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 the public officer charged with malversation
of public funds was denied the defense of condonation by the Supreme Court of Minnesota, observing that "the large
sums of money illegally collected during the previous years are still retained by him." In State ex rel. Beck v. Harvey265 the
Supreme Court of Kansas ruled that "there is no necessity" of applying the condonation doctrine since "the misconduct
continued in the present term of office[;] [thus] there was a duty upon defendant to restore this money on demand of the
county commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court of Kansas held that
"insofar as nondelivery and excessive prices are concerned, x x x there remains a continuing duty on the part of the
defendant to make restitution to the country x x x, this duty extends into the present term, and neglect to discharge it
constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a "weight of authority" in
the US on the condonation doctrine. In fact, without any cogent exegesis to show that Pascual had accounted for the
numerous factors relevant to the debate on condonation, an outright adoption of the doctrine in this jurisdiction would not
have been proper.
At any rate, these US cases are only of persuasive value in the process of this Court's decision-making. "[They] are not
267
relied upon as precedents, but as guides of interpretation." Therefore, the ultimate analysis is on whether or not the
condonation doctrine, as espoused in Pascual, and carried over in numerous cases after, can be held up against
prevailing legal norms. Note that the doctrine of stare decisis does not preclude this Court from revisiting existing doctrine.
As adjudged in the case of Belgica, the stare decisis rule should not operate when there are powerful countervailing
considerations against its application.268 In other words, stare decisis becomes an intractable rule only when
269
circumstances exist to preclude reversal of standing precedent. As the Ombudsman correctly points out, jurisprudence,
after all, is not a rigid, atemporal abstraction; it is an organic creature that develops and devolves along with the society
within which it thrives.270 In the words of a recent US Supreme Court Decision, "[w]hat we can decide, we can
undecide."271
In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the legal landscape has
radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution, which dated provisions do not
reflect the experience of the Filipino People under the 1973 and 1987 Constitutions. Therefore, the plain difference in

setting, including, of course, the sheer impact of the condonation doctrine on public accountability, calls
for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in which the public officer was elected for each term is
separate and distinct:
Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and
this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond
the removal from office, and disqualification from holding office for the term for which the officer was elected or
appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People
ex rel. Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State vs.
Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.272
Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting the right to
remove him therefor; and
[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the
right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS)
553.273(emphasis supplied)
Third, courts may not deprive the electorate, who are assumed to have known the life and character of candidates, of their
right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be
to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be
assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to
practically overrule the will of the people.274 (Emphases supplied)
The notable cases on condonation following Pascual are as follows:
(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation doctrine, thereby quoting
the above-stated passages from Pascual in verbatim.
(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the condonation doctrine does not
apply to a criminal case. It was explained that a criminal case is different from an administrative case in that the former
involves the People of the Philippines as a community, and is a public wrong to the State at large; whereas, in the latter,
only the populace of the constituency he serves is affected. In addition, the Court noted that it is only the President who
may pardon a criminal offense.
277

(3) Aguinaldo v. Santos (Aguinaldo; August 21, 1992) - a case decided under the 1987 Constitution wherein the
condonation doctrine was applied in favor of then Cagayan Governor Rodolfo E. Aguinaldo although his re-election
merely supervened the pendency of, the proceedings.
(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the condonation doctrine by
stating that the same is justified by "sound public policy." According to the Court, condonation prevented the elective
official from being "hounded" by administrative cases filed by his "political enemies" during a new term, for which he has
to defend himself "to the detriment of public service." Also, the Court mentioned that the administrative liability condoned
279
by re-election covered the execution of the contract and the incidents related therewith.
280

(5) Mayor Garcia v. Mojica (Mayor Garcia; September 10, 1999) - wherein the benefit of the doctrine was extended to
then Cebu City Mayor Alvin B. Garcia who was administratively charged for his involvement in an anomalous contract for
the supply of asphalt for Cebu City, executed only four (4) days before the upcoming elections. The Court ruled that
notwithstanding the timing of the contract's execution, the electorate is presumed to have known the petitioner's
background and character, including his past misconduct; hence, his subsequent re-election was deemed a condonation
of his prior transgressions. More importantly, the Court held that the determinative time element in applying the

condonation doctrine should be the time when the contract was perfected; this meant that as long as the contract was
entered into during a prior term, acts which were done to implement the same, even if done during a succeeding
term, do not negate the application of the condonation doctrine in favor of the elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein the Court explained the
doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation rule was applied
even if the administrative complaint was not filed before the reelection of the public official, and even if the
alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date
of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the
precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public
official's culpability was committed prior to the date of reelection. 282 (Emphasis supplied)
283

The Court, citing Civil Service Commission v. Sojor, also clarified that the condonation doctrine would not apply to
appointive officials since, as to them, there is no sovereign will to disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked that it would have been
prudent for the appellate court therein to have issued a temporary restraining order against the implementation of a
preventive suspension order issued by the Ombudsman in view of the condonation doctrine.
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. all cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions directing the issuance of the assailed
injunctive writs - would show that the basis for condonation under the prevailing constitutional and statutory framework
was never accounted for. What remains apparent from the text of these cases is that the basis for condonation, as
jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual, which was lifted from rulings of US
courts where condonation was amply supported by their own state laws. With respect to its applicability to administrative
cases, the core premise of condonation - that is, an elective official's re-election cuts qff the right to remove him for an
administrative offense committed during a prior term - was adopted hook, line, and sinker in our jurisprudence largely
because the legality of that doctrine was never tested against existing legal norms. As in the US, the propriety of
condonation is - as it should be -dependent on the legal foundation of the adjudicating jurisdiction. Hence, the Court
undertakes an examination of our current laws in order to determine if there is legal basis for the continued application of
the doctrine of condonation.
The foundation of our entire legal system is the Constitution. It is the supreme law of the land;284thus, the unbending rule
is that every statute should be read in light of the Constitution. 285 Likewise, the Constitution is a framework of a workable
government; hence, its interpretation must take into account the complexities, realities, and politics attendant to the
operation of the political branches of government.286
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the context of the 1935
Constitution which was silent with respect to public accountability, or of the nature of public office being a public trust. The
provision in the 1935 Constitution that comes closest in dealing with public office is Section 2, Article II which states that
"[t]he defense of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be required by
law to render personal military or civil service."287 Perhaps owing to the 1935 Constitution's silence on public
accountability, and considering the dearth of jurisprudential rulings on the matter, as well as the variance in the policy
considerations, there was no glaring objection confronting the Pascual Court in adopting the condonation doctrine that
originated from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a significant change. The
new charter introduced an entire article on accountability of public officers, found in Article XIII. Section 1 thereof positively
recognized, acknowledged, and declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and
employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency, and shall remain
accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987 Constitution, which
sets forth in the Declaration of Principles and State Policies in Article II that "[t]he State shall maintain honesty and
integrity in the public service and take positive and effective measures against graft and corruption."288 Learning
how unbridled power could corrupt public servants under the regime of a dictator, the Framers put primacy on the integrity
of the public service by declaring it as a constitutional principle and a State policy. More significantly, the 1987
Constitution strengthened and solidified what has been first proclaimed in the 1973 Constitution by commanding public
officers to be accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency and act with patriotism and justice, and
lead modest lives.ChanRoblesVirtualawlibrary
In Belgica, it was explained that:
[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is a public trust,"
is an overarching reminder that every instrumentality of government should exercise their official functions only in
accordance with the principles of the Constitution which embodies the parameters of the people's trust. The notion of a
289
public trust connotes accountability x x x. (Emphasis supplied)
The same mandate is found in the Revised Administrative Code under the section of the Civil Service Commission, 290 and
291
also, in the Code of Conduct and Ethical Standards for Public Officials and Employees.
For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local official from
office are stated in Section 60 of Republic Act No. 7160,292otherwise known as the "Local Government Code of 1991"
(LGC), which was approved on October 10 1991, and took effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or removed from
office on any of the r following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang
panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order of the proper court.
Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a result of an
administrative case shall be disqualified from running for any elective local position:
Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
xxxx
(b) Those removed from office as a result of an administrative case;
x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary
In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from service carries the
accessory penalty of perpetual disqualification from holding public office:
Section 52. - Administrative Disabilities Inherent in Certain Penalties. a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement benefits, perpetual
disqualification from holding public office, and bar from taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the unexpired term of the
elective local official nor constitute a bar to his candidacy for as long as he meets the qualifications required for the office.
Note, however, that the provision only pertains to the duration of the penalty and its effect on the official's
candidacy. Nothing therein states that the administrative liability therefor is extinguished by the fact of reelection:
Section 66. Form and Notice of Decision. - x x x.
xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for
every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as
he meets the qualifications required for the office.
Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the conclusion that
the doctrine of condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the corollary requirement of accountability to the
people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local
official's administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was
elected to a second term of office, or even another elective post. Election is not a mode of condoning an
administrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion
that an official elected for a different term is fully absolved of any administrative liability arising from an offense done
during a prior term. In this jurisdiction, liability arising from administrative offenses may be condoned bv the
President in light of Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v. Orbos293 to apply
to administrative offenses:
The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with
the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal
cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII,
Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically
excluded inasmuch as the same do not necessarily involve criminal offenses.
In the same vein, We do not clearly see any valid and convincing , reason why the President cannot grant executive
clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and
pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in
administrative cases, which are clearly less serious than criminal offenses.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein cannot anymore
be invoked against an elective local official to hold him administratively liable once he is re-elected to office. In fact,
Section 40 (b) of the LGC precludes condonation since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position due to a direct disqualification from running for
such post. In similar regard, Section 52 (a) of the RRACCS imposes a penalty of perpetual disqualification from holding
public office as an accessory to the penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the doctrine of
condonation of administrative liability was supported by either a constitutional or statutory provision stating, in effect, that
an officer cannot be removed by a misconduct committed during a previous term,294 or that the disqualification to hold
the office does not extend beyond the term in which the official's delinquency occurred. 295 In one case,296 the
absence of a provision against the re-election of an officer removed - unlike Section 40 (b) of the LGC-was the justification
behind condonation. In another case,297 it was deemed that condonation through re-election was a policy under their
constitution - which adoption in this jurisdiction runs counter to our present Constitution's requirements on public
accountability. There was even one case where the doctrine of condonation was not adjudicated upon but only invoked by
a party as a ground;298 while in another case, which was not reported in full in the official series, the crux of the disposition
was that the evidence of a prior irregularity in no way pertained to the charge at issue and therefore, was deemed to be
299
incompetent. Hence, owing to either their variance or inapplicability, none of these cases can be used as basis for the
continued adoption of the condonation doctrine under our existing laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the unexpired
portion of the elective local official's prior term, and likewise allows said official to still run for re-election This treatment is
300
301
similar to People ex rel Bagshaw v. Thompson and Montgomery v. Novell both cited in Pascual, wherein it was ruled
that an officer cannot be suspended for a misconduct committed during a prior term. However, as previously stated,
nothing in Section 66 (b) states that the elective local official's administrative liability is extinguished by the fact of reelection. Thus, at all events, no legal provision actually supports the theory that the liability is condoned.
Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would be depriving the
electorate of their right to elect their officers if condonation were not to be sanctioned. In political law, election pertains to
the process by which a particular constituency chooses an individual to hold a public office. In this jurisdiction, there is,
again, no legal basis to conclude that election automatically implies condonation. Neither is there any legal basis to say
that every democratic and republican state has an inherent regime of condonation. If condonation of an elective official's
administrative liability would perhaps, be allowed in this jurisdiction, then the same should have been provided by law
under our governing legal mechanisms. May it be at the time of Pascualor at present, by no means has it been shown that

such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it
cannot be said that the electorate's will has been abdicated.
Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are assumed to have done so
with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been
guilty of any. Suffice it to state that no such presumption exists in any statute or procedural rule. 302 Besides, it is
contrary to human experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded in secrecy, and
concealed from the public. Misconduct committed by an elective official is easily covered up, and is almost always
303
unknown to the electorate when they cast their votes. At a conceptual level, condonation presupposes that the
condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton304 decided by the New Jersey Supreme Court:
Many of the cases holding that re-election of a public official prevents his removal for acts done in a preceding term of
office are reasoned out on the theory of condonation. We cannot subscribe to that theory because condonation, implying
as it does forgiveness, connotes knowledge and in the absence of knowledge there can be no condonation. One cannot
forgive something of which one has no knowledge.
That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. As can be
seen from this discourse, it was a doctrine adopted from one class of US rulings way back in 1959 and thus, out of touch
from - and now rendered obsolete by - the current legal regime. In consequence, it is high time for this Court to abandon
the condonation doctrine that originated from Pascual, and affirmed in the cases following the same, such as Aguinaldo,
Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the CA.
It should, however, be clarified that this Court's abandonment of the condonation doctrine should be prospective in
application for the reason that judicial decisions applying or interpreting the laws or the Constitution, until reversed, shall
form part of the legal system of the Philippines.305 Unto this Court devolves the sole authority to interpret what the
Constitution means, and all persons are bound to follow its interpretation. As explained in De Castro v. Judicial Bar
Council.306
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned, necessarily become,
to the extent that they are applicable, the criteria that must control the actuations, not only of those called upon to abide by
them, but also of those duty-bound to enforce obedience to them.307
Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized as "good
law" prior to its abandonment. Consequently, the people's reliance thereupon should be respected. The landmark case on
this matter is People v. Jabinal,308 wherein it was ruled:
[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied
prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.
Later, in Spouses Benzonan v. CA,

309

it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to
Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This
is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale
against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already
become vested or impairs the obligations of contract and hence, is unconstitutional. 310
Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its ensuing course.
Thus, while it is truly perplexing to think that a doctrine which is barren of legal anchorage was able to endure in our
jurisprudence for a considerable length of time, this Court, under a new membership, takes up the cudgels and now
abandons the condonation doctrine.
E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether or not the CA committed grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed injunctive writs.
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of discretion when such act
is done in a capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of

discretion must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
311
manner by reason of passion and hostility. It has also been held that "grave abuse of discretion arises when a lower
312
court or tribunal patently violates the Constitution, the law or existing jurisprudence."
As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed injunctive writs
were all hinged on cases enunciating the condonation doctrine. To recount, the March 16, 2015 Resolution directing the
issuance of the subject TRO was based on the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing
the issuance of the subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at that time, unwittingly
remained "good law," it cannot be concluded that the CA committed a grave abuse of discretion based on its legal
attribution above. Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued.
With this, the ensuing course of action should have been for the CA to resolve the main petition for certiorari in CA-G.R.
SP No. 139453 on the merits. However, considering that the Ombudsman, on October 9, 2015, had already found Binay,
Jr. administratively liable and imposed upon him the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative charges against him, the said CA petition appears
to have been mooted.313 As initially intimated, the preventive suspension order is only an ancillary issuance that, at its
core, serves the purpose of assisting the Office of the Ombudsman in its investigation. It therefore has no more purpose and perforce, dissolves - upon the termination of the office's process of investigation in the instant administrative case.
F. Exceptions to the mootness principle.
This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the validity of the
preventive suspension order subject of this case does not preclude any of its foregoing determinations, particularly, its
abandonment of the condonation doctrine. As explained in Belgica, '"the moot and academic principle' is not a magical
formula that can automatically dissuade the Court in resolving a case. The Court will decide cases, otherwise moot,
if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount
public interest is involved; third, when the constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review."314 All of these
scenarios obtain in this case:
First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not to abandon the
condonation doctrine now that its infirmities have become apparent. As extensively discussed, the continued application
of the condonation doctrine is simply impermissible under the auspices of the present Constitution which explicitly
mandates that public office is a public trust and that public officials shall be accountable to the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of elective officials
to escape administrative liability. It is the first time that the legal intricacies of this doctrine have been brought to light; thus,
this is a situation of exceptional character which this Court must ultimately resolve. Further, since the doctrine has served
as a perennial obstacle against exacting public accountability from the multitude of elective local officials throughout the
years, it is indubitable that paramount public interest is involved.
Third, the issue on the validity of the condonation doctrine clearly requires the formulation of controlling principles to
guide the bench, the bar, and the public. The issue does not only involve an in-depth exegesis of administrative law
principles, but also puts to the forefront of legal discourse the potency of the accountability provisions of the 1987
Constitution. The Court owes it to the bench, the bar, and the public to explain how this controversial doctrine came about,
and now, its reasons for abandoning the same in view of its relevance on the parameters of public office.
And fourth, the defense of condonation has been consistently invoked by elective local officials against the administrative
charges filed against them. To provide a sample size, the Ombudsman has informed the Court that "for the period of July
2013 to December 2014 alone, 85 cases from the Luzon Office and 24 cases from the Central Office were dismissed on
the ground of condonation. Thus, in just one and a half years, over a hundred cases of alleged misconduct - involving
infractions such as dishonesty, oppression, gross neglect of duty and grave misconduct - were placed beyond the reach
315
of the Ombudsman's investigatory and prosecutorial powers." Evidently, this fortifies the finding that the case is capable
of repetition and must therefore, not evade review.
In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As mentioned, it is its own
jurisprudential creation and may therefore, pursuant to its mandate to uphold and defend the Constitution, revoke it
notwithstanding supervening events that render the subject of discussion moot.chanrobleslaw
V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the final issue on whether or
not the CA's Resolution316 dated March 20, 2015 directing the Ombudsman to comment on Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504 is improper and illegal.
The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot be the subject of a
charge for indirect contempt317 because this action is criminal in nature and the penalty therefor would result in her
318
effective removal from office. However, a reading of the aforesaid March 20, 2015 Resolution does not show that she
has already been subjected to contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the
directive for the Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.'s contempt
petition:
Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita Carpio Morales, in
her capacity as the Ombudsman, and the Department of Interior and Local Government] are hereby DIRECTED to file
Comment on the Petition/Amended and Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an
inextendible period of three (3) days from receipt hereof. (Emphasis and underscoring supplied)
Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may properly raise her
objections to the contempt proceedings by virtue of her being an impeachable officer, the CA, in the exercise of its sound
judicial discretion, may still opt not to give due course to Binay, Jr.'s contempt petition and accordingly, dismiss the same.
Sjmply put, absent any indication that the contempt petition has been given due course by the CA, it would then be
premature for this Court to rule on the issue. The submission of the Ombudsman on this score is perforce denied.
WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while the policy
against the issuance of provisional injunctive writs by courts other than the Supreme Court to enjoin an investigation
conducted by the Office of the Ombudsman under the first paragraph of the said provision is DECLARED ineffective until
the Court adopts the same as part of the rules of procedure through an administrative circular duly issued
therefor;cralawlawlibrary
(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in effect;
(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) petition
for certiorari in CA-G.R. SP No. 139453 in light of the Office of the Ombudsman's supervening issuance of its Joint
Decision dated October 9, 2015 finding Binay, Jr. administratively liable in the six (6) administrative complamts, docketed
as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and OMB-C-A-150063; and
(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA is DIRECTED to resolve Binay,
Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost dispatch.
SO ORDERED.

G.R. No. 132875-76

February 3, 2000

PEOPLE OF THE PHILIPPINES vs. ROMEO G. JALOSJOS

RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the national
penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts1 is pending
appeal. The accused-appellant filed this motion asking that he be allowed to fully discharge the duties of a Congressman,
including attendance at legislative sessions and committee meetings despite his having been convicted in the first
instance of a non-bailable offense.
The issue raised is one of the first impression.
Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in
general? In answering the query, we are called upon to balance relevant and conflicting factors in the judicial
interpretation of legislative privilege in the context of penal law.
The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was
filed on the grounds that
1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any ruling, giving
priority to any right or interest not even the police power of the State.
2. To deprive the electorate of their elected representative amounts to taxation without representation.
3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the renewed
mandates entrusted to him by the people.
4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.
5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.
6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of government to
respect its mandate.
7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to discharge his
mandate.
8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.
The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of the First
District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by his
constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his constituents
made possible by the intervention of the State. He adds that it cannot be defeated by insuperable procedural restraints
arising from pending criminal cases.
True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects to
achieve the continuity of government and the perpetuation of its benefits. However, inspite of its importance, the privileges
and rights arising from having been elected may be enlarged or restricted by law. Our first task is to ascertain the
applicable law.
We start with the incontestable proposition that all top officials of Government-executive, legislative, and judicial are
subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment to
high government office, by itself, frees the official from the common restraints of general law. Privilege has to be granted

by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of obedience
rather than exemption.
The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily
addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that privilege
has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be
extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable
considerations.
The 1935 Constitution provided in its Article VI on the Legislative Department.
Sec 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach
of the peace be privileged from arrest during their attendance at the sessions of Congress, and in going to and returning
from the same, . . .
Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim
parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or
whose convictions were pending appeal.
The 1973 Constitution broadened the privilege of immunity as follows:
Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest during his attendance at its sessions and in going to and returning from the same.
For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive
interpretation of immunity and intent to confine it within carefully defined parameters is illustrated by the concluding portion
of the provision, to wit:
. . . but the Batasang Pambansa shall surrender the member involved the custody of the law within twenty four hours after
its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject
Congressman to the custody of the law. The requirement that he should be attending sessions or committee meetings has
also been removed. For relatively minor offenses, it is enough that Congress is in session.
The accused-appellant argues that a member of Congress' function to attend sessions is underscored by Section 16 (2),
Article VI of the Constitution which states that
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day
and may compel the attendance of absent Members in such manner, and under such penalties, as such House may
provide.
However, the accused-appellant has not given any reason why he should be exempted from the operation of Section 11,
Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason
for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment
of more than six months is not merely authorized by law, it has constitutional foundations.
2

Accused-appellant's reliance on the ruling in Aguinaldo v. Santos , which states, inter alia, that
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be
to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed
that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct,
if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of
the people.
will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case
involves the administrative removal of a public officer for acts done prior to his present term of office. It does not apply to
imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is not

removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or,
otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society must
protect itself. It also serves as an example and warning to others.
A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United States
3
v. Gustilo, it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to the
complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to
incarceration if there is risk of his absconding.4
The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by
unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his
regular place of confinement.
It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded capture despite a call
from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to the
authorities. Ironically, it is now the same body whose call he initially spurned which accused-appellant is invoking to justify
his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to well-defined
Constitutional restrains, it would be a mockery of the aims of the State's penal system.
Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several motions to
temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:
a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the issue of
whether to expel/suspend him from the House of Representatives;
b) to undergo dental examination and treatment at the clinic of his dentist in Makati City;
c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City;
d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by chartered plane
and private vehicle.
He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he was
likewise allowed/permitted to leave the prison premises, to wit.
a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany seedling bank
and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one guard and allowed to use
his own vehicle and driver in going to and from the project area and his place of confinement.
b) to continue with his dental treatment at the clinic of his dentist in Makati City.
c) to be confined at the Makati Medical Center in Makati City for his heart condition.
There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling
temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.
What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional
sessions and committee meeting for five (5) days or more in a week will virtually make him free man with all the privilege
appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a special
class, it also would be a mockery of the purposes of the correction system. Of particular relevance in this regard are the
following observations of the Court in Martinez v. Morfe:5
The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full
recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention,
entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the
dictates of their conscience of their conscience. Necessarily the utmost latitude in free speech should be accorded them.
When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without justification

in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance
in Congress and in going to and returning from the same. There is likely to be no dissent from the proposition that a
legislator or a delegate can perform his functions efficiently and well, without the need for any transgression of the criminal
law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a
strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that the
prosecuting arm of the government might unjustly go after legislators belonging to the minority, it suffices to answer that
precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual, would
constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the judiciary would remain
independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the essence.
The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be
heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal
branch of government to respect his mandate. He also claims that the concept of temporary detention does not
necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/restrictions
when he is allowed to leave jail.
We remain unpersuaded.1wphi1.nt
No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is
provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives Complex,
Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an] inter-department
coordination, he is also provided with an office at the Administration Building, New Bilibid Prison, Muntinlupa City, where
he attends to his constituents." Accused-appellant further admits that while under detention, he has filed several bills and
resolutions. It also appears that he has been receiving his salaries and other monetary benefits. Succinctly stated,
accused-appellant has been discharging his mandate as a member of the House of Representative consistent with the
restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even have been
allowed by the prison authorities at the National Penitentiary to perform these acts.
When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations
on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he
could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full
knowledge that he suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full
term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws." 6 This simply means that
all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed. 7 The organs of
government may not show any undue favoritism or hostility to any person. Neither partiality not prejudice shall be
displayed.
Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a
substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly
confined under law?
The performance of legitimate and even essential duties by public officers has never been an excuse to free a person
validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that
the duty to legislative ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of
the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation.
Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of
Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that
particular duty. The importance of a function depends on the need to its exercise. The duty of a mother to nurse her infant
is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a
particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and
order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are
validly restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or
against groups or types of individuals.8

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of
government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. 9
We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law
enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to
the purposes of the law and apply to all those belonging to the same class.10
Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise of
his
power
of
locomotion.11
More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is restraint by
12
judgment of a court or lawful tribunal, and is personal to the accused. The term refers to the restraint on the personal
liberty of another; any prevention of his movements from place to place, or of his free action according to his own pleasure
and will.13 Imprisonment is the detention of another against his will depriving him of his power of locomotion 14 and it "[is]
something more than mere loss of freedom. It includes the notion of restraint within limits defined by wall or any exterior
15
barrier."
16

It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in society. Prison
officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well as of
attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily, both these
demands require the curtailment and elimination of certain rights.17
Premises considered, we are constrained to rule against the accused-appellant's claim that re-election to public office
gives priority to any other right or interest, including the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.
Separate Opinions
GONZAGA-REYES, J., concurring opinion;
For resolution in this case is a motion filed by accused-appellant Romeo G. Jalosjos, who has been convicted by the trial
court of two counts of statutory rape and six counts of acts of lasciviousness, which judgment is currently pending appeal
before this Court. As a member of the House of Representatives, accused-appellant claims that his constituents are
deprived of representation by reason of his incarceration pending appeal of the judgment of conviction and that he should
therefore be allowed to discharge his legislative functions, including attendance of legislative sessions and committee
meetings.
I concur in the ponencia of my colleague Madame Justice Consuelo Ynares-Santiago in holding that accused-appellant's
motion is bereft of any legal merit.
The Bill of Rights provides
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required.1 (emphasis supplied)
This constitutional provision denying the right to bail for offenses punishable by reclusion perpetua when the evidence of
guilt is strong is reiterated in Rule 114 of the Rules of Criminal Procedure, viz
Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person
charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of
guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution.

The trial court found accused-appellant guilty of the crime of statutory rape, which is punishable by reclusion perpetua.
In People v. Divina2 we held that the trial court's judgment of conviction imports that the evidence of guilt of the crime
charged is strong. Unquestionably, the continued incarceration of accused-appellant is a valid and constitutionally
mandated curtailment of his rights to provisional liberty pending appeal of his conviction.
Neither may the constitutional provision granting immunity from arrest to legislators provide legal justification for accusedappellant's motion. The Constitution states that
A Senator of Member of the House of Representatives shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held
liable in any other place for any speech or debate in the Congress or in any committee thereof. 3
I agree with the ponencia that to allow accused-appellant to attend legislative sessions would constitute an unjustified
broadening of the privilege from the arrest bestowed by the Constitution upon members of Congress. Neither the
legislative history of this provision nor the general principles of official immunity support an expanded interpretation of
such privilege.
Unlike the present Constitution, the 1935 Constitution4 limited the privilege from arrests to "all cases except treason,
felony, and breach of the peace." This provision was taken from the Philippine Autonomy Act of 1916, which was in turn
based upon the American Constitution. In accordance with American precedents, the word "treason, felony and breach of
the peace" have been construed to include all indictable offenses. 5 Thus, under the 1935 Constitution the freedom from
arrest only encompassed civil arrest.
Under the 19736 and the 1987 Constitution, the privilege was broadened to include arrests for crimes punishable by
imprisonment of six years or less. Despite the expansion of the privilege, the rationale for granting members of Congress
immunity from arrest remained the same to ensure that they are not prevented from performing their legislative
7
duties. In fact, the 1986 Constitutional Commission rejected the proposal of one of its members to expand the scope of
the parliamentary immunity to include searches because, unlike arrest, it was not demonstrated that the conduct of
searches would prevent members of Congress from discharging their legislative functions. 8
It is a well-established principle that official immunity is a necessary adjunct to the vigorous and effective performance of
official functions. Members of Congress in particular, who are called upon to exercise their discretion and judgment in
enacting laws responsive to the needs of the people, would certainly be impeded in the exercise of their legislative
functions if every dissatisfied person could compel them to vindicate the wisdom of their enactments in an action for
damages or question their official acts before the courts.9
It was never the intention of the framers of the 1973 and 1987 Constitutions to shield a member of Congress from the
consequences of his wrongdoing. Thus, despite the widening of its scope to include criminal offenses, the privilege from
arrest is still circumscribed by the nature or the gravity of the offenses of which the accused is charged. Hence, the
commission of serious crimes, i.e., crimes punishable by afflictive penalties or with capital punishment, does not fall within
the scope of the constitutional privilege. A member of Congress could only invoke the immunity from arrest for relatively
10
minor offenses, punishable at most by correctional penalties. As enunciated in Martinez v. Morfe, "when it comes to
freedom from arrest, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding
their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to
and returning from the same"
The accused-appellant, having been convicted of statutory rape which is punishable by reclusion perpetua, an afflictive
penalty, is obviously not entitled to the privilege of parliamentary immunity and, proceeding from the above stated
rationale for legislative immunity, a liberal construction of the constitutional privilege is not in order.
It should also be mentioned that, under the factual circumstances of this case, the applicability of this privilege from arrest
to accused-appellant is already moot and academic. The constitutional provision contemplates that stage of the criminal
process at which personal jurisdiction is sought to be acquired over the accused by means of his arrest. Accusedappellant is no longer at the point of merely being arrested. As a matter of fact, he has already been arrested, tried and
convicted by the trial court.
Accused-appellant's contention that his re-election constitutes a renewal of his mandate and that such an expression of
the popular will should not be rendered inutile by even the police power of the State is hollow. In Aguinaldo v.
Comelec,11 Aguinaldo v. Santos12 and in Salalima v. Guingona13 we laid down the doctrine that a public official cannot be
removed for administrative misconduct committed during a prior term, since his re-election to office operates as a

condonation of the officer's previous misconduct to the extent of cutting off the right to remove therefor. This doctrine of
forgiveness or condonation cannot apply to criminal acts which the re-elected official may have committed during his
previous term.14 The administrative liability of a public officer is separate and distinct from his penal liability.1wphi1.nt
Penal laws are obligatory upon all who live or sojourn in Philippine territory. Since the Constitution itself provides for the
immunities from the general application of our criminal laws which a Senator or Member of the House of Representatives
may enjoy, it follows that any expansion of such immunities must similarly be based upon an express constitutional grant.
I vote to deny the motion.

G.R. No. 180917

April 23, 2010

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAA vs. OFFICE OF THE OMBUDSMAN, RICARDO AGON,
RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN
DECISION
CARPIO MORALES, J.:
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa (Glenda) challenge the October 11, 2007 Decision
and the December 13, 2007 Resolution of the Court of Appeals1 in CA-G.R. SP No. 96889 affirming the Office of the
Ombudsman's decision finding them guilty of Simple Neglect of Duty.
Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget
Officer, respectively, of Tagkawayan, Quezon.
Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a two-classroom
2
building with fence (the projects) for the Tagkawayan Municipal High School (TMHS) since the public school in the
poblacion area would no longer admit high school freshmen starting school year 2002-2003. On how to solve the
classroom shortage, the mayor consulted Salumbides who suggested that the construction of the two-classroom building
be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities
(MOOE/RMF) and implemented "by administration," as had been done in a previous classroom building project of the
former mayor.
Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be
taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She added,
however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and
Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal
Annual Budget for 2002.3
The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of
the projects based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate
of P222,000.
Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included the projects in the
list of local government projects scheduled for bidding on January 25, 2002 which, together with the January 31, 2002
public bidding, failed.
The mayor was to admit later his expectation or assumption of risk on reimbursement:
x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-going (although
it was also my thinking then that no bidder would possibly bid for these 2 projects as these were cost-estimated very lowP150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse
what I had so far spen[t] for the project. I said "I" because up to the time of the failed 2 biddings I have shouldered the
"vale" of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo
was at the time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials for the
project had been accomplished. As a matter of fact, payments for the expenses on these 2 projects have been made only
starting 19 March 2002. x x x4(underscoring supplied)
The construction of the projects commenced without any approved appropriation and ahead of the public bidding.
Salumbides was of the opinion that the projects were regular and legal, based on an earlier project that was "implemented
in the same manner, using the same source of fund and for the same reason of urgency" which was allowed "because the
building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal
government is presently negotiating to buy."5
Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the implementation of
infrastructure projects to be executed "by administration," while Councilor Coleta Sandro (Coleta) sponsored a Resolution

to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the
approval of the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian,
all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a complaint 6 against
Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino.
The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with
Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and
violation of the Commission on Audit (COA) Rules and the Local Government Code.
By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive
suspension pending investigation. By Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for
reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the
2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position
papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on February 18, 2005
requiring the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State Auditor
II claimed by Affidavit of May 23, 2005 that the required documents were among those razed by fire on April 14, 2004 that
hit the Office of the Municipal Accountant where they were temporarily stored due to lack of space at the Provincial
Auditor's Office.1avvphi1
On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and
Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from
office for a maximum period of six months with a stern warning against a similar repetition. It also approved on November
7
2, 2006 the March 27, 2006 Order denying the motion for reconsideration.
Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.
For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The
verification portion of the petition does not carry a certification against forum shopping. 8
The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification
against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal
effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum
shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by amendment of
the initiatory pleading.9
Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied
10
by Resolution of January 15, 2008 for non-compliance with the required showing of competent proof of identity in the
Affidavit of Service. The Court, by Resolution of March 4, 2008,11 later granted their motion for reconsideration with motion
to admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of filing within the extended
period.
12

Moreover, in their Manifestation/Motion filed a day later, petitioners prayed only for the admission of
nine additional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an insufficient number of
copies. Petitioners were less than candid when they surreptitiously submitted a Motion with Appeal which is different from
the first set they had submitted. The second set of Appeal includes specific Assignment of Errors13and already contains a
certification against forum shopping14 embedded in the Verification. The two different Verifications were notarized by the
same notary public and bear the same date and document number.15 The rectified verification with certification, however,
was filed beyond the reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of condonation16 to cover coterminous appointive officials who
were administratively charged along with the reelected official/appointing authority with infractions allegedly committed
during their preceding term.

The Court rejects petitioners' thesis.

17

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija issued the landmark ruling that
prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office.
The Court explained that "[t]he underlying theory is that each term is separate from other terms, and that the reelection to
office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him
therefor."18
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be
to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed
that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if
he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of
19
the people. (underscoring supplied)
Lizares v. Hechanova, et al.20 replicated the doctrine. The Court dismissed the petition in that case for being moot, the
therein petitioner "having been duly reelected, is no longer amenable to administrative sanctions." 21
Ingco v. Sanchez, et al.22 clarified that the condonation doctrine does not apply to a criminal case.23 Luciano v. The
Provincial Governor, et al.,24 Olivarez v. Judge Villaluz,25 and Aguinaldo v. Santos26 echoed the qualified rule that
reelection of a public official does not bar prosecution for crimes committed by him prior thereto.
Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a
Senator and a Member of the House of Representatives.27
Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon. Mojica29 reinforced the doctrine. The condonation rule was applied
even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged
misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the
administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or
period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's
culpability was committed prior to the date of reelection.
Petitioners' theory is not novel.
A parallel question was involved in Civil Service Commission v. Sojor30 where the Court found no basis to broaden the
scope of the doctrine of condonation:
Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite
the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him.
The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present
circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed
official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the
re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of
a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR reappointed respondent Sojor to the post of university president.31 (emphasis and underscoring supplied)lawph!l
Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive officials does not
violate the right to equal protection of the law.
In the recent case of Quinto v. Commission on Elections, 32 the Court applied the four-fold test in an equal protection
33
challenge against the resign-to-run provision, wherein it discussed the material and substantive distinctions between
elective and appointive officials that could well apply to the doctrine of condonation:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to
which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it
merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for
making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed
therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the appointing authority.
xxxx
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It
involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in
office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they
be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation
insofar as appointed officials are concerned. (emphasis and underscoring supplied)
The electorate's condonation of the previous administrative infractions of the reelected official cannot be extended to that
of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people
expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of
the electorate to speak of, in the case of reappointed coterminous employees.
It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish
an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The
people cannot be charged with the presumption of full knowledge of the life and character of each and every probable
appointee of the elective official ahead of the latter's actual reelection.
Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as
respondents posit, provide civil servants, particularly local government employees, with blanket immunity from
administrative liability that would spawn and breed abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings.
This the Court cannot do, for being improper and immaterial.
Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts.34As a rule,
the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate
court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the
province of the Court.
Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who
were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes
intentional.35 There can hardly be conspiracy to commit negligence.36
Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting from
either carelessness or indifference.37 In the present case, petitioners fell short of the reasonable diligence required of
them, for failing to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the
projects before stamping their imprimatur and giving their advice to their superior.
The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to uphold the law and
provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of
adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects without prior
competitive bidding."38 As pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to
allowing with impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on
"matters related to upholding the rule of law."39 Indeed, a legal officer who renders a legal opinion on a course of action
without any legal basis becomes no different from a lay person who may approve the same because it appears justified.
As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the
mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than
40
registering her written objection as municipal budget officer.
Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held
that the funding for the projects should have been taken from the "capital outlays" that refer to the appropriations for the
purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the

local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the
purchase of goods and services for the conduct of normal local government operations within the fiscal year. 41
42

In Office of the Ombudsman v. Tongson, the Court reminded the therein respondents, who were guilty of simple neglect
of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and
pertinent rules.
Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one
day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six
months, the Court finds the imposition of suspension without pay for three months justified.
When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office
and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a
public officer is to use that prudence, caution, and attention which careful persons use in the management of their
affairs.43
Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense
of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees
must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust;
and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and
efficiency.44
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889
are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araa, are suspended from
office for three (3) months without pay.
SO ORDERED.

G.R. No. 94125 March 3, 1993

MAYOR JESUS MIGUEL YULO, REPRESENTING THE MUNICIPALITY OF CALAMBA, LAGUNA vs. THE CIVIL
SERVICE COMMISSION, APOLONIO A. ELASIGUE, AND TEOFILO G. MAMPLATA, ET AL.
BIDIN, J.:
This petition seeks to set aside Resolution No. 89-939 dated December 7, 1989 and Resolution No. 90-472 dated May 23,
1990 of respondent Civil Service Commission directing petitioner Mayor Jesus Miguel Yulo of Calamba, Laguna to
reinstate private respondents Teofilo Mamplata, et al., and to pay their backwages.
On November 24, 1986, private respondent Apolonio A. Elasigue, Officer in-Charge of the Municipality of Calamba,
Laguna terminated the services of private respondents Mamplata and forty-three (43) other employees of said
municipality based on the reorganization and approval of the new staffing pattern thereof (Annex "A", p. 1;Rollo, p.17).
Private respondents Mamplata and the other separated employees assailed the action of respondent Elasigue before the
Inter-Agency Review Committee created under Executive Order No. 17 of the then President Corazon Aquino. Since the
private respondents were not removed pursuant to Executive Order No. 17 and there is no showing that the
reorganization was undertaken to circumvent the said statute, the Committee referred the case to the Merit Systems
Protection Board (MSPB) of respondent Civil Service Commission. Pending disposition of the case by the MSPB,
Elasigue lost in the mayoralty election in 1988 to petitioner Yulo.
The MSPB, finding that there is no sufficient evidence to prove the guilt of private respondents, ordered the reinstatement
of Mamplata and twenty eight (28) other employees and the payment of their backwages by the municipality (Rollo, p. 18).
Petitioner Yulo, as the elected mayor of Calamba, Laguna, filed a Motion for Reconsideration but to no avail. On appeal,
respondent Commission affirmed the decision of the MSPB. The Motion for Reconsideration filed later on by petitioner
was denied by respondent Commission which upheld its earlier ruling but reduced the number of employees to be
reinstated to twenty one (21) (CSC Resolution No. 90-472, dated May 23, 1992), namely:
1. Teofilo Mamplata
2. Isagani Fameronag
3. Teresita Ancheta
4. Lourdes Coro
5. Elvira Arevale
6. Rodolfo Adato
7. Gertrudes Terzol
8. Maxima Palema
9. Lourdes Belolo
10. Arturo Samiano
11. Bayas Bacobe
12. Felipe Lazareto
13. Silvino Canillas
14. Leoncio Edrozo
15. Benigno Alcantara
16. Danilo Salustiano
17. Saturnino Centeno, Sr. **
18. Fernando Ustaris
19. Elpedio Garcia
20. Ricardo Ferrer
21. Rafael Alcantara
the reason being that during the pendency of the case before the MSPB and respondent Commission, some were reemployed while two of the dismissed employees, Cresencia Belarmino and Marcial Manila died. Their untimely death
notwithstanding, respondent Commission ordered the payment of their backwages up to the time of their respective
demise.
Hence, this petition.

The issue in this case is whether the removal of private respondents Mamplata, et al. from office due to the reorganization
and approval of a new staffing pattern of the municipal government of Calamba is valid.
Petitioner maintains that the separation of private respondents was valid and in consonance with Section 2, Article III of
the Freedom Constitution which provides that:
All elective and appointive officials under the 1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or appointment and qualification of their successors, if such
appointment is made within the period of one year from February 25, 1986.
To further support this contention, petitioner cites this Court's ruling in Dario vs. Mison (176 SCRA 84 [1989]) wherein We
held that:
By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987,
advanced by jurisprudence to February 2, 1987 . . .
Therefore, petitioner argues, the removal of respondents Mamplata, et al., on November 24, 1986 was valid because the
same was effected before the expiration of the period above cited.
The argument is devoid of merit. In his narration of facts, petitioner himself admitted that private respondents' services
were terminated pursuant to the reorganization and approval of the new staffing pattern of Calamba on November 3,
1986 (Rollo, pp. 4-5). Petitioner's argument to the effect that respondents were separated from the service by virtue of the
Freedom Constitution or Executive Order No. 17 is palpably an afterthought. That is why when the respondents appealed
their dismissal to the Inter-Agency Review Committee created under Executive Order No. 17, said Committee refused to
take cognizance of said appeal on the ground that the dismissal was not made pursuant to the Freedom Constitution or
Executive Order No. 17 and instead referred the case on appeal to the MSPB.
It is thus crystal clear that private respondents were not separated from the service based on Section 2, Article III of the
Freedom Constitution or Executive Order No. 17 implementing the then basic law. On the contrary, their services were
terminated as a "result of the reorganization and approval of the new staffing pattern of the municipality of Calamba on
November 3, 1986" stated in the individual notices of termination served upon them by the then OIC Mayor.
As aptly explained by the respondent Commission:
The first ground, raised by appellant Yulo is devoid of merit. He argued that the separation of said employees was in
accordance with the Freedom Constitution of 1986 and the existing laws and jurisprudence on reorganization. It may be
reiterated here that the main reason why the then inter-agency Review Committee refused to take cognizance of the
instant case was because Mamplata et al. were not removed pursuant to Executive Order No. 17, Said Executive Order
prescribed the rules and guidelines for the implementation of Section 2, Article III of the Freedom Constitution. This
declaration on the part of the Committee, in essence, meant that said municipal employees were not separated from the
service under the Freedom Constitution thereby negating the very foundation of Mayor Yulo's argument. Although,
admittedly, there was a reorganization of the Municipal Government of Calamba, Laguna, reorganization per se does not
serve as a license for the local chief executive to separate career municipal officials and employees whimsically and
indiscriminately. "Reorganization is improper or invalid when effected without observing the prescribed priorities in
retention and separation, and without making a fair, just and correct evaluation of the personnel concerned taking into
account the relevant factors given" [ABACA, Sisinio, et al., CSC Resolution dated September 20, 1988] (CSC Resolution
No. 89-939, p. 2; Rollo, p. 18; emphasis supplied).
Petitioner Yulo's argument that private respondents were separated by virtue of the Freedom Constitution is therefore
erroneous.
Not only that. As records further indicate, the MSPB found that there was no sufficient evidence to prove the guilt of
private respondents. As to what were the charges levelled against the dismissed employees, petitioner Yulo could merely
insinuate that some of said employees were of "questionable integrity". In support thereof, petitioner submitted sworn
statements to that effect (Exhs. "F" to "M"; Rollo, pp. 42-56), belatedly dated either January 24 or 30, 1990.
It is glaringly obvious, therefore, that at the time private respondents were dismissed from the service on November 24,
l986, there was no evidence to substantiate the claim of questionable integrity. Simply stated, respondents were removed
without cause.

As this Court held in Dario v. Mison (supra):

At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the
Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of operations. In the
latter case, the Government is obliged to prove good faith. In case of removal undertaken to comply with clear and explicit
constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution
allows it. (citing Ginson v. Municipality of Murcia, 157 SCRA 1 [1988] and other cases).
Aside from petitioner's unproven allegation of "questionable integrity", neither has he shown that respondents herein were
removed for cause much less that the supposed reorganization was undertaken on the ground of economy or
redundancy. While there may be a decrease in the number of positions, i.e., from 285 to 266 as a result of the
reorganization, the number of regular employees, on the other hand, increased from 231 to 263 brought about by the
appointment of forty-eight (48) new employees. As found by the MSPB, the separated employees were holding
permanent appointments at the time of their removal and as such, they enjoy preference in reappointment to a similar
position in the new staffing pattern (Rollo, p. 21, citing CSC MC 5, s. 1988).
Be that as it may, it is undeniable that private respondents' employment with the municipality was unlawfully terminated.
On this score alone, the dismissed employees ought to and must be reinstated. Illegal removal of career civil service
employees in violation of their constitutional right to security of tenure will not be condoned under the guise of
reorganization (Pari-an v. Civil Service Commission, 202 SCRA 772 [1991]).
Neither can we sustain petitioner's claim that the overt acts of Mamplata, et al. in filing their separation clearances and
accepting terminal leave benefits estop them from further claiming reinstatement.
Incidentally, petitioner presented no evidence before the respondent Commission to prove that private respondents have
actually received their separation benefits. It is only at this late instance when it opted to do so (Rollo, pp. 208-225).
In any event, receipt by private respondents of their separation benefits does not preclude them from assailing the
termination of their services and praying for their reinstatements (Urgelio v. Osmea, Jr., 10 SCRA 253 [1964].
Petitioner finally argues that if the separation of Mamplata, et al. be declared illegal, the consequent damage in the form of
backwages among others, should be the personal liability of private respondent Elasigue and not the innocent taxpayers
of Calamba, Laguna.
Petitioner's argument cannot be sustained. It is a rule in this jurisdiction that the government, whether national, provincial
or municipal, shall be liable for the acts of its officers or agents only when such officers or agents had acted strictly within
the scope of their authority as created, conferred and defined by law (See Mechem, Public Off. & Officers, Secs. 82, 829,
830, 834). However, a public official may be liable in his personal capacity for whatever damage he may have caused by
his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction (Dumlao v. Court of Appeals,
114 SCRA 247 [1982]).
It is worth noting that respondent Elasigue terminated the subject employees as a result of the reorganization and
approval of the new staffing pattern of the municipality by the Sangguniang Bayan of Calamba. Otherwise stated,
Elasigue in terminating the services of respondent employees acted in his official capacity in the performance of his
official duty. In the absence of any proof that a public officer has acted with malice or bad faith, he cannot be charged with
personal liability for damages that may thereafter result (Mabutol v. Pascual, 124 SCRA 867 [1983]). Indeed, municipal
officers are liable for damages if they act maliciously or wantonly, and if the work which they perform is done to injure an
individual rather than to discharge a public duty (Rama v. Court of Appeals, 148 SCRA 496 [1987]). Such malice or bad
faith on the part of a public officer in the performance of his duties must be shown persuasively.
WHEREFORE, the petition is DISMISSED for lack of merit. Accordingly, the Municipality of Calamba, Laguna is hereby
ordered to REINSTATE the twenty (20) personnel named in CSC Resolution No. 90-472 and pay their backwages
equivalent to five (5) years (Cristobal v. Melchor, 78 SCRA 175 [1977]; Ginzon v. Municipality of Murcia, 158 SCRA 1
[1988]) less the amount of terminal pay received, it appearing from private respondents manifestation dated January 11,
1993 that they are still jobless from the time of their removal from the service up to the present.
SO ORDERED.

G.R. No. 125955 June 19, 1997

WILMER GREGO vs. COMMISSION ON ELECTIONS and HUMBERTO BASCO
ROMERO, J.:
The instant special civil action for certiorari and prohibition impugns the resolution of the Commission on Elections
(COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing petitioner's motion for reconsideration of an
earlier resolution rendered by the COMELEC's First Division on October 6, 1995, which also dismissed the petition for
1
disqualification filed by petitioner Wilmer Grego against private respondent Humberto Basco.
The essential and undisputed factual antecedents of the case are as follows:
On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court upon a finding of
serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas. The Court held:
WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO BASCO OF THE CITY COURT OF
MANILA GUILTY OF SERIOUS MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED
FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO
REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES
AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.
xxx xxx xxx 2
Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the January 18,
1988, local elections. He won and, accordingly, assumed office.
After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he succeeded in his
bid and he was elected as one of the six (6) City Councilors. However, his victory this time did not remain unchallenged.
In the midst of his successful re-election, he found himself besieged by lawsuits of his opponents in the polls who wanted
to dislodge him from his position.
One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon Ronquillo, another candidate for
councilor in the same district, who alleged Basco's ineligibility to be elected councilor on the basis of the Tordesillas ruling.
At about the same time, two more cases were also commenced by Honorio Lopez II in the Office of the Ombudsman and
in the Department of Interior and Local Government. 4 All these challenges were, however, dismissed, thus, paving the
way for Basco's continued stay in office.
Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the May 8, 1995,
local elections seeking a third and final term. Once again, he beat the odds by emerging sixth in a battle for six councilor
seats. As in the past, however, his right to office was again contested. On May 13, 1995, petitioner Grego, claiming to be
a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification,
praying for Basco's disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S.
Maranan as the sixth duly elected Councilor of Manila's Second District.
On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a copy of the
petition. The other members of the BOC learned about this petition only two days later.
The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit simultaneously
their respective memoranda.
Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on May 17, 1995, as
a duly elected councilor for the Second District of Manila, placing sixth among several candidates who vied for the
seats. 5 Basco immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge,
Metropolitan Trial Court, Branch I, Manila.
In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he considered to be
an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC. He reiterated Basco's disqualification
and prayed anew that candidate Romualdo S. Maranan be declared the winner. As expected, Basco countered said

motion by filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss
Against Instant Petition for Disqualification with Temporary Restraining Order).
On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he made earlier,
summarizing his contentions and praying as follows:
Respondent thus now submits that the petitioner is not entitled to relief for the following reasons:
1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of the Local Government Code
because the Tordesillas decision is barred by laches, prescription, res judicata, lis pendens, bar by prior judgment, law of
the case and stare decisis;
2. Section 4[0] par. B of the Local Government Code may not be validly applied to persons who were dismissed prior to its
effectivity. To do so would make it ex post facto, bill of attainder, and retroactive legislation which impairs vested rights. It
is also a class legislation and unconstitutional on the account.
3. Respondent had already been proclaimed. And the petition being a preproclamation contest under the Marquez
v. Comelec Ruling, supra, it should be dismissed by virtue of said pronouncement.
4. Respondent's three-time election as candidate for councilor constitutes implied pardon by the people of previous
misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181;
People v. Bashaw 130 P. 2nd 237, etc.).
5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was premature as an election protest
and it was not brought by a proper party in interest as such protest.:
PRAYER
WHEREFORE it is respectfully prayed that the instant case be dismissed on instant motion to dismiss the prayer for
restraining order denied (sic). If this Honorable Office is not minded to dismiss, it is respectfully prayed that instant motion
be considered as respondent's answer. All other reliefs and remedies just and proper in the premises are likewise hereby
prayed for.
After the parties' respective memoranda had been filed, the COMELEC's First Division resolved to dismiss the petition for
disqualification on October 6, 1995, ruling that "the administrative penalty imposed by the Supreme Court on respondent
Basco on October 31, 1981 was wiped away and condoned by the electorate which elected him" and that on account of
Basco's proclamation on May 17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition
would no longer be viable." 6
Petitioner's motion for reconsideration of said resolution was later denied by the COMELEC en banc in its assailed
resolution promulgated on July 31, 1996. 7 Hence, this petition.
Petitioner argues that Basco should be disqualified from running far any elective position since he had been "removed
from office as a result of an administrative case" pursuant to Section 40 (b) of Republic Act No. 7160, otherwise known as
8
the Local Government Code (the Code), which took effect on January 1, 1992.
Petitioner wants the Court to likewise resolve the following issues, namely:
1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to those removed from office before it took
effect on January 1, 1992;
2. Whether or not private respondent's election in 1988, 1992 and in 1995 as City Councilor of Manila wiped away and
condoned the administrative penalty against him;
3. Whether or not private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification
case was still pending consideration by COMELEC, is void ab initio; and

4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates for City Councilor of Manila, may be
declared a winner pursuant to Section 6 of Republic Act No. 6646.
While we do not necessarily agree with the conclusions and reasons of the COMELEC in the assailed resolution,
nonetheless, we find no grave abuse of discretion on its part in dismissing the petition for disqualification. The instant
petition must, therefore, fail.
We shall discuss the issues raised by petitioner in seriatim.
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on
January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged disqualification to run as
City Councilor states:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case;
xxx xxx xxx
In this regard, petitioner submits that although the Code took effect only on January 1, 1992, Section 40 (b) must
nonetheless be given retroactive effect and applied to Basco's dismissal from office which took place in 1981. It is
stressed that the provision of the law as worded does not mention or even qualify the date of removal from office of the
candidate in order for disqualification thereunder to attach. Hence, petitioner impresses upon the Court that as long as a
candidate was once removed from office due to an administrative case, regardless of whether it took place during or prior
to the effectivity of the Code, the disqualification applies. 9 To him, this interpretation is made more evident by the manner
in which the provisions of Section 40 are couched. Since the past tense is used in enumerating the grounds for
disqualification, petitioner strongly contends that the provision must have also referred to removal from office occurring
prior to the effectivity of the Code. 10
We do not, however, subscribe to petitioner's view. Our refusal to give retroactive application to the provision of Section
40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Thus, in Aguinaldo
v. COMELEC, 11 reiterated in the more recent cases of Reyes v. COMELEC 12 and Salalima v. Guingona, Jr., 13 we ruled,
thus:
The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which provides:
Sec. 40. The following persons are disqualified from running for any elective local positions:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992.
The rule is:
xxx xxx xxx
. . . Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the
obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended
to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and
necessarily implied from the language of the enactment. . . . (Jones v. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. v.
Whyel 28 (2d) 30; Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo v. Court of Appeals, 128 SCRA 519 [1974]. See

also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic Investment Bank of the Philippines v. Civil Service
Commission, et al., G.R. No. 100599, April 8, 1992).
There is no provision in the statute which would clearly indicate that the same operates retroactively.
It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case. (Emphasis
supplied).
That the provision of the Code in question does not qualify the date of a candidate's removal from office and that it is
couched in the past tense should not deter us from applying the law prospectively. The basic tenet in legal hermeneutics
that laws operate only prospectively and not retroactively provides the qualification sought by petitioner. A statute, despite
the generality in its language, must not be so construed as to overreach acts, events or matters which transpired before
its passage. Lex prospicit, non respicit. The law looks forward, not backward. 14
II. Did private respondent's election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away
and condone the administrative penalty against him, thus restoring his eligibility for public office?
Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo v. COMELEC 15 to the effect that a
candidate's disqualification cannot be erased by the electorate alone through the instrumentality of the ballot. Thus:
. . . (T)he qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that
the candidate was qualified. . . .
At first glance, there seems to be a prima facie semblance of merit to petitioner's argument. However, the issue of
whether or not Basco's triple election to office cured his alleged ineligibility is actually beside the point because the
argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous
elections. This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all
under Section 40 (b) of the Local Government Code which, as we said earlier, applies only to those removed from office
on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for the
Court to still dwell on the matter at length.
Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national
or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations,
we are of the view that petitioner's contention is baseless. Neither does petitioner's argument that the term "any position"
is broad enough to cover without distinction both appointive and local positions merit any consideration.
Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for any elective position. As can
be gleaned from the decretal portion of the said decision, the Court couched the prohibition in this wise:
. . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT,
INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.
In this regard, particular attention is directed to the use of the term "reinstatement." Under the former Civil Service
16
Decree, the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term
"reinstatement" had a technical meaning, referring only to an appointive position. Thus:
Art. VIII. PERSONNEL POLICIES AND STANDARDS.
Sec. 24. Personnel Actions.
xxx xxx xxx
(d) Reinstatement. Any person who has been permanently APPOINTED to a position in the career service and who
has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level
for which he is qualified.
xxx xxx xxx

(Emphasis supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10, 1975,
a clearer definition. It reads:

17

provides

RULE VI. OTHER PERSONNEL ACTIONS

Sec. 7. Reinstatement is the REAPPOINTMENT of a person who was previously separated from the service through no
delinquency or misconduct on his part from a position in the career service to which he was permanently appointed, to a
position for which he is qualified. (Emphasis supplied).
In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for
an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to
an appointive position.
III. Is private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was
still pending consideration by COMELEC, void ab initio?
To support its position, petitioner argues that Basco violated the provisions of Section 20, paragraph (i) of Republic Act
18
No. 7166, Section 6 of Republic Act No. 6646, as well as our ruling in the cases of Duremdes v.COMELEC, Benito
19
20
v. COMELEC and Aguam v. COMELEC.
We are not convinced. The provisions and cases cited are all misplaced and quoted out of context. For the sake of clarity,
let us tackle each one by one.
Section 20, paragraph (i) of Rep. Act 7166 reads:
Sec. 20. Procedure in Disposition of Contested Election Returns.
xxx xxx xxx
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the
latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not adversely affect the results of the election.
xxx xxx xxx
The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that
the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a
candidate.
Next, petitioner cites Section 6 of Rep. Act 6646 which states:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. (Emphasis supplied).
This provision, however, does not support petitioner's contention that the COMELEC, or more properly speaking, the
Manila City BOC, should have suspended the proclamation. The use of the word "may" indicates that the suspension of a
proclamation is merely directory and permissive in nature and operates to confer discretion. 21What is merely made
mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest.
Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as
to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and
substitute its own judgment unless such discretion has been exercised whimsically and capriciously. 22 The COMELEC,
as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all
laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, 23 has more than

enough expertise in its field that its findings or conclusions are generally respected and even given finality. 24 The
COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to
warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely
abused its discretion.
It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure

25

states that:

Sec. 5. Effect of petition if unresolved before completion of canvass. . . . (H)is proclamation shallbe suspended
notwithstanding the fact that he received the winning number of votes in such election.
However, being merely an implementing rule, the same must not override, but instead remain consistent with and in
harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out,
26
27
neither to supplant nor to modify, the law. Thus, in Miners Association of the Philippines, Inc. v. Factoran, Jr., the
Court ruled that:
We reiterate the principle that the power of administrative officials to promulgate rules and regulations in the
implementation of a statute is necessarily limited only to carrying into effect what is provided in the legislative enactment.
The principle was enunciated as early as 1908 in the case of United States v. Barrias. The scope of the exercise of such
rule-making power was clearly expressed in the case of United States v. Tupasi Molina, decided in 1914, thus: "Of course,
the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of
the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself
can not be extended. So long, however, as the regulations relate solely to carrying into effect the provision of the law, they
are valid.
Recently, the case of People v. Maceren gave a brief delineation of the scope of said power of administrative officials:
Administrative regulations adopted under legislative authority by a particular department must be in harmony with the
provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations,
of course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot amend an
act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619,
June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao
v. Casteel, L-21906, August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it
has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace
matters not covered by the statute. Rules that subvert the statute cannot be sanctioned (University of Santo Tomas v.
Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue
v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-27299, June
27, 1973, 51 SCRA 340, 349).
xxx xxx xxx
. . . The rule or regulations should be within the scope of the statutory authority granted by the legislature to the
administrative agency (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security
Commission, 114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails
because said rule or regulations cannot go beyond the terms and provisions of the basic law (People v. Lim, 108 Phil.
1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to
implement, employed the word "may," it is, therefore, improper and highly irregular for the COMELEC to have used
instead the word "shall" in its rules.
Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the sixth winning City
Councilor. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing
and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the
votes based on such returns and declare the result. This has been the rule as early as in the case of Dizon v. Provincial
28
Board of Canvassers of Laguna where we clarified the nature of the functions of the Board of Canvassers, viz.:

The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All
other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. (9
R.C.L., p. 1110)
To the same effect is the following quotation:
. . . Where there is no question as to the genuineness of the returns or that all the returns are before them, the powers
and duties of canvassers are limited to the mechanical or mathematical function of ascertaining and declaring the
apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the
returns before them, and then declaring or certifying the result so ascertained. (20 C.J., 200-201) [Emphasis supplied]
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the
factual circumstances at bar and serve no other purpose than to muddle the real issue. These three cases do not in any
manner refer to void proclamations resulting from the mere pendency of a disqualification case.
In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the provisions of the
Omnibus Election Code regarding the suspension of proclamation in cases of contested election returns.
In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of Canvassers' violation of its
ministerial duty to proclaim the candidate receiving the highest number of votes and pave the way to succession in office.
In said case, the candidate receiving the highest number of votes for the mayoralty position died but the Board of
Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere second-placer, the mayor.
Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only on advanced copies
of election returns which, under the law then prevailing, could not have been a proper and legal basis for proclamation.
With no precedent clearly in point, petitioner's arguments must, therefore, be rejected.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate?
Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate pursuant to our
disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place. Thus,
29
petitioner's emphatic reference to Labo v. COMELEC, where we laid down a possible exception to the rule that a
second placer may not be declared the winning candidate, finds no application in this case. The exception is predicated
on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and
(2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the
realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however,
are absent in this case. Petitioner's allegation that Basco was well-known to have been disqualified in the small
community where he ran as a candidate is purely speculative and conjectural, unsupported as it is by any convincing facts
30
of record to show notoriety of his alleged disqualification.
In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion.
There is then no more legal impediment for private respondent's continuance in office as City Councilor for the Second
District of Manila.
WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of merit. The assailed
resolution of respondent Commission on Elections (COMELEC) in SPA 95-212 dated July 31, 1996 is hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.

G.R. No. 159022

February 23, 2005

Mayor EDGARDO G. FLORES vs. SANGGUNIANG PANLALAWIGAN OF PAMPANGA, GOVERNOR MANUEL M.

LAPID OF PAMPANGA, MUNICIPAL COUNCILORS VANZALON F. TIZON, ROMULO N. MANDAP, EDGARDO P.
YAMBAO, JEROME M. TONGOL, MARCIANO L. SACDALAN, and RICKY Y. NARCISO
DECISION
SANDOVAL-GUTIERREZ, J.:
1

For our resolution is the petition for review on certiorari assailing the Decision of the Court of Appeals dated February 17,
2
2003, in CA-G.R. SP No. 72958 and its Resolution dated June 27, 2003.
On December 19, 2001, an administrative complaint for dishonesty and gross misconduct against then Mayor Edgardo G.
Flores of Minalin, Pampanga, petitioner, was filed with the Sangguniang Panlalawigan of the same province, one of the
respondents herein. The complainants were the municipal councilors of Minalin, namely: Vanzalon F. Tizon, Romulo N.
Mandap, Edgardo P. Yambao, Jerome M. Tongol, Marciano L. Sacdalan, and Ricky Y. Narciso, now respondents.
The administrative complaint against petitioner alleged that on August 1, 2001, he executed Purchase Request No. 1 for
the acquisition of a communication equipment amounting to P293,000.00 without any Resolution or Ordinance enacted by
the Sangguniang Bayan of Minalin. The winning bidder was one Kai Electronics. On August 6, 2001, or while the bidding
was still being conducted, Kai Electronics delivered the communication equipment to the municipality of Minalin. The
Notice of Award of Bid to Kai Electronics states that the bidding took place also on August 1, 2001 when respondent
executed the Purchase Request No. 1. The communication equipment delivered by Kai Electronics was overpriced by
more than one hundred percent (100%) or in the amount of P129,600.00.
On September 9, 2002, respondent Sangguniang Panlalawigan issued an Order recommending to Governor Manuel M.
Lapid of Pampanga, also a respondent, that petitioner be preventively suspended from office for a period of sixty (60)
days.
Without seeking a reconsideration of the Order of respondent Sangguniang Panlalawigan, petitioner sent a letter dated
September 12, 2002 to respondent Governor Lapid requesting him "to veto" the same.
Also, without waiting for respondent Governor Lapids action on his letter, petitioner, on September 24, 2002, filed with the
Court of Appeals a petition for certiorari,3 docketed as CA-G.R. SP No. 72958. He contended that
respondent Sangguniang Panlalawigan acted with grave abuse of discretion in issuing the Order of preventive
suspension, hence, the same should be nullified.1awphi1.nt
On February 17, 2003, the Court of Appeals rendered its Decision, the dispositive portion of which reads:
"WHEREFORE, the instant petition is DENIED and DISMISSED for lack of merit. The assailed Order dated September 9,
2002 issued by respondent Sangguniang Panlalawigan of Pampanga in Administrative Case No. 02-2001 is AFFIRMED.
SO ORDERED."

In ruling against the petitioner, the Court of Appeals held that he failed to exhaust all administrative remedies before
going to court. Moreover, respondent Sangguniang Panlalawigan of Pampanga did not gravely abuse its discretion when
it issued the challenged Order considering that the allegation of overpricing is supported by documentary evidence. There
is also sufficient evidence to prove that the bidding and the awarding of the contract to Kai Electronics were done under
questionable circumstances.
Petitioner then filed a motion for reconsideration, but this was denied by the Appellate Court in its Resolution dated June
27, 2003.
Hence, the instant petition.
The pivotal issue here is whether the Court of Appeals erred in holding that the petition in CA-G.R. SP No. 72958 was
prematurely filed as petitioner failed to exhaust first all administrative remedies.

Section 61 of Republic Act No. 7160 (the Local Government Code of 1991) partly provides:
"SEC. 61. Form and Filing of Administrative Complaints. A verified complaint against any erring local elective official
shall be prepared as follows:
x x x;
(b) A complaint against any elective official of a municipality shall be filed
Panlalawigan whose decision may be appealed to the Office of the President; and

before

the Sangguniang

x x x." (underscoring ours)

The administrative complaint against petitioner was filed with respondent Sangguniang Panlalawigan of Pampanga in
accordance with the above provision. After receiving the Order of respondent Sangguniang Panlalawigan preventively
suspending him from office, petitioner should have filed a motion for reconsideration in order to give the latter the
opportunity to correct itself if there was any error on its part. Such motion is a condition sine qua non before filing a
petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended. 5 Section 1 of the same Rule
requires that petitioner must not only show that respondent Sangguniang Panlalawigan, in issuing the questioned Order,
"acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,"
6
but that "there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law." We have held
that the "plain" and "adequate remedy" referred to in Section 1 of Rule 65 is a motion for reconsideration of the assailed
Order or Resolution.7 Petitioner may not arrogate to himself the determination of whether a motion for reconsideration is
necessary or not.8 To dispense with the requirement of filing a motion for reconsideration, petitioner must show a
concrete, compelling, and valid reason for doing so.9 This, petitioner failed to do. Thus, the Court of Appeals correctly held
that petitioner should have first interposed a motion for reconsideration of the questioned Order issued by
respondent Sangguniang Panlalawigan.
We must add that petitioner, before filing with the Court of Appeals his petition for certiorari, should have waited for
respondent Governor Lapids action on the recommendation of respondent Sangguniang Panlalawigan that he be
preventively suspended from office; and on his letter requesting the Governor to veto the questioned Order, considering
that the latter is the one empowered by law to impose preventive suspension upon him.l^vvphi1.net Section 63 of the
Local Government Code of 1991 partly provides:1awphi1.nt
"SEC 63. Preventive Suspension.
(a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent
component city;
(2) By the governor, if the respondent is an elective official of a component city or municipality; or
(3) By the mayor, if the respondent is an elective official of the barangay.
x x x." (underscoring ours)
Petitioner has not shown any valid and compelling reason why, without waiting for the Governors action on the matter, he
immediately filed with the Court of Appeals a petition for certiorari. By doing so, petitioner effectively deprived the
Governor of his duty to take appropriate action on the controversy.
It is a well-settled rule that where, as here, the petitioner has available remedies within the administrative machinery
against the action of an administrative board, body, or officer, the intervention of the courts can be resorted to by him only
after having exhausted all such remedies.10 The rationale of this rule rests upon the presumption that the administrative
body, if given the chance to correct its mistake or error, may amend its decision on a given matter and decide it properly.
The strict application of the doctrine of exhaustion of administrative remedies will also prevent unnecessary and
premature resort to the court.11 We cannot countenance petitioners utter disregard of this procedural norm and frustrate
its purpose of attaining a just, speedy, inexpensive and orderly judicial proceedings.

We likewise find untenable petitioners contention that respondent Sangguniang Panlalawigan "acted capriciously and
arbitrarily by reason of passion and personal hostility" when it issued the challenged Order "without constituting itself into
a Committee of the Whole, as required by its rules of procedure, x x x and without a Committee Report having been
prepared yet x x x."12 Suffice it to say that this issue involves an examination of factual matters and could have been
properly raised by petitioner in a motion for reconsideration of the questioned Order before the Sangguniang
Panlalawigan of Pampanga, the proper forum. But he did not do so. He thus forfeited such an important procedural
remedy.
WHEREFORE, the petition is DENIED. The appealed Decision dated February 17, 2003 and Resolution dated June 27,
2003 of the Court of Appeals in CA-G.R. SP No. 72958 are AFFIRMED. Costs against petitioner.
SO ORDERED.

4. Preventive Suspension; Kinds (Secs. 63 64, 85 87 LGC, Article 127 IRR)

G.R. No. 139043 September 10, 1999
MAYOR ALVIN B. GARCIA vs. HON. ARTURO C. MOJICA, in his capacity as Deputy Ombudsman for the Visayas,
VIRGINIA PALANCA-SANTIAGO, in his capacity as Director, Office of the Ombudsman (Visayas), ALAN
FRANCISCO S. GARCIANO, in his capacity as Graft Investigation Officer I, Office of the Ombudsman (Visayas),
and JESUS RODRIGO T. TAGAAN
QUISUMBING, J.:
The present controversy involves the preventive suspension order issued June 25, 1999, by the Office of the Ombudsman
(Visayas) in OMB-VIS-ADM-99-0452, against petitioner Cebu City Mayor Alvin B. Garcia and eight other city officials.
Under the said order, petitioner was placed under preventive suspension without pay for the maximum period of six
months and told to cease and desist from holding office immediately.
The factual antecedents are as follows:
On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of
asphalt to the city. The contract covers the period 1998-2001, which period was to commence on September 1998 when
the first delivery should have been made by F.E. Zuellig.
Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City,
through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into
the matter. 1
Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to
conduct the inquiry, docketed as INQ-VIS-99-0132. After his investigation, he recommended that the said inquiry be
upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C.
Mojica, Deputy Ombudsman for the Visayas, approved this recommendation.
In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft investigating officer to whom
the case was raffled for investigation, recommended the preventive suspension of petitioner and the others. Two days
later, or on June 24, 1999, the affidavit-complaint against petitioner was filed. The following day, on June 25, 1999, the
Office of the Ombudsman issued the questioned preventive suspension order. On June 29, 1999, petitioner filed a motion
for reconsideration of said order, which motion was denied in an order dated July 5, 1999.
Petitioner is now before this Court assailing the validity of the said order. He pleads for immediate relief through the
present petition for certiorari and prohibition with a prayer for temporary restraining order and/or writ of preliminary
injunction. Petitioner contends that:
I
THE RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ASSUMING JURISDICTION OVER OMB-VIS-ADM-99-0452 AND ISSUING THE PREVENTIVE
SUSPENSION ORDER, THE OFFICE OF THE OMBUDSMAN BEING WITHOUT JURISDICTION OVER THE
ADMINISTRATIVE CASE, CONSIDERING THAT THE ALLEGED ACT CONSTITUTING THE CHARGE AGAINST
PETITIONER HEREIN WAS COMMITTED DURING HIS PREVIOUS TERM, AND PETITIONER HAVING BEEN
REELECTED TO THE SAME POSITION.
II
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-990452, THE PREVENTIVE SUSPENSION FOR SIX MONTHS WAS WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF THE PROVISIONS OF
SECTION 63 OF THE LOCAL GOVERNMENT CODE WHICH MANDATES THAT THE PREVENTIVE SUSPENSION OF
LOCAL ELECTIVE OFFICIALS BE ORDERED ONLY AFTER THE ISSUES HAVE BEEN JOINED, AND ONLY FOR A
PERIOD NOT IN EXCESS OF SIXTY (60) DAYS.

III
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-990452, THE PREVENTIVE SUSPENSION WAS ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF SECTION 26(2) OF THE OMBUDSMAN LAW.
IV
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION, THE RESPONDENTS
COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
CONCLUDING THAT THE EVIDENCE AGAINST PETITIONER WAS "STRONG", THE LITTLE EVIDENCE ON RECORD
CONSISTING SOLELY OF A HEARSAY AFFIDAVIT, AND INADMISSIBLE NEWSPAPER REPORTS.
On July 19, 1999, we directed the parties to maintain the status quo until further orders from this Court. It appears that on
the same day, petitioner issued a memorandum informing employees and officials of the Office of the City Mayor that he
was assuming the post of mayor effective immediately. On July 23, 1999, respondents filed a motion seeking clarification
of our status quo order. Respondents claimed that the status quo referred to in the order should be that where petitioner is
already and vice mayor Renato Osmea is the acting city mayor.
Petitioner, in reply, argued that the status quo refers to "the last actual peaceable uncontested status which preceded the
pending controversy." 2 Thus, status quo could not be that where petitioner is preventively suspended since the
suspension did not precede the present controversy; it is the controversy.
We agree with petitioner in this regard. As explained by Justice Florenz D. Regalado, an authority on remedial law:
There have been instances when the Supreme Court has issued a status quo order which, as the very term connotes, is
merely intended to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy.
This was resorted to when the projected proceedings in the case made the conservation of the status quo desirable or
essential, but the affected party neither sought such relief or the allegations in his pleading did not sufficiently make out a
case for a temporary restraining order. The status quo order was thus issued motu proprio on equitable considerations.
Also, unlike a temporary restraining order or a preliminary injunction, a status quo order is more in the nature of a cease
and desist order, since it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory injunctive
relief. The further distinction is provided by the present amendment in the sense that, unlike the amended rule on
restraining orders, a status quoorder does not require the posting of a bond. 3
On July 28, 1999, we heard the parties' oral arguments on the following issues:
1. What is the effect of the reelection of petitioner on the investigation of acts done before his reelection? Did the
Ombudsman for Visayas gravely abuse his discretion in conducting the investigation of petitioner and ordering his
preventive suspension?
2. Assuming that the Ombudsman properly took cognizance of the case, what law should apply to the investigation being
conducted by him, the Local Government Code (R.A. 7160) or the Ombudsman Law (R.A. 6770)? Was the procedure in
the law properly observed?
3. Assuming further that the Ombudsman has jurisdiction, is the preventive suspension of petitioner based on "strong
evidence" as required by law?
We will now address these issues together, for the proper resolution on the merits of the present controversy.
Petitioner contends that, per our ruling in Aguinaldo v. Santos, 4 his reelection has rendered the administrative case filed
against him moot and academic. This is because reelection operates as a condonation by the electorate of the
misconduct committed by an elective official during his previous term. Petitioner further cites the ruling of this Court
5
in Pascual v. Hon. Provincial Board of Nueva Ecija, that
. . . When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court,
by reason of such faults or misconduct to practically overrule the will of the people.

Respondents, on the other hand, contend that while the contract in question was signed during the previous term of
petitioner, it was to commence or be effective only on September 1998 or during his current term. It is the respondents'
6
submission that petitioner "went beyond the protective confines" of jurisprudence when he "agreed to extend his act to
his
current
term
of
office." 7 Aguinaldo cannot apply, according to respondents, because what is involved in this case is a misconduct
committed during a previous term but to be effective during the current term.
Respondents maintain that,
. . . petitioner performed two acts with respect to the contract: he provided for a suspensive period making the supply
contract commence or be effective during his succeeding or current term and during his current term of office he acceded
to the suspensive period making the contract effective during his current term by causing the implementation of the
contract. 8
Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.
Further, respondents point out that the contract in question was signed just four days before the date of the 1998 election
and so it could not be presumed that when the people of Cebu City voted petitioner to office, they did so with full
knowledge of petitioner's character.
On this point, petitioner responds that knowledge of an official's previous acts is presumed and the court need not inquire
whether, in reelecting him, the electorate was actually aware of his prior misdeeds.
Petitioner cites our ruling in Salalima v. Guingona, 9 wherein we absolved Albay governor Romeo R. Salalima of his
administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term, although
disbursements of public funds to cover payments under the agreement were still being done during his subsequent term.
Petitioner argues that, following Salalima, the doctrine in Aguinaldo applies even where the effects of the act complained
of are still evident during the subsequent term of the reelected official. The implementation of the contract is a mere
incident of its execution. Besides, according to petitioner, the "sole act" for which he has been administratively charged is
the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contract's execution or implementation,
or any act subsequent to the perfection of the contract.
In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case because the
administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of
candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the
administrative case against Governor Salalima was filed after his reelection.
Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct
administrative investigations is mandated by no less than the Constitution. Under Article XI, Section 13[1], the
Ombudsman has the power to:
investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or
agency, when such act omission appears to be illegal, unjust, improper, or inefficient.
R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct
administrative investigations. Thus, Section 19 of said law provides:
Sec. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or
omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agency's functions, though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Sec. 21 of R.A. 6770 names the officials subject to the Ombudsman's disciplinary authority:
Sec. 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies,
including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.
(Emphasis supplied.)
Petitioner is an elective local official accused of grave misconduct and dishonesty. 10 That the Office of the Ombudsman
may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of
R.A. 6770.
However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission,
is different from the question of whether or not petitioner, after investigation, may be held administratively liable. This
distinction ought here to be kept in mind, even as we must also take note that the power to investigation is distinct from
the power to suspend preventively an erring public officer.
Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its
administrative investigation is provided by specific provision of law. Under Section 24 of R.A. 6770
Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against
such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the
case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than
six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to
the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis supplied.)
We have previously interpreted the phrase "under his authority" to mean that the Ombudsman can preventively suspend
all officials under investigation by his office, regardless of the branch of government in which they are
employed, 11 excepting of course those removable by impeachment, members of Congress and the Judiciary.
The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is
the clear import of Section 24 or R.A. 6770 abovecited.
There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order
of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or
influence witnesses 12 or to tamper with records that might be vital to the prosecution of the case against him. 13 In our
view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and
the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the
period of preventive suspension at six months?
Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among other factors, the evidence of
guilt is strong. The period for which an official may be preventively suspended must not exceed six months. In this case,
petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six
months, which is the maximum provided by law.
Sec. 24. Preventive Suspension.
xxx xxx xxx
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than
six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to

the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis supplied.)
The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the
Ombudsman. 14 The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman,
except that he cannot extend the period of suspension beyond that provided by law. 15 But, in our view, both the strength
of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner
are properly raised in this petition for certiorari and prohibition. These equitable remedies under Rule 65 of the Rules of
Court precisely exist to provide prompt relief where an "officer exercising judicial or quasi-judicial functions has acted . . .
with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law." (See Rule 65, Sec. 1).
It is pertinent to note here that the inquiry that preceded the filing of an administrative case against petitioner was
prompted by newspaper reports regarding the allegedly anomalous contract entered into by petitioner, on behalf of Cebu
City, with F.E. Zuellig. 16 In the memorandum to respondent Mojica, 17 respondent Garciano recommended that petitioner
be preventively suspended, based on an initial investigation purportedly showing: (1) the contract for supply of asphalt to
Cebu City was designed to favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive compared to the
amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that the
amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risks attendant to a
fluctuating exchange rate, and (3) the interest of the city under the contract is not protected by adequate security. These
findings were based on the contract itself and on letters from Bitumex and Credit Lyonnais. There were also letters from
Shell and Petron that were replies to the Office of the Ombudsman's (Visayas) inquiry on whether or not they could supply
Cebu City with asphalt and on what terms.
Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive
suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does
appear to us that the imposition of the maximum period of six months is unwarranted.
On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents
mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers),
documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he
claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was
to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents'
submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of
petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without
conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer
than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period
during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing
petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear
against him.
We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local
Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under
said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of
sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for
the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative
complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code.
Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the
period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan
political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not
likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a specific case of preventive suspension.
Respondents base their argument on the deliberations of the Senate on Senate Bill No. 155, which became the Local
Government Code. Senator Aquilino Pimentel, Jr., commenting on the preservation in the proposed Code of the power of
the Office of the President to suspend local officials, said:
Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule
regarding the power of removal and suspension by the Office of the President over local government officials, Mr.
President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of
local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the

number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of
Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that
he can be continuously suspended when one case is filed right after the other, Mr. President. 18
Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under
the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor,
governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office, always
ought to be insulated from the vagaries of politics, as respondents would have us believe.
In Hagad v. Gozo-Dagole, 19 on the matter of whether or not the Ombudsman has been stripped of his power to
investigate local elective officials by virtue of the Local Government Code, we said:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the
pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let
20
alone irreconcilable, as to compel us to only uphold one and strike down the other.
It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too
repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two
21
provisions govern differently.
However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be
preventively suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that
there could be preventive suspension even before the charges against the official are heard, or before the official is given
an opportunity to prove his innocence. 22 Preventive suspension is merely a preliminary step in an administrative
investigation and is not in any way the final determination of the guilt of the official concerned.
Petitioner also avers that the suspension order against him was issued in violation of Section 26(2) of the Ombudsman
Law, which provides:
Sec. 26. Inquiries. . . .
(2) The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or
omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and
inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it
shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a
written answer within seventy-two hours from receipt thereof. . .
Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official
concerned must be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was
converted into an administrative investigation without him being given the required number of hours to answer.
Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint
against him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier
stated, a preventive suspension order may be issued even before the charges against the official concerned is heard.
Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by
respondent Tagaan. We find this 10-day period is in keeping with Section 5(a) of the Rules of Procedure of the Office of
the Ombudsman, 23 which provides:
Sec. 5. Administrative adjudication. How conducted.
(a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic Act No. 6770, the
respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be
ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt from,
together with proof of service of the same on the complainant who may file reply affidavits within ten (10) days from
receipt of the counter-affidavits of the respondent.

We now come to the concluding inquiry. Granting that the Office of the Ombudsman may investigate, for purposes
provided for by law, the acts of petitioner committed prior to his present term of office; and that it may preventively
suspend him for a reasonable period, can that office hold him administratively liable for said acts?
In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable
for misconduct committed during his prior term of office. 24The rationale for this holding is that when the electorate put him
back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If,
armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.
However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was
signed just four days before the date of the elections. It was not made an issue during the election, and so the electorate
could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character.
For his part, petitioner that "the only conclusive determining factor" 25 as regards the people's thinking on the matter is an
election. On this point, we agree with petitioner. That the people voted for an official with knowledge of his character is
presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such an
undertaking will obviously be impossible. Our rulings on the matter do not distinguish the precise timing or period when
the misconduct was committed, reckoned from the date of the official's reelection, except that it must be prior to said date.
As held in Salalima.
The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a
rule is not only founded on the theory that an official's reelection expresses the sovereign will of the electorate to forgive or
condone any act or omission constituting a ground for administrative discipline which was committed during his previous
term. We may add that sound policy dictates it. To rule otherwise would open the floodgates to exacerbating endless
partisan contests between the reelected official and his political enemies, who may not stop hound the former during his
new term with administrative cases for acts alleged to have been committed during his previous term. His second term
may thus be devoted to defending himself in the said cases to the detriment of public service. . . . Emphasis added. 26
The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively liable for an act done
during his previous term, that is, his signing of the contract with F.E. Zuellig.
The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was reelected in 1992
and payments for the retainer continued to be made during his succeeding term. This situation is no different from the one
in the present case, wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor were
supposed to have commenced on September 1998, during petitioner's second term.
However, respondents argue that the contract, although signed on May 7, 1998, during petitioner's prior term, is to be
made effective only during his present term.
We fail to see any difference to justify a valid distinction in the result. The agreement between petitioner (representing
Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioner's prior term. At that
moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the
city government. Thus, any culpability petitioner may have in signing the contract already became extent on the day the
contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months
later.
While petitioner can no longer be held administratively liable for signing the contract with F.E. Zuellig, however, this
should not prejudice the filing of any case other than administrative against petitioner. Our ruling, in this case, may not be
taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing
the subject contract. The ruling now is limited to the question of whether or not he may be held administratively liable
therefor, and it is our considered view that he may not.
WHEREFORE, the petition is hereby DENIED insofar as it seeks to declare at respondents committed grave abuse of
discretion in conducting an inquiry on complaints against petitioner, and ordering their investigation pursuant to
respondents' mandate under the Constitution and the Ombudsman Law. But the petition is hereby GRANTED insofar as it
seeks to declare that respondents committed grave abuse of discretion concerning the period of preventive suspension
imposed on petitioner, which is the maximum of six months, it appearing that 24 days the number of days from the date
petitioner was suspended on June 25, 1999, to the date of our status quo order on July 19, 1999 were sufficient for the

purpose. Accordingly, petitioner's preventive suspension, embodied in the order of respondent Deputy Ombudsman,
dated June 25, 1999, should now be, as it is hereby, LIFTED immediately.
SO ORDERED.

G.R. No. 96131 September 6, 1991

CORAZON C. GONZAGA vs. THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), THE PEOPLE OF THE
PHILIPPINES, and THE DEPARTMENT OF EDUCA PETITION CULTURE AND SPORTS
PADILLA, J.:p
Assailed in this petition for review on certiorari are two (2) resolutions of the Sandiganbayan, dated 10 September 1990
and 30 October 1990, respectively, rendered in Criminal Case No. 14404, entitled "People vs. Corazon C. Gonzaga" (For:
Malversation under Article 217 of the Revised Penal Code). The resolution dated 10 September 1990 granted the
prosecution's motion to suspend accused-petitioner', pendente lite, from her position as school principal of Malabon
Municipal High School, Malabon, Metro Manila. The resolution dated 30 October 1990 denied accused-petitioner's motion
for reconsideration of the 10 September 1990 resolution.
Petitioner alleges in her present petition 1 that a complaint for malversation of public funds was filed against her, in her
capacity as School Principal of the Malabon Municipal High School, Malabon, Metro Manila. The complaint was filed
before the Ombudsman by the Municipal Administrator of the Municipality of Malabon, based on the audit report of the
Commission on Audit, wherein petitioner as an accountable officer is alleged to have incurred a shortage of P15,188.37;
that an information 2 dated 2 March 1990 was thereafter filed against petitioner before the Sandiganbayan for the crime of
malversation of public funds under Article 217 of the Revised Penal Code; 3 that before she could be arraigned, accusedpetitioner filed with respondent court a motion for re- investigation, which motion was denied by said court in its resolution
dated 2 July 1990; 4 that on 17 August 1990, accused-petitioner pleaded not guilty to the crime charged; and that on the
same date, the prosecution filed a motion seeking to suspend, pendente lite, the accused as school principal of the
above-named school, 5 on the basis of Section 13, Republic Act 3019 ("Anti-Graft and Corrupt Practices Act"), as
amended by Batas Pambansa Blg. 195. 6
The resolution dated 10 September 1990 granted the prosecutions motion to suspend the accused, pendente lite, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING, accused CORAZON GONZAGA is hereby suspended pendente lite from her position as
Principal of the Malabon National High School, Malabon, Metro Manila and from such other public positions that she
maybe holding, effective immediately upon notice hereof.
Let a copy of the Resolution be furnished to the Secretary of the Department of Education, Culture and Sports,
Intramuros, Manila for implementation thereof and to inform this Court of the action he has taken thereon within five (5)
days from receipt hereof. 7
Petitioner's motion for reconsideration of the above-quoted resolution was, as aforestated, denied by the respondent court
in its resolution dated 30 October 1990, dispositive part of which reads:
Considering the mandatory character of Sec. 13 of R.A. No. 3019 and the various decisions of the Supreme Court
upholding the validity of the same, accused Gonzaga's Motion for Reconsideration of the resolution of this Court dated
September 10, 1990 suspending her pendente lite is denied. 8
In the present petition, petitioner questions the validity of the suspension imposed on her as school principal of Malabon
Municipal High School by the aforestated resolutions of the respondent court.
We find merit in the petition.
It will be noted that in the questioned resolutions, respondent court imposed on petitioner an indefinite period of
suspension, pendente lite, from her mentioned office, on the basis of Section 13, Rep. Act 3019, as amended, earlier
quoted. Petitioner at the outset contends that Section 13 of Rep. Act 3019, as amended, is unconstitutional as the
suspension provided thereunder partake of a penalty even before a judgment of conviction is reached, and is thus
violative of her constitutional right to be presumed innocent.
We do not accept the contention because: firstly, under Section 13, Rep. Act 3019, suspension of a public officer upon the
filing of a valid information is mandatory. 9 What the Constitution rejects is a preventive suspension of indefinite
duration as it raises, at the very least, questions of denial of due process and equal protection of the laws; in other words,
preventive suspension is justifiable for as long as its continuance is for a reasonable length of time; 10 secondly,

preventive suspension is not a penalty; 11 a person under preventive suspension, especially in a criminal action, remains
entitled to the constitutional presumption of innocence as his culpability must still be established established 12 thirdly, the
rule is that every law has in its favor the presumption of validity, and that to declare a law unconstitutional, the basis for
such a declaration must be clearly established. 13
The issue in this case, as we see it, is not whether Section 13, Rep. Act 3019 is valid or not, but rather whether the same
14
is constitutionally applied in relation to the surrounding circumstances.
It is worthy to note that even prior to the cases of Deloso (1988) and Doromal (1989), to be discussed shortly,
pronouncements had already been made by the Court in the cases of Garcia (1962) and Layno (1985) 15 to the effect that
a preventive suspension lasting for an unreasonable length of time violates the Constitution. In the more recent cases
16
of Deloso vs. Sandiganbayan, and Doromal vs. Sandiganbayan, suspension under Section 13 of Rep. Act 3019 was
held as limited to a maximum period of ninety (90) days, in consonance with Section 42 of Pres. Decree No. 807
17
(otherwise known as the "Civil Service Decree"). We see no cogent reason why the same rule should not apply to
herein petitioner.
In fact, the recommendation of the Solicitor General (counsel for public respondent) is that, inasmuch as the suspension
mentioned under Section 13 of Rep. Act 3019 is understood as limited to a maximum duration of ninety (90) days, the
order of suspension imposed on petitioner, having been rendered on 10 September 1990, should now be lifted, as
suspension has already exceeded the maximum period of ninety (90) days.
All told, preventive suspension is not violative of the Constitution as it is not a penalty. In fact, suspension particularly
under Section 13 of Rep. Act 3019 is mandatory once the validity of the information is determined. 18What the Constitution
abhors is an indefinite preventive suspension as it violates the due process and equal protection clauses, 19 and the right
of public officers and employees to security of tenure. 20
Henceforth, considering that the persons who can be charged under Rep. Act 3019, as amended, include elective and
appointive officers and employees, and futher taking into account the rulings in the Deloso and Doromalcases, the ninety
(90)-day maximum period for suspension under Section 13 of the said Act shall apply to all those who are validly charged
under the said Act, whether elective or appointive officer or employee as defined in Section 2(b) of Rep. Act 3019. 21
To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or
Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that this Court set forth the rules on the period
of preventive suspension under the aforementioned laws, as follows:
1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety
(90) days, from issuance thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who
are validly charged under said Act.
2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions
are embraced in the Civil Service, as provided under Sections 3 and 4 of Id Pres. Decree 807; 22 and shall be limited to a
maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is
due to the fault, negligence or petition of the respondent, in which case the period of delay shall not be counted in
23
computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, the
continuance of his suspension shag be for a reasonable time as the circumstances of the case may warrant.
WHEREFORE, the petition is GRANTED and the questioned resolutions of the respondent Sandiganbayan, dated 10
September 1990 and 30 October 1990, are hereby SET ASIDE. Petitioner may re-assume the position of school principal
of the Malabon Municipal High School, Malabon Metro Manila without prejudice to the continuation of trial on the merits of
the pending case against her in the Sandiganbayan, unless there are other supervening legal grounds which would
prevent such re-assumption of office.
SO ORDERED.

G.R. No. 131012 April 21, 1999

HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of Education, Culture, and Sports vs.
COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and NICANOR
MARGALLO
MENDOZA, J
This case arose out of the unfortunate strikes and walk-outs staged by public school teachers on different dates in
September and October 1990. The illegality of the strikes was declared in our 1991 decision in Manila Public School
Teachers Association v. Laguio, Jr., 1 but many incidents of those strikes are still to be resolved. At issue in this case is
the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but
who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although
reprimanded for being absent without leave.
The facts are as follows:
Private respondents are public school teachers. On various dates in September and October 1990, during the teachers'
strikes, they did not report for work. For this reason, they were administratively charged with (1) grave misconduct, (2)
gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable office regulations. (4)
refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best interest of the service, and (7)
absence without leave (AWOL), and placed under preventive suspension. The investigation was concluded before the
lapse of 90-day suspension and private respondents were found guilty as charged. Respondent Nicanor Margallo was
ordered dismissed from the service effective October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and
Elizabeth Somebang were ordered suspended for six months effective December 4, 1990. 2
Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which found him guilty of conduct
prejudicial to the best interest of the service and imposed on him a six-month suspension. 3 The other respondents also
appealed to the MSPB, but their appeal was dismissed because of their failure to file their appeal memorandum on time. 4
On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect to Margallo, but found the
other three (Abad, Bandigas, and Somebang) guilty only of violation of reasonable office rules and regulation, by filing to
file applications for leave of absence and, therefore, reduced the penalty imposed on them to reprimand and ordered them
reinstated to their former positions.
Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to Revised Administrative Circular No. 195, the case referred to the Court of Appeals which, on September 3, 1996, rendered a decision (1) affirming the decision
of the CSC with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the
CSC ordered the suspension of Nicanor Margallo. The appellate court found him guilty of violation of reasonable office
rules and regulations only and imposed on him the penalty of reprimand.
Private respondents moved for a reconsideration, contending that they should be exonerated of all charges against them
and that they be paid salaries during their suspension. In its resolution, dated July 15, 1997, the Court of Appeals, while
maintaining its finding that private respondents were guilty of violation of reasonable office rules and regulations for which
they should be reprimanded, ruled that private respondents were entitled to the payment of salaries during their
suspension "beyond ninety (90) days." Accordingly, the appellate court amended the dispositive portion of its decision to
read as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution Nos., 93-2302 dated June
24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution Nos. 93-2304 dated June 24, 1993
and 93-3227 dated August 17, 1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125
dated August 10, 1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while CSC Resolution Nos. 93-2211 dated
June 21, l993 are hereby MODIFIED finding petitioner Nicanor Margallo guilty of a lesser offense of violation of
reasonable office rules and regulations and meting upon him the penalty of reprimand. Respondent DECS is ordered to
pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and Nicanor Margallo their salaries, allowances and
other benefits during the period of their suspension/dismissal beyond the ninety (90) day preventive suspension. No
pronouncement as to costs. 6
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a reconsideration insofar as the
resolution of the Court of Appeals ordered the payment of private respondents' salaries during the period of their

appeal. 7 His motion was, however denied by the appellate court in its resolution of October 6, 1997. 8 Hence, this petition
for review on certiorari.
Petitioner contends that the administrative investigation of respondents was concluded within the 90-day period of
preventive suspension, implying that the continued suspension of private respondents is due to their appeal, hence, the
government of their salaries. Moreover, petitioner lays so much store by the fact that, under the law, private respondents
are considered under preventive suspension during the period of their appeal and, for this reason, are not entitled to the
payment of their salaries during their suspension. 9
Petitioner's contentions have no merit.
I. PREVENTIVE SUSPENSION AND THE RIGHT TO COMPENSATION IN CASE OF EXONERATION
The present Civil Service Law is found in Book V, Title I, Subtitle A of the Administrative Code of 1987 (E.O. 292). So far
as pertinent to the questions in this case, the law provides:
Sec. 47. Disciplinary Jurisdiction
(2) The Secretaries and heads of agencies and instrumetalities, province, cities and municipalities shall have jurisdiction
to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. The
decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission,
the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall
be executory except when the penalty removal, in which case the same shall be executory only after confirmation by the
Secretary concerned.
(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the
respondent shall be considered shall be considered having been under preventive suspension during the pendency of the
appeal in the event he wins an appeal.
Sec. 51. Preventive Suspension. The proper disciplining authority may preventively suspend any subordinate officer or
employee under his authority pending as investigation, if the charge against such officers or employee involves
dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that
the respondent is guilty of charges which would warrant his removal from the service.
Sec. 52. Lifting of Preventive Suspension, Pending Administrative Investigation. When the administrative case against
the officers or employee under preventive suspension is not finally decided by the disciplining authority within the period of
ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall
be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault,
negligence or petition of the respondents, the period of delay shall not be counted in computing the period of suspension
herein provided.
There are thus two kinds of preventive suspension of civil service employees who are charged with offenses punishable
by removal or suspension: (1) preventive suspension pending investigations (51) and (2) preventive suspension pending
appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is
exonerated ( 47(4)).
Preventive suspension pending investigation is not a penalty. 10 It is a measure intended to enable to enable the
disciplining authority to investigate charges against respondent by preventing the latter from intimidating or any way
influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the
suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found
innocent of the charges and is exonerated, he should be reinstated.
A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated
Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals ordered
the DECS to pay private respondents their salaries, allowances, and other benefits "beyond the ninety (90) day
suspension." In other words, no compensation was due for the period of the preventive suspensionpending
investigation but only for the period of preventive suspension pending appeal in the event the employee is exonerated.

The separate opinion of Justice Panganiban argues that the employee concerned be paid his salaries after his
suspension.
The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. Sec. 35
read:
Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against
the officer or employee under preventive suspension is not finally decided by the Commissioner of Civil Service within the
period of sixty (60) days after the date of suspension of the respondent, the respondent shall be reinstated in the
service. If the respondent officers or employee is exonerated, he shall be restored to his position with pay for the period of
11
suspension.
However, the law was revised in 1975 and the provision on the payment salaries during suspension was deleted. Sec. 42
of the Civil Service Decree (P.D. No. 807) read:
Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against
the officers or employee under preventive suspension is not finally decided by the disciplining authority within the period of
ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall
be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault,
negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension
herein provided.
This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy that the Ombudsman Act of 1989
(R.A. No. 6770) categorically provides that preventive suspension shall be "without pay." Sec. 24 reads:
Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against
such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the
case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than
six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to
the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.
It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. This
conclusion is in accord with the rule of statutory construction that
As a rule, the amendment by deletion of certain words or phrases in a statute indicates that the legislature intended to
change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the
intention been not in effect a change in its meaning. The amended statute should accordingly be given a construction
different from that previous to its amendment. 12
The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to deny payment of salaries for
the preventive suspension pending investigation.
First, it says that to deny compensation for the period of preventive suspension would he to reverse the course of
13
decisions ordering the payment of salaries for such period. However, the cases cited are based either on the former
rule which expressly provided that "if the respondent officer or employee is exonerated, he shall be restored to his position
with full pay for the period of suspension" 14 or that "upon subsequent reinstatement of the suspended person or upon his
exoneration, if death should render reinstatement impossible, any salary so withheld shall be paid, 15 or on cases which
do not really support the proposition advanced.
Second, it is contended that the exoneration of employees who have been preventively suspended is proof that there was
no reason at all to suspend them and thus makes their preventive suspension a penalty.
The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechem's A Treatise on the
Law of Public Offices and Officers as follows:

864.
Officer
not
entitled
to
Salary
during
Suspension
from
Office. An officer who has been lawfully suspended from his office is not entitled to compensation for the period during
which he was so suspended, even through it be subsequently determined that the cause for which he was suspended
was insufficient. The reason given is "that salary and perquisites are the reward of express or implied services, and
therefore cannot belong to one who could not lawfully perform such services." 16
Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be
unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries corresponding to
the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which
17
caused his suspension and [2] when the suspension is unjustified.
The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or
neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered "unjustified," even if later the
charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices
which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days unless the delay
in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not
finished, the law provides that the employee shall be automatically reinstated.
Third, it is argued in the separate opinion that to deny employees salaries on the "frivolous" ground that the law does not
provide for their payment would be to provide a "tool for the oppression of civil servants who, though innocent, may be
falsely "charged of grave or less grave administrative offenses." Indeed, the possibility of abuse is not an argument
against recognition of the existence of power. As Justice Story aptly it, "It is always a doubtful course, to argue against the
use or existence of a power, from the possibility of its abuse. . . . [For] from the very nature of things, the absolute right of
decision, in the last resort, must rest somewhere wherever it may be vested it is susceptible of abuse." 18 It may be
added that if and when such abuse occurs, that would be the time for the courts to exercise their nay-saying function. Until
then, however, the public interest in an upright civil service must be upheld.
Finally, it is argued that even in the private sector, the law provides that employees who are unjustly dismissed are
entitled to reinstatement with full pay. But that is because R.A. No. 6715 expressly provides for the payment to such
employees of "full backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent computed from
the time his compensation was withheld from him up to the time of his actual reinstatement." 19 In the case of the public
sector, as has been noted, the provision for payment of salaries during the preventive suspension pending investigation
has been deleted.
B. Right to Compensation for Preventive Suspension
Pending Appeal if Employee is Exonerated
But although we hold that employees who are preventively suspended pending investigation are not entitled to the
payment of their salaries if they are exonerated, we do not agree with the government that they are not entitled to
compensation for the period of their suspension pending appeal if eventually they are found innocent.
Preventive suspension pending investigation, as already discussed, is not a penalty but only means of enabling the
disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal
is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the
suspension. Thus, 47(4) states that respondent "shall be considered as under preventive suspension during the
pendency of the appeal in the event he wins." On the other hand, if his conviction is affirmed, i.e., if he is not exonerated,
the period of his suspension becomes part of the final penalty of suspension or dismissal.
It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the
event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision
against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended.
Indeed, to sustain the government's theory would be to make the administrative decision not only executory but final and
executory. The fact is that 47(2) and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the
Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed, there shall be restitution or
reparation of damages as equity and justice may require.
Sec. 47 of the present law providing that an administrative decision meting out the penalty of suspension or dismissal
shall be immediately executory and that if the respondent appeals he shall be considered as being merely under

preventive suspension if eventually he prevails is taken from 37 of the Civil Service Decree of 1975 (P.D No. 807). There
was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the Commissioner of Civil
20
Service could order the immediate execution of an administrative decision in the interest of the public service. Nor was
there provision for immediate execution of administrative decisions ordering dismissal or suspension in 695 of the
Administrative Code of 1917, as amended by C.A. No. 598, 1. 21 Nonetheless, under R.A. No. 2260 the payment of
salaries was ordered in cases in which employees were found to be innocent of the charges 22 or their suspension was
held to be unjustified, because the penalty of suspension or dismissal was executed without a finding by the Civil Service
Commissioner that it was necessary "in the interest of the public service." 23 On the other hand, payment of back salaries
was denied where it was shown that the employee concerned was guilty as charged and the immediate execution of the
decision was ordered by the Civil Service Commissioner "in the interest of the public service." 24
Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive
suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his
suspension, being authorized by law, cannot but unjustified. To be entitled to such compensation, the employee must not
only be found innocent of the charges but his suspension must likewise be unjustified. But through an employee is
considered under preventive suspension during the pendency of his appeal in the event he wins, his suspension is
unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that
period the suspension is illegal. Hence, the employee concerned is entitled to reinstated with full pay. Under existing
jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before the
suspension was imposed. 25
II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES
ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE
RULES AND REGULATIONS AND REPRIMANDED
Private respondents were exonerated of all charges against them for acts connected with the teachers' strikes of
September and October 1990. Although they were absent from work, it was not because of the strike. For being absent
without leave, they were held liable for violation of reasonable offices rules and regulations for which the penalty is a
reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of
having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite
the fact that they were meted out reprimand, this Court stated:
With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A reading of the resolution of the Civil
Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The
Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross
violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty,
gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his
participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions
that was the basis of his preventive suspension and, later, his dismissal from the service.
However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was involved in the
"mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother.
Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules
and regulations because he failed to inform the school of his intended absence and neither did he file an application for
leave covering such absences.
Under Section 23 of the Rule Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in
violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner
Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the
charges which caused his dismissal from the service. 26
In Jacinto v. Court of Appeals, 27 a public school who was found guilty of violation of reasonable office rules and
regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of
the charge of having taken part in the strikes.
Petitioner Secretary of Education contends, however, that respondent Abad, Bandigas, and Somebang signed a letter in
which they admitted having taken part in the mass action. This question cannot be raised now. The Civil Service
Commission gave no weight to this letter in view of individual letters written by three citing reasons for their absences, to

wit: Abad, because he decided to stay home to correct students papers; Bandigas, because she had to accompany her
brother to the Commission on Immigration, and Somebang because of "economic reasons." Petitioner did not appeal from
this ruling. Hence, he is bound by the fanctual findings of the CSC and the appellate court.
WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated July 15, 1997 and October
6, 1997, of the Court of Appeals, is hereby AFFIRMED with the MODIFICATION that the award of salaries to private
respondents shall be computed from the time of their dismissal/suspension by the Department of Education, Culture, and
Sports until their actual reinstatement, for a period not exceeding five years.
SO ORDERED.
Separate Opinions
PANGANIBAN, J., separate opinion;
I concur with the ponencia insofar as it denies the petition and affirms the Court of Appeals Decision and Resolutions
finding private respondents guilty only of violation of office rules and regulations, meting upon them the penalty of
reprimand and reinstating them in the civil service.
I beg to disagree, however, insofar as it deprives private respondents their back salaries corresponding to the entire
period of their preventive suspension.
Private Respondents Liable
for Violation of Reasonable
Office Rules and Regulations
Like the majority, I do not find any reversible error or abuse of discretion in the factual finding of the Court of Appeals that
private respondents did not actually participate in the September 1991 mass actions staged in violation of law by various
public schoolteachers. They were, however, found to have absented themselves from their classes without filing an
application for leave of absence. For this lapse, they indeed deserve a reprimand, pursuant to Section 23, Rule XIV
(Discipline) of the Rules Implementing the Civil Service Law, as well as existing jurisprudence which I shall cite later.
Private Respondents Entitled
to Back Salaries Without
Qualification or Deduction
Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension for civil service employees charged with
offenses punishable with removal or suspension: "(1) preventive suspension pending investigation (51) and (2)
preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal but,
after review, the respondent is exonerated (47(4)). 1
Accordingly, the esteemed justice makes a distinction in the grant of back salaries. In the first instance, he says, the
suspended employees (pending investigation) are NOT entitled to back pay, regardless of whether they are eventually
exonerated from the charges for which they were investigated. However, if and when they are exonerated after appeal,
they may be granted back salaries, but only those corresponding to the appeal or review period until actual reinstatement,
and not exceeding five years.
This stance being adopted by the majority reverses several unanimous en banc decisions, in which this Court ordered
payment of back salaries without qualification or deduction. In Miranda v. Commission on Audit, 2 noting that the
applicable law mandated that preventive suspension should not be longer than 90 days, deemed Miranda's suspension
for almost eight (8) years unreasonable and unjustified. It thus resolved that he was entitled to back wages for the period
3
of his suspension not exceeding five (5) years, consistent with existing jurisprudence.

In Bangalisan v. Court of Appeals, 4 the Court ordered that Petitioner Mariano "be given back wages without deduction or
qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence, should
not exceed five years." The Court ruled: "To deny petitioner Mariano his back wages during his suspension would be
tantamount to punishing him after his exoneration from the charges which [had] caused his dismissal from the service." 5
The same rationale was given in Jacinto v. Court of Appeals, 6 in which we also granted Petitioner Jacinto "back wages,
without deduction or qualification, from the time she was suspended until her actual reinstatement, the total of which,
under prevailing jurisprudence, should not exceed five years."
In fact, in Garcia v. Chairman, Commission on Audit, 7 where the petitioner, several years after he had been summarily
dismissed from the government service purportedly for dishonesty, was granted executive clemency "not because of lack
of
sufficient
proof
of
his
commission
of
the
offense
but . . ., more importantly, he did not commit the offense charged," the Court found it "fair and just to award petitioner full
back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated, . . . without
deduction
or
qualification."
Empathizing
with
petitioner,
the
Court
held: 8
. . . Verily, law equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and,
above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful
stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit
wrongfully, a dishonest man . . .
Indeed, where the suspension of civil servants has, from the very beginning, no reason other than to ensure an
unhampered investigation, there is no justification for withholding their salaries, whether immediately upon investigation or
after appeal or petition for review, much less after their exoneration. They need not even be found fully innocent of any
misdemeanor, as the public school-teachers concerned in Bangalisan and Jacinto who were actually found to have
violated reasonable office rules and regulations. Such administrative offense, however, is punishable with reprimand only,
not suspension or dismissal. Hence, they were granted their back salaries for the period of their suspension, because they
had not committed any grave act warranting their suspension.
The rationale for the grant of back salaries to suspended public servants is their exoneration from the charges leveled
against them that were punishable with either dismissal or suspension. Needless to say, only when the charges carry
either of these extreme administrative penalties may they be preventively suspended pending investigation. If, after
investigation, they are found to be innocent or culpable of lesser offenses not punishable with suspension or dismissal,
they must be immediately reinstated AND granted full back salaries corresponding to the period of their suspension. In the
first place, if they have been found to be not guilty of any offense warranting even just a suspension, there is no justifiable
reason to deprive them of work and of income therefor. In these cases, their preventive suspension must be deemed
unjustified.
The majority admits that preventive suspension pending investigation is not a penalty, but is only a means of enabling the
disciplining authority to conduct an unhampered investigation. 9 Not being a penalty, there is therefore NO reason to deny
employees their salaries for such period, especially after they are proven innocent of any offense punishable with
suspension or dismissal. I respectfully submit that to withhold an exonerated employee's pay for such period would in fact
transform the nature of preventive suspension into a penalty a penalty which is unauthorized by law, in contravention of
the fundamental right of every individual to due process, and therefore unconstitutional.
The "no-work-no-pay" principle should not be applied in these cases. We must consider that, ordinarily, suspended
employees are willing to work, but they do not have a choice. Because of some serious charges leveled against them,
they are not allowed to report for work. Investigations may take up to ninety (90) days or three (3) months. In the
meantime, they do not receive their salaries and other benefits. And yet, the charges against them may have been
baseless or aggravated without good reason, in which case their suspensions are unjustified ab initio. In these instances, I
repeat, it is but right to grant them full back pays.
Admittedly, the purpose behind preventive suspensions pending investigation is noble. It is intended to enable the
disciplining authorities or the investigating officials to probe the charges against respondents by preventing the latter from
intimidating or in any was influencing witnesses against them. 10 But, I submit, it would be totally unfair to respondents
who are undeserving of the penalty of suspension or dismissal to be deprived of their salaries for such period. To repeat,
they cannot be faulted for not rendering any work during the period of preventive suspension, because that is merely what
the law mandates.

Significantly, the Civil Service Law does not state that exonerated employees are not entitled to back salaries
corresponding to the preventive suspension period. Such silence of the law should not ipso facto be interpreted as a
denial of the right, pursuant to rules on statutory construction. In any event, the rules on the interpretation of laws are
11
mere tools used to ascertain legislative intent. They are not necessarily applicable at all times, particularly when the
intention to change the meaning of the previous law is not clear. In the case of the present Civil Service Law, which is
found in Executive Order No. 292 issued by then President Corazon Aquino in the exercise of her legislative powers
under the Freedom Constitution, its legislative purpose cannot be clearly established, because it has no recorded
deliberations from which to verify such intent. Consequently, we should not completely rely on the general rule on
12
amendment by deletion. We should nor hold the omission of words in the later statute as necessarily altering the
construction of the earlier one, for we may do so only "where the intent of the legislature to make such change is clear of
construction." 13
In any event, in the absence of an express prohibition on the payment of back salaries, any doubt should be settled in
favor of the employee. As our fundamental law explicitly mandates, "The State shall afford full protection to labor . .
." 14 This Court has invariably declared that it will not hesitate to tilt the scales of justice in favor of the working class, for
the Constitution dictates that "the State . . . shall protect the rights of workers and promote their welfare." 15There is no
reason not to apply this principle in favor of civil service employees as well, for they are very much part of the working
class. And the government as their employer should set the example in upholding the constitutional mandate to safeguard
their rights and interests.
Needless to say, our Construction stands above all laws; more so, above any treatise including that of Mechem which
the ponencia cites. The interpretation of general laws on public officers in foreign jurisdictions has no application in the
present case, as our law has no explicit injunction against the payment of back salaries for preventively suspended
employees. Moreover, the United States Constitution provides no express mandate, similar to that found in our
Constitution, to "afford full protection to labor" and to "protect the rights of workers and promote their welfare."
The grant of back pay is a matter not merely of compassion and mercy for employees temporarily suspended from work
but, more important, of justice and equity. The exoneration of the employees proves that there was no reason at all to
suspend them in the first place. To deny them their incomes on the frivolous ground that the law does not expressly
provide for the grant thereof would provide a tool for the oppression of civil servants who, though innocent, may be falsely
charged of grave or less grave administrative offenses. It plainly opens the door to harassment of public officials and
employees by unjustly depriving them of their meager incomes and consequently subjecting them and their families to
difficult circumstances.
Even in the private sector, the law and the existing jurisprudence grant employees who are unjustly dismissed from work
not only reinstatement without loss of seniority rights and other privileges, but also full back wages, inclusive of
allowances and other benefits or benefits or their monetary equivalent, computed from the time their compensation was
withheld from them up to the time they were actually reinstated. 16
Civil Service Law Different
from Ombudsman Act
In this regard, I believe the Civil Service Law should be distinguished from the Ombudsman Act (RA 6770) which
categorically and expressly provides that the suspended employee who is exonerated after preventive suspension is
entitled to reinstatement, but not back salaries, viz.:
Sec. 24. Preventive suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against
such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the
case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than
six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to
the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis supplied.)
Hence, in Callanta v. Ombudsman, 17 although some of the petitioners were only reprimanded by the Court for violation of
the Ethical Standards Law, no back pay was awarded.

WHEREFORE, I vote to DENY the petition and to GRANT private respondents full back salaries, without qualification or
deduction, from the time of suspension, including the period of preventive suspension, until actual reinstatement.
Separate Opinions
PANGANIBAN, J., separate opinion;
I concur with the ponencia insofar as it denies the petition and affirms the Court of Appeals Decision and Resolutions
finding private respondents guilty only of violation of office rules and regulations, meting upon them the penalty of
reprimand and reinstating them in the civil service.
I beg to disagree, however, insofar as it deprives private respondents their back salaries corresponding to the entire
period of their preventive suspension.
Private Respondents Liable
for Violation of Reasonable
Office Rules and Regulations
Like the majority, I do not find any reversible error or abuse of discretion in the factual finding of the Court of Appeals that
private respondents did not actually participate in the September 1991 mass actions staged in violation of law by various
public schoolteachers. They were, however, found to have absented themselves from their classes without filing an
application for leave of absence. For this lapse, they indeed deserve a reprimand, pursuant to Section 23, Rule XIV
(Discipline) of the Rules Implementing the Civil Service Law, as well as existing jurisprudence which I shall cite later.
Private Respondents Entitled
to Back Salaries Without
Qualification or Deduction
Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension for civil service employees charged with
offenses punishable with removal or suspension: "(1) preventive suspension pending investigation (51) and (2)
preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal but,
after review, the respondent is exonerated (47(4)). 1
Accordingly, the esteemed justice makes a distinction in the grant of back salaries. In the first instance, he says, the
suspended employees (pending investigation) are NOT entitled to back pay, regardless of whether they are eventually
exonerated from the charges for which they were investigated. However, if and when they are exonerated after appeal,
they may be granted back salaries, but only those corresponding to the appeal or review period until actual reinstatement,
and not exceeding five years.
This stance being adopted by the majority reverses several unanimous en banc decisions, in which this Court ordered
payment of back salaries without qualification or deduction. In Miranda v. Commission on Audit, 2 noting that the
applicable law mandated that preventive suspension should not be longer than 90 days, deemed Miranda's suspension
for almost eight (8) years unreasonable and unjustified. It thus resolved that he was entitled to back wages for the period
3
of his suspension not exceeding five (5) years, consistent with existing jurisprudence.
In Bangalisan v. Court of Appeals, 4 the Court ordered that Petitioner Mariano "be given back wages without deduction or
qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence, should
not exceed five years." The Court ruled: "To deny petitioner Mariano his back wages during his suspension would be
tantamount to punishing him after his exoneration from the charges which [had] caused his dismissal from the service." 5
6

The same rationale was given in Jacinto v. Court of Appeals, in which we also granted Petitioner Jacinto "back wages,
without deduction or qualification, from the time she was suspended until her actual reinstatement, the total of which,
under prevailing jurisprudence, should not exceed five years."

In fact, in Garcia v. Chairman, Commission on Audit, 7 where the petitioner, several years after he had been summarily
dismissed from the government service purportedly for dishonesty, was granted executive clemency "not because of lack
of
sufficient
proof
of
his
commission
of
the
offense
but . . ., more importantly, he did not commit the offense charged," the Court found it "fair and just to award petitioner full
back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated, . . . without
deduction
or
qualification."
Empathizing
with
petitioner,
the
Court
held: 8
. . . Verily, law equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and,
above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful
stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit
wrongfully, a dishonest man . . .
Indeed, where the suspension of civil servants has, from the very beginning, no reason other than to ensure an
unhampered investigation, there is no justification for withholding their salaries, whether immediately upon investigation or
after appeal or petition for review, much less after their exoneration. They need not even be found fully innocent of any
misdemeanor, as the public school-teachers concerned in Bangalisan and Jacinto who were actually found to have
violated reasonable office rules and regulations. Such administrative offense, however, is punishable with reprimand only,
not suspension or dismissal. Hence, they were granted their back salaries for the period of their suspension, because they
had not committed any grave act warranting their suspension.
The rationale for the grant of back salaries to suspended public servants is their exoneration from the charges leveled
against them that were punishable with either dismissal or suspension. Needless to say, only when the charges carry
either of these extreme administrative penalties may they be preventively suspended pending investigation. If, after
investigation, they are found to be innocent or culpable of lesser offenses not punishable with suspension or dismissal,
they must be immediately reinstated AND granted full back salaries corresponding to the period of their suspension. In the
first place, if they have been found to be not guilty of any offense warranting even just a suspension, there is no justifiable
reason to deprive them of work and of income therefor. In these cases, their preventive suspension must be deemed
unjustified.
The majority admits that preventive suspension pending investigation is not a penalty, but is only a means of enabling the
disciplining authority to conduct an unhampered investigation. 9 Not being a penalty, there is therefore NO reason to deny
employees their salaries for such period, especially after they are proven innocent of any offense punishable with
suspension or dismissal. I respectfully submit that to withhold an exonerated employee's pay for such period would in fact
transform the nature of preventive suspension into a penalty a penalty which is unauthorized by law, in contravention of
the fundamental right of every individual to due process, and therefore unconstitutional.
The "no-work-no-pay" principle should not be applied in these cases. We must consider that, ordinarily, suspended
employees are willing to work, but they do not have a choice. Because of some serious charges leveled against them,
they are not allowed to report for work. Investigations may take up to ninety (90) days or three (3) months. In the
meantime, they do not receive their salaries and other benefits. And yet, the charges against them may have been
baseless or aggravated without good reason, in which case their suspensions are unjustified ab initio. In these instances, I
repeat, it is but right to grant them full back pays.
Admittedly, the purpose behind preventive suspensions pending investigation is noble. It is intended to enable the
disciplining authorities or the investigating officials to probe the charges against respondents by preventing the latter from
10
intimidating or in any was influencing witnesses against them. But, I submit, it would be totally unfair to respondents
who are undeserving of the penalty of suspension or dismissal to be deprived of their salaries for such period. To repeat,
they cannot be faulted for not rendering any work during the period of preventive suspension, because that is merely what
the law mandates.
Significantly, the Civil Service Law does not state that exonerated employees are not entitled to back salaries
corresponding to the preventive suspension period. Such silence of the law should not ipso facto be interpreted as a
denial of the right, pursuant to rules on statutory construction. In any event, the rules on the interpretation of laws are
mere tools used to ascertain legislative intent. 11 They are not necessarily applicable at all times, particularly when the
intention to change the meaning of the previous law is not clear. In the case of the present Civil Service Law, which is
found in Executive Order No. 292 issued by then President Corazon Aquino in the exercise of her legislative powers
under the Freedom Constitution, its legislative purpose cannot be clearly established, because it has no recorded
deliberations from which to verify such intent. Consequently, we should not completely rely on the general rule on
amendment by deletion. 12 We should nor hold the omission of words in the later statute as necessarily altering the

construction of the earlier one, for we may do so only "where the intent of the legislature to make such change is clear of
13
construction."
In any event, in the absence of an express prohibition on the payment of back salaries, any doubt should be settled in
favor of the employee. As our fundamental law explicitly mandates, "The State shall afford full protection to labor . .
." 14 This Court has invariably declared that it will not hesitate to tilt the scales of justice in favor of the working class, for
the Constitution dictates that "the State . . . shall protect the rights of workers and promote their welfare." 15There is no
reason not to apply this principle in favor of civil service employees as well, for they are very much part of the working
class. And the government as their employer should set the example in upholding the constitutional mandate to safeguard
their rights and interests.
Needless to say, our Construction stands above all laws; more so, above any treatise including that of Mechem which
the ponencia cites. The interpretation of general laws on public officers in foreign jurisdictions has no application in the
present case, as our law has no explicit injunction against the payment of back salaries for preventively suspended
employees. Moreover, the United States Constitution provides no express mandate, similar to that found in our
Constitution, to "afford full protection to labor" and to "protect the rights of workers and promote their welfare."
The grant of back pay is a matter not merely of compassion and mercy for employees temporarily suspended from work
but, more important, of justice and equity. The exoneration of the employees proves that there was no reason at all to
suspend them in the first place. To deny them their incomes on the frivolous ground that the law does not expressly
provide for the grant thereof would provide a tool for the oppression of civil servants who, though innocent, may be falsely
charged of grave or less grave administrative offenses. It plainly opens the door to harassment of public officials and
employees by unjustly depriving them of their meager incomes and consequently subjecting them and their families to
difficult circumstances.
Even in the private sector, the law and the existing jurisprudence grant employees who are unjustly dismissed from work
not only reinstatement without loss of seniority rights and other privileges, but also full back wages, inclusive of
allowances and other benefits or benefits or their monetary equivalent, computed from the time their compensation was
withheld from them up to the time they were actually reinstated. 16
Civil Service Law Different
from Ombudsman Act
In this regard, I believe the Civil Service Law should be distinguished from the Ombudsman Act (RA 6770) which
categorically and expressly provides that the suspended employee who is exonerated after preventive suspension is
entitled to reinstatement, but not back salaries, viz.:
Sec. 24. Preventive suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against
such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the
case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than
six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to
the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis supplied.)
Hence, in Callanta v. Ombudsman, 17 although some of the petitioners were only reprimanded by the Court for violation of
the Ethical Standards Law, no back pay was awarded.
WHEREFORE, I vote to DENY the petition and to GRANT private respondents full back salaries, without qualification or
deduction, from the time of suspension, including the period of preventive suspension, until actual reinstatement.

G.R. No. 154616

July 12, 2004

th

GOV. ANTONIO CALINGIN vs. COURT OF APPEALS, Special 17 Division, EXECUTIVE SECRETARY RENATO S.
*
DE VILLA, DEPT. OF INTERIOR & LOCAL GOVERNMENT SECRETARY JOEY LINA, UNDERSECRETARY
EDUARDO R. SOLIMAN, JR., DEPARTMENT OF THE INTERIOR & LOCAL GOVERNMENT, REGIONAL OFFICE NO.
10, DIRECTOR RODOLFO Z. RAZUL
RESOLUTION
QUISUMBING, J.:
Before us is a petition for review seeking to annul the Resolution1 dated May 11, 2001 of the Court of Appeals in CA-G.R.
SP No. 64583, which denied petitioner Governor Antonio Calingins petition for prohibition with prayer for temporary
2
restraining order and/or the issuance of an order of status quo ante, as well as its Resolution dated July 1, 2002, denying
the motion for reconsideration.
The antecedent facts, as summarized by the Court of Appeals and borne by the records, are as follows:
The Office of the President issued a Resolution3 dated March 22, 2001 in OP Case No. 00-1-9220 (DILG ADM. Case No.
P-16-99) entitled Vice Governor Danilo P. Lagbas, et al. versus Governor Antonio P. Calingin (Misamis Oriental)
suspending Gov. Calingin for 90 days. On April 30, 2001, Undersecretary Eduardo R. Soliman of the Department of the
Interior and Local Government (DILG), by authority of Secretary Jose D. Lina, Jr., issued a Memorandum 4 implementing
the said Resolution of the Office of the President. On May 3, 2001, Gov. Calingin filed before the Office of the President a
Motion for Reconsideration.5
The DILG Memorandum bore the authority of the Commission on Elections (COMELEC) which granted an exemption to
the election ban in the movement of any public officer in its Resolution No. 39926 promulgated on April 24, 2001. This was
in pursuance to COMELEC Resolution No. 3401 which provides in part that
Section 1. Prohibited Acts (a) During the election period from January 2, 2001 until July 13, 2001, no public official shall
make or cause any transfer/detail whatsoever of any officer or employee in the civil service, including public school
teachers, or suspend elective provincial, city, municipal or barangay official, except upon prior written approval of the
Commission.
On May 7, 2001, Gov. Calingin filed a petition for prohibition before the Court of Appeals to prevent the DILG from
executing the assailed suspension order. However, on May 11, 2001, the Court of Appeals dismissed the said petition and
by resolution issued on July 1, 2002, denied petitioners motion for reconsideration.
Hence, this appeal by certiorari where petitioner asserts that the Court of Appeals erred in
FINDING THAT THE EXECUTION OF THE SUSPENSION ORDER OF THE DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT DURING THE ELECTION PERIOD IS WITH AUTHORITY FROM THE COMMISSION ON
ELECTIONS.
FINDING THAT THE DECISION OF THE OFFICE OF THE PRESIDENT IS FINAL AND EXECUTORY AS PROVIDED
IN SECTION 67, CHAPTER 4, OF REPUBLIC ACT 7160, THE LOCAL GOVERNMENT CODE OF 1991. 7
In dispute is the validity of the DILG Memorandum implementing the suspension order issued by the Office of the
President. We are asked to resolve in this connection two issues: (1) Was the decision of the Office of the President
already final and executory? and (2) Was the exemption from the election ban in the movement of any public officer
granted by COMELEC valid?
Petitioner contends that decisions of the Office of the President on cases where it has original jurisdiction become final
and executory only after the lapse of 15 days from the receipt thereof and that the filing of a Motion for Reconsideration
shall suspend the running of the said period8 in accordance with Section 15,9 Chapter 3, Book VII of the Administrative
Code of 1987.
Petitioner further contends that Section 67,10 Chapter 4 of the Local Government Code (Rep. Act 7160), which provides
that decisions of the Office of the President shall be final and executory, applies only to decisions of the Office of the

President on administrative cases appealed from the sangguniang panlalawigan, sangguniang panlungsod of highlyurbanized cities and independent component cities, and sangguniang bayan of municipalities within the Metro Manila
Area. It does not cover decisions on cases where the Office of the President has original jurisdiction such as those
11
involving a Provincial Governor.
In Lapid v. Court of Appeals,12 we held that it is a principle of statutory construction that where there are two statutes that
apply to a particular case, that which was specially intended for the said case must prevail. The case on hand involves a
disciplinary action against an elective local official. Thus, the Local Government Code is the applicable law and must
prevail over the Administrative Code which is of general application. 13 Further, the Local Government Code of 1991 was
enacted much later than the Administrative Code of 1987. In statutory construction, all laws or parts thereof which are
inconsistent with the later law are repealed or modified accordingly.14
Besides, even though appeal to the Court of Appeals is granted under Sec. 1, 15 Rule 43 of the Revised Rules of Court,
16
17
Sec. 12, Rule 43 of the Revised Rules of Court in relation to Sec. 68 of the Local Government Code provides for the
immediate execution pending appeal. Under the same case of Lapid v. Court of Appeals,18 we enunciated that the
decisions of the Office of the President under the Local Government Code are immediately executory even pending
appeal because the pertinent laws under which the decisions were rendered mandated them to be so.
In sum, the decisions of the Office of the President are final and executory. No motion for reconsideration is allowed by
law but the parties may appeal the decision to the Court of Appeals. The appeal, however, does not stay the execution of
the decision. Thus, the DILG Secretary may validly move for its immediate execution.
As to the validity of the exemption granted by COMELEC in its Resolution No. 3992, petitioner claims that the exemption
was invalid for being based on a mere draft resolution. According to him, a draft resolution does not operate as a final
resolution of a case until the proper resolution is duly signed and promulgated. Petitioner maintains that a draft cannot
produce any legal effect.
A perusal of the records, however, reveals that the Resolution in O.P. Case No. 00-1-9220 was approved and signed on
March 22, 2001 by Executive Secretary Renato de Villa by the authority of the President. Hence, the approval was before
the promulgation of COMELEC Resolution No. 3992 on April 24, 2001. The record also shows that the request to
implement the said suspension order was filed on March 22, 2001 by the Senior Deputy Executive Secretary of the Office
of the President pursuant to the requirements stated in the Resolution.
Moreover, COMELEC Resolution No. 352919 which may be applied by analogy and in relation to Sec. 220 of COMELEC
Resolution No. 3401 merely requires the request to be in writing indicating the office and place from which the officer is
removed, and the reason for said movement, and submitted together with the formal complaint executed under oath and
containing the specific charges and the answer to said complaint. The request for the exemption was accompanied with
the Affidavit of Complaint, Affidavit of Controversion, Reply and Draft Resolution. The pertinent documents required by the
COMELEC to substantiate the request were submitted. There being a proper basis for its grant of exemption, COMELEC
Resolution No. 3992 is valid.
WHEREFORE, the instant petition for review on certiorari is DENIED. The assailed Court of Appeals resolutions dated
May 11, 2002 and July 1, 2002 in CA-G.R. SP No. 64583 are hereby AFFIRMED.
SO ORDERED.

G.R. No. 129913 September 26, 1997

DINDO C. RIOS vs. THE SECOND DIVISION OF THE SANDIGANBAYAN, THE PEOPLE OF THE PHILIPPINES, THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, and THE PROVINCIAL GOVERNOR OF ROMBLON
RESOLUTION
ROMERO, J.:
This is a petition for certiorari to set aside the resolution of the Sandiganbayan, dated March 24, 1997, granting the motion
of the Office of the Special Prosecutor (OSP) to suspend petitioner Dindo C. Rios pendente lite, and its resolution dated
June 25, 1997 denying his Motion for Reconsideration.
On March 6, 1996, an information was filed against petitioner who is the incumbent Mayor of the Municipality of San
Fernando, Romblon for alleged unauthorized disposition of confiscated lumber, in violation of Republic Act No. 3019,
otherwise known as Anti-Graft and Corrupt Practices Act. The information alleged:
That on or about May 16, 1994, in San Fernando, Romblon, and within the jurisdiction of this Honorable Court, the above
named accused, a public officer, . . . while in the performance and taking advantage of his official functions, and with
evident bad faith, did then and there willfully, unlawfully and criminally cause the disposition of confiscated, assorted and
sawn tanguile lumber consisting of 1,319 pieces without proper authority therefor, thus, causing undue injury to the
Government.
Before his arraignment, petitioner filed a "Motion to Quash Information and Recall Warrant of Arrest," dated August 4,
1996, on the ground that the information was invalid as there was no probable cause to hold him liable for violation of
Section 3(e), R.A. No. 3019. 1
On September 16, 1996, the OSP filed a "Motion to Suspend Accused (herein petitioner) Pendente Lite," to which
petitioner filed an "Opposition," reiterating the same ground stated in his motion to quash.
The Sandiganbayan overruled the argument in its resolution of October 14, 1996. Thereupon, petitioner filed a verified
petition with this Court which was docketed as G.R. No. 126771. Among the issues raised was the alleged invalidity of the
information. The Court resolved to deny this petition on December 4, 1996 on the ground that the Sandiganbayan
committed to grave abuse of discretion in rendering the questioned judgment.
When the petitioner was arraigned on January 20, 1997, he entered a plea of "not guilty" no longer questioning the validity
of the information against him.
On March 24, 1997, the Sandiganbayan granted the OSP's motion to suspend petitioner in an order which provides in
part:
WHEREFORE, accused Dindo C. Rios is ordered suspended from his position as Mayor of the Municipality of San
Fernando, Romblon and from any other public position he may be holding for a period of ninety (90) days counted from
receipt of this Resolution. The Honorable Secretary of the Department of Interior and Local Government, Quezon City,
and the Provincial Governor of Romblon, Romblon are ordered furnished with copies of this Resolution so that they may
implement the same and report on their actions thereon.
SO ORDERED.
Petitioner filed a motion for reconsideration which was subsequently denied in a resolution dated June 25, 1997. Hence,
this petition.
In support of his petition, petitioner posits the following arguments:
I. THE SANDIGANBAYAN COMMITTED A GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT THE FACTS
CHARGED IN THE INFORMATION CONSTITUTE A VIOLATION OF REPUBLIC ACT 3019.

II. THE SANDIGANBAYAN COMMITTED A GRAVE ABUSE OF DISCRETION WHEN IT PROVIDED FOR
SUSPENSION OF NINETY (90) DAYS IN CLEAR DISREGARD OF THE PROVISION OF THE LOCAL GOVERNMENT
CODE.
The first argument propounded by petitioner has already been passed upon by this Court when it held that the act of
disposing of confiscated lumber without prior authority from DENR and the Sangguniang Bayan constituted a violation of
Sec. 3(e) of R.A. 3019. 2 Therefore, there is probable cause to hold petitioner liable for such act, for which the information
was validly filed. Although any further discussion of this issue would be unnecessary, the Sandiganbayan's ruling is herein
reiterated as a reminder to public officials of their crucial role in society and the trust lodged upon them by the people.
The act complained of in this case is "the disposition (by petitioner) of confiscated, assorted and sawn lumber consisting
of 1,319 pieces without proper authority therefor, thus causing undue injury to the Government."
Petitioner maintains that the mere fact that he acted beyond the scope of his authority by selling the confiscated lumber
without the prior approval of the DENR through its Community Environment and Natural Resources Offices and without a
resolution from the Sangguniang Bayan, does not constitute a violation of Section 3(e) of R.A. No. 3019. What renders the
disposition of lumber contrary to law is any resulting "undue injury" which, however, is absent in this case because the
proceeds of the dispositions went to the coffers of the Municipal Government.
The Sandiganbayan, however, asserted:
First, any act or omission that is not in consonance with the prescribed norms of conduct inflicts injury to the Government,
for the reason that it is a disturbance of law and order. This is more so when, as in this case, the alleged offender is the
highest officer in the Municipal Government, because he sets a reprehensible example to his constituents.
Second, the assertion that no undue injury was caused because the proceeds of the disposition of confiscated lumber
went to the Municipal Government gratuitously assumes that the price at which the lumber was disposed of was the
reasonable market value thereof and that all the proceeds were paid to the local government. The assertion is further
based on the wrong assumption that the lumber belonged to the municipality of which the accused was mayor. It was the
National Government, as distinguished to (sic) local governments, the owned it, (Sec. 2(a), RA 3019) there being no
evidence that the National Government had disposed of the lumber in any manner. 3
We cannot agree more with the Sandiganbayan. This Court would like to stress adherence to the doctrine that public
office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Public
servants must bear in mind this constitutional mandate at all times to guide them in their actions during their entire tenure
in the government service. 4 "The good of the service and the degree of morality which every official and employee in the
public service must observe, if respect and confidence are to be maintained by the Government in the enforcement of the
law, demand that no untoward conduct on his part, affecting morality, integrity and efficiency while holding office should
5
be left without proper and commensurate sanction, all attendant circumstances taken into account."
The suspension pendente lite meted out by the Sandiganbayan is, without doubt, a proper and commensurate sanction
against petitioner. Having ruled that the information filed against petitioner is valid, there can be no impediment to the
application of Section 13 of R.A. No. 3019 which states, inter alia:
Sec. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a
valid information under this Act of under Title 7, Book II of the Revised Penal Code or for any offenses involving fraud
upon government or public funds or property, whether as a simple or as a complex offense and in whatever stage of
execution and mode of participation, is pending in court, shall be suspended from office.
It is settled jurisprudence that the aforequoted provision makes it mandatory for the Sandiganbayan to suspend any public
officer who has been validly charged with a violation of R.A. No. 3019, Book II, Title 7 of the Revised Penal Code, or any
6
offense involving fraud upon government or public funds or property.
"The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent
the accused from using his office to intimidate witnesses or frustrate in prosecution or continue committing malfeasance in
office." 7 This is based on the presumption that unless the public officer is suspended, he may frustrated his prosecution or
commit further acts of malfeasance or both.

On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan erred in imposing a 90 day
suspension upon petitioner for the single case filed against him. Under Section 63 (b) of the Local Government Code,
"any single preventive suspension of local elective officials shall not extend beyond sixty (60) days." 8
WHEREFORE, the appealed decision of the Sandiganbayan is AFFIRMED subject to the MODIFICATION that the
suspension be reduced to 60 days.

6. Administrative Investigation and Appeals (Article 131 IRR)

G.R. No. 131255 May 20, 1998
HON. EDUARDO NONATO JOSON, in his capacity as the Governor of the Province of Nueva Ecija vs. EXECUTIVE
SECRETARY RUBEN D. TORRES, the DEPARTMENT OF THE INTERIOR & LOCAL GOVERNMENTS, represented
by SECRETARY ROBERT Z. BARBERS and UNDERSECRETARY MANUEL R. SANCHEZ, MR. OSCAR C. TINIO, in
his capacity as Provincial Vice-Governor of Nueva Ecija, and MR. LORETO P. PANGILINAN, MR. CRISPULO S.
ESGUERRA, MS. SOLITA C. SANTOS, MR. VICENTE C. PALILIO, and MR. NAPOLEON G. INTERIOR, in their
capacity as Provincial Board Members of Nueva Ecija
PUNO, J.:
The case at bar involves the validity of the suspension from office of petitioner Eduardo Nonato Joson as Governor of the
province of Nueva Ecija. Private respondent Oscar C. Tinio is the Vice-Governor of said province while private
respondents Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and Napoleon Interior are
members of the Sangguniang Panlalawigan.
On September 17, 1996, private respondents filed with the Office of the President a letter-complaint dated September 13,
1997 charging petitioner with grave misconduct and abuse of authority. Private respondents alleged that in the morning of
September 12, 1996, they were at the session hall of the provincial capitol for a scheduled session of the Sangguniang
Panlalawigan when petitioner belligerently barged into the Hall; petitioner angrily kicked the door and chairs in the Hall
and uttered threatening words at them; close behind petitioner were several men with long and short firearms who
encircled the area. Private respondents claim that this incident was an offshoot of their resistance to a pending legislative
measure supported by petitioner that the province of Nueva Ecija obtain a loan of P150 million from the Philippine
National Bank; that petitioner's acts were intended to harass them into approving this loan; that fortunately, no session of
the Sangguniang Panlalawigan was held that day for lack of quorum and the proposed legislative measure was not
considered; that private respondents opposed the loan because the province of Nueva Ecija had an unliquidated
obligation of more than P70 million incurred without prior authorization from the Sangguniang Panlalawigan; that the
provincial budget officer and treasurer had earlier disclosed that the province could not afford to contract another
obligation; that petitioner's act of barging in and intimidating private respondents was a serious insult to the integrity and
independence of the Sangguniang Panlalawigan; and that the presence of his private army posed grave danger to private
respondents' lives and safety. Private respondents prayed for the suspension or removal of petitioner; for an emergency
audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in light of the financial condition of
the province, to wit:
In this regard, we respectfully request for the following assistance from your good office:
1. To immediately suspend Governor N. [sic] Joson considering the actual dangers that we are facing now, and provide
adequate police security detail for the Sangguniang Panlalawigan of Nueva Ecija. Should the evidence warrant after
investigation, to order his removal from office.
2. To conduct an emergency audit of the provincial treasury of Nueva Ecija by the auditors from the Commission on Audit
Central Office with adequate police security assistance. Should the evidence so warrant, to file necessary charges against
responsible and accountable officers.
3. To advise the Philippine National Bank to review the capability of the province of Nueva Ecija to secure more loans and
the feasibility of the same in the light of the present financial condition of the province. Or if said loan will be contrary to
sound banking practice, recommend its disapproval. 1
The letter-complaint was submitted with the joint affidavit of Elnora Escombien and Jacqueline Jane Perez, two (2)
employees of the Sangguniang Panlalawigan who witnessed the incident. The letter was endorsed by Congressmen
Eleuterio Violago and Pacifico Fajardo of the Second and Third Districts of Nueva Ecija, former Congressman Victorio
Lorenzo of the Fourth District, and Mayor Placido Calma, President of the Mayors' League of said province. 2
The President acted on the complaint by writing on its margin the following:
17 Sep 96

To: SILG info Exec. Sec. and Sec. of Justice:

1. Noted. There appears no justification for the use of force, intimidation or armed followers in the situation of 12 Sep at
the Session Hall. 2. Take appropriate preemptive and investigative actions. 3 BREAK NOT the PEACE.
FIDEL V. RAMOS
(Signed).

President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of the members of the
Sangguniang Panlalawigan to approve the proposed loan, did not appear to justify "the use of force, intimidation or armed
followers." He thus instructed the then Secretary of the Interior and Local Governments (SILG) Robert Barbers to "[t]ake
appropriate preemptive and investigative actions," but to "[b]reak not the peace."
The letter-complaint together with the President's marginal notes were sent to Secretary Robert Z. Barbers on September
20, 1996. Acting upon the instructions of the President, Secretary Barbers notified petitioner of the case against him 4 and
attached to the notice a copy of the complaint and its annexes. In the same notice, Secretary Barbers directed petitioner
"to submit [his] verified/sworn answer thereto, not a motion to dismiss, together with such documentary evidence that [he]
has in support thereof, within fifteen (15) days from receipt. 5
Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and summoned petitioner and private respondents to
a conference to settle the controversy. The parties entered into an agreement whereby petitioner promised to maintain
peace and order in the province while private respondents promised to refrain from filing cases that would adversely affect
their peaceful co-existence. 6
The peace agreement was not respected by the parties and the private respondents reiterated their letter-complaint.
Petitioner was again ordered to file his answer to the letter-complaint within fifteen days from receipt. Petitioner received a
copy of this order on November 13, 1996. On the same day, petitioner requested for an extension of thirty (30) days to
submit his answer because he was "trying to secure the services of legal counsel experienced in administrative law
practice. 7 The Department of the Interior and Local Government (DILG), acting through Director Almario de los Santos,
Officer-In-Charge of the Legal Service, granted the motion, with the thirty-day extension to be reckoned, however, from
November 13, 1996, i.e., the day petitioner received the order to answer. 8
In a letter dated December 9, 1996, petitioner moved for another extension of thirty (30) days to file his answer. He stated
that he had already sent letters to various law firms in Metro Manila but that he had not yet contracted their services; that
the advent of the Christmas season kept him busy with "numerous and inevitable official engagements." 9 The DILG
granted the request for extension "for the last time up to January 13 only." 10
On January 7, 1997, petitioner requested for another extension of thirty (30) days to file his answer. According to him, the
Christmas season kept him very busy and preoccupied with his numerous official engagements; that the law firms he
invited to handle his case have favorably replied but that he needed time to confer with them personally; and that during
this period, he, with the help of his friends, was exploring the possibility of an amicable settlement of the case. 11 The DILG
granted petitioner's request "for the last time" but gave him an extension of only ten (10) days from January 13, 1997 to
January 23, 1997. The DILG also informed him that his "failure to submit answer will be considered a waiver and that the
plaintiff [shall] be allowed to present his evidence ex parte." 12
Petitioner moved for reconsideration of the order. He reiterated his prayer for an extension of thirty (30) days on the
following grounds: (a) that he was still in the process of choosing competent and experienced counsel; (b) that some law
firms refused to accept his case because it was perceived to be politically motivated; and (c) the multifarious activities,
appointments and official functions of his office hindered his efforts to secure counsel of
choice. 13
Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting Secretary of the DILG, issued an
order declaring petitioner in default and to have waived his right to present evidence. Private respondents were ordered to
present their evidence ex-parte. The order reads as follows:
ORDER

It appearing that respondent failed to submit his answer to the complaint despite the grant to him of three (3) extensions,
such unreasonable failure is deemed a waiver of his right to present evidence in his behalf pursuant to Section 4, Rule 4
of Administrative Order No. 23 dated December 17, 1992, as amended.
Respondent is hereby declared in default, meanwhile, complainants are directed to present their evidence ex-parte.
However, considering the prohibition on the conduct of administrative investigation due to the forthcoming barangay
elections, complainants will be notified on the date after the barangay election for them to present their evidence.
SO ORDERED. 14
Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar & Asuncion, representing petitioner, filed with
the DILG an "Entry of Appearance with Motion for Time to File Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2, 1997. Through counsel, he moved for reconsideration. On
May 19, 1997, Undersecretary Sanchez reconsidered the order of default in the interest of justice. He noted the
appearance of petitioner's counsel and gave petitioner "for the last time" fifteen (15) days from receipt to file his answer. 15
On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's counsel, whose office is in Manila,
should have received a copy of the May 19, 1997 order ten days after mailing on May 27, 1997. Since petitioner still failed
to file his answer, he was deemed to have waived his right to present evidence in his behalf. Undersecretary Sanchez
reinstated the order of default and directed private respondents to present their evidence ex-parte on July 15, 1997. 16
The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to Dismiss." Petitioner alleged that the lettercomplaint was not verified on the day it was filed with the Office of the President; and that the DILG had no jurisdiction
over the case and no authority to require him, to answer the complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of the order of June 23, 1997 reinstating
the order of default. Petitioner also prayed that the hearing on the merits of the case be held in abeyance until after the
"Motion to Dismiss" shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary Ruben Torres issued an order, by
authority of the President, placing petitioner under preventive suspension for sixty (60) days pending investigation of the
17
charges against him.
Secretary Barbers directed the Philippine National Police to assist in the implementation of the order of preventive
suspension. In petitioner's stead, Secretary Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such
time as petitioner's temporary legal incapacity shall have ceased to exist. 18
Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of Appeals challenging the order of
preventive suspension and the order of default. 19
Meanwhile, the proceedings before the DILG continued. On August 20, 1997, Undersecretary Sanchez issued an order
denying petitioner's "Motion to Dismiss" and " Urgent Ex-Parte Motion for Reconsideration." In the same order, he
required the parties to submit their position papers within an inextendible period of ten days from receipt after which the
case shall be deemed submitted for resolution, to wit:
WHEREFORE, for lack of merit, both motions are denied. However, for this office to have a better appreciation of the
issues raised in the instant case, the parties, through their respective counsels are hereby directed to submit their position
papers within a period of ten (10) days from receipt hereof, which period is inextendible, after which the case is deemed
20
submitted for resolution.
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of Preventive Suspension." On September 10,
21
1997, petitioner followed this with a "Motion to Lift Default Order and Admit Answer Ad Cautelam." Attached to the
22
motion was the "Answer Ad Cautelam". and sworn statements of his witnesses. On the other hand, complainants
(private respondents herein) manifested that they were submitting the case for decision based on the records, the
complaint and affidavits of their witnesses. 23
In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12, 1996, while he was at his district
office in the town of Munoz, he received a phone call from Sangguniang Panlalawigan member Jose del Mundo. Del

Mundo, who belonged to petitioner's political party, informed him that Vice-Governor Tinio was enraged at the members of
the Sangguniang Panlalawigan who were in petitioner's party because they refused to place on the agenda the ratification
of the proposed P150 million loan of the province. Petitioner repaired to the provincial capitol to advise his party-mates on
their problem and at the same time attend to his official functions. Upon arrival, he went to the Session Hall and asked the
members present where Vice-Governor Tinio was. However, without waiting for their reply, he left the Hall and proceeded
to his office.
Petitioner claimed that there was nothing in his conduct that threatened the members of the Sangguniang Panlalawigan or
caused alarm to the employees. He said that like Vice-Governor Tinio, he was always accompanied by his official security
escorts whenever he reported for work. He also alleged that the joint affidavit of Elnora Escombien and Jacqueline Jane
Perez was false. Escombien was purportedly not inside the session hall during the incident but was at her desk at the
office and could not in any way have seen petitioner in the hall. To attest to the truth of his allegations, petitioner
submitted three (3) joint affidavits two (2) affidavits executed by six (6) and ten (10) employees, respectively, of the
24
provincial government, and a third by four members of the Sangguniang Panlalawigan.
On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of the order of August 20, 1997 denying
his motion to dismiss. The "Urgent Motion for Reconsideration" was rejected by Undersecretary Sanchez on October 8,
1997. Undesecretary Sanchez, however, granted the "Motion to Lift Default Order and to Admit Answer Ad Cautelam" and
admitted the "Answer Ad Cautelam" as petitioner's position paper pursuant to the order of August 20, 1997. 25
On October 15, 1997, petitioner filed a "Motion to Conduct Formal Investigation." Petitioner prayed that a formal
investigation of his case be conducted pursuant to the provisions of the Local Government Code of 1991 and Rule 7 of
Administrative Order No. 23; and that this be held at the province of Nueva Ecija. 26 On October 29, 1997, petitioner
submitted a "Manifestation and Motion" before the DILG reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's petition. 27
Hence this recourse.
The proceedings before the DILG continued however. In an order dated November 11, 1997, the DILG denied petitioner's
"Motion to Conduct Formal Investigation" declaring that the submission of position papers substantially complies with the
requirements of procedural due process in administrative proceedings. 28
A few days after filing the petition before this Court, petitioner filed a "Motion for Leave to File Herein Incorporated Urgent
Motion for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction." Petitioner alleged that
subsequent to the institution of this petition, the Secretary of the Interior and Local Governments rendered a resolution on
the case finding him guilty of the offenses charged. 29 His finding was based on the position papers and affidavits of
witnesses submitted by the parties. The DILG Secretary found the affidavits of complainants' witnesses to be "more
natural, reasonable and probable" than those of herein petitioner Joson's. 30
On January 8, 1998, the Executive Secretary, by authority of the President, adopted the findings and recommendation of
the DILG Secretary. He imposed on petitioner the penalty of suspension from office for six (6) months without pay, to wit:
WHEREFORE, as recommended by the Secretary of the Interior and Local Government, respondent Nueva Ecija
Governor Eduardo Nonato Joson is hereby found guilty of the offenses charged and is meted the penalty of suspension
from office for a period of six (6) months without pay. 31
On January 14, 1998, we issued a temporary restraining order enjoining the implementation of the order of the Executive
Secretary.
On January 19, 1998, private respondents submitted a Manifestation informing this Court that the suspension of petitioner
was implemented on January 9, 1998; that on the same day, private respondent Oscar Tinio was installed as Acting
Governor of the province; and that in view of these events, the temporary restraining order had lost its purpose and
effectivity and was fait accompli. 32 We noted this Manifestation.
In his petition, petitioner alleges that:

I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT RULES OF PROCEDURE AND EVIDENCE
SHOULD NOT BE STRICTLY APPLIED IN THE ADMINISTRATIVE DISCIPLINARY AND CLEARLY PUNITIVE
PROCEEDINGS IN THE CASE AGAINST PETITIONER GOVERNOR EDNO JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE ALTER-EGO PRINCIPLE BECAUSE, CONTRARY
TO LAW, IT WAS THE SECRETARY OF THE DILG WHO WAS EXERCISING THE POWERS OF THE PRESIDENT
WHICH ARE CLEARLY VESTED BY LAW ONLY UPON HIM OR THE EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE PETITIONER WAS PROPERLY DECLARED IN
DEFAULT WHEN HE FILED A MOTION TO DISMISS INSTEAD OF AN ANSWER, AS DIRECTED BY THE DILG,
BECAUSE A MOTION TO DISMISS BASED ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic] PLEADING
IN ADMINISTRATIVE DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT THE IMPOSITION OF PREVENTIVE SUSPENSION AGAINST
THE PETITIONER WAS PROPER BECAUSE THERE WAS NO JOINDER OF ISSUES YET UPON ITS IMPOSITION
AND THERE WAS NO EVIDENCE OF GUILT AGAINST PETITIONER. 33
In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary Restraining Order
and/or a Writ of Preliminary Injunction," petitioner also claims that:
I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA ISSUED PURSUANT THERETO (i.e., ANNEXES
"C," "D," "E," "F," AND "G" HEREOF) WERE ISSUED WITH UNDUE HASTE, IN VIOLATION OF THE PERTINENT
PROVISIONS OF THE 1991 LOCAL GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO. 23, AND IN
COMPLETE DISREGARD OF PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS.
II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE
PUBLIC RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE ISSUANCE OF THE TEMPORARY
RESTRAINING ORDER/WRIT OF PRELIMINARY INJUNCTION HEREIN PRAYED FOR. 34
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials are governed by the Local Government Code of
1991, the Rules and Regulations Implementing the Local Government Code of 1991, and Administrative Order No. 23
entitled "Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective
Local Officials of Provinces, Highly Urbanized Cities, Independent Component Cities, and Cities and Municipalities in
Metropolitan Manila." 35 In all matters not provided in A.O. No. 23, the Rules of Court and the Administrative Code of 1987
apply in a suppletory character. 36
I
Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates the grounds for which an elective local
official may be disciplined, suspended or removed from office. Section 60 reads:
Sec. 60. Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed from
office on any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang
panlalawigan, sangguniang panlunsod, sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order of the proper court.
When an elective local official commits an act that falls under the grounds for disciplinary action, the administrative
complaint against him must be verified and filed with any of the following:
Sec. 61. Form and Filing of Administrative Complaints. A verified complaint against any erring local elective official
shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or
component city shall be filed before the Office of the President.
(b) A complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose
decision may be appealed to the Office of the President; and
(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang
bayan concerned whose decision shall be final and executory. 37
An administrative complaint against an erring elective official must be verified and filed with the proper government office.
A complaint against an elective provincial or city official must be filed with the Office of the President. A complaint against
an elective municipal official must be filed with the Sangguniang Panlalawigan while that of a barangay official must be
filed before the Sangguniang Panlungsod or Sangguniang Bayan.
In the instant case, petitioner Joson is an elective official of the province of Nueva Ecija. The letter-complaint against him
was therefore properly filed with the Office of the President. According to petitioner, however, the letter-complaint failed to
conform with the formal requirements set by the Code. He alleges that the complaint was not verified by private
respondents and was not supported by the joint affidavit of the two witnesses named therein; that private respondents
later realized these defects and surreptitiously inserted the verification and sworn statement while the complaint was still
pending with the Office of the President. 38 To prove his allegations, petitioner submitted: (a) the sworn statement of
private respondent Solita C. Santos attesting to the alleged fact that after the letter-complaint was filed, Vice-Governor
Tinio made her and the other members of the Sangguniang Panlalawigan sign an additional page which he had later
notarized; and (b) the fact that the verification of the letter-complaint and the joint affidavit of the witnesses do not indicate
the document, page or book number of the notarial register of the notary public before whom they were made. 39
We find no merit in the contention of the petitioner. The absence of the document, page or book number of the notarial
register of the subscribing officer is insufficient to prove petitioner's claim. The lack of these entries may constitute proof of
neglect on the part of the subscribing officer in complying with the requirements for notarization and proper verification.
40
They may give grounds for the revocation of his notarial commission. But they do not indubitably prove that the
verification was inserted or intercalated after the letter-complaint was filed with the Office of the President.
Nor is the fact of intercalation sufficiently established by the affidavit of Solita C. Santos. Private respondent Santos was
one of the signatories to the letter-complaint. In her affidavit, she prayed that she be dropped as one of the complainants
since she had just joined the political party of petitioner Joson. She decided to reveal the intercalation because she was
disillusioned with the "dirty tactics" of Vice-Governor Tinio to grab power from petitioner Joson. 41 Private respondent
Santos cannot in anyway be considered an unbiased witness. Her motive and change of heart render her affidavit
suspect.
Assuming, nonetheless, that the letter-complaint was unverified when submitted to the Office of the President, the defect
was not fatal. The requirement of verification was deemed waived by the President himself when he acted on the
complaint.
Verification is a formal, not jurisdictional requisite. 42 Verification is mainly intended to secure an assurance that the
allegations therein made are done in good faith or are true and correct and not mere speculation. 43 The lack of verification
is a mere formal defect. 44 The court may order the correction of the pleading, if not verified, or act on the unverified
pleading if the attending circumstances are such that a strict compliance with the rule may be dispensed with in order that
45
the ends of justice may be served.

II
In his second assigned error, petitioner questions the jurisdiction and authority of the DILG Secretary over the case. He
contends that under the law, it is the Office of the President that has jurisdiction over the letter-complaint and that the
Court of Appeals erred in applying the alter-ego principle because the power to discipline elective local officials lies with
the President, not with the DILG Secretary.
Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two authorities: the
Disciplining Authority and the Investigating Authority. This is explicit from A.O. No. 23, to wit:
Sec. 2. Disciplining Authority. All administrative complaints, duly verified, against elective local officials mentioned in the
preceding Section shall be acted upon by the President. The President, who may act through the Executive Secretary,
shall hereinafter be referred to as the Disciplining Authority.
Sec. 3. Investigating Authority. The Secretary of the Interior and Local Government is hereby designated as the
Investigating Authority. He may constitute an Investigating Committee in the Department of the Interior and Local
Government for the purpose.
The Disciplining Authority may, however, in the interest of the service, constitute a Special Investigating Committee in lieu
46
of the Secretary of the Interior and Local Government.
Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether acting by himself or
through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who
may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive
Investigating Authority. In lieu of the DILG Secretary, the Disciplinary Authority may designate a Special Investigating
Committee.
The power of the President over administrative disciplinary cases against elective local officials is derived from his power
of general supervision over local governments. Section 4, Article X of the 1987 Constitution provides:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect
to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure
47
that the acts of their component units are within the scope of their prescribed powers and functions.
The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers perform their
duties." 48 If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as
prescribed by law to make them perform their duties. 49 The President's power of general supervision means no more than
the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. 50Supervision is not
incompatible with discipline. 51 And the power to discipline and ensure that the laws be faithfully executed must be
construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the
52
good of the public service so requires. Thus:
Independently of any statutory provision authorizing the President to conduct an investigation of the nature involved in this
proceeding, and in view of the nature and character of the executive authority with which the President of the Philippines
is invested, the constitutional grant to him of power to exercise general supervision over all local governments and to take
care that the laws be faithfully executed must be construed to authorize him to order an investigation of the act or conduct
of the petitioner herein. Supervision is not a meaningless thing. It is an active power. It is certainly not withou t limitation,
but it at least implies authority to inquire into facts and conditions in order to render the power real and effective. If
supervision is to be conscientious and rational, and not automatic and brutal, it must be founded upon a knowledge of
actual facts and conditions disclosed after careful study and investigation. 53
The power to discipline evidently includes the power to investigate. As the Disciplining Authority, the President has the
power derived from the Constitution itself to investigate complaints against local government officials. A.O. No. 23,
however, delegates the power to investigate to the DILG or a Special Investigating Committee, as may be constituted by
the Disciplining Authority. This is not undue delegation, contrary to petitioner Joson's claim. The President remains the
Disciplining Authority. What is delegated is the power to investigate, not the power to discipline. 54
Moreover, the power of the DILG to investigate administrative complaints is based on the alter-ego principle or the
doctrine of qualified political agency. Thus:

Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants
and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law
to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of
the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. 55
This doctrine is corollary to the control power of the President. 56 The power of control is provided in the Constitution, thus:
Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed. 57
Control is said to be the very heart of the power of the presidency. 58 As head of the Executive Department, the President,
however, may delegate some of his powers to the Cabinet members except when he is required by the Constitution to act
59
in person or the exigencies of the situation demand that he acts personally. The members of Cabinet may act for and in
behalf of the President in certain matters because the President cannot be expected to exercise his control (and
supervisory) powers personally all the time. Each head of a department is, and must be, the President's alter ego in the
60
matters of that department where the President is required by law to exercise authority.
The procedure how the Disciplining and Investigating Authorities should exercise their powers is distinctly set forth in the
Local Government Code and A.O. No. 23. Section 62 of the Code provides:
Sec. 62. Notice of Hearing. (a) Within seven (7) days after the administrative complaint is filed, the Office of the
President or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer
within fifteen (15) days from receipt thereof, and commence investigation of the case within ten (10) days after receipt of
such answer of the respondent.
xxx xxx xxx
Sections 1 and 3, Rule 5 61 of A.O. No. 23 provide:
Sec. 1. Commencement. Within forty-eight (48) hours from receipt of the answer, the Disciplining Authority shall refer the
complaint and answer, together with their attachments and other relevant papers, to the Investigating Authority who shall
commence the investigation of the case within ten (10) days from receipt of the same.
xxx xxx xxx
Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and answer, the Investigating Authority shall
determine whether there is a prima facie case to warrant the institution of formal administrative proceedings.
When an administrative complaint is therefore filed, the Disciplining Authority shall issue an order requiring the respondent
to submit his verified answer within fifteen (15) days from notice. Upon filing of the answer, the Disciplining Authority shall
refer the case to the Investigating Authority for investigation.
In the case at bar, petitioner claims that the DILG Secretary usurped the power of the President when he required
petitioner to answer the complaint. Undisputably, the letter-complaint was filed with the Office of the President but it was
the DILG Secretary who ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not comply with the provisions of A.O. No. 23. The Office should
have first required petitioner to file his answer. Thereafter, the complaint and the answer should have been referred to the
Investigating Authority for further proceedings. Be that as it may, this procedural lapse is not fatal. The filing of the answer
62
is necessary merely to enable the President to make a preliminary assessment of the case. The President found the
complaint sufficient in form and substance to warrant its further investigation. The judgment of the President on the matter
is entitled to respect in the absence of grave abuse of discretion.
III

In his third assigned error, petitioner also claims that the DILG erred in declaring him in default for filing a motion to
dismiss. He alleges that a motion to dismiss is not a pleading prohibited by the law or the rules and therefore the DILG
Secretary should have considered it and given him time to file his answer.
It is true that a motion to dismiss is not a pleading prohibited under the Local Government Code of 1991 nor in A.O. No.
23. Petitioner, however, was instructed not to file a motion to dismiss in the order to file answer. Thrice, he requested for
extension of time to file his answer citing as reasons the search for competent counsel and the demands of his official
duties. And, thrice, his requests were granted. Even the order of default was reconsidered and petitioners was given
additional time to file answer. After al the requests and seven months later, he filed a motion to dismiss!
Petitioner should know that the formal investigation of the case is required by law to be finished within one hundred twenty
(120) days from the time of formal notice to the respondent. The extensions petitioners requested consumed fifty-five (55)
63
days of this period. Petitioner, in fact, filed his answer nine (9) months after the first notice. Indeed, this was more than
sufficient time for petitioner to comply with the order to file answer.
The speedy disposition of administrative complaints is required by public service. The efficiency of officials under
investigation is impaired when a case hangs over their heads. Officials deserve to be cleared expeditiously if they are
innocent, also expeditiously if guilty, so that the business of government will not be prejudiced. 64
IV
In view of petitioner's inexcusable failure to file answer, the DILG did not err in recommending to the Disciplining Authority
his preventive suspension during the investigation. Preventive suspension is authorized under Section 63 of the Local
Government Code, viz:
Sec. 63. Preventive Suspension. (a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent
component city;
xxx xxx xxx
(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong,
and given the gravity of the offense, there is great probability that the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; Provided, That, any
single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in
the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for
more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first
suspension.
xxx xxx xxx
In sum, preventive suspension may be imposed by the Disciplining Authority at any time (a) after the issues are joined; (b)
when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the respondent,
who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence.
Executive Secretary Torres, on behalf of the President, imposed preventive suspension on petitioner Joson after finding
that:
xxx xxx xxx
DILG Secretary Robert Z. Barbers, in a memorandum for the President, dated 23 June 1997, recommends that
respondent be placed under preventive suspension considering that all the requisites to justify the same are present. He
stated therein that:
"Preventive suspension may be imposed at any time after the issues are joined, that is, after respondent has answered
the complaint, when the evidence of guilt is strong and, given the gravity of the offense, there is a great possibility that the

continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence (Sec. 3, Rule 6 of Administrative Order No. 23).
The failure of respondent to file his answer despite several opportunities given him is construed as a waiver of his right to
present evidence in his behalf (Sec. 4, Rule 4 of Administrative Order No. 23). The requisite of joinder of issues is
squarely met with respondent's waiver of right to submit his answer. The act of respondent in allegedly barging violently
into the session hall of the Sangguniang Panlalawigan in the company of armed men constitutes grave misconduct. The
allegations of complainants are bolstered by the joint-affidavit of two (2) employees of the Sangguniang Panlalawigan.
Respondent who is the chief executive of the province is in a position to influence the witnesses. Further, the history of
violent confrontational politics in the province dictates that extreme precautionary measures be taken."
Upon scrutiny of the records and the facts and circumstances attendant to this case, we concur with the findings of the
Secretary of the Interior and Local Government and find merit in the aforesaid recommendation.
WHEREFORE, and as recommended by the Department of the Interior and Local Government, respondent EDUARDO N.
JOSON, Governor of Nueva Ecija, is hereby placed under PREVENTIVE SUSPENSION FOR A PERIOD OF SIXTY (60)
DAYS, effective 11 July 1997, pending investigation of the charges filed against him.
SO ORDERED.

65

Executive Secretary Torres found that all the requisites for the imposition of preventive suspension had been complied
with. Petitioner's failure to file his answer despite several opportunities given him was construed as a waiver of his right to
file answer and present evidence; and as a result of this waiver, the issues were deemed to have been joined. The
Executive Secretary also found that the evidence of petitioner Joson's guilt was strong and that his continuance in office
during the pendency of the case could influence the witnesses and pose a threat to the safety and integrity of the
evidence against him.
V
We now come to the validity of the January 8, 1998 Resolution of the Executive Secretary finding petitioner guilty as
charged and imposing on him the penalty of suspension from office for six (6) months from office without pay.
Petitioner claims that the suspension was made without formal investigation pursuant to the provisions of Rule 7 of A.O.
No. 23. Petitioner filed a "Motion To Conduct Formal Investigation" three months before the issuance of the order of
suspension and this motion was denied by the DILG for the following reasons:
On November 19, 1997, complainants, through counsel, filed a Manifestation calling our attention to the Decision dated
October 24, 1997 of the Court of Appeals, Fifth Division in CA-G.R. SP No. 44694, entitled "Eduardo Nonato Joson versus
Executive Secretary Ruben D. Torres, et. al." In the aforestated decision, the Court of Appeals resolved to sustain the
authority of this Department to investigate this administrative case and has likewise validated the order of default as well
as the order of preventive suspension of the respondent.
We offer no objection and concur with the assertion of respondent that he has the right for the conduct of formal
investigation. However, before there shall be a formal investigation, joinder of issues must already be present or
respondent's answer has already been filed. In the case at bar, the admission of respondent's answer after having been
declared in default was conditioned on the fact of submission of position papers by the parties, after which, the case shall
be deemed submitted for resolution. Respondent, instead of submitting his position paper filed his subject motion while
complainants manifested to forego the submission of position paper and submit the case for resolution on the basis of the
pleadings on hand.
Settled is the rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied
(Concerned Officials of the Metropolitan Waterworks and Sewerage System v. Vasquez, 240 SCRA 502). The essence of
due process is to be found in the reasonable opportunity to be heard and to submit evidence one may have in support of
one's defense (Tajonera v. Lamaroza, 110 SCRA 438). To be heard does not only mean verbal arguments in court; one
may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process (Juanita Y. Say, et. al; vs. IAC, G.R. No. 73451). Thus, when
respondent failed to submit his position paper as directed and insisted for the conduct of formal investigation, he was not
denied of his right of procedural process.
WHEREFORE, the Motion for the Conduct of Formal Investigation, for lack of merit, is DENIED.

SO ORDERED.

66

The denial of petitioner's Motion to Conduct Formal Investigation is erroneous. Petitioner's right to a formal investigation is
spelled out in the following provisions of A.O. No. 23, viz:
Sec. 3 Evaluation. Within twenty (20) days from receipt of the complaint and answer, the Investigating Authority shall
determine whether there is a prima facie case to warrant the institution of formal administrative proceedings.
Sec. 4. Dismissal motu proprio. If the Investigating Authority determines that there is no prima facie case to warrant the
institution of formal administrative proceedings, it shall, within the same period prescribed under the preceding Section,
submit its recommendation to the Disciplining Authority for the motu propriodismissal of the case, together with the
recommended decision, resolution, and order.
Sec. 5. Preliminary conference. If the Investigating Authority determines that there is prima facie case to warrant the
institution of formal administrative proceedings, it shall, within the same period prescribed under the preceding Section,
summon the parties to a preliminary conference to consider the following:
a) whether the parties desire a formal investigation or are willing to submit the case for resolution on the basis of the
evidence on record; and
b) If the parties desire a formal investigation, to consider the simplification of issues, the possibility of obtaining stipulation
or admission of facts and of documents, specifically affidavits and depositions, to avoid unnecessary proof, the limitation
of number of witnesses, and such other matters as may be aid the prompt disposition of the case.
The Investigating Authority shall encourage the parties and their counsels to enter, at any stage of the proceedings, into
amicable settlement, compromise and arbitration, the terms and conditions of which shall be subject to the approval of the
Disciplining Authority.
After the preliminary conference, the Investigating Authority shall issue an order reciting the matters taken up thereon,
including the facts stipulated and the evidences marked, if any. Such order shall limit the issues for hearing to those not
disposed of by agreement or admission of the parties, and shall schedule the formal investigation within ten (10) days
from its issuance, unless a later date is mutually agreed in writing by the parties concerned. 67
The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam where he disputed the truth of
the allegations that he barged into the session hall of the capitol and committed physical violence to harass the private
respondents who were opposed to any move for the province to contract a P150 million loan from PNB. In his Order of
October 8, 1997, Undersecretary Sanchez admitted petitioner's Answer Ad Cautelambut treated it as a position paper. On
October 15, 1997, petitioner filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on October
29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary Barbers found petitioner guilty as charged on
the basis of the parties' position papers. On January 8, 1998, Executive Secretary Torres adopted Secretary Barbers'
findings and recommendations and imposed on petitioner the penalty of six (6) months suspension without pay.
The rejection of petitioner's right to a formal investigation denied him procedural due process. Section 5 of A.O. No. 23
provides that at the preliminary conference, the Investigating Authority shall summon the parties to consider whether they
desire a formal investigation. This provision does not give the Investigating Authority the discretion to determine whether a
formal investigation would be conducted. The records show that petitioner filed a motion for formal investigation. As
respondent, he is accorded several rights under the law, to wit:
Sec. 65. Rights of Respondent. The respondent shall be accorded full opportunity to appear and defend himself in
person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of
witnesses and the production of documentary evidence in his favor through compulsory process of subpoena or subpoena
duces tecum.
68

An erring elective local official has rights akin to the constitutional rights of an accused. These rights are essentially part
of procedural due process. 69 The local elective official has the (1) the right to appear and defend himself in person or by
counsel; (2) the right to confront and cross-examine the witnesses against him; and (3) the right to compulsory attendance
of witness and the production of documentary evidence. These rights are reiterated in the Rules Implementing the Local
70
71
Government Code and in A.O. No. 23. Well to note, petitioner, formally claimed his right to a formal investigation after
his Answer Ad Cautelam has been admitted by Undersecretary Sanchez.

Petitioner's right to a formal investigation was not satisfied when the complaint against him was decided on the basis of
position papers. There is nothing in the Local Government Code and its Implementing Rules and Regulations nor in A.O.
No. 23 that provide that administrative cases against elective local officials can be decided on the basis of position
papers. A.O. No. 23 states that the Investigating Authority may require the parties to submit their respective memoranda
but this is only after formal investigation and hearing. 72 A.O. No. 23 does not authorize the Investigating Authority to
dispense with a hearing especially in cases involving allegations of fact which are not only in contrast but contradictory to
each other. These contradictions are best settled by allowing the examination and cross-examination of witnesses.
Position papers are often-times prepared with the assistance of lawyers and their artful preparation can make the
discovery of truth difficult. The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal
investigation applies to appointive officials and employees. Administrative disciplinary proceedings against elective
government officials are not exactly similar to those against appointive officials. In fact, the provisions that apply to
elective local officials are separate and distinct from appointive government officers and employees. This can be gleaned
from the Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the Code is devoted to elective officials. It provides for their
qualifications
and
election, 73 vacancies
and
succession, 74 local
legislation, 75 disciplinary
76
77
actions, and recall. Appointive officers and employees are covered in Title III of Book I of the Code entitled "Human
Resources and Development." All matters pertinent to human resources and development in local government units are
regulated by "the civil service law and such rules and regulations and other issuances promulgated thereto, unless
78
otherwise provided in the Code." The "investigation and adjudication of administrative complaints against appointive
local officials and employees as well as their suspension and removal" are "in accordance with the civil service law and
rules and other pertinent laws," the results of which "shall be reported to the Civil Service Commission." 79
It is the Administrative Code of 1987, specifically Book V on the Civil Service, that primarily governs appointive officials
and employees. Their qualifications are set forth in the Omnibus Rules Implementing Book V of the said Code. The
grounds for administrative disciplinary action in Book V are much more in number and are specific than those enumerated
in the Local Government Code against elective local officials. 80 The disciplining authority in such actions is the Civil
Service Commission. 81 although the Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities are also given the power to investigate and decide disciplinary actions against officers and employees
under their jurisdiction. 82 When a complaint is filed and the respondent answers, he must "indicate whether or not he
elects a formal investigation if his answer is not considered satisfactory." 83 If the officer or employee elects a formal
investigation, the direct evidence for the complainant and the respondent "consist[s] of the sworn statement and
documents submitted in support of the complaint and answer, as the case may be, without prejudice to the presentation of
additional evidence deemed necessary . . ., upon which the cross-examination by respondent and the complainant,
respectively, is based." 84 The investigation is conducted without adhering to the technical rules applicable in judicial
proceedings." 85 Moreover, the appointive official or employee may be removed or dismissed summarily if (1) the charge is
serious and the evidence of guilt is strong; (2) when the respondent is a recidivist; and (3) when the respondent is
notoriously undesirable. 86
The provisions for administrative disciplinary actions against elective local officials are markedly different from appointive
87
officials. The rules on the removal and suspension of elective local officials are more stringent. The procedure of
requiring position papers in lieu of a hearing in administrative cases is expressly allowed with respect to appointive
officials but not to those elected. An elective official, elected by popular vote, is directly responsible to the community that
elected him. The official has a definite term of office fixed by law which is relatively of short duration. Suspension and
removal from office definitely affects and shortens this term of office. When an elective official is suspended or removed,
the people are deprived of the services of the man they had elected. Implicit in the right of suffrage is that the people are
entitled to the services of the elective official of their choice. 88 Suspension and removal are thus imposed only after the
elective official is accorded his rights and the evidence against him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent Executive Secretary is declared null and
void and is set aside. No Cost.
SO ORDERED.

G.R. No. 89687 September 26, 1990

MARIA B. LUPO vs. ADMINISTRATIVE ACTION BOARD (AAB) (Department of Transportation & Communications
Republic of the Philippines) and JUSTICE ONOFRE A. VILLALUZ
PARAS, J.:
In this petition for prohibition, petitioner seeks the issuance of an order or writ of prohibition which would direct public
respondents Administrative Action Board and Chairman Onofre A. Villaluz to permanently desist from assuming
jurisdiction over Adm. Case No. AAB-034-88 until the same is finally disposed of by the Telecoms Office, Region V at
Legaspi City and to refrain from issuing orders setting the aforecited case for hearing.
Petitioner substantially assails the Resolution dated September 30, 1988 of then Secretary Rainerio O. Reyes of the
Department of Transportation and Communications which suspended her for one year and disqualified her for promotion
for a period of one year and also, the Order of July 5, 1989 of Chairman Onofre A. Villaluz of the Administrative Action
Board of said department which set Adm. Case No. AAB-034-88 for trial.
The prefatory facts are:
On November 5, 1987, Fructuoso B. Arroyo, OIC/CDO, Message Center and then CDO of Telecom Office stationed at
Buhi, Camarines Sur, filed a complaint for Dishonesty Thru Falsification (Multiple) of Official Documents against Maria B.
Lupo, herein petitioner, as Chief of Personnel Section, Telecom Office, Region V at Legaspi City. The complaint was
based on the alleged exclusion of several names from the Certification (on the list of employees) submitted by petitioner in
compliance with a Confidential Memorandum of Director Claro Morante.
The aforesaid complaint was actually triggered off by the inquiry of Ignacio B. Arroyo, brother of complainant Fructuoso B.
Arroyo, into the alleged illegal termination of the former's niece, Nenita Arroyo Noceda, as a daily wage clerk at Buhi
Telecom Exchange in Camarines Sur, in violation of a contract previously entered into between a certain Gloria D.
Palermo, lot donor and former Bureau Director Ceferino S. Carreon, donee of the lot. The lot is located at Sta. Clara, Buhi
on which the Telecom Office was to be constructed. This inquiry of Ignacio B. Arroyo was dismissed for lack of merit on
September 16, 1987.
It appears that the basis for the complaint of Fructuoso Arroyo from whom Ignacio sought assistance was petitioner's
exclusion of certain names of newly hired employees in Region V who appeared related to certain ranking officials of the
region, for the purpose of keeping under wraps the appointment of said employees from Ignacio Arroyo who had
previously complained of the alleged illegal termination of his niece Nenita A. Noceda. Petitioner had to falsify the list
which she submitted in compliance with Regional Director Morante's Confidential Memorandum to the alleged prejudice of
Noceda and for the purpose of protecting her future interest in the sense that those excluded (who should have been
included) were close relatives of ranking officials of the Telecommunications Office of Region V. Telecom Investigator
Florencio Calapano, acting on the unverified complaint of Fructuoso Arroyo, conducted an informal fact-finding inquiry and
came out with a Memorandum recommending that petitioner be sternly warned that a repetition of a similar offense in the
future would be dealt with more drastically and that the case should be considered closed.
Based solely on the aforesaid Memorandum, the Secretary of the Department of Transportation and Communications
handed down a Resolution on September 30, 1988 finding petitioner "guilty as charged" and suspending her for one year
and disqualify her for promotion for a period of one year. Petitioner moved for reconsideration of the resolution but the
same was denied. She thus appealed the resolution and order of denial of the motion for reconsideration to the Civil
Service Commission for review, anchoring her appeal on lack of due process in the proceedings.
On March 2, 1989 the Civil Service Commission, thru its Merit Systems Board, issued the Order setting aside the
resolution of the Department of Transportation and Communications and remanding the case to the Telecom Office of
Region V for further investigation to conform with the procedural requirements of due process.
Instead of complying with the above order, respondent Chairman Villaluz of the AAB issued the Order of July 5, 1989
setting the case for trial on August 3, 1989.
On August 2, 1989, petitioner filed a Manifestation and Motion informing respondent Villaluz that no formal charge had
been instituted by the Telecommunications Office against her and respondents, therefore, had no jurisdiction over the
case. Respondents denied said manifestation and motion for lack of merit in the Order of August 7, 1989 and again set
the case for hearing on August 23, 1989.

Hence, this petition.

Petitioner avers that respondent AAB never acquired jurisdiction over Adm. Case No. AAB-034-88 because of the
absence of a formal charge against her and that the proceedings conducted by Regional Investigator Florencio Calapano
was a mere fact-finding inquiry.
Respondent Chairman of the AAB however, contends that the Order of the Merit Systems Board of the Civil Service
Commission was rendered without lawful authority since petitioner's appeal to said Board was filed when the assailed
resolution had already become final and executory; that the Board, not having acquired jurisdiction to entertain the appeal
for having been filed beyond the reglementary period could not have legally rendered its decision in the said
administrative case. Likewise, respondents claim that Regional Office No. V could no longer take cognizance of the case
as per order of the Merit Systems Board for the reason that the decision had already become final and executory.
Complaints against employees, like petitioner herein, who belong to the Civil Service Career System are still governed by
P.D. No. 807. This mandate of P.D. No. 807 has been recognized and implemented by respondent Administrative Action
Board when it declared in Office Order No. 88-318 dated July 1, 1988 that the Board shall observe the pertinent civil
service rules and policies designed to expedite action on cases referred to it. (Emphasis supplied)
The pertinent provisions of the aforecited Civil Service Law read as follows:
SECTION 37. Disciplinary Jurisdiction. (a) The Commission shall decide upon appeal all administrative disciplinary
cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount, exceeding thirty
days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with
the Commission by a private citizen against a government official or employee in which case it may hear any department
or agency or and decide the case or it may deputize official or group of officials to conduct the investigation. The results of
the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other
action to be taken.
(b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission,
the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall
be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by
the department head.
(c) An investigation may be entrusted to regional director or similar officials who shall make the necessary report and
recommendation to the chief of bureau or office or department within the period specified in Paragraph (d) of the following
Section.
(d) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the
respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the
event he wins an appeal.
SEC. 38. Procedure in Administrative Cases Against Non-Presidential Appointees. a) Administrative proceedings may
be commenced against a subordinate officer or employee by the head of department or office of equivalent rank, or head
of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other persons.
(b) In the case of a complaint filed by any other persons, the complainant shall submit sworn statements covering his
testimony and those of his witnesses together with his documentary evidence. If on the basis of such papers a prima
facie case is found not to exist, the disciplining authority shall dismiss the case. If a prima facie case exist, he shall notify
the respondent in writing, of the charges against the latter, to which shall be attached copies of the complaint, sworn
statements and other documents submitted, and the respondent shall be allowed not less than seventy-two hours after
receipt of the complaint to answer the charges in writing under oath, together with supporting sworn statements and
documents, in which he shall indicate whether or not he elects a formal investigation if his answer is not considered
satisfactory. If the answer is found satisfactory, the disciplining authority shall dismiss the case.
(c) Although a respondent does not request a formal investigation, one shall nevertheless be conducted when from the
allegations of the complaint and the answer of the respondent, including the supporting documents, the merits of the case
cannot be decided judiciously without conducting such an investigation. . . .

Petitioner's contentions appear meritorious.

It should be noted that under Section 37 (b) as aforequoted, the decisions of heads of departments become final only in
cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding
thirty (30) days' salary. In the case, therefore, of petitioner who had been made to suffer the penalty of suspension for one
(1) year, such penalty should not have been implemented without the appeal to the Civil Service Commission for proper
review.
Notably, paragraph (a) of the above Section explicitly provides that the Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition of a penalty of suspension for more than 30 days, or fine in an
amount exceeding 30 days' salary. Clearly, the enforcement of the penalty imposed upon petitioner under the resolution
of the Secretary of the Department of Transportation and Communications was premature.
From the very start, the basis upon which this case was investigated had been defective and irregular. For, the lettercomplaint of Fructuoso Arroyo was not verified and yet, the same was haphazardly made the basis of the informal inquiry.
It should be stressed that par. (a) of Sec. 38 mandates that administrative proceedings may be commenced against an
employee by the head of the department or office of equivalent rank or upon sworn written complaint of any other person.
It should also be noted that under paragraph (b) of said Section, a respondent is given the option to elect a formal
investigation of the charge against him if his answer is not found satisfactory. In the case of petitioner, it appears that
when her answer to the unverified complaint was found unsatisfactory, she was never given a chance to decide whether
or not to submit herself to a formal investigation.
The Memorandum of Telecom Investigator Calapano to the Regional Director is merely recommendatory since it was only
the outcome of a fact finding investigation based on the unverified complaint. Note that the informal investigation was only
an inquiry into the alleged dishonest acts of petitioner in which case, the Memorandum could not be made as the basis for
any final resolution of the case. The legal and proper procedure should have been for the Regional Director of Region V,
the alter ego of the department secretary to initiate the formal complaint on the basis of the results of the inquiry of the
Telecom Investigator. Instead of observing the mandatory rules on formal investigations as prescibed by PD No. 807, the
DOTC Secretary cut corners and apparently railroaded this case by rendering the assailed resolution.
Even the Telecom Investigator did not know what he was doing. He exceeded his authority by imposing in the
Memorandum a penalty in the form of a warning to petitioner. His job was limited to an inquiry into the facts and a
determination on whether or not a prima facie case existed. His findings were merely preparatory to the filing of the
necessary formal administrative case by the Regional Director.
It should be noted with alarm that the Telecom Director who was supposed to review the findings of the Telecom
Investigator merely affixed his approval within the Memorandum (p. 7 of Memorandum), thus obviously indicating that he
never reviewed the merits of the case.
It appears highly irregular that Asst. Secretary Sibal of the DOTC, in his letter dated August 2, 1989 to Chairman Villaluz
of the Administrative Action Board, informed the latter that his Office did not file any administrative complaint against
petitioner nor had it filed a formal charge against her for whatever administrative offense. Note that even with this letter,
Chairman Villaluz proceeded to order the hearing of this case. This is a clear indication that for lack of coordination among
the DOTC authorities and the Regional Office, the mandatory requirements of due process to which petitioner was entitled
were irreverently ignored.
Thus, in the case of Jose Rizal College v. National Labor Relations Commission (G.R. No. 65482, December 1, 1987) this
Court reiterated the "cardinal primary" requirements of due process in administrative proceedings and these are: (1) the
right to a hearing which includes, the right to present one's case and submit evidence in support thereof; (2) the tribunal
must consider the evidence presented; (3) the decision must have something to support itself, (4) the evidence must be
substantial, and substantial evidence means such evidence as a reasonable mind must accept as adequate to support a
conclusion; (5) the decision must be based on the evidence presented at the hearing, or at least contained in the record
and disclosed to the parties affected; (6) the tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate; (7) the board or
body should in all controversial questions, render its decision in such manner that the parties to the proceeding can know
the various issues involved, and the reason for the decision rendered. (Emphasis supplied)
Evidently, respondents denied petitioner her right to a formal and full-blown administrative proceedings which she never
had.

WHEREFORE, the Resolution dated September 30, 1988 of the Secretary of the Department of Transportation and
Communications and the proceedings before the Administrative Action Board are hereby declared NULL and VOID. The
Secretary of the DOTC is hereby directed to restore to petitioner's record of service the period which she served under
suspension and to delete from her personnel file the period within which she was disqualified for promotion.
SO ORDERED.

H. R.A. 6770 The Ombudsman Act of 1989

G.R. No. 142261

June 29, 2000

GOVERNOR MANUEL M. LAPID vs. HONORABLE COURT OF APPEALS, OFFICE OF THE OMBUDSMAN,
NATIONAL BUREAU OF INVESTIGATION, FACT-FINDING INTELLIGENCE BUREAU (FFIB) of the Office of the
Ombudsman, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
RESOLUTION
GONZAGA-REYES, J.:
Before us are the Motion for Reconsideration filed by the National Bureau of Investigation and the Department of the
Interior and Local Government, represented by the Office of the Solicitor-General, and the Office of the Ombudsman of
1
our 5 April 2000 Resolution. In this resolution, we ordered the immediate reinstatement of petitioner Manuel Lapid to the
position of Governor of Pampanga as the respondents failed to establish the existence of a law mandating the immediate
execution of a decision of the Office of the Ombudsman in an administrative case where the penalty imposed is
suspension for one year.
The factual antecedents are as follows:
On the basis of an unsigned letter dated July 20, 1998, allegedly originating from the "Mga Mamamayan ng Lalawigan ng
Pampanga," addressed to the National Bureau of Investigation, the latter initiated an "open probe" on the alleged illegal
quarrying in Pampanga & exaction of exorbitant fees purportedly perpetrated by unscrupulous individuals with the
connivance of high-ranking government officials. The NBI Report was endorsed to the respondent Ombudsman and was
docketed as OMB-1-98-2067.
On Oct. 26, 1998, a complaint was filed charging petitioner Gov. Manuel M. Lapid, Vice-Governor Clayton Olalia,
Provincial Administrator Enrico Quiambao, Provincial Treasurer Jovito Sabado, Mabalacat Municipal Mayor Marino
Morales and Senior Police Officer 4 Nestor Tadeo with alleged "Dishonesty, Grave Misconduct and Conduct Prejudicial to
the Best Interest of the Service" for allegedly "having conspired between and among themselves in demanding and
collecting from various quarrying operators in Pampanga a control fee, control slip, or monitoring fee of P120.00 per
truckload of sand, travel, or other quarry material, without a duly enacted provincial ordinance authorizing the collection
thereof and without issuing receipts for its collection. They were also accused of giving unwarranted benefits to Nestor
Tadeo, Rodrigo "Rudy" Fernandez & Conrado Pangilinan who are neither officials/employees of the Provincial
Government of Pampanga nor quarry operators by allowing them to collect the said amount which was over and above
the P40.00 prescribed under the present provincial ordinance and in allowing Tadeo, Fernandez and Pangilinan to sell
and deliver to various quarry operators booklets of official receipts which were pre-stamped with "SAND FEE P40.00." 2
The Ombudsman issued an Order dated January 13, 1999 preventively suspending petitioner Lapid, Olalia, Quiambao,
Sabado, Morales and Tadeo for a period of six (6) months without pay pursuant to Sec. 24 of RA 6770. On Jan. 19, 1999,
the Department of the Interior and Local Government (hereinafter the "DILG") implemented the suspension of petitioner
Lapid3.
On November 22, 1999 the Ombudsman rendered a decision4 in the administrative case finding the petitioner
administratively liable for misconduct thus:
Wherefore, premises considered, respondent Manuel M. Lapid, Clayton A. Olalia, Jovito S. Sabado and Nestor C. Tadeo
are hereby found guilty of misconduct for which they are meted out the penalty of one (1) year suspension without pay
pursuant to section 25 (2) of R.A. 6770 (Ombudsman Act of 1989). Respondent Marino P. Morales is hereby exonerated
from the same administrative charge for insufficiency of evidence. The complaint against respondent Enrico P. Quiambao,
who resigned effective June 30, 1998 was dismissed on March 12, 1999, without prejudice to the outcome of the criminal
case.5
The copy of the said decision was received by counsel for the petitioner on November 25, 1999 and a motion for
reconsideration was filed on November 29, 1999. The Office of the Ombudsman, in an Order6 dated 12 January 2000,
denied the motion for reconsideration.

Petitioner then filed a petition for review with the Court of Appeals on January 18, 2000 praying for the issuance of a
temporary restraining order to enjoin the Ombudsman from enforcing the questioned decision. The temporary restraining
order was issued by the appellate court on January 19, 2000.7
When the 60-day lifetime of the temporary restraining order lapsed on March 19, 2000 without the Court of Appeals
resolving the prayer for the issuance of a writ of preliminary injunction, a petition8 for certiorari, prohibition
and mandamus was filed with this Court on March 20, 2000. The petition asked for the issuance of a temporary
restraining order to enjoin the respondents from enforcing the assailed decision of the Ombudsman and prayed that "after
due proceedings, judgment be rendered reversing and setting aside the questioned decision (of the Ombudsman) dated
November 22, 1999 and the order January 12, 2000.9
On March 22, 2000 the Third Division of this Court issued a Resolution requiring the respondents to comment on the
petition. That same day, the Court of Appeals issued a resolution 10 denying the petitioner's prayer for injunctive relief. The
following day, or on March 23, 2000, the DILG implemented the assailed decision of the Ombudsman and the highest
ranking Provincial Board Member of Pampanga, Edna David, took her oath of office as O.I.C. Governor of the Province
of Pampanga.
On March 24, 2000 a Motion for Leave to File Supplement to the Petition for Certiorari, Prohibition and Mandamus 11 and
12
the Supplement to the Petition itself were filed in view of the resolution of the Court of Appeals denying the petitioner's
prayer for preliminary injunction. In addition to the arguments raised in the main petition, the petitioner likewise raised in
issue the apparent pre-judgment of the case on the merits by the Court of Appeals in its resolution denying the prayer for
preliminary injunction. In so doing, petitioner argued that the respondent court exceeded the bounds of its jurisdiction.
Proceeding from the premise that the decision of the Ombudsman had not yet become final, the petitioner argued that the
writs of prohibition and mandamus may be issued against the respondent DILG for prematurely implementing the assailed
decision. Finally, the petitioner prayed for the setting aside of the resolution issued by the Court of Appeals dated March
22, 2000 and for the issuance of a new one enjoining the respondents from enforcing the said decision or, if it has already
been implemented, to withdraw any action already taken until the issue of whether or not the said decision of the
Ombudsman is immediately executory has been settled.
The Solicitor-General and the Office of the Ombudsman filed their respective comments 1 to the petition praying for the
dismissal thereof. Regarding the issue of the immediate enforcement of the decision of the Ombudsman, the SolicitorGeneral maintains that the said decision is governed by Section 12, Rule 43 of the Rules of Court and is therefore,
immediately executory. For its part, the Office of the Ombudsman maintain that the Ombudsman Law and its
implementing rules are silent as to the execution of decisions rendered by the Ombudsman considering that the portion of
the said law cited by petition pertains to the finality of the decision but not to its enforcement pending appeal. The Office of
the Ombudsman also stated that it has uniformly adopted the provisions in the Local Government Code and
Administrative Code that decisions in administrative disciplinary cases are immediately executory.
The Solicitor-General filed an additional comment 14 alleging that the petitioner did not question the executory character of
the decision of the Ombudsman and that he is presenting this argument for the first time before the Supreme Court. The
appellate court should be given an opportunity to review the case from this standpoint before asking the Supreme Court to
15
review the resolutions of the Court of Appeals. The petitioner filed a consolidated Reply to the Comments of the
respondents.
After oral arguments before the Third Division of this Court on 5 April 2000, the Resolution
Motions for Reconsideration was issued. The Resolution provides as follows:

16

subject of the instant

From the pleadings filed by the parties and after oral arguments held on April 5, 2000, the petitioner represented by Atty.
Augusto G. Panlilio, the respondent Ombudsman represented by its Chief Legal Counsel, and the National Bureau of
Investigation and the Department of the Interior and Local Government represented by the Solicitor General, and after
due deliberation, the Court finds that the respondents failed to establish the existence of a law mandating the immediate
execution of a decision of the Ombudsman in an administrative case where the penalty imposed is suspension for one
year. The immediate implementation of the decision of the Ombudsman against petitioner is thus premature.
WHEREFORE, the respondents are ordered to reinstate effective immediately the petitioner to the position of Governor of
the Province of Pampanga. This case is hereby remanded to the Court of Appeals for resolution of the appeal in CA-GR.
SP No. 564744 on the merits. Said court is hereby directed to resolve the same with utmost deliberate dispatch.
This is without prejudice to the promulgation of an extended decision.

From this 5 April 2000 Resolution, the Offices of the Solicitor-General and the Ombudsman filed the instant motions for
reconsideration.
The sole issue addressed by our 5 April 2000 Resolution is whether or not the decision of the Office of the Ombudsman
finding herein petitioner administratively liable for misconduct and imposing upon him a penalty of one (1) year
suspension without pay is immediately executory pending appeal.
Petitioner was administratively charged for misconduct under the provisions of R.A. 6770, the Ombudsman Act of 1989.
Section 27 of the said Act provides as follows:
Sec. 27. Effectively and Finality of Decisions. All provisionary orders of the Office of the Ombudsman are immediately
effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five
(5) days after receipt of written notice and shall be entertained only on the following grounds:
xxx

xxx

xxx

Findings of fact of the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order,
directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary
shall be final and unappealable.
In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to
the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.
The Rules of Produce of the Office of the Ombudsman 17 likewise contain a similar provision. Section 7, Rule III of the
said Rules provides as follows:
Sec. 7. Finality of Decision. where the respondent is absolved of the charge and in case of conviction where the
penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one
month salary, the decision shall be final and unapllealable. In all other cases, the decision shall become final after the
expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition
for certiorari, shall have been filed by him as prescribed in Section 27 of R.A. 6770.
It is clear from the above provisions that the punishment imposed upon petitioner, i.e. suspension without pay for one
year, is no among those listed as final and unappealable, hence, immediately executory. Section 27 states that all
provisionary orders of the Office of the Ombudsman are immediately effective and executory; and that any order, directive
or decision of the said Office imposing the penalty of censure or reprimand or suspension of not more than one month's
salary is final and unappealable. As such the legal maxim "inclusion unius est exclusio alterus" finds application. The
express mention of the things included excludes those that are not included. The clear import of these statements taken
together is that all other decisions of the Office of the Ombudsman which impose penalties that are not enumerated in the
said section 27 are not final, unappealable and immediately executory. An appeal timely filed, such as the one filed in the
instant case, will stay the immediate implementation of the decision. This finds support in the Rules of Procedure issued
by the Ombudsman itself which states that "(I)n all other cases, the decision shall become final after the expiration of ten
(10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari (should now
be petition for review under Rules 43) shall have been filed by him as prescribed in Section 27 of R.A. 6770."
18

The Office of the Solicitor General insists however that the case of Fabian vs. Desierto has voided Section 27 of R.A.
6770 and Section 7, Rule III of Administrative Order No. 07. As such, the review of decision of the Ombudsman in
administrative cases is now governed by Rule 43 of the 1997 Rules of Civil Procedure which mandates, under Section
12 19 thereof, the immediately executory character of the decision or order appealed from.
The contention of the Solicitor General is not well-taken. Our ruling in the case of Fabian vs. Desierto invalidated Section
27 of Republic Act No. 6770 and Section 7, Rule III of Administrative Order No. 07 and any other provision of law
implementing the aforesaid Act only insofar as they provide for appeals in administrative disciplinary cases from the Office
of the Ombudsman to the Supreme Court. The only provision affected by the Fabian ruling is the designation of the Court
of Appeals as the proper forum and of Rule 43 of the Rules of Court as the proper mode of appeal. All other matters
included in said section 27, including the finality or non-finality of decisions, are not affected and still stand.

Neither can respondents find support in Section 12, Rule 43 of the 1997 Rules of Civil Procedure which provides as
follows:
Sec. 12. Effect of Appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed
unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.
On this point, respondents contend that considering the silence of the Ombudsman Act on the matter of execution
pending appeal, the above-quoted provision of the Rules of Court, which allegedly mandates the immediate execution of
all decisions rendered by administrative and quasi-judicial agencies, should apply suppletorily to the provisions of the
Ombudsman Act. We do not agree.
A judgment becomes "final and executory" by operation of law. 20 Section 27 of the Ombudsman Act provides that any
order, directive or decision of the Office of the Ombudsman imposing a penalty of public censure or reprimand, or
suspension of not more than one month's salary shall be final and unappealable. In all other cases, the respondent
therein has the right to appeal to the Court of Appeals within ten (10) days from receipt of the written notice of the order,
directive or decision. In all these other cases therefore, the judgment imposed therein will become final after the lapse of
the reglementary period of appeal in of appeal is perfected 21 or, an appeal therefrom having been taken, the judgment in
the appellate tribunal become final. It is this final judgment which is then correctly categorized as a "final and executory
22
judgment" in respect to which execution shall issue as a matter of right. In other words, the fact that the Ombudsman
Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending
appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.
The general rule is that judgments by lower courts or tribunals become executory only after it has become final and
executory, 2 execution pending appeal being an exception to this general rule. It is the contention of respondents however
that with respect to decisions of quasi-judicial agencies and administrative bodies, the opposite is true. It is argued that
the general rule with respect to quasi-judicial and administrative agencies is that the decisions of such bodies are
immediately executory even pending appeal.
The contention of respondents is misplaced. There is no general legal principle that mandates that all decisions of quasijudicial agencies are immediately executory. Decisions rendered by the Securities and Exchange Commission 24 and the
Civil Aeronautics Board, 25 for example, are not immediately executory and are stayed when an appeal is filed before the
Court of Appeals. On the other hand, the decisions of the Civil Service Commission, under the Administrative Code 26,
and the Office of the President under the Local Government Code 27, which respondents cite, are immediately executory
even pending appeal because the pertinent laws under which the decisions were rendered mandate them to be so. The
provisions of the last two cited laws expressly provide for the execution pending appeal of their final orders or decisions.
The Local Government Code, under Section 68 thereof provides as follows:
Sec. 68. Execution Pending Appeal. An appeal shall not prevent a decision from becoming final and executory. The
respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in
the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such
other emoluments during the pendency of the appeal.
Similarly, Book V, Title I, Subtitle A, Chapter 6, Section 47, par. (4) of the Administrative Code of 1987 provides:
(4) An appeal shall not stop the decision from being from being executory, and in case the penalty is suspension or
removal, the respondent shall be considered as having been under preventive suspension during the pendency of the
appeal in the event he wins an appeal.
Where the legislature has seen fit to declare that the decision of the quasi-judicial agency is immediately final and
executory pending appeal, the law expressly so provides.
Sec. 12 of Rule 43 should therefore be interpreted as mandating that the appeal will not stay the award, judgment, final
order or resolution unless the law directs otherwise.
Petitioner was charged administratively before the Ombudsman and accordingly the provisions of the Ombudsman Act
should apply in his case. Section 68 of the Local Government Code only applies to administrative decisions rendered by
the Office of the President or the appropriate Sanggunian against elective local government officials. Similarly, the
provision in the Administrative Code of 1987 mandating execution pending review applies specifically to administrative
decisions of the Civil Service Commission involving members of the Civil Service.

There is no basis in law for the proposition that the provisions of the Administrative Code of 1987 and the Local
Government Code on execution pending review should be applied suppletorily to the provisions of the Ombudsman Act as
there is nothing in the Ombudsman Act which provides for such suppletory application. Courts may not, in the guise of
interpretation, enlarge the scope of a statute and include therein situations not provided or intended by the lawmakers. An
omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however later wisdom
may recommend the inclusion. 28
And while in one respect, the Ombudsman Law, the Administrative Code of 1987 and the Local Government Code are in
pari materia insofar as the three laws relate or deal with public officers, the similarity ends there. It is a principle in
statutory construction that where there are two statutes that apply to a particular case, that which was specially designed
29
for the said case must prevail over the other. In the instant case, the acts attributed to petitioner could have been the
subject of administrative disciplinary proceedings before the Office of the President under the Local Government Code or
before the Office of the Ombudsman under the Ombudsman Act. Considering however, that petitioner was charged under
the Ombudsman Act, it is this law alone which should govern his case.
Respondents, through the Office of the Solicitor General, argue that the ruling against execution pending review of the
Ombudsman's decision grants a one-sided protection to the offender found guilty of misconduct in office and nothing at all
to the government as the aggrieved party. The offender, according to respondents, can just let the case drag on until the
expiration of his office or his reelection as by then, the case against him shall become academic and his offense,
obliterated. As such, respondents conclude, the government is left without further remedy and is left helpless in its own
fight against graft and corruption.
We find this argument much too speculative to warrant serious consideration. If it perceived that the fight against graft and
corruption is hampered by the inadequacy of the provisions of the Ombudsman Act, the remedy lies not with this Court but
by legislative amendment.
As regards the contention of the Office of the Ombudsman that under Sec. 13(8), Article XI of the 1987 Constitution, the
Office of the Ombudsman is empowered to "(p)romulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law," suffice it to note that the Ombudsman rules of procedure,
Administrative Order No. 07, mandate that decisions of the Office of the Ombudsman where the penalty imposed is other
than public censure or reprimand, suspension of not more than one month salary or fine equivalent to one month salary
are still appealable and hence, not final and executory. Under these rules, which were admittedly promulgated by virtue of
the rule-making power of the Office of the Ombudsman, the decision imposing a penalty of one year suspension without
pay on petitioner Lapid is not immediately executory.
WHEREFORE, the Motions for Reconsideration filed by the Office of the Solicitor General and the Office of the
Ombudsman are hereby DENIED for lack of merit.1wphi1.nt
SO ORDERED.

G.R. No. 127457 April 13, 1998

MAYOR FELIPE K. CONSTANTINO vs. Hon. OMBUDSMAN ANIANO DESIERTO, MARGARITO P. GERVACIO, JR.,
JAIME L. MADRIDANO, PRIMITIVA L. ESPINOSA, RAFAEL J. SUSON, SR., PABLO V. OCTAVIO, LEO G. INGAY,
BENJAMIN C. ASGAPO and WILFRED P. ESPINOSA
NARVASA, C.J.:
In the special civil action of certiorari at bar Mayor Felipe K. Constantino of Malungon, Sarangani Province, seeks
invalidation of the Resolution of the Ombudsman dated October 22, 1996, finding him guilty of grave misconduct
prejudicial to the best interest of the service, and/or gross neglect of duty, and on that account dismissing him from the
service.
On February 22, 1996, the Sangguniang Bayan of Malungon, Sarangani Province, adopted and issued Resolution No.
1
21 which after declaring in its "Whereas" clauses inter alia that
1) it was the intention of the . . Government of Malungon to "lease/purchase one (1) fleet of heavy
equipment" 2 composed of seven (7) specifically described units;
2) due to the failure of two public biddings, the Municipal Mayor would be authorized "to enter into a negotiated contract
(for said lease/purchase) . . in behalf of the Municipal Government . . ;"
3) the lessor/seller should assure that the heavy equipment is "free from defects in workmanship within the specified
warranty period under normal use," with obligation to "repair or replace any defective parts free of charge subject to the
terms and conditions stipulated in the contract;"
4) the contract "must be clear and explicit, acceptable to both parties, and be concurred by the Sangguniang Bayan of . .
Malungon . . before implementation;" and
5) the heavy equipment shall, before delivery, be inspected and tested by a special committee chosen by the Mayor
authorized Mayor Constantino "to enter into a negotiated contract representing the Municipality . . (with) any company
dealing with heavy equipment," said contract to be "signed by PBAC members." The resolution, however, contained no
parameters as to rate of rental, period of lease, purchase price. The Sangguniang Bayan Members who voted for the
resolution were: Vice-Mayor Primitiva L. Espinosa, and Councilors Rafael J. Suson, Sr. (Presiding Officer), Benjamin M.
Guilley, Nemesio P. Liray, Nonito V. Nuez, Leo G. Ingay, Cesar B. Nallus, Jr., Benjamin C. Asgapo, and Jannette S.
Constantino.
Accordingly, on February 28, 1996 in Davao City, Mayor Constantino entered into an agreement with a firm called the
Norlovanian Corporation, 3 for the lease by the municipality from the latter of seven (7) units of heavy equipment of the
types specified in the aforesaid Resolution, to wit: 4
(a) one (1) unit payloader;
(b) one (1) unit grader;
(c) one (1) unit road roller;
(d) two (2) units six-wheeler dump trucks; and
(e) two (2) units ten-wheeler dump trucks.
At the same time, and with the Mayor's "conforme," the corporation executed a deed of "Undertaking" binding itself to
convey ownership of the heavy equipment under lease "unto the Lessee at the end of the term of said agreement after the
Lessee has faithfully complied with the terms and conditions thereof," and to execute "the necessary documents to
transfer the ownership . . (thereof)." 5 The Lease Agreement was a printed pre-prepared one, the names of the parties and
the notarial acknowledgment having merely been typed in additionally. Nothing was stated in the signed contract about

the term of the lease or the amount of the rental. Neither did the second document, the "Undertaking," set forth the term of
the lease, the rental rate of the equipment, or the value thereof.
Delivery of all the seven (7) pieces of heavy equipment was made to the municipality on March 4, 1996, at which time a
document of "Delivery and Acceptance" 6 was executed over the signatures of Mayor Constantino and the President of the
lessor company. The instrument contained:
(a) a list of the equipment,
(b) an averment that the "LESSEE (the town of Malungon) had inspected and accepted the same which had "been found
to be in good condition in accordance with the terms and conditions of the Lease Agreement," and
(c) an attestation reading "EQUIPMENT INSPECTED BY" signed by four (4) Municipal Kagawads: Benjamin M.
Guilley, Nonito V. Nuez, Ceasar B. Nallos and Nemesio P. Liray, as well as by the Municipal Engineer and the Municipal
Treasurer.
Thereafter, and on the strength of another resolution (No. 38) "unanimously approved" on April 18, 1996 by the
Sangguniang Bayan of Malungon "requesting the Honorable Municipal Mayor, Felipe K, Constantino, to operate the
newly acquired heavy equipment of the Municipality of Malungon leased/purchased from the Norlovanian
7
Corporation" the mayor directed that the heavy equipment be operated and used in various projects. The
Sangguniang Bayan Members who voted for the resolution were: Vice-Mayor Primitiva L. Espinosa, and Councilors
Rafael J. Suson, Sr., Benjamin M. Guilley, Nemesio P. Liray, Pablo V. Octavio, Nonito V. Nuez, Leo G. Ingay, Cesar B.
Nallos, Jr., Benjamin C. Asgapo, and Wilfredo P. Espinosa, ABC.
However, operation of the equipment came to a halt barely two months later; and this, because of a third resolution (No.
47) of the Sangguniang Bayan adopted on June 6, 1996, 8 "stopping all forms of unauthorized payment/expenditures
relative to the illegally acquired pool of heavy equipment by the Municipality of Malungon, Sarangani Province." The
Resolution was grounded on the following stated premises:
1) a 1995 Resolution "adopting Appropriation Ordinance No. 11 approving General Budget of 1996;" MPC Resolution No.
2 series of 1995 in relation to SB Resolution No. 198, series of 1995 "provided the amount of TWO MILLION TWO
HUNDRED THOUSAND PESOS (P2,200,00000) for the loan amortization of the purchase of heavy equipment for five (5)
years" but had "not been realigned . . re-programmed and appropriated for lease;" and
2) the "pool of heavy equipment . . acquired was inefficient, ineffective and inoperative per ocular inspection, investigation
and survey conducted by the Committee on Infrastructure of the Sangguniang Bayan of Malungon and there is no
authorized rental payment/expenditures and approved budget by the Sangguniang Bayan intended for lease of such
heavy equipment.
The minutes of the Sangguniang Bayan of Malungon of the session of June 6, 1996 show that of the nine (9)
Sangguniang Members present, four (4) voted "for the passage of said resolution, namely Councilors Octavio, Espinosa,
Asgapo and Ingay, and there abstain(ed:) namely Councilor Guilley, Nollon, Nuez . . ; (and) Councilor Liray . . (was) not
around during the violation . . (being) on privilege motion which was recognized by the Chair" (sic). Vice-Mayor Primitiva
L. Espinosa, identified as "Acting Mayor," was recorded as "ABSENT" 9
It appears that earlier on April 23, 1996, five (5) days after Mayor Constantino was requested by the Sangguniang
Bayan to start using the heavy equipment as above stated there were filed with the Deputy Ombudsman for Mindanao
in Davao City, 10 a "Letter-Complaint" 11 and a "Joint Affidavit," 12 accusing the Mayor and the president of the lessor
company,
Norberto
Lindong, 13 of a "Violation of Section 3 [e] and [g] of R.A. No. 3019 otherwise known as the Anti-Graft and Corrupt
Practices Act" docketed as Case No. OMB-MIN-ADM-96-0179 and of "Grave Misconduct; Conduct Prejudicial to the
Interest of the Service; and Gross Neglect of Duty" docketed as Case No. OMB-MIN-ADM-96-060. The letter-complaint
was signed by Vice-Mayor Primitiva L. Espinosa, and to it was appended a CERTIFICATION signed by said Vice-Mayor
and three (3) of the Sangguniang Bayan Members who, together with the Vice-Mayor had approved the first two (2)
Resolutions above mentioned, namely: Councilors Rafael J. Suson, Sr., Leo G. Ingay, and Benjamin C. Asgapo. Two
other councilors, Wilfredo P. Espinosa, Pablo V. Octavio, who had approved the Resolution of April 18, 1996
requesting Mayor Constantino to put into operation the heavy equipment delivered by Norlovanian Corporation also
signed the Certification.
The Joint Affidavit alleged that:

1) Resolution No. 21 authorized Mayor Constantino "to purchase and acquire for the Municipality of Malungon heavy
equipments to be paid within five (5) years at the yearly amortization of P2.2 million and for the ownership thereof to be
consolidated and vested upon the municipality at the end of fifth year;"
2) the resolution also "provided that the Sangguniang Bayan shall concur in the contract to purchase that shall be entered
into . . ;"
3) contrary to the resolution, Mayor Constantino entered into "the lease agreement with the Norlovanian Corporation" over
specific heavy equipment which stipulated a term of "six (6) years," rental at the rate of P257,111.11 per month;" and a
"20% Guaranty Deposit of P1,780,000.00" to be made by the Municipality."
4) the lease agreement contained no "Purchase Option" in favor of the Municipality, and required the property to be
returned to the lessor at the end of the lease;
5) pursuant to the agreement, the Municipality had already paid to the Norlovanian Corporation "the total sum of
P2,177,070.91 for:
a) 20% Guaranty Deposit P1,780,000.00
b) Rental from March 5 April 5, 1996 257,111.11
c) partial rental covering April 5 to May 6, 1996 162,888.89
Withholding tax 22,909.00

TOTAL P2,177,070.91;
6) Mayor Constantino had thus entered into the agreement without authority and thereby "caused and inflicted undue
injury to the Municipality . . ."
The charges were traversed by His Honor in a "Counter-Affidavit" 14 filed by him on requirement of the Deputy
Ombudsman. 15He asserted that:
1) under authority of Resolution No. 21, he had indeed negotiated with Norberto Lindong of the Norlovanian Corporation
for the lease and ultimate purchase of the subject heavy equipment;
2) the agreement finally reached was (a) "Total cost of equipment is P8,900,000.00;" (b) Norlovanian "will charge interest
at 18% per annum on a diminishing balance, over a 6 year pay-period;" and (c) "on the first year, the monthly amortization
will be P257,111.11 but starting on the second year the amortization will decrease and . . progressively decrease every
year;"
3) a Committee created by the Mayor inspected and accepted the units and issued a certification attesting to the
"worthiness" thereof, 16 after which Lindong drew up the "Lease Agreement" on his company's "standard (printed) form,"
and an "Undertaking" to eventually transfer ownership of the equipment to the Municipality;
4) both instruments were signed not only by the Mayor and Lindong but also by the Members of the PBAC;
5) on February 29, 1996, the Mayor and Lindong appeared before the Sangguniang Bayan and explained the terms of the
agreements; present were all the Members of the Sanggunian except Vice-Mayor Primitiva Espinosa and her spouse,
Councilor Wilfredo Espinosa;
6) the equipment was delivered four (4) days afterwards after which it was inspected by a representative of the
Commission on Audit who found the same to be in good order;
7) the Mayor subsequently ordered the equipment to be put into operation in compliance with Resolution No. 38.

On May 31, 1996, respondent Deputy Ombudsman Gervacio handed down an Order placing Mayor Constantino under
preventive suspension for six (6) months without pay effective June 14, 1996. This order was not enforced, however,
17
because
enjoined
by
orders promulgated
by
the
Regional
Trial
18
Court in Special Civil Case No. 9368 instituted by the Mayor.
On July 22, 1996, Mayor Constantino and Norberto Lindong filed a motion for the inhibition of Deputy Ombudsman
Gervacio, alleging that by "the issuance of the 'Order of Preventive Suspension' on May 31, 1996 . . without any due
process of law and in utter disregard of the provisions of Sec. 23 of RA 6770, the Honorable Deputy Ombudsman . .
had clearly shown his prejudice against respondent Mayor . . ." 19 The motion was however denied in an Order issued by
Graft
Investigation
Officer
Marco
Anacleto
P.
Buena
on
July
24,
20
1996.
On July 26, 1996, Constantino and Lindong filed a "Notice of Appeal" as regards the rejection of the motion for
21
22
inhibition and a Motion to Reset Hearing " (after the resolution of their appeal on the issue of recusation). The latter
motion was denied for lack of merit by the Area Office on July 29, 1996. Said denial was sustained, and Mayor
23
Constantino's appeal dismissed, by Order of Investigation Officer Buena, dated September 10, 1996, approved by
24
Ombudsman Aniano Desierto one October 4, 1996.
Meanwhile, an information for Violation of the Anti-Graft and Corrupt Practices Act against both Mayor Constantino and
Norberto Lindong, was filed before the Sandiganbayan on August 8, 1996, also with due approval of Ombudsman
Desierto. 25
Under date of October 22, 1996, Graft Investigation Officer Buena handed down a Resolution finding the petitioner
"GUILTY of grave misconduct, prejudicial to the best interest of the service, and gross neglect of duty," and ordering his
dismissal from the service. 26 That Resolution was, on recommendation of Deputy Ombudsman for Mindanao Margarito P.
Gervacio, Jr. (dated October 25, 1996), approved by Ombudsman Desierto on December 16, 1996. 27
The Resolution of October 22, 1996 adverted to
1) "various dubious legal maneuvers set off by the respondent (Mayor) in an effort to stay the implementation of the order
of preventive suspension" including the filing of a motion for reconsideration of the suspension order, the withdrawal of
counsel, the filing of a motion for inhibition of the investigator and to reset hearings; 28
2) what was considered (a) the strangeness of "why the respondent (Mayor) and Mr. Lindong went through all the trouble
to prepare and execute two separate agreements when they could have immediately executed the
lease-purchase agreement itself," 29 (b) a doubt as to the "validity of the Undertaking . . , it being a unilateral contract as
well as an ancillary one, as opposed to the principal contract which is the lease agreement," in addition to not being
"supported by a consideration;" 30 and (c) the omission of the assent of the Sangguniang Bayan to the contract before its
implementation. 31
On the basis thereof, DILG Regional Director Jaime L. Madridano of Region XI based in Davao City, sent a Memorandum
Order dated December 27, 1996 to Governor Priscilla L. Chiongbian of Sarangani Province, directing her to enforce the
32
directive for Mayor Constantino's dismissal and to install the Vice Mayor in his place. He also issued a "Memorandum" to
Mayor Constantino directing him "to turn over the functions of (his) office to the vice-mayor (Primitiva L. Espinosa)
pursuant to Sec. 44 of RA 7160 . . ." 33 However, this resolution of dismissal has not been implemented because, as
Mayor Constantino himself states, 34after DILG Director Madridano was advised of the institution of the action at bar in this
Court, he "did not insist anymore on the execution of the 'Resolution' (of dismissal) in question."
Mayor Constantino has appealed the Resolution approved by Ombudsman Desierto on December 16, 1996 removing
him from his position as Municipal Mayor by filing the petition for certiorari at bar. 35 He has impleaded as respondents
the Ombudsman, Deputy Ombudsman Gervacio, Jr., and the complainants in the administrative case: Vice-Mayor
Espinosa, and Councilors Madridano, Octavio, Ingay, Asgapo, Espinosa and Suson, Sr. And he cites the following as
special and important reasons to justify a review and nullification of the Resolution issued by respondents Desierto and
Gervacio, to wit:
(1) Petitioner was denied his constitutional right to due process of law when his "Motion for Inhibition", "Notice of Appeal"
and "Motion to Reset Hearing" were denied outright by respondent Gervacio (or Graft Investigation Officer Buena) and not
reviewed by respondent Ombudsman Desierto; and

(2) Respondents Desierto and Gervacio gravely abused their discretion when they pointedly ignored or disregarded the
fact that petitioner merely acted in accordance with Res. No. 21, Series of 1996 and Res. No. 38, Series of 1996 of the
Municipal Council of Malungon, Sarangani, and that he did not exceed his authority with respect to the transaction and the
use of the seven (7) units of heavy equipment acquired by the town.
Private respondents Primitiva Espinosa, Rafael Suson, Pablo Octavio, Leo Ingay, Benjamin Asgapo and Wilfredo
Espinosa filed a "Motion to Dismiss," dated February 3, 1997, which this Court resolved on February 25, 1997, to consider
as their comment on the petition. Regional Director Jaime L. Madriano submitted his comment on the petition, dated
February 21, 1997. The Solicitor General filed a comment in behalf of public respondents, dated April 2, 1997. Mayor
Constantino then presented a Reply, dated June 21, 1997, to private respondents' Motion to Dismiss, to which private
respondents submitted a Rejoinder dated July 2, 1997.
The first contention of Mayor Constantino that it was error for his for his motions for inhibition and to reset hearing "not
(to be) reviewed by respondent Ombudsman Desierto" is unmeritorious, and is quickly disposed of by reference to the
36
terms of Section 28 of Republic Act No. 6770, viz.:
Sec. 28. Investigation in Municipalities, Cities and Provinces. The Office of the Ombudsman may establish offices in
municipalities, cities and provinces outside Metropolitan Manila, under the immediate supervision of the Deputies for
Luzon, Visayas and Mindanao, where necessary as determined by the Ombudsman. The investigation of complaints may
be assigned to the regional or sectoral deputy concerned or to a special investigator who shall proceed in accordance with
the rules or special instructions or directives of the Office of the Ombudsman. Pending investigation, the deputy or
investigator may issue orders and provisional remedies which are immediately executory subject to review by the
Ombudsman. Within three (3) days after concluding the investigation, the deputy or investigator shall transmit, together
with the entire records of the case, his report and conclusions to the Office of the Ombudsman. Within five (5) days after
receipt of said report, the Ombudsman shall render the appropriate order, directive or decision.
The authority of the investigator (Buena) to issue the challenged order, pending investigation of the administrative case
against Mayor Constantino, cannot thus be gainsaid being specifically conferred by the provision just quoted. Indeed, any
such order is, according to said provision, "immediately executory," subject only to review by the Ombudsman.
Prescinding therefrom, the fact is, as already stated, that the impugned order was actually reviewed by a superior officer,
Director Antonio E. Valenzuela (September 13, 1996), then recommended for approval by Deputy Ombudsman Gervacio,
and ultimately approved by Ombudsman Desierto on October 4, 1996. 37 The Mayor's motions therefore received due
attention and consideration although resolved adversely to him. There is no occasion to speak of a denial of due process.
More persuasive is the Mayor's second contention that no liability, whether criminal or administrative, may be imputed to
him since he merely complied with the mandate of Resolution No. 21, series of 1996 and Resolution No. 38, series of
1996, of the Municipal Council; and that the charges leveled against him are politically motivated. A thorough examination
of the records convinces this Court that the evidence against him is inadequate to warrant his dismissal from the service
on the specified grounds of grave misconduct, conduct prejudicial to the best interest of the service and gross neglect of
duty.
The explicit terms of Resolution No. 21, Series of 1996 clearly authorized Mayor Constantino to "lease/purchaseone (1)
fleet of heavy equipment" composed of seven (7) generally described units, through a "negotiated contract." 38 That
resolution, as observed at the outset, contained no parameters as to rate of rental, period of lease, purchase price.
Pursuant thereto, Mayor Constantino, representing the Municipality of Malungon, and Norberto Lindong, representing the
Norlovanian Corporation, executed two written instruments on the same date and occasion, viz.:
One an agreement (on a standard printed form) dated February 28, 1996 for the lease by the corporation to the
municipality of heavy equipment of the number and description required by Resolution No. 21, and
Two an undertaking for the subsequent conveyance and transfer of ownership of the equipment to the municipality at
the end of the term of the lease.
That the Members of the Sangguniang Bayan knew of this "lease/purchase" is evident from Resolution No. 38, Series of
39
1996 unanimously enacted by them shortly after delivery of the equipment. In that resolution they (1) declared that "the
Municipal Government . . has just acquired its fleet of heavy equipment leased/purchased from the Norlovanian
Corporation." and (2) requested Mayor Constantino "to operate the newly acquired heavy equipment .
. leased/purchased from the Norlovanian Corporation." The Resolution is consistent with the allegations of Mayor
Constantino which in any event are not denied by the Councilors or Vice-Mayor Espinosa that:

1) the equipment was delivered to the Municipality by Norlovanian Corporation on February 28, 1996 and duly inspected
by Councilors Guilley, Ruez, Nallos and Liray, as well as the Municipal Engineer and the Municipal Treasurer;
2) prior to the delivery of the units, the Vice Mayor and other Members of the Sangguniang Bayan had opportunity to read
the "Lease Agreement" as well as the "Undertaking" but then raised no objections thereto;
3) neither did they raise any objections (a) at the session of the Municipal Council on February 29, 1996, when Norberto
Lindong explained the terms of the "negotiated contract" of "lease/purchase," or (b) at the time that the units were
delivered and inspected by designated municipal officials.
Now, it is germane to advert to the deplorable inaccuracies in the Joint Affidavit of private respondents (P.L. Espinosa,
40
Suson, Sr., Ingay, W. P. Espinosa, Octavio, Asgapo) submitted as part of their complaint in the Ombudsman's Office.
The affidavit contains a clearly distorted version of Resolution No. 21 of February 22, 1996. In that document the affiants
described Resolution No. 21 as authorizing Mayor Constantino "to purchase and acquire . . heavy equipments (sic) to be
paid within five (5) years at the yearly amortization of P2.2 million . . ." This is a misleading reading of Resolution No. 21.
As the most cursory perusal of that resolution at once discloses, what the Mayor was thereby empowered to do was "to
enter into a negotiated contract" in the Municipality's behalf with "interested parties," in line with the expressed wish of the
Municipality to "lease/purchase one (1) fleet of heavy equipment . ." not simply to "purchase and acquire" said
equipment (as complainant Councilors aver). Neither does Resolution No. 21 state (contrary to complainants' description
of it) that the price shall be "paid within five (5) years at the yearly amortization of P2.2 million . . ;" indeed, as already
above stressed, the resolution is completely silent as regards any terms and conditions of the "negotiated contract" that
the Mayor was assigned to execute in the town's behalf. Such obvious distortions cannot but erode the complainant
councilor's credibility and bona fides.
It is also relevant to draw attention to the flagrantly inaccurate statements and inferences about the Mayor's "negotiated
contract" regarding the heavy equipment, contained in Resolution No. 47 approved only by four (4) Members of the
Municipal Council at its session of June 6, 1996 (the four (4) being Councilors Octavio, Espinosa, Asgapo and
Ingay). 41 That Resolution No. 47, it will be recalled, stopped all "rental payment/expenditures relative to the pool of heavy
equipment of the Norlovanian Company." The stoppage was based on prior resolutions of the Council allegedly setting
down the terms under which the heavy equipment should be acquired, and which terms were supposedly violated by the
Mayor. But unaccountably and again indicative of bad faith, if not malice, on the part of private respondents
Resolution No. 47 made absolutely no reference to the two (2) resolutions which on their face justify the Mayor's contract
with Norlovanian Corporation, to wit: (1) Resolution No. 21 which, having been enacted after the cited resolutions, must
be deemed to have superseded them, and which, to repeat, motivated and constitutes the justification for the leasepurchase agreement entered into by the Mayor and Norlovanian Corporation, and (2) Resolution No. 38 in which the
Councilors not only expressly acknowledge that "the Municipal government . . (had) just acquired its fleet of heavy
equipment leased/purchased from the Norlovanian Corporation," but also, "requested . . (the) Mayor . . to operate the
newly acquired heavy equipment of the municipality leased/purchased from the Norlovanian Corporation." 42
In light of the foregoing facts, which appear to the Court to be quite apparent on the record, it is difficult to perceive how
the Office of the Ombudsman could have arrived at the conclusion of any wrongdoing by the Mayor in relation to the
transaction in question. It is difficult to see how the transaction between the Mayor and Norlovanian Corporation
entered into pursuant to Resolution No. 21 and tacitly accepted and approved by the town Council through its
Resolution No. 38 could be deemed an infringement of the same Resolution No. 21. In truth, an examination of the
pertinent writings (the resolutions, the two (2) instruments constituting the negotiated contract, and the certificate of
delivery) unavoidably confirms their integrity and congruity. It is, in fine, difficult to see how those pertinent written
instruments," could establish a prima facie case to warrant the preventive suspension of Mayor Constantino. A person
with the most elementary grasp of the English language would, from merely scanning those material documents, at once
realize that the Mayor had done nothing but carry out the expressed wishes of the Sangguniang Bayan.
It would appear that Graft Investigator Buena, who drew up the Resolution (eventually approved by the Ombudsman)
finding Mayor Constantino guilty of grave misconduct or gross neglect of duty might have been carried away by his
disapproval of what he thought to be "various dubious maneuvers to delay the early and expedient disposition of . . (the)
case" resorted to by the Mayor "through his various counsels." How those "maneuvers' (assuming their description as
dilatory to be correct) could affect the intrinsic character of the evidence submitted by the parties is, however, quite
beyond the Court.
The investigator also opined that Resolution No. 21 should be interpreted in light of other official documents, executed a
year earlier. He does not explain why he did not adopt the more obvious construction of Resolution No. 21 indicated by
the elementary doctrine that it is within the power and prerogative of the town council to repeal its prior acts, either
expressly, or by the passage of essentially inconsistent resolutions. When the town council passed Resolution No. 21

without any mention whatever of those prior official documents respecting the acquisition of heavy equipment, the evident
intention was to supersede them and to have such acquisition governed solely by Resolution No. 21. This conclusion is
strongly supported by the fact that the Sanggunian expressly admitted in the Second Whereas Clause of its Resolution
No.
21 that there had been a "failure of bidders to submit bids despite of two biddings . . . public announcement" (sic)
the two biddings being obviously related to said earlier official acts of the town council. The conclusion is further bolstered
by the fact that the Council, with full awareness of said "negotiated contract," and of the delivery of equipment thereunder,
had requested the Mayor to put the equipment into operation for the town projects. The Court is thus satisfied that it was
in fact the Council's intention, which it expressed in clear language, to confer on the Mayor ample discretion to execute a
"negotiated contract" with any interested party, without regard to any official acts of the Council prior to Resolution No. 21.
It is also difficult to see why the patent inaccuracies in the affidavit-complaint and Resolution No. 47 43 were ignored as
difficult to understand how the execution of two writings to embody one contract of "lease/purchase" could be regarded as
fatally defective, and even indicative of a criminal conspiracy, or why said two writings should be interpreted in such a way
as to magnify their seeming inconsistencies. The fundamental and familiar legal principle which the Office of the
Ombudsman ignored is that it is perfectly legitimate for a bilateral contract to be embodied in two or more separate
writings, and that in such an event the writings should be read and interpreted together in such a way as to eliminate
seeming inconsistencies and render the parties' intention effectual.
The statement in the appealed Resolution as to the absence of prior consent of the Council to the "negotiated contract"
executed by Mayor Constantino and Norlovanian Corporation flies in the teeth of the evidence; there is unrebutted
proof that the heavy equipment delivered to the Municipality pursuant to the contract, was inspected by designated
councilors and municipal officers; that shortly thereafter, the negotiated contract composed of two documents was
explained and discussed at the session of the town Council of February 29, 1996; and that afterwards the Council
requested Mayor Constantino to put the equipment into operation.
The Court thus considers the ratiocinations and conclusions in the challenged resolution to be so gravely and egregiously
in error as to make necessary said issuances' invalidation by the extraordinary writ of certiorari.
The private respondents' amazing turn-about is patent upon the record, and is branded by Mayor Constantino as a
cunning and treacherous political maneuver an attempted coup to oust him from his position as Mayor otherwise than
through the normal process of election. Be this as it may, the Court cannot and will not allow itself to be made an
instrument of politics, nor be privy to any attempt at the perpetration of injustice.
In view of all the foregoing, the assailed Resolution of the respondent Ombudsman dated October 22, 1996 dismissing
petitioner from the service, as well as the Order of preventive suspension dated May 31, 1996, are REVERSED and SET
ASIDE and petitioner is EXONERATED from the administrative charges against him in CASE NO. OMB-MIN-ADM-96060.
SO ORDERED.

I. The Courts
G.R. NO. 154098 July 27, 2005
JOSE C. MIRANDA vs. HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, in his
*
capacity as Secretary of the DILG, and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela
DECISION
PUNO, J.:
First, the facts.
The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under
preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No.
6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. 1 Subsequently,
then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman
2
(Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312. In the said Complaint, Vice Mayor Navarro
alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the
Ombudsmans preventive suspension order: (a) issued a memorandum addressed to Navarro advising her that he was
assuming his position as City Mayor;3 (b) gave directives to the heads of offices and other employees;4 (c) issued Office
Order No. 11-021 which authorized certain persons to start work;5 and (d) insisted on performing the functions and duties
of Mayor despite Navarrros requests to desist from doing so without a valid court order and in spite of the order of
Department of Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from
reassuming the position.6 Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of
authority or official functions under Article 177 of the Revised Penal Code (RPC). 7
In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good
faith.8 He contended that under Section 63(b) of the Local Government Code, local elective officials could not be
preventively suspended for a period beyond 60 days.9 He also averred that, on the day he reassumed office, he received
a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately
complied with the same.10 Notably, Mayor Mirandas counter-affidavit also stated that he left the mayoralty post after
11
"coercion" by the Philippine National Police.
On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of
Article 177 of the RPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office
of Special Prosecutor to conduct a reinvestigation of the case in light of the manifestations made by prosecution and
defense counsel.12 After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the
dismissal of the case in a Resolution dated 14 September 2000.13 Coquia held that Miranda reassumed his office in "good
14
faith" and on "mistake of fact" due to the "difficult questions of law" involved.
Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquias resolution to the Ombudsmans Chief
Legal Counsel for review. The Chief Legal Counsel disagreed with Coquias findings and recommended the filing of the
case against Mayor Miranda.15 He pointed out that Mayor Mirandas invocation of good faith was belied by the fact that he
received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable
16
and that he should serve out its remaining period. He further noted that Miranda violated the orders of both the
17
Ombudsman and the DILG. Ombudsman Desierto adopted the Chief Legal Counsels recommendation, 18 and the case
was re-raffled to Special Prosecution Officer Evelyn T. Lucero. Subsequently, the prosecution filed an amended
Information with the Sandiganbayan,19 to which the petitioner interposed a negative plea. 20
On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to suspend Mayor
Miranda pendente lite based on Section 13 of Republic Act No. 3019 (R.A. No. 3019), otherwise known as the Anti21
Graft and Corrupt Practices Act. Miranda opposed the motion on the ground that the offense of usurpation of authority
or official functions under Article 177 of the RPC is not embraced by Section 13 of R.A. No. 3019 which only contemplates
offenses enumerated under R.A. No. 3019, Title VII, Book II of the RPC or which involve "fraud upon government or public
funds or property."22
In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor Miranda from office for
23
90 days. The anti-graft court held that a violation of Article 177 of the RPC involves fraud "which in a general sense is
deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of

legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and
24
unconscious advantage is taken of another." It further ruled that Mirandas act fell within the catch-all provision "x x x or
for any offense involving fraud upon government."25 Mirandas motion for reconsideration was denied in the
26
Sandiganbayans Resolution dated 17 June 2002. Hence, the present petition assailing the Sandiganbayans
orders of preventive suspension. The petitioner contends that the Sandiganbayan gravely abused its discretion when it
preventively suspended him on a ground not authorized by law and raises the following issues: (1) whether Section 13 of
R.A. No. 3019 applies only to fraudulent acts involving public funds or property; and (2) whether the crime of usurpation of
authority or official functions involves "fraud upon government or public funds or property" found in Section 13 of R.A. No.
3019.
We rule in the negative.
First. Section 13 of R.A. No. 3019, as amended, provides:
Section 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution
under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving
fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of
execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final
judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime
administrative proceedings have been filed against him.
In the event that such convicted officer, who may have already been separated from the service, has already received
such benefits he shall be liable to restitute the same to the Government.
The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense
involving fraud on the government; and (2) any offense involving public funds or property. Contrary to the submission of
the petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on
public funds or property. The phrase "any offense involving fraud upon government or public funds or property" is clear
and categorical. To limit the use of "government" as an adjective that qualifies "funds" is baseless. The word "public"
precedes "funds" and distinguishes the same from private funds. To qualify further "public funds" as "government" funds,
as petitioner claims is the laws intent, is plainly superfluous. We are bound by the rule that a statute should be construed
reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent
with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to
protect the State from fraud by its own officials.
Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioners act fell
within the catch-all provision "x x x or for any offense involving fraud upon government. The term "fraud" is defined, viz.:
An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding

27

It is obvious to the eyes that the phrase "fraud upon government" means "any instance or act of trickery or deceit against
the government." It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the
preceding phrase "any offense involving . . . public funds or property." It ought to follow that "fraud upon government" was
committed when the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor
under pretense of official position.
The dissent opines that fraud upon government is not necessarily an essential element of the crime of usurpation of
authority. The submission may be correct as a general proposition but general propositions hardly decide a case. In the
case at bar, the issue is whether the alleged acts of usurpation of authority committed by the petitioner involve "fraud upon
government or public funds or property" as the term is understood under Section 13 of R.A. No. 3019. In ruling in the
affirmative, the Sandiganbayan held:
Let us take a look at the acts complained of as alleged in the Amended Information dated July 27, 2001:
x x x the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under
preventive suspension did then and there, willfully, unlawfully and knowingly and under pretense of official position,
assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons
to various positions in the City Government and perform acts pertaining to an office to which he knowingly was deprived
of.

Moreover, in private complainant Amelita S. Navarros Affidavit of Complaint dated November 26, 1997, she said: "x x x,
he proceeded to his office and started giving directives to the various heads of office and other employees, the
unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government."
Accuseds acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said
office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the
employees, as well as the public, suffered confusion as to who is the head of the Office. This actuation of herein accused
constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts,
omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in
damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19).
Hence, the act complained of against accused herein falls in the catchall provision "x x x or for any offense involving fraud
upon government x x x."
Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that "x x x under
Section 13 of the Anti-Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a
determination has been made of the validity of the Information x x x." In fact, as early as 1984 in the case of Bayot v.
Sandiganbayan, 128 SCRA 383, the Honorable Supreme Court speaking thru Justice Relova said:
Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as
a matter of course. There are no ifs and buts about it. x x x
After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms
to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a
negative plea thereto thereby tacitly acquiescing to the validity of the said Information.
There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in
its Motion to Suspend Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said
prayer should be accorded affirmative relief.28 (Citations omitted)
In denying petitioners Motion for Reconsideration, the Sandiganbayan further held:
Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official Function) of the Revised
Penal Code, which is the charge against herein accused, does not fall under the catchall provision of Section 13 of
Republic Act No. 3019 "x x x or for any offense involving fraud upon government or public funds or property x x x." He
said that the acts complained of as alleged in the Information do not constitute fraud upon government or public fund or
property.
Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending
accused pendente lite. The accused argued that the fraud contemplated in the law is one involving (1) government funds
or property; and (2) public funds or property. This is precisely availing in the case at bar. The Information in herein case,
says: "x x x accused x x x assume the duties and functions of the Office of the Mayor, issue directives and memoranda
and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which
he knowingly was deprived of." When accused-mayor appointed persons in various positions, he indirectly dealt with the
citys funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration
which will be paid wholly or mainly out of the citys funds. Additionally, when he performed acts pertaining to the Office of
the Mayor, i.e.[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly
dealt with the funds of the city.
Moreover, as the prosecution said, "when accused Miranda, willfully and knowingly, during the effectivity of his
suspension barged into the City Hall, issued orders and directives and performed functions as City Mayor, he was sending
the unwritten yet visible message that he was authorized to do and function as such. x x x." We hold this as a fraud upon
government resulting in the chaos or confusion albeit temporary, as the employees would be in a quandary whom to
follow or obey.
Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the
prosecution, there is no cogent reason for this Court to depart from its previous ruling. Further, considering the mandatory
tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby denied.
Accordingly, the Motion for Reconsideration is denied for lack of merit.29

This Court finds no reason to disagree with the Sandiganbayan. Its conclusions are amply supported by the record.
Additionally, the issue of whether petitioner committed fraud upon the government or public funds or property is
essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the
respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of
30
fact or law which do not amount to grave abuse of discretion.
The dissenting opinion, however, says there was no fraud. It holds that "it would be fraud of public funds if these public
officials just collected their salaries without rendering service to the government." It further asserts that "fraud upon
government" must be read so as to require that malversation of funds was committed. 31 This is a complete volte
face from its claim that Section 13 of R.A. No. 3019 covers two types of offenses: (1) any offense involving fraud upon
the government; and (2) any offense involving public funds or property. 32What is more, adopting the dissenting
opinions line of reasoning would render superfluous the phrase "fraud upon government" as malversation is subsumed by
"any offense involving public funds or property."
Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that
he was no longer under preventive suspension. Petitioners pretense cannot stand scrutiny.Petitioners own affidavit
states:33
8. That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number
of ONE HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period
of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for
under the Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon the advise
(sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume my office as the duly elected City
Mayor of Santiago City;
9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City;
surprisingly on the same date, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R.
Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office;
10. For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly harassed and
threatened me and my constituents with bodily harm using the strong arm of the law thru the brute force of the PNP
courteousy (sic) of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from performing my duties
and functions to avoid any possible unfortunate incident that may happen to me and any constituents; x x
x.34 (Emphases supplied)
By petitioners own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez
and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This contradicts his
assertion that he immediately complied with the memorandum of Undersecretary Sanchez.35Petitioner cannot escape
from his own admission.
To be sure, petitioners honest belief defense is old hat. In the 1956 case of People v. Hilvano,36 the facts are:
When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning of
September 22, 1952, he designated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his
office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal building; and having
found Hilvano acting in the place of the Mayor, he served written notices to the corresponding municipal officers, including
Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano refused to
yield, arguing that he had been designated by the Mayor. Whereupon the Vice-Mayor sent a telegram to the Executive
Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of the
Revised Administrative Code it was the Vice-Mayor who should discharge the duties of the Mayor during the latters
temporary absence. Shown this official pronouncement, Hilvano still refused to surrender the position. Again the ViceMayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the
office. Notwithstanding such opinion which was exhibited to him Hilvano declined to vacate the post, which he held for
about a month, appointing some policemen, solemnizing marriages and collecting the corresponding salary for mayor.
Wherefore Francisco Hilvano was prosecuted and after trial was convicted of usurpation of public authority under
Republic Act No. 10. He appealed in due time.
In rejecting the defense of the accused Hilvano, we ruled:37

There is no excuse for defendant-appellant. In the beginning he might have pleaded good faith, invoking the designation
by the Mayor; but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal,
he had no right thereafter stubbornly to stick to the position. He was rightfully convicted.
Petitioners excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged
that he merely followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of
law, they should have assailed the validity of the order of suspension in court instead of taking the law into their own
hands.
Fourth. It should be stressed that petitioner was suspended by the Sandiganbayan. Under Section 13 of R.A. No.
3019, this suspension is mandatory if the information is sufficient. Understandably, the dissent argues that the Amended
Information is insufficient in form as it should have "expressly and clearly stated that Miranda re-assumed office to defraud
the government or that in re-assuming office Miranda committed acts that defrauded the government"38 and that it is
improper to take into account the petitioners admissions in his affidavit for this purpose.
With due respect, the dissent is way off-line. The records will show that petitioner did not file a motion to quash the
information or a motion for bill of particulars before pleading to the information. It is basic that entering a plea waives any
objection the petitioner may have to the validity of the information except on the following grounds: (1) the information
charges no offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the offense has been
39
extinguished; and (4) double jeopardy has attached. Objections to the sufficiency of the allegations in the Amended
Information do not fall among the exceptions to the rule. They fall under the objection that the information "does not
conform substantially to the prescribed form."40 Needless to state, the petitioner has by his acts acquiesced to the validity
and sufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that
the petitioner has been deprived of his constitutional right to be apprised of the nature and cause of the accusation
against him. Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it
is the petitioner who should raise this objection in a motion to quash or motion for bill of particulars before entering
his plea.41 The irregular procedure followed by the dissent would encourage the pernicious practice of "sandbagging"
where counsel foregoes raising a pleading defect before trial where it can be easily corrected only to raise the defect later
in the hope of obtaining an arrest of judgment or new trial from a sympathetic magistrate. 42 It is precisely this evil that is
addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure.
Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a timely fashion by the
petitioner, the dissenting opinions arguments still do not convince. The validity or sufficiency of allegations in an
information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz:
SECTION 9. Cause of the Accusation. The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is
being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. 43
The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged. The raison detre of the rule is to enable the accused to suitably prepare his
defense.44 A perusal of the Amended Information will bear out that it has hurdled this legal bar. We quote its contents:
That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while
under preventive suspension, did, then and there, willfully, unlawfully, and knowingly and under pretense of official
position, assume the duties and function of the Office of the Mayor, issue directives and memoranda, and appoint certain
persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was
45
deprived of.
Using this test, it cannot be said that the Amended Information failed to properly apprise the petitioner of the charge
against him. The information charged the petitioner with assuming the duties and performing acts pertaining to the office
of Mayor willfully, unlawfully and knowingly under the pretense of official position. Moreover, it states some of the specific
acts which constitute usurpation of official functions, namely, issuing directives and memoranda and appointing certain
persons to various positions in the city government. These allegations are clear enough for a layman to understand.
Indeed, even the petitioner does not complain about their ambiguity. Only the dissent does.
Fifth. The dissenting opinion also contends that the Ombudsmans authority to preventively suspend local elective
officials for 6 months is limited by Section 63(b) of the Local Government Code. Under the latter law, petitioner can only

be suspended for a maximum period of 60 days. It then jumps to the conclusion that petitioner could not have usurped
authority because he reassumed office after 60 days.46
With due respect, the dissent fails to focus on the proper issue. The issue before this Court is whether
the Sandiganbayan committed a grave abuse of discretion in suspending the petitioner for 90 days. The validity of
the Ombudsmans order of preventive suspension of the petitioner for 6 months is not the one assailed in the case at
bar. The irrelevance of the suspension order of the Ombudsman notwithstanding, the reliance of the dissenting opinion
on Garcia v. Mojica is inapropos. In Garcia, we held:
Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive
suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it
does appear to us that the imposition of the maximum period of six months is unwarranted.
On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents
mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers),
documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he
claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension
was to enable the investigating authority to gather documents without intervention from petitioner, then, from
respondents' submission, we can only conclude that this purpose was already achieved, during the nearly
month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against
petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum
six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate
case against petitioner. We must conclude that the period during which petitioner was already preventively suspended,
has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or
harassing and preventing witnesses who wish to appear against him.
We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local
Government Code, which he averred should apply to this case of an elective local official, has been
violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a
maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges
against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue,
administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the
Local Government Code. Respondents point out that the shorter period of suspension under the Local Government
Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who
may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of
preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is
valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive
suspension. 47 (Emphases supplied)
Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the Ombudsman. In fact,
the Court expressly stated that its decision was rendered without subscribing to the petitioners claim that the Local
Government Code had been violated. In fine, the Court only ruled that the Ombudsman acted with grave abuse of
discretion in imposing a 6-month preventive suspension since it was admitted that the documents required were already
obtained by 19 July 1999 or 24 days after the imposition of the preventive suspension. Therefore, the purpose for which
the suspension was imposed was already served.
48

The dissenting opinion also cites the case of Rios v. Sandiganbayan as basis for assailing the Ombudsmans order of
preventive suspension. Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case,
not those of the Ombudsman. It is also worth noting that Rios cited Section 63 of the Local Government Code as its legal
basis. This provision provides:
SECTION 63. Preventive Suspension. (a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent
component city;
(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong,
and given the gravity of the offense, there is great probability that the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any
single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in
the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for
more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first
suspension.
(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office
without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty
(120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the
case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be
counted in computing the time of termination of the case.
It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to
impose excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not
meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political
personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is
not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office
which is protected by no less than the Constitution. This view was embraced by the Court in Hagad v. GozoDadole49 and Garcia v. Mojica.50 In Hagad, we held:
Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the
Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local
Government Code to even now maintain its application. The two provisions govern differently. In order to justify
the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong,
and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect
in the performance of duty; (b) that the charges should warrant removal from the service; or (c) the respondent's
continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive
suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in
imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991
on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground
to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the
gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose
a threat to the safety and integrity of the records and other evidence.51
In the same vein, we made the following observations in Garcia, viz.:
Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under
the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor,
governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office,
always ought to be insulated from the vagaries of politics, as respondents would have us believe. x x x
It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too
repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the
two provisions govern differently." 52 (Emphases supplied)
There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that
Senator Pimentel53 explained during the Senate deliberations that the purpose of Section 63 of the Code is to prevent
the abuse of the power of preventive suspension by members of the executive branch, to wit:
The President.54 I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting
through the Secretary of Local Government, I think, Luis Santos, to suspend him - Senator Pimentel. That is true, Mr. President.
The President. - - contending that under the new Constitution, even the President does not have that right.

Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule
regarding the power of removal and suspension by the Office of the President over local government officials,
Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of
suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year,
regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had
in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing
of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr.
President.
The President. Can that be done under this new Code?
Senator Pimentel. Under our proposal, that can no longer be done, Mr. President.55
Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman,
56
which is a constitutionally created office and independent from the Executive branch of government. The Ombudsmans
57
power of preventive suspension is governed by Republic Act No. 6770, otherwise known as "The Ombudsman Act of
1989," which provides:
SECTION 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or
employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge
against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of
duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than
six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to
the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.58 (Emphasis supplied)
The six-month period of preventive suspension imposed by the Ombudsman59 was indubitably within the limit provided by
its enabling law. This enabling law has not been modified by the legislature.
The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping the limit for
executive officials at sixty days violates the constitutional proscription against equal protection of the law. In essence, it
avers that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those
imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has
endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory
protections are fiscal autonomy,60 fixed term of office61 and classification as an impeachable officer.62 This much was
recognized by this Court in the earlier cited case of Garcia v. Mojica.63Moreover, there are stricter safeguards for
imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman
determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the
charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in
64
office may prejudice the case filed against him.
The dissenting opinion finally points out the possibility of abuse by the Ombudsman in imposing preventive suspensions.
The short reply is that all powers are susceptible of abuse but that is no reason to strike down the grant of power. Suffice
it to say that the proper remedies against abuse in the exercise of power are a petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure or amendment of the Ombudsmans enabling law by the legislature, not a contortionist
statutory interpretation by this Court.
IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing that the Sandiganbayan gravely abused
its discretion in issuing its Resolution of 4 February 2002, preventively suspending the petitioner for 90 days.
SO ORDERED.

G.R. No. 137237

September 17, 2002

ANTONIO PROSPERO ESQUIVEL and MARK ANTHONY ESQUIVEL vs. THE HON. OMBUDSMAN, THE
SANDIGANBAYAN (THIRD DIVISION), THE PEOPLE OF THE PHILIPPINES and HERMINIGILDO EDUARDO
RESOLUTION
QUISUMBING, J.:
This special civil action for certiorari, prohibition, and mandamus1 with prayer for preliminary injunction and/or temporary
2
restraining order seeks to annul and set aside: (1) the Ombudsman resolution dated June 15, 1998 finding prima
3
facie case against herein petitioners, and (2) the order denying petitioners motion for reconsideration. Further, in their
4
supplemental petition, petitioners assail the Sandiganbayan for taking cognizance of cases without or beyond its
jurisdiction. They impleaded that court and the People of the Philippines as additional parties in this case.1wphi1.nt
The factual antecedents of this case are as follows:
PO2 Herminigildo C. Eduardo and SPO1 Modesto P. Catacutan are both residents of Barangay Dampulan, Jaen, Nueva
Ecija, but assigned with the Regional Intelligence and Investigation Division (RIID), Police Regional Office 3, Camp
5
Olivas, San Fernando, Pampanga. In their respective complaint-affidavits, filed before the Philippine National Police
Criminal Investigation and Detection Group (PNP-CIDG), Third Regional Office, Camp Olivas, San Fernando, Pampanga,
Eduardo and Catacutan charged herein petitioners Antonio Prospero Esquivel, 6municipal mayor of Jaen and his brother,
Mark Anthony "Eboy" Esquivel, barangay captain of barangay Apo, Jaen, with alleged illegal arrest, arbitrary detention,
maltreatment, attempted murder, and grave threats. Also included in the charges were SPO1 Reynaldo Espiritu, SPO2
Nestor Villa Almayda, and LTO Officer Aurelio Diaz. PO2 Eduardo and SPO1 Catacutan likewise accused P/S Insp.
Bienvenido C. Padua and SPO3 Inocencio P. Bautista of the Jaen Municipal Police Force of dereliction of duty.
The initial investigation conducted by the PNP-CIDG showed that at about 12:30 p.m. of March 14, 1998, PO2 Eduardo
was about to eat lunch at his parents house at Sta. Monica Village, Dampulan, Jaen, Nueva Ecija, when petitioners
arrived. SPO1 Espiritu, SPO2 Almayda, LTO Officer Diaz, and several unidentified persons accompanied them. Without
further ado, petitioners disarmed PO2 Eduardo of his Cal. 45 service pistol, which was covered by a Memorandum
Receipt and COMELEC Gun Ban Exemption. They then forced him to board petitioners vehicle and brought him to the
Jaen Municipal Hall.
PO2 Eduardo also stated that while they were on their way to the town hall, Mayor Esquivel mauled him with the use of a
firearm and threatened to kill him. Mayor Esquivel pointed a gun at PO2 Eduardo and said, "Putang-ina mo, papatayin
kita, aaksidentihin kita dito, bakit mo ako kinakalaban!" (You son of a bitch! I will kill you, I will create an accident for you.
Why are you against me?) Upon reaching the municipal hall, Barangay Captain Mark Anthony "Eboy" Esquivel shoved
PO2 Eduardo inside an adjacent hut. Mayor Esquivel then ordered SPO1 Espiritu to kill him, saying "Patayin mo na iyan
at gawan ng senaryo at report." (Kill him, then create a scenario and make a report.)
At this point, according to SPO1 Catacutan, he arrived to verify what happened to his teammate, PO2 Eduardo, but Mayor
Esquivel likewise threatened him. Mayor Esquivel then ordered P/S Insp. Bienvenido Padua of the Jaen Police Station to
file charges against PO2 Eduardo. Then, the mayor once again struck PO2 Eduardo in the nape with a handgun, while
Mark Anthony "Eboy" Esquivel was holding the latter. PO2 Eduardo then fell and lost consciousness. When he regained
his consciousness, he was told that he would be released. Prior to his release, however, he was forced to sign a
statement in the police blotter that he was in good physical condition.
PO2 Eduardo told the PNP-CIDG investigators that he was most likely maltreated and threatened because
of jueteng and tupada. He said the mayor believed he was among the law enforcers who raided a jueteng den in Jaen that
same day. He surmised that the mayor disliked the fact that he arrested members of crime syndicates with connections to
the mayor.7
In support of his sworn statement, PO2 Eduardo presented a medical certificate showing the injuries he suffered and
other documentary evidence.8
After the initial investigation, the PNP-CIDG Third Regional Office forwarded the pertinent records to the Office of the
Deputy Ombudsman for Luzon for appropriate action.9

The Office of the Deputy Ombudsman for Luzon conducted a preliminary investigation and required petitioners and their
10
companions to file their respective counter-affidavits. In their joint counter-affidavit, petitioners and their companions
denied the charges against them. Instead, they alleged that PO2 Eduardo is a fugitive from justice with an outstanding
warrant of arrest for malversation. They further alleged that the gun confiscated from PO2 Eduardo was the subject of an
illegal possession of firearm complaint.
11

On June 15, 1998, the Deputy Ombudsman for Luzon issued the impugned resolution recommending that both Mayor
Esquivel and Barangay Captain Mark Anthony "Eboy" Esquivel be indicted for the crime of less serious physical injuries,
and Mayor Esquivel alone for grave threats. The charges against the other respondents below were dismissed, either
provisionally or with finality.
On August 14, 1998, Ombudsman Aniano A. Desierto approved the aforesaid resolution.
12

Thereafter, separate informations docketed as Criminal Case No. 24777 for less serious physical injuries against Mayor
13
Esquivel and Mark Anthony "Eboy" Esquivel, and Criminal Case No. 24778 for grave threats against petitioner mayor,
were filed with the Sandiganbayan.
On August 26, 1998, petitioners moved for reconsideration of the August 14, 1998 resolution of the Deputy Ombudsman
14
for Luzon. As directed by the Sandiganbayan, they likewise filed a motion for reconsideration/reinvestigation with the
15
Office of the Special Prosecutor (OSP). That motion was, however, denied by the OSP in the assailed order dated
December 7, 1998. On December 11, 1998, the Ombudsman approved the OSPs order of denial.
On February 8, 1999, petitioners were arraigned in both cases, and they pleaded not guilty to the charges.
With their failure to extend the suspension of proceedings previously granted by the Sandiganbayan by virtue of their
motion for reconsideration, petitioners elevated the matter to this Court alleging grave abuse of discretion on the part of
public respondents in rendering the resolution and the order.
On June 9, 1999, we denied for lack of merit petitioners motion16 reiterating their plea for the issuance of a TRO directing
public respondents to refrain from prosecuting Criminal Cases Nos. 24777 and 24778. 17
Petitioners now submit the following issues for our resolution:
1. WHETHER OR NOT RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN DISREGARDING THE
ADMISSION OF PRIVATE RESPONDENT THAT HE WAS IN GOOD PHYSICAL CONDITION WHEN HE WAS
RELEASED FROM THE POLICE HEADQUARTERS OF JAEN, NUEVA ECIJA;
2. WHETHER OR NOT RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN FINDING PROBABLE
CAUSE FOR GRAVE THREATS WHEN PETITIONERS WERE LEGALLY EFFECTING THE ARREST OF THE PRIVATE
RESPONDENT BY VIRTUE OF THE WARRANT OF ARREST ISSUED BY THE REGIONAL TRIAL COURT OF GAPAN,
NUEVA ECIJA UNDER CRIM. CASE NO. 4925 FOR MALVERSATION OF GOVERNMENT PROPERTY; and
3. WHETHER OR NOT RESPONDENT SANDIGANBAYAN HAS JURISDICTION OVER THE OFFENSES FILED
AGAINST PETITIONERS.
Petitioners formulation of the issues may be reduced to the following:
(1) Did the Ombudsman commit grave abuse of discretion in directing the filing of the informations against petitioners?
(2) Did the Sandiganbayan commit grave abuse of discretion in assuming jurisdiction over Criminal Cases Nos. 24777
and 24778?
Petitioners argue that the Ombudsman committed grave abuse of discretion when he failed to consider the exculpatory
evidence in their favor, namely, the admission of PO2 Eduardo that he was in good physical condition when he left the
police station in Jaen, Nueva Ecija.18 With such admission, PO2 Eduardo is now estopped from claiming that he was
injured since it is conclusive evidence against him and need not be proven in any other proceeding. 19
Public respondents, represented by the Office of the Ombudsman through the OSP, counter that petitioners raise a
factual issue which is not a proper subject of a certiorari action. They further postulate that this is the very same defense

advanced by petitioners in the charges against them and being evidentiary in nature, its resolution can only be threshed
out in a full-blown trial.20
We find the present petition without merit.
The Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the
appropriate courts.21 Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsmans exercise
of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise.22 Said exercise of
23
powers is based upon his constitutional mandate and the courts will not interfere in its exercise. The rule is based not
only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the
Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory
proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the
same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors
each time they decided to file an information or dismiss a complaint by a private complainant. 24 Thus, in Rodrigo, Jr. vs.
Sandiganbayan,25 we held that:
This Court, moreover, has maintained a consistent policy of non-interference in the determination of the Ombudsman
regarding the existence of probable cause, provided there is no grave abuse in the exercise of such discretion.
In this case, petitioners utterly failed to establish that the Ombudsman acted with grave abuse of discretion in rendering
the disputed resolution and order.
There was no abuse of discretion on the part of the Ombudsman, much less grave abuse in disregarding PO2 Eduardos
admission that he was in good physical condition when he was released from the police headquarters. 26 Such admission
was never brought up during the preliminary investigation. The records show that no such averment was made in
27
petitioners counter-affidavit nor was there any document purporting to be the exculpatory statement attached therein as
an annex or exhibit. Petitioners only raised this issue in their motion for reconsideration. 28 In his opposition to said motion,
PO2 Eduardo did admit signing a document to the effect that he was in good physical condition when he left the police
station. However, the admission merely applied to the execution of said document and not to the truthfulness of its
contents. Consequently, the admission that petitioners brand as incontrovertible is but a matter of evidence best
addressed to the public respondents appreciation. It is evidentiary in nature and its probative value can be best passed
upon after a full-blown trial on the merits.
Given these circumstances, certiorari is not the proper remedy. As previously held, but now bears stressing:
. . . [t]his Court is not a trier of facts and it is not its function to examine and evaluate the probative value of all evidence
presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order. 29
Petitioners would have this Court review the Sandiganbayans exercise of jurisdiction over Criminal Cases Nos. 24777-78.
Petitioners theorize that the latter has no jurisdiction over their persons as they hold positions excluded in Republic Act
No. 7975.30 As the positions of municipal mayors and barangay captains are not mentioned therein, they claim they are
31
not covered by said law under the principle of expressio unius est exclusio alterius.
Petitioners claim lacks merit. In Rodrigo, Jr. vs. Sandiganbayan,32 Binay vs. Sandiganbayan,33 and Layus vs.
Sandiganbayan,34 we already held that municipal mayors fall under the original and exclusive jurisdiction of the
Sandiganbayan. Nor can Barangay Captain Mark Anthony Esquivel claim that since he is not a municipal mayor, he is
35
outside the Sandiganbayans jurisdiction. R.A. 7975, as amended by R.A. No. 8249, provides that it is only in cases
where "none of the accused (underscoring supplied) are occupying positions corresponding to salary grade 27 or
higher"36 that "exclusive original jurisdiction shall be vested in the proper regional trial court, metropolitan trial court,
municipal trial court, and municipal circuit court, as the case may be, pursuant to their respective jurisdictions as provided
37
in Batas Pambansa Blg. 129, as amended." Note that under the 1991 Local Government Code, Mayor Esquivel has a
38
salary grade of 27. Since Barangay Captain Esquivel is the co-accused in Criminal Case No. 24777 of Mayor Esquivel,
whose position falls under salary grade 27, the Sandiganbayan committed no grave abuse of discretion in assuming
jurisdiction over said criminal case, as well as over Criminal Case No. 24778, involving both of them. Hence, the writ of
certiorari cannot issue in petitioners favor.
For the same reason, petitioners prayer for a writ of prohibition must also be denied.

First, note that a writ of prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction
39
to which it has no legal claim. As earlier discussed, the Sandiganbayans jurisdiction over Criminal Cases Nos. 24777-78
is clearly founded on law.
Second, being an extraordinary remedy, prohibition cannot be resorted to when the ordinary and usual remedies provided
40
by law are adequate and available. Prohibition is granted only where no other remedy is available or sufficient to afford
redress. That the petitioners have another and complete remedy at law, through an appeal or otherwise, is generally held
sufficient reason for denying the issuance of the writ. 41 In this case, petitioners were not devoid of a remedy in the
ordinary course of law. They could have filed a motion to quash the informations at the first instance but they did not. They
have only themselves to blame for this procedural lapse as they have not shown any adequate excuse for their failure to
do so. Petitioners did make a belated oral motion for time to file a motion to quash the informations, during their much
42
delayed arraignment, but its denial is not a proper subject for certiorari or prohibition as said denial is merely an
43
interlocutory order.
Third, a writ of prohibition will not be issued against an inferior court unless the attention of the court whose proceedings
are sought to be stayed has been called to the alleged lack or excess of jurisdiction. 44 The foundation of this rule is the
45
respect and consideration due to the lower court and the expediency of preventing unnecessary litigation; it cannot be
presumed that the lower court would not properly rule on a jurisdictional objection if it were properly presented to it. 46 The
records show that petitioners only raised the issue of the alleged lack of jurisdiction by the Sandiganbayan before this
Court.1wphi1.nt
Nor can petitioners claim entitlement to a writ of mandamus. Mandamus is employed to compel the performance, when
refused, of a ministerial duty, this being its chief use and not a discretionary duty. 47 The duty is ministerial only when the
discharge of the same requires neither the exercise of official discretion nor judgment. 48 Hence, this Court cannot issue a
writ of mandamus to control or review the exercise of discretion by the Ombudsman, for it is his discretion and judgment
that is to be exercised and not that of the Court. When a decision has been reached in a matter involving discretion, a writ
of mandamus may not be availed of to review or correct it, however erroneous it may be. 49 Moreover, as earlier
discussed, petitioners had another remedy available in the ordinary course of law. Where such remedy is available in the
ordinary course of law, mandamus will not lie.50
WHEREFORE, the instant petition is DISMISSED for lack of merit. Costs against petitioners.
SO ORDERED.

VIII. KATARUNGANG PAMBARANGAY LAW

Liga ng mga Barangay
G.R. No. 109455 November 11, 1993
RAUL A. GALAROSA, in his capacity as incumbent President and Representative of the Association of Barangay
Captains of the Municipality of Sorsogon, Sorsogon vs. HON. EUDARLIO B. VALENCIA, in his capacity as the
Presiding Judge of the Regional Trial Court of Sorsogon, Branch 52, SANGGUNIANG BAYAN OF SORSOGON;
and RODOLFO SALAY
DAVIDE, JR., J.:
At the hub of the present controversy is Section 494 of Republic Act No. 7160, otherwise known as the Local Government
Code of 1991, which provides as follows:
Sec. 494. Ex officio Membership in Sanggunians. The duly elected presidents of the Liga [ng mga Barangay] at the
municipal, city and provincial levels, including the component cities and municipalities of Metropolitan Manila, shall serve
as ex-officio members of the sanggunian bayan, sanggunian panglunsod, and sanggunian panlalawigan, respectively.
They shall serve as such only during their term of office as presidents of the liga chapters, which in no case shall be
beyond the term of office of the sanggunian concerned.
Petitioner Raul A. Galarosa (hereinafter GALAROSA) is the incumbent president of the katipunang bayan or Association
of Barangay Councils (ABC) 1 of the municipality of Sorsogon, province of Sorsogon, and was appointed as a member of
the Sanggunian Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Section 146 of Batas
Pambansa Blg. 337, the quondam local government code. The salient issue in this case is whether or not GALAROSA
can continue to serve as a member of the SB beyond 30 June 1992, the date when the term of office of the elective
members of the SB of Sorsogon expired. The respondent Judge ruled that GALAROSA could not; GALAROSA thinks
otherwise and asks us to set aside the decision of the court a quo.
In August 1992, private respondent Rodolfo Lasay (hereinafter LASAY), the incumbent barangay captain of barangay
Gimaloto of the municipality of Sorsogon and an aspirant for the position of president of the ABC of the said municipality,
filed with the court a quo against the public respondent SB of Sorsogon a petition for declaratory relief and injunction with
a prayer for the issuance a temporary restraining order. LASAY sought the determination by the court of the "appropriate,
proper interpretation of the provision of Sec. 494 of Republic Act No. 7160" and of "whether or not the President of the
Association of Barangay Captains can continue holding office despite the termination of the Terms of Office of
the Sangguniang Bayan of Sorsogon on June 30, 1992. 2 He posited the theory that the term of office of GALAROSA as
an ex officio member of the SB of Sorsogon is coterminous with that, of the said SB which expired on 30 June 1992;
hence there was a need for the new election of an ABC representative. He further alleged that during its session, the SB
of Sorsogon accepted and recognized the participation of GALAROSA over his (LASAY's) protest, allegedly on the basis
of the memorandum of the Department of Interior and Local Government (DILG) allowing the ABC presidents elected
before 30 June 1992 to continue in office until the election of new ones. LASAY then prayed for the issuance of a
temporary restraining order enjoining the SB of Sorsogon from recognizing GALAROSA as an ex officio member thereof
and from allowing him to participate in its deliberations, for the holding in abeyance of GALAROSA's salaries, and, after
hearing, for a judgment "embodying the literal interpretation of Sec. 494 of the New Local Government Code to the effect
that the term of office of the ex officio membership to the Sangguniang Bayan of the President; of [the] ABC should in no
case be beyond the term of office of said Sangguniang Bayan." The case was docketed as Civil Case No. 5755.
3

In its Answer, the SB of Sorsogon, represented by the Provincial Prosecutor, asked for the dismissal of the petition
because (a) LASAY "has no legal right to file the petition or the petition "is based on pure speculative rights," and (b) the
petition is premature since the resolution of the issues raised may still be the subject of rules and regulations to implement
Section 494 of the Code.
On 9 September 1992, the trial. court, per respondent Judge Eudarlio B. Valencia issued a temporary restraining order
directing the SB of Sorsogon "to desist from recognizing the participation of the old Ex officio membership of the President
of the Association of Barangay Captains and to hold in abeyance the taking and/or payment of salaries from the Municipal
Government of Sorsogon relative thereto." 4 It set the hearing on the application for a writ of preliminary injunction on 22
September 1992. On the latter date, the court heard LASAY and the SB of Sorsogon. It then issued an order granting the
parties thirty days within which to file their memoranda in support of their respective positions, after which both the
incident on the preliminary injunction and the merits of the case shall be deemed submitted for decision. 5

On 22 October 1992, the respondent Judge issued an order granting the application for the issuance of a writ of
6
preliminary injunction upon the filing of a bond of P40,000.00.
7

On 26 January, 1993, GALAROSA filed with the court a quo an Appearance with Motion to Annul Injunction order. He
prayed therein that the 22 October 1992 Order be annulled, that the SB of Sorsogon be directed to recognize his
participation as an ex officio member thereof, that he be allowed to enjoy all the benefits and emolument's of the and that
his appearance be noted.
On 26 February, 1993, the respondent Judge issued an order noting the above pleading of GALAROSA and directing
LASAY to file his "comment and/or opposition thereto" within five days from receipt of a copy of the said order, after which
8
"the incident shall be deemed submitted for resolution."
The trial court never resolved that "incident."
On 24 March 1993, the respondent Judge handed down a decision 9 in favor of LASAY, the adjudicatory portion of which
reads as follows:
WHEREFORE, in the light of all the foregoing considerations, judgment is hereby rendered:
(1) Declaring the incumbent President of the Association of Barangay Captains of Sorsogon as without any further right or
legal basis to continue in office as ex-officio member of the present Sangguniang Bayan of Sorsogon pursuant to and
conformably with Section 494 of Republic Act No, 7160; and
(2) Ordering the respondent Sangguniang Bayan of Sorsogon to cease and desist from recognizing the participation of the
old ex-officio membership of the President of the Association of Barangay Captains of the town of Sorsogon.
In holding for LASAY, the respondent Judge rejected the claim of the SB of Sorsogon that (1) pursuant to DILG
Memorandum Circular No. 92-38 dated 29 June 1992, Section 494 of the Local Government Code was reconciled with
Article 210 (d)(3), Rule XXIX of the Rules and Regulations Implementing the said Code which provides that incumbent
ABC presidents shall continue to serve as ex officio members of their respective sanggunians unless sooner removed for
cause or the new officers shall have been elected and qualified; (2) LASAY is not the proper party in interest and even if
he is, he did not exhaust all available administrative remedies; and (3) what is involved is a political question which is
beyond the province of the trial court. As to the first, the respondent judge ruled that Article 210 of the Rules and
Regulations does not expressly provide that the term of office of the ABC presidents as ex officio members of the SB shall
go beyond the term of the SB concerned; since the term of the sanggunian concerned expired on 30 June 1992, it stands
to follow that the ex officio membership of the liga president in the said sanggunian, by express mandate of law, likewise
ended on the said date. As to the exhaustion of administrative remedies, the respondent Judge ruled that it is not
applicable since the issue involved is "purely a legal one". He rejected the "political question" issue by stating that the
interpretation of laws, rules, and regulations is a judicial function and prerogative. Furthermore, he invoked Section 1,
Article VIII of the 1987 Constitution on the scope of judicial review. The respondent Judge did not squarely tackle the
issue regarding the locus standi of LASAY, although he described LASAY as "the incumbent Barangay Captain of
Gimaloto . . . a declared aspirant for President of the [ABC] . . . as well as being a taxpayer claiming direct interest to
complain, protest and seek the proper relief."
Unable to accept the decision, GALAROSA filed this petition which we have decided to treat as one for certiorariunder
Rule 65. He submits therein that:
THE RESPONDENT JUDGE ERRED WHEN HE RULED THAT THE PETITIONER, DESPITE HIS INCUMBENCY AS
THE REPRESENTATIVE OF THE ASSOCIATION OF BARANGAY COUNCILS OF THE MUNICIPALITY OF
SORSOGON, HAS NO LONGER ANY LEGAL BASIS OR RIGHT TO HIS EX-OFFICIO MEMBERSHIP IN THE
SANGGUNIANG BAYAN OF THE MUNICIPALITY OF SORSOGON.
We required the respondents to comment on the petition, and on 3 June 1993 we issued a temporary restraining order
directing the respondent Judge to cease and desist from implementing and effecting the challenged decision.
In his comment, LASAY states that GALAROSA, not being a party to the case before the trial court, has no right to file the
instant petition. LASAY argues that although GALAROSA had filed a motion for intervention, that pleading was not acted
upon by the trial court. As to the merits of the petition, he asks that we sustain the challenged decision because it is in
accord with existing jurisprudence and the principles of statutory construction; he also avers that Memorandum Circular
No. 92-38 of the DILG, which is relied upon by GALAROSA, violates and contravenes the clear mandate of Section 494 of

the Code which provides that in no case shall the membership of the ex officio members of the SB extend beyond the
term of the SB concerned, which ended on 30 June 1992. GALAROSA filed a Reply to this Comment to which LASAY
filed a rejoinder. Not to be out done, the former filed a Sur-rejoinder.
On 14 July 1993, the Office of the Solicitor General filed its comment. While not explicitly saying so, it asks us to grant the
petition and to set aside the challenged decision because there respondent Judge should have dismissed the action on
the following grounds: (a) LASAY failed to present a justiciable controversy since he is not an ABC president but a mere
aspirant thereto, or, elsewise stated, his right to an ex officio membership in the SB is purely anticipatory; (b) not being an
ABC president, LASAY is not a proper party to assail the ex officiomembership of GALAROSA; and (c) the latter, who was
to be directly affected by the petition of LASAY, was not named a party-respondent; in view of this "non-joinder of proper
part[y]," respondent Judge should have dismissed the petition outright pursuant to Section 5, Rule 64 of the Revised
Rules of Court.
We resolved to give due course to the petition and required the parties to submit their respective memoranda, which the
subsequently complied with.
Before proceeding to the main issue, we will address some issues which the parties have raised, to wit: (a) the legal
personality of LASAY to file the petition for declaratory relief and injunction with the trial court, (b) the absence of a
justiciable controversy, (c) the non-joinder of an indispensable party in the said petition, and (d) the precipitateness of the
trial court's decision.
It must be stressed that the petition filed by LASAY with the trial court is one for declaratory relief and injunction and not
solely for the former. The latter can be either prohibitory or mandatory in character. LASAY sought to enjoin the SB of
Sorsogon from recognizing GALAROSA as an ex officio member of the SB and from allowing him to participate in its
deliberations, and to direct it to hold in abeyance the payment of GALAROSA's salaries. LASAY brought the action in his
capacity as a barangay captain who is seeking the presidency of the ABC of Sorsogon and in his capacity as a taxpayer.
This Court agrees with GALAROSA and the Office the Solicitor General that with respect to the first, LASAY does have
the legal standing to institute the action for he is a mere aspirant to the presidency of the ABC and his right thereto is a
mere expectancy. We do rule, however, that as a taxpayer he has a sufficient legal standing, because the injunction he
prayed for is founded on what he believed to be an illegal disbursement of public funds of his municipal government. In
this jurisdiction, the strict, rule relative to the determination of real parties in interest has been sufficiently relaxed to allow
a taxpayer to bring an action to restrain the unlawful disbursement of public funds. 10
We also hold that the requisites for an action for declaratory relief were present, namely: (a) that there is justiciable
controversy, (b) that the controversy is between persons whose interests are adverse, (c) that the party seeking relief has
a legal interest in the controversy, and (d) that the issue invoked is ripe for judicial determination. 11 The controversy is
whether GALAROSA can continue to serve as a member of the SB after 30 June 1992. LASAY, as a taxpayer, has
the locus standi to have it resolved because a decision against GALAROSA would mean that he is not entitled to receive
his salary and other benefits as a member of the SB and any such payment to him beyond 30 June 1992 would be illegal.
Nonetheless, the form and nature of the action filed by LASAY required the inclusion of GALAROSA as an adverse party.
It is his right to his office that is challenged and he is the person who would be directly affected by any decision therein.
No final determination of an action can be had unless he is joined therein. He is therefore, an indispensable party. Under
Section 7, Rule 3 of the Revised Rules of Court, the joinder of indispensable parties is compulsory; consequently, no
12
action can proceed unless they are joined. The absence of an indispensable party in a case render ineffectual all the
13
proceedings subsequent to the filing of the complaint including the judgment. LASAY should have been required to
14
implead GALAROSA and should he fail to do so, the petition should be dismissed. GALAROSA in fact sought to
intervene in the case by filing on 26 January 1993 an "Appearance with Motion to Annul the Injunction Order."
Unfortunately, after it was noted and LASAY was directed to file his "comment and/or opposition thereto" after which the
incident would be submitted for resolution, the respondent Judge, for reasons known only to him, never did resolve it.
Then with undue and precipitate haste, he rendered the challenged decision on 24 March 1993. That decision must be set
aside for having been rendered with grave abuse of discretion amounting to lack of jurisdiction since an indispensable
party, GALAROSA was not effectively impleaded and recognized as a party in the case and given the opportunity to file a
responsive pleading.
A remand of this case to the trial court for further proceedings consistent with the above disquisition would be the natural
course of action to follow. However, considering that the principal issue posed is purely legal and the pleadings of the
parties have exhaustively discussed the main issue and all collateral matters, the controversy could be forthwith resolved
on the basis thereof. The remand of the case to the trial court would only delay the final disposition of the case and would
not serve the public interest, especially here where our decision would affect all ABC presidents throughout the country.

We have consistently ruled that the remand of a case to a lower court for the reception of evidence is not necessary if this
15
Court can already resolve the dispute on the basis of the records before it.
We shall then take up the core issue.
Section 494 of the Local Government Code of 1991 provides for the ex officio membership in the respective sanggunians
of the duly elected presidents of the liga at the municipality, city, and provincial levels, including the component cities and
municipalities of Metro Manila. The liga referred to therein is the liga ng mga barangay. Section 491 of the Code provides
for its creation and purpose:
Sec. 491. Purpose of organization. There shall be an organization of all barangays to be known as the Liga ng mga
Barangay for the primary purpose of determining the representation of the liga in the sanggunians and for ventilating,
articulating, and crystallizing issues affecting barangay government administration and securing, through proper and legal
means, solutions thereto.
Every barangay is represented in the liga ng mga barangay by the punong barangay, or in his absence or incapacity, by
16
a sanggunian member duly elected for the purpose among its members. The principal aim of the liga ng mga
barangay is to promote the development of barangays and secure the general welfare of their inhabitants. 17
The forerunner of the liga ng mga barangay is the katipunan ng mga barangay under Section 108 of B.P. Blg. 337, which
was known as the katipunang bayan in municipalities, katipunang panglungsod in cities, katipunang panlalawigan in
provinces, and katipunan ng mga barangay on the national level. Each barangay therein was represented by the punong
barangay. The katipunang bayan was also referred to as the Association of Barangay Councils or ABC for short. Pursuant
to the first paragraph of Section 146 of B.P. Blg. 337, the president of the said organization was among the members of
the sangguniang bayan the legislative body of the municipality subject, however, to appointment by the President of
the Philippines. Under Section 110(3) thereof, the term of office of all officers of the katipunang bayan, including its
president, was to be governed by "the by-laws of the organization, without prejudice, however, to their term of office as
member of the sanggunian to which they may be correspondingly appointed." Section 25 of the By-Laws of the Katipunan
ng mga Barangay 18 provides that "the term of office of all officers of the katipunan at all levels shall be from the date of
their elections until the next katipunan elections following general barangay elections, subject to the limitations of Section
4 and the succeeding sections hereof."19
On 7 March, then President Corazon C. Aquino issued Memorandum Circular No. 51 providing for policy guidelines on the
representation of certain sectors, including the president of the katipunang bayan, in the legislative bodies of local
governments. Then on 28 November 1988 she issued E.O. No. 342 delegating to the Secretary of Local Government the
power to appoint certain local offices under certain sections, including Section 146(1) of B.P. Blg. 337. Thereafter,
appointments of the presidents of the katipunang bayan as members of the sangguniang bayan were made by the
Secretary of Local Government.
Immediately prior to the passage of the Local Government Code of 1991, the katipunang bayan or ABC in a municipality
was composed of the barangay captains who were elected in the barangay elections of 28 March 1989 held pursuant to
R.A. No. 6679. In the case at bar, it is presumed that GALAROSA was an elected punong barangay in the municipality of
Sorsogon and was later elected president of the ABC of Sorsogon.
On 7 April 1989, the Department of Local Government issued Circular No. 89-09 providing for the reorganization of
the katipunan ng mga barangays in all levels and prescribing the guidelines for the election of their officers. Guideline 2.2
thereof on terms of office reads:
The terms of office of all officers of the katipunan at all levels shall be from the date of their election until their successors
shall have been duly elected and qualified, without prejudice, however, to the terms of their appointments as member of
the sanggunian, to which they may be correspondingly appointed.
Accordingly, the president of the katipunang bayan became, after an appointment extended by the President through the
Secretary of the Department of Local Government, a member of the first sangguniang bayanorganized under the 1987
Constitution following the local elections held on 18 January 1988. That GALAROSA was extended such appointment is
not disputed.
The Local Government Code of 1991 does not explicitly provide that upon its effectivity the katipunan ng mga
barangay under B.P. Blg. 337 automatically became the liga ng mga barangay under the Local Government Code and
that the president of the ABC automatically became the president of the liga whose term as ex officio member of the

first sangguniang bayan under the 1987 Constitution is coterminous with that of the other regular members of the SB or
until 30 June 1992 pursuant to Section 494 of the Local Government Code in relation to Section 2, Article XVIII of the
20
21
1987 Constitution and Section 5 of R.A. No. 6636. Absent such explicitness and considering (1) that the opening
clause of Section 491 is expressed in the future tense such that the liga can only be deemed to exist upon the effectivity
of the Local Government Code of 1991 and (2) that Section 494 speaks of "duly elected presidents of the liga" thereby
clearly implying an election after the organization of the liga, the conclusion to be drawn is that the legislature never
intended that Section 494 would apply to the incumbent presidents of the katipunang bayan.
In short, there is no indication at all that Section 491 and Section 494 should be given retroactive effect to adversely affect
the presidents of the ABC. They should thus be applied prospectively. There is a substantive rationale for this. The Local
Government Code significantly altered the previous law and rules relative to the membership of the presidents of
the katipunang bayan or the ABC. In the first place, a prior appointment by the President, as required under Section
110(3) of B.P. Blg. 337 or by him through the Secretary of Interior and Local Government pursuant to E.O. No. 342, is no
longer necessary. It may be pointed out that B.P. Blg. 337 has been expressly repealed under paragraph (a), Section 534
of the Local Government Code of 1991. Accordingly, E.O. No. 342 is likewise deemed repealed either as a consequence
thereof or under paragraph (f) of the said section which repeals, inter alia, executive orders inconsistent with any
provisions of the said Code. In the second place, Section 494 specifically provides that the term of office of
the liga presidents shall in no case go "beyond the term of office of the sanggunian concerned." Consequently, the
expiration of their term of office of the regular members thereof. The section however, does not fix the specific duration of
their term as liga president. This is left to the by-laws of the liga pursuant to Article 211(g) of the Rules and Regulations
Implementing the Local Government Code (IRR for brevity). It may be recalled that under R.A. No. 6679, the term of office
of the punong barangayelected in the 28 March 1989 election for barangay officials was five years commencing on 1 May
1989 and ending 31 May 1994. It also provides that the next regular election of barangay officials shall be on the second
Monday of May 1994 and on the same day every five years thereafter and that their term of office shall begin on the first
day of June following their election and until their successors shall have been elected an qualified. On the other hand,
Section 43(c) of the Local Government Code of 1991 fixes the term of elective barangay officials at three years which,
insofar as those first elected under it are concerned, shall begin "after the regular election . . . on the second Monday of
May 1994.
Nonetheless, notwithstanding the prospective character of Section 494 of the Local Government Code of 1991, the fact
remains that the presidents of the katipunang bayan or ABC who were appointed as members of the sangguniang
bayan by the President through the Secretary of Local Government by virtue of E.O. No. 342 were appointed to
the sangguniang bayan whose regular members were elected in the 18 January 1988 local elections and whose terms
expired on 30 June 1992. It is t be presumed that they could not have been appointed for a term beyond that of
the sangguniang bayan. This is evident from both Section 110(3) of B.P. Blg. 337 and Circular No. 89-09 of the
Department of Local Government which respectively provide that the term of office of the ABC presidents therein
determined is "without prejudice to their term of office as member of the sanggunian to which they were accordingly
appointed' and "without prejudice however, to the terms on [sic] their appointments as members of the sanggunian, to
which they may be correspondingly be appointed." Accordingly, while ABC presidents could remain as such after 30 June
1992 because their term of office as ABC presidents have not yet ended, their term of office as members of
the sangguniang bayan has expired.
There is, however, no law which prohibits them from holding over as members of the sangguniang bayan. On the
contrary, the aforementioned IRR, prepared and issued by the Oversight Committee upon specific mandate of Section
533 of the Local Government Code, expressly recognizes and grants that hold-over authority to ABC presidents. Pertinent
portions of paragraphs (d) and (f), Article 210 of the IRR read as follows:
Art. 210 Liga ng mga barangay.
xxx xxx xxx
(d) Ex officio membership in the sanggunian
xxx xxx xxx
(3) The incumbent presidents of the municipal, city, and provincial chapters of the liga shall continue to serve as ex
officio members of the sanggunianconcerned until the expiration of their term of office, unless sooner revoked for cause.
xxx xxx xxx

(f) Organizational structure

(l) . . . . Pending election of the presidents of the municipal, city, provincial, and metropolitan chapters of the liga, the
incumbent presidents of the association of barangay councils in the municipality, city, province, and Metropolitan Manila
shall continue to act as presidents of the corresponding liga chapters under this Rule.
This was further elaborated in an unnumbered Circular of the DILG dated 15 June 1992 on the subject "Clarifying the
Term of Office of Liga Chapter Presidents (ABC) as Members of the Sanggunian which reads:
In order to clarify issues arising from various interpretations of pertinent provisions of the Local Government Code of 1991
and the Implementing Rules and Regulations relative to the term of office of the Liga chapter presidents as members of
the sanggunian, the following guidelines are hereby issued.
1. The incumbent presidents of the ABC at the municipal, city, province and Metropolitan Manila shall continue [sic] to act
as presidents of the corresponding Liga chapters.
2. To ensure continued representation of the barangay in the sanggunian, they shall continue to serve as exofficio members of the sanggunian concerned, unless sooner removed for cause, pending the election of the first set of
officials on the national Liga and local chapters.
3. The election of the first set of officials of the national Liga and local chapters shall be within six (6) months (not to go
beyond March 9, 1993) from ratification by the National Liga and its constitution and by-laws.
4. The ratification of the Liga Constitution and by-laws shall -be within six (6) months (not to go beyond September 9,
1992) from the promulgation of the Implementing Rules and Regulation (IRR) of the Local Government Code on March 9,
1992.
And on 29 June 1992, the DILG issued Memorandum Circular No. 92-38 which reads as follows:
In view of the numerous issues and concerns reaching this Department requesting for a clarificatory ruling regarding the
term of office of the incumbent ABC Presidents as ex-officio members of the respective sanggunian pending the
reorganization and election of the new liga chapter, the following guidelines are hereby promulgated for the guidance and
reference of all concerned:
Section 494 Local Government Code of 1991 (RA 7160)
The duly elected presidents of the liga at the municipal, city and provincial levels, including the component cities and
municipalities of Metro Manila, shall serve as ex officio members of the sangguniang bayan, sangguniang panglunsod
[and] sangguniang panlalawigan, respectively. They shall serve as such only during their term of office as presidents of
the liga chapters which in no case shall be beyond the term of office of the sanggunian concerned.
Article 210 (d) (3), Rule XXIX of the IRR
The incumbent presidents of the municipal, city and provincial chapters of the Liga shall continue to serve as ex
officio members of the sanggunian concerned until the expiration of their term of office, unless sooner removed for cause.
The aforequoted provisions of the Code and its IRR clearly provide that upon the cessation from office of the elective
sanggunian members, these ex-officio members shall likewise cease to hold office upon the election and qualification of
their successors since they cannot serve beyond the end of the term of office of the elective members (See Laspinas vs.
Santos, G.R. No. 83520, June 23, 1988; Cadugon vs. Singuat-Guerra, G.R. No. 85884, March 9, 1989).
Be that as it may, following the generally accepted principle that laws shall have prospective effect unless the contrary if
expressly provided (Section 19, Chapter 5, Introductory Provisions, Administrative Code of 1987), the applicability of the
aforequoted provisions does not contemplate of the incumbent sanggunian members, appointive or elective.
This principle is buttressed by Article 210 (f), Rule XXIX of the IRR which declares, in part, the "pending election of the
presidents of the municipal, city, provincial, and metropolitan chapters of the liga, the incumbent presidents of the
association of barangay councils in the municipality, city, province, and Metropolitan Manila shall continue to act as
presidents of the corresponding liga chapters under this Rule.

xxx xxx xxx

The application of the hold-over doctrine in both the aforementioned provisions of the IRR and the issuances of the DILG
should be upheld. The rule is settled that unless " "holding over be expressly or impliedly prohibited, the incumbent may
continue to hold over until some one else is elected and qualified to assume the office." 22 This rule is demanded by the
most obvious must requirements of public policy, for without it there must frequently be cases where, from a failure to
elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended." 23 Otherwise
stated, the purpose is to prevent the hiatus in the government pending the time when the successor may be chosen and
inducted into office. 24 Section 494 of the Local Government Code could not have been intended to allow a gap in the
representation of the barangays, through the presidents of the ABC, in the sanggunian. Since the term of office of
the punong barangays elected in the 28 March 1989 election and the term of office of the presidents of the ABC have not
yet expired and taking into account the special role conferred upon and the broader powers and functions invested in the
barangays by the Code as a basic political unit, a primary planning and implementing unit of government policies in the
community, and as forum wherein the collective views of the people may be expressed and considered and where
disputes may be amicably settled, 25 it would be in harmony with sound logic to infer that the Code never intended to
deprive the barangays of their representation in the sangguniang bayan during the interregnum when the liga has yet to
be formally organized with the election of its officers.
Besides, the promulgation of the IRR by the Oversight Committee and the pertinent issues of the DILG are in the nature of
executive construction and are thus entitled to great weight and respect by the Court, 26 especially that of the former since
the composition of the Oversight Committee includes six Members of Congress of the Philippines three Senators, one
of whom was the Chairman of the Senate Committee on Local Government, and three Congressmen, one of whom was
the Chairman of the House Committee on Local Government who are presumed to know the intent of the law.
We therefore hold that GALAROSA, as president of the ABC of Sorsogon, can legally and validly hold over as a member
of the sangguniang bayan of Sorsogon, Sorsogon, until the election of the first set of officers of the liga ng mga barangay,
unless he is sooner removed for cause.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the decision of the respondent Judge in
Civil Case No. 5575 of Branch 52 of the Regional Trial Court of Sorsogon, Sorsogon.
Costs against private respondent Rodolfo Lasay.
SO ORDERED.

G.R. No. 132413

August 27, 1999

RAMON ALQUIZOLA, SR., MARISSA C. DOROMAL and ADELO SECO vs. GALLARDO OCOL, CAMILO P.
PENACO, SATURNINO MENDOZA, RAFAEL R. ARDIENTE, VICENTE C. CASERES, RICARDO B. ZOSA III and
SIRAD M. UMPA
VITUG, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking a reversal of the
decision, dated 19 November 1997, of the Regional Trial Court of Lanao Del Norte, Branch 04, Iligan City, that has
ordered petitioner Ramon Alquizola, Sr., to cease and desist from dismissing respondents and replacing them with his copetitioners.
Petitioner Ramon Alquizola, Sr., won the post of Punong Barangay of Barangay Tubod, Iligan City, in the 12th May 1997
barangay elections. Respondents Gallardo Cool, Camilo Penaco, Saturnino Mendoza, Rafael Ardiente, Vicente Caseres,
Ricardo Zosa. III, and Sirad Umpa were appointees of the former punong barangay of Barangay Tubod, the first two
occupying the positions of barangay treasurer and barangay secretary, respectively, with the rest being barangay utility
workers.
After the elections, petitioner Alquizola terminated the services of respondents and appointed his co-petitioners, Marissa
Doromal and Adelo Seco, respectively, as barangay treasurer and as barangay secretary. In consonance with Section
394 and Section 395 of the Local Government Code, he submitted both appointments to the Sangguniang Barangay for
approval. The Sanggunian rejected the appointments.
Following the action taken by the Sangguniang Barangay, respondents filed a complaint for quo warranto, mandamus and
prohibition with the Regional Trial Court of Lanao Del Norte to enjoin petitioner from terminating the services of the former.
The trial court found in favor of respondents and ordered petitioner Ramon Alquizola, Sr., to cease and desist from
dismissing respondents on the ground that their dismissal had been effected without the corresponding approval of the
Sangguniang Barangay. It held that Section 389(b) (5) limited the power of a barangay captain to remove appointive
barangay officials by requiring an approval of such act by a majority of the Sangguniang Barangay. A motion for
reconsideration was denied.
The Court finds no merit in the instant petition for certiorari.
The issue involved, purely a question of law, relates to the proper application of the following provisions of the Local
Government Code; viz:
Sec. 389. Chief Executive: Powers, Duties, and Function. . . .
(b) For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its
inhabitants pursuant to Section 16 of this Code, the punong barangay shall:
xxx

xxx

xxx

(5) Upon approval by a majority of all the members of the sangguniang barangay, appoint or replace the barangay
treasurer, the barangay secretary, and other appointive barangay officials;
The term "replace" would obviously embrace not only the appointment of the replacement but also the prior removal of, or
the vacation by, the official currently occupying the appointive position concerned. "To replace" is to take the place of, to
serve as a substitute for or successor of, to put in place of, or to fill the post of an incumbent. 1 In order to provide a
replacement to an office, the prior holder must have first been removed or the office must have, otherwise, been
previously rendered vacant.
Aside from what may be implicit in Section 389, there is no other provision in the Local Government Code that treats of
the power of the Punong Barangay to remove the barangay secretary, the barangay treasurer, or any other appointive
barangay official from office. The duration of the term of office of these barangay officials have not been fixed by the Local
Government Code. Where the tenure of the office is not fixed by law, it is a sound and useful rule to consider the power of
2
removal as being an incident to the power of appointment. Elsewise stated, the power to remove is deemed implied in
the power to appoint.

The Code explicitly vests on the punong barangay, upon approval by a majority of all the members of the sangguniang
barangay, the power to appoint or replace the barangay treasurer, the barangay secretary, and other appointive barangay
officials. This provision is reinforced, in the case of the secretary and the treasurer, by the provisions of Section 394 and
Section 395 of the Local Government Code; to wit:
Sec. 394. Barangay Secretary: Appointment, Qualifications, Powers and Duties. (a) The barangay secretary shall be
appointed by the punong barangay with the concurrence of the majority of all the sangguniang barangay members. The
appointment of the barangay secretary shall not be subject to attestation by the Civil Service Commission.
Sec. 395. Barangay Treasurer: Appointment, Qualifications, Powers and Duties. (a) The barangay treasurer shall be
appointed by the punong barangay with the concurrence of the majority of all the sangguniang barangay members. The
appointment of the barangay treasurer shall not be subject to attestation by the Civil Service Commission.
Verily, the power of appointment is to be exercised conjointly by the punong barangay and a majority of all the members
of the sangguniang barangay. Without such conjoint action, neither an appointment nor a replacement can be effectual.
Applying the rule that the power to appoint includes the power to remove, one that the Court finds no cogent reason to
now depart from, the questioned dismissal from office of the barangay officials by the punong barangay without the
concurrence of the majority of all the members of the Sangguniang Barangay cannot be legally justified. To rule otherwise
could also create an absurd situation of the Sangguniang Barangay members refusing, like here, to give their approval to
the replacements selected by the punong barangay who has unilaterally terminated the services of the incumbents. It is
likely that the legislature did not intend this absurdity to flow from its enactment of the law.
WHEREFORE, the instant petition is DENIED and the decision, dated 19 November 1997, of the Regional Trial Court of
Lanao Del Norte is AFFIRMED. No costs.1wphi1.nt
SO ORDERED.

c) Local School Boards (Section 98 LGC)

G.R. No. 139821

January 30, 2002

DR. ELEANOR A. OSEA vs. DR. CORAZON E. MALAYA

YNARES-SANTIAGO, J.:
This is a petition for review from the decision of the Court of Appeals dated August 6, 1999 in CA-G.R. SP No. 49204.1
On November 20, 1997, petitioner filed Protest Case No. 91120-004 with the Civil Service Commission.2 She averred that
she was appointed as Officer-in-Charge, Assistant Schools Division Superintendent of Camarines Sur, by then Secretary
Ricardo T. Gloria of the Department of Education, Culture and Sports, upon the endorsement of the Provincial School
Board of Camarines Sur; that despite the recommendation of Secretary Gloria, President Fidel V. Ramos appointed
respondent to the position of Schools Division Superintendent of Camarines Sur; that respondent's appointment was
made without prior consultation with the Provincial School Board, in violation of Section 99 of the Local Government Code
of 1991. Hence, petitioner prayed that respondent's appointment be recalled and set aside for being null and void.
The pertinent portion of Section 99 of Republic Act No. 7610, also known as the Local Government Code of 1991, states:
Sec. 99. Functions of Local School Boards. --- The provincial, city or municipal school board shall:
xxx

xxx

xxx.

The Department of Education, Culture and Sports shall consult the local school boards on the appointment of division
superintendents, district supervisors, school principals, and other school officials.
On March 31, 1998, the Civil Service Commission issued Resolution No. 980699, dismissing petitioner's protestcomplaint.3 The Civil Service Commission found that on September 13, 1996, President Ramos appointed respondent,
who was then Officer-in-Charge Schools Division Superintendent of Iriga City, as Schools Division Superintendent without
any specific division. Thus, respondent performed the functions of Schools Division Superintendent in Iriga City.
Subsequently, on November 3, 1997, Secretary Gloria designated respondent as Schools Division Superintendent of
Camarines Sur, and petitioner as Schools Division Superintendent of Iriga City. 4
In dismissing petitioner's protest, the Civil Service Commission held that Section 99 of the Local Government Code of
1991 contemplates a situation where the Department of Education, Culture and Sports issues the appointments, whereas
respondent's appointment was made by no less than the President, in the exercise of his appointing power. Moreover, the
designation of respondent as Schools Division Superintendent of Camarines Sur and of petitioner as Schools Division
Superintendent of Iriga City were in the nature of reassignments, in which case consultation with the local school board
was unnecessary.
Petitioner filed a Motion for Reconsideration with the Civil Service Commission. 5 On August 3, 1998, the Civil Service
Commission issued Resolution No. 982058, denying petitioner's Motion for Reconsideration. 6
Thus, petitioner filed a petition for review of both Civil Service Commission Resolution Nos. 980699 and 982958 dated
August 3, 1998, respectively, before the Court of Appeals, docketed as CA-G.R. SP No. 49204.7 On August 6, 1999, the
Court of Appeals dismissed the petition.
Hence, the instant petition for review on certiorari of the August 6, 1999 Decision on the following errors:
I. THE HONORABLE COURT OF APPEALS ERRED IN DECIDING THAT THE RESPONDENT WAS MERELY REASSIGNED TO CAMARINES SUR AND DID NOT REQUIRE THE MANDATORY PRIOR CONSULTATION WITH THE
LOCAL SCHOOL BOARD UNDER SECTION 99 OF RA 7160.
II. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR WHEN IT DECIDED THAT
THERE WAS NO OPPOSITION MADE WHEN THE PRESIDENT APPOINTED RESPONDENT MALAYA AS DIVISION
SCHOOLS SUPERINTENDENT BACK IN 1996 AND AS STATED BY THE CIVIL SERVICE COMMISSION THE LAW
DID NOT CONTEMPLATE THAT THE PRESIDENT SHOULD FIRST CONSULT THE LOCAL SCHOOL BOARD

BEFORE HE MAKES ANY APPOINTMENT AND THAT SECTION 99 OF THE NEW LOCAL GOVERNMENT CODE
APPLIES ONLY TO THE Department of Education, Culture and Sports SECRETARY, WHO, HOWEVER, CAN ONLY
MAKE RECOMMENDATION TO THE PRESIDENT.8
The petition lacks merit.
Clearly, the afore-quoted portion of Section 99 of the Local Government Code of 1991 applies to appointments made by
the Department of Education, Culture and Sports. This is because at the time of the enactment of the Local Government
Code, schools division superintendents were appointed by the Department of Education, Culture and Sports to specific
division or location. In 1994, the Career Executive Service Board issued Memorandum Circular No. 21, Series of 1994,
placing the positions of schools division superintendent and assistant schools division superintendent within the career
executive service. Consequently, the power to appoint persons to career executive service positions was transferred from
the Department of Education, Culture and Sports to the President. 9 The appointment may not be specific as to location.
The prerogative to designate the appointees to their particular stations was vested in the Department of Education,
Culture and Sports Secretary, pursuant to the exigencies of the service, as provided in Department of Education, Culture
and Sports Order No. 75, Series of 1996.
In the case at bar, the appointment issued by President Ramos in favor of respondent to the Schools Division
10
Superintendent position on September 3, 1996 did not specify her station. It was Secretary Gloria who, in a
Memorandum dated November 3, 1997, assigned and designated respondent to the Division of Camarines Sur, and
petitioner to the Division of Iriga City.11
We agree with the Civil Service Commission and the Court of Appeals that, under the circumstances, the designation of
respondent as Schools Division Superintendent of Camarines Sur was not a case of appointment. Her designation
partook of the nature of a reassignment from Iriga City, where she previously exercised her functions as Officer-inCharge-Schools Division Superintendent, to Camarines Sur. Clearly, therefore, the requirement in Section 99 of the Local
Government Code of 1991 of prior consultation with the local school board, does not apply. It only refers to appointments
made by the Department of Education, Culture and Sports. Such is the plain meaning of the said law.
The "plain meaning rule" or verba legis in statutory construction is thus applicable in this case. Where the words of a
statute are clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation.12
Appointment should be distinguished from reassignment. An appointment may be defined as the selection, by the
authority vested with the power, of an individual who is to exercise the functions of a given office. When completed,
usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable
at pleasure because of the nature of his office.13
On the other hand, a reassignment is merely a movement of an employee from one organizational unit to another in the
same department or agency which does not involve a reduction in rank, status or salary and does not require the issuance
of an appointment.14 In the same vein, a designation connotes merely the imposition of additional duties on an incumbent
15
official.
Petitioner asserts a vested right to the position of Schools Division Superintendent of Camarines Sur, citing her
endorsement by the Provincial School Board. Her qualification to the office, however, lacks one essential
ingredient, i.e., her appointment thereto. While she was recommended by Secretary Gloria to President Ramos for
appointment to the position of Schools Division Superintendent of Camarines Sur, the recommendation was not acted
upon by the President. Petitioner's designation as Officer-in-Charge, Assistant Schools Division Superintendent, was
expressly made subject to further advice from the Department of Education, Culture and Sports.16 Thus, her designation
was temporary. In fact, there was a need to recommend her to the President for appointment in a permanent capacity.
Inasmuch as she occupied her position only temporarily, petitioner can be transferred or reassigned to other positions
without violating her right to security of tenure.17 Indeed, petitioner has no vested right to the position of Schools Division
Superintendent of Camarines Sur.
WHEREFORE, in view of the foregoing, the instant petition is DENIED for lack of merit. The assailed decision of the Court
of Appeals in CA-G.R. SP No. 49204, as well as Resolutions 980699 and 982058 of the Civil Service Commission,
are AFFIRMED.
SO ORDERED.

e) Local Board Assessment Appeals

G.R. No. 146382

August 7, 2003

SYSTEMS PLUS COMPUTER COLLEGE OF CALOOCAN CITY vs. LOCAL GOVERNMENT OF CALOOCAN CITY,
MAMERTO MANAHAN, ATTY. NESTOR D. FRANCISCO, as City Assessor and City Legal Officer of Caloocan City,
and ADORACION ANGELES, Presiding Judge, Regional Trial Court of Caloocan City, Branch 121
DECISION
CORONA, J.:
1

The instant petition for certiorari assails the Resolution of the respondent Regional Trial Court of Caloocan City, Branch
121, dated December 29, 1999, dismissing the petition for mandamus in Civil Case No. C-595, and the Order dated
February 23, 2000 denying the subsequent motion for reconsideration.
Petitioner Systems Plus Computer College is a non-stock and non-profit educational institution organized and established
in 1997 with business address at 141-143 10th Avenue, Caloocan City. As such, it enjoys property tax exemption from the
local government on its buildings but not on the parcels of land which petitioner is renting for P5,000 monthly from its
sister companies, Consolidated Assembly, Inc. (Consolidated Assembly) and Pair Management and Development
Corporation (Pair Management).
On January 8, 1998, petitioner requested respondent city government of Caloocan, through respondent Mamerto
Manahan, City Assessor and Administrator, to extend tax exemption to the parcels of land claiming that the same were
being used actually, directly and exclusively for educational purposes pursuant to Article VI, Section 28(3) of the 1987
Constitution2 and other applicable provisions of the Local Government Code.
On February 5, 1998, respondent city government, on recommendation of respondent Atty. Nestor Francisco, City Legal
Officer, denied the request on the ground that the subject parcels of land were owned by Consolidated Assembly and Pair
Management which derived income therefrom in the form of rentals and other local taxes assumed by the petitioner.
Hence, from the land owners standpoint, the same were not actually, directly and exclusively used for educational
purposes.3
On February 15, 1999, the petitioner, on the one hand, and the Consolidated Assembly and Pair Management, on the
other, entered into separate agreements 4 which in effect novated their existing contracts of lease on the subject parcels
of land and converted them to donations of the beneficial use thereof.
On February 19, 1999, the petitioner wrote respondent City Assessor informing the latter of the new agreements and
5
seeking a reconsideration of respondents earlier denial of the application for tax exemption. In this connection, a duly
6
notarized certification jointly issued by Consolidated Assembly and Pair Management to the effect that they no longer
received income by way of rentals from the subject properties, accompanied by the corresponding board
resolutions,7 were submitted by the petitioner. Nevertheless, on July 21, 1999, respondent city government again denied
the application for tax exemption, reasoning out as follows:
Firstly, it may be reasonably implied from the above facts that SYSTEMS COMPUTER COLLEGE is an agency for its
sister corporations, particularly, PAIR MANAGEMENT & DEVELOPMENT CORPORATION and CONSOLIDATED
ASSEMBLY, INC. to evade payment of Real Property Taxes.
It bears stress (sic) that immediately after the denial by this Office of the first request of SYSTEMS PLUS COMPUTER
COLLEGE for Real Property Tax Exemption of the properties then leased to it by its sister companies; PAIR
MANAGEMENT & DEVELOPMENT CORPORATION and CONSOLIDATED ASSEMBLY, INC., the latter corporations
donated the beneficial use of the subject properties to SYSTEMS PLUS COMPUTER COLLEGE, if only to evade
payment of Real Property Taxes.
The revenue officers, in proper cases, may disregard the separate corporate entity where it serves as a shield for tax
evasion. xxx.
Secondly, the grant of exemption from taxation rests upon the theory that an exemption will benefit the body of people,
and not upon any idea of lessening the burden of individual or corporate owners.

Thirdly, while the beneficial use of the properties being sought to be exempt from Real Property Taxes were donated to
SYSTEMS PLUS COMPUTER COLLEGE, there is no showing that the same are "actually, directly and exclusively" used
either for religious, charitable, or educational purposes.8
Twice debunked, petitioner filed a petition for mandamus with the respondent Regional Trial Court of Caloocan City,
Branch 121, which, however, dismissed it for being premature. Its timely motion for reconsideration having been denied,
9
petitioner filed the instant petition for certiorari imputing grave abuse of discretion on the part of the trial court when it
ruled: (1) that mandamus does not lie against the public respondents and (2) that petitioner failed to exhaust available
administrative remedies.
Mandamus is defined as a writ commanding a tribunal, corporation, board or person to do the act required to be done
when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office or which such other is
10
entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law. Where administrative
11
remedies are available, a petition for mandamus does not lie.
Under Section 226 of RA 7160,12 the remedy of appeal to the Local Board of Assessment Appeals is available from an
adverse ruling or action of the provincial, city or municipal assessor in the assessment of property, thus:
Section 226. Local Board of Assessment Appeals. -Any owner or person having legal interest in the property who is not
satisfied with the action of the provincial, city or municipal assessor in the assessment of his property may, within sixty
(60) days from the date of receipt of the written notice of assessment, appeal to the Board of Assessment Appeals of the
province or city by filing a petition under oath in the form prescribed for the purpose, together with copies of the tax
declarations and such affidavits or documents submitted in support of the appeal.
However, petitioner argues that it is not contesting any assessment made by respondent City Assessor. Petitioners
argument obviously proceeds from its misunderstanding of the term "assessment." Under Section 199(f), Title II, Book II,
of the Local Government Code of 1991, "assessment" is defined as the act or process of determining the value of a
property, or proportion thereof subject to tax, including the discovery, listing, classification and appraisal of properties.
Viewed from this broader perspective, the determination made by the respondent City Assessor with regard to the
taxability of the subject real properties squarely falls within its power to assess properties for taxation purposes subject to
appeal before the Local Board of Assessment Appeals.
Petitioner also argues that it is seeking to enforce, through the petition for mandamus, a clear legal right under the
Constitution and the pertinent provisions of the Local Government Code granting tax exemption on properties actually,
directly and exclusively used for educational purposes. But petitioner is taking an unwarranted shortcut. The argument
gratuitously presumes the existence of the fact which it must first prove by competent and sufficient evidence before the
City Assessor. It must be stressed that the authority to receive evidence, as basis for classification of properties for
taxation, is legally vested on the respondent City Assessor whose action is appealable to the Local Board of Assessment
Appeals and the Central Board of Assessment Appeals, if necessary.1wphi1
The petitioner cannot bypass the authority of the concerned administrative agencies and directly seek redress from the
courts even on the pretext of raising a supposedly pure question of law without violating the doctrine of exhaustion of
administrative remedies. Hence, when the law provides for remedies against the action of an administrative board, body,
or officer, as in the case at bar, relief to the courts can be made only after exhausting all remedies provided
therein.13 Otherwise stated, before seeking the intervention of the courts, it is a precondition that petitioner should first
14
avail of all the means afforded by the administrative processes.
Besides, mandamus does not lie against the respondent City Assessor in the exercise of his function of assessing
properties for taxation purposes. While its duty to conduct assessments is a ministerial function, the actual exercise
thereof is necessarily discretionary. Well-settled is the rule that mandamus may not be availed of to direct the exercise of
judgment or discretion in a particular way, or to retract or reverse an action already taken in the exercise of either. 15
WHEREFORE, the instant petition for certiorari is hereby DISMISSED.
SO ORDERED.

g) Peoples Law Enforcement Board

G.R. No. 109638 March 31, 1995
PNP SUPT. FLORENCIO D. FIANZA vs. THE PLEB (PEOPLE' S LAW ENFORCEMENT BOARD) of the CITY OF
BAGUIO; the NATIONAL POLICE COMMISSION (NAPOLCOM), SPO3 FERNANDO TAFALENG, PO3 OCTAVIO
PAWINGI, PO2 FERDINAND SEGUNDO, PO3 METODIO AQUINO, PO3 BENJAMIN NAKIGO, PO3 SALVADOR
GALISTE, PO3 ROMEO BAUTISTA and PO3 ALFREDO MATIAS
G.R. No. 109639 March 31, 1995
PNP SUPT. JULY CORDOVIZ vs. The PLEB (PEOPLE'S LAW ENFORCEMENT BOARD) of the CITY OF BAGUIO,
the NATIONAL POLICE COMMISSION (NAPOLCOM) and PAT. RAY EKID
SYLLABUS
1. POLITICAL LAW; REPUBLIC ACT NO. 6975; PEOPLES LAW ENFORCEMENT BOARD (PLEB); COMPOSITION
AND FUNCTION. The PLEB, established pursuant to Sec. 43 of Republic Act No. 6975, (Republic Act No. 6975, "AN
ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT. AND FOR OTHER PURPOSES. Approved December 13, 1990; 87 O.G. No.
3) is part of the PNPs administrative disciplinary machinery. Each PLEB is composed of a member of the sangguniang
panglunsod/bayan chosen by his respective sanggunian; barangay captain of the city or municipality concerned chosen
by the association of barangay captains: and three other members who shall be chosen by the peace and order council
from among the respected members of the community known for their probity and integrity. Membership in the PLEB is a
civic duty: however PLEB members may be paid per diem as may be determined by the city or municipal council from city
or municipal funds. (Republic Act No. 6975. Sec 43 (a), (b) & (c)) For emphasis, the abovecited provision of laws states
that the PLEB has jurisdiction to hear and decide citizens complaints or cases against erring officers and members of the
PNP.
2. ID.; ID.; ID.; OBJECTIVE. One of the avowed objectives of the PLEB is to enhance civilian participation in the
disciplinary process of errant PNP members. The PLEB is part of the system of coordination and cooperation among the
citizenry, local executives and PNP provided for in the law creating the Philippine National Police. (Republic Act No. 6975,
Sec. 2).
3. ID.; ID.; ID.; CITIZENS COMPLAINANT; DEFINED; CONSTRUED; CASE AT BAR. Rule II, Section 1 of the PLEB
Rules defines a citizens complaint as pertaining to "any complaint initiated by a private citizen or his duly authorized
representative on account of injury, damage or disturbance sustained due to an irregular or illegal act committed by a
member of the PNP." A citizens complaint, then, is one filed by a private citizen against a member of the PNP for the
redress of injury, damage or disturbance caused by the latters illegal or irregular acts. The citizens complaint envisioned
under Republic Act No. 6975 normally pertains to complaints by private individuals against PNP men and not by PNP men
against their co-members or officers in a professional capacity. An example used in the Bicameral Conference Committee
hearings is that of a policeman who takes fish from the market without paying for it. Aside from the criminal liability
attaching to the act of the policeman cognizable by the courts, the private party prejudiced can sue him before the PLEB.
However, respondent policemen are not absolutely excluded from bringing citizens complaints with the PLEB. PNP
members can file suit a private citizens only when they do so in their private capacity and not as members of the PNP.
This means that the complaining PNP personnel can sue on matters of private concern and not on matters properly
cognizable by the PNP chain of command. If a policeman complains against another colleague before the PLEB, he can
do so when the subject matter of the complaint is one that can similarly be raised by a private individual or citizen.
4. ID.; ID.; ID.; ID.; PRIVATE CITIZEN, CONSTRUED; CASE AT BAR. The Court ruled that although respondent
policemen continue to be citizens, as public respondents contend, they are not the "private citizens" referred to in the laws
cited above. Clearly, the term "private citizens" does not ordinarily include men in uniform, such as the respondent PNP
men. This is particularly evident in the PNP law which uses the term "members of the PNP" as well as private citizens" to
refer to different groups of persons and not interchangeably. The "plain meaning rule" or verba legis in statutory
construction is applicable in this situation. When the words of a statute are clear, plain and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation. The term "private citizen" in the PNP Law and PLEB
Rules is used in its common signification and was not meant to refer to the members of the PNP, such as respondent
policemen.
5. ID.; ID.; PHILIPPINE NATIONAL POLICE (PNP); FORUM FOR THE RESOLUTION OF INTERNAL DISCIPLINE AND
ADMINISTRATIVE MATTERS WITHIN ITS RANKS. If the subject of the complaint bears a direct relation to the office

of the complainant-policeman as member of the PNP, it can hardly be considered as a citizens complaint and is,
therefore, neither cognizable nor triable by the PLEB. This conclusion is ineluctable as the PNP is the proper venue for
matters involving its internal organization or discipline. The PNP hierarchy possesses the power and responsibility over its
men in these matters. Section 81 of Republic Act No. 6975 reads: "SEC. 81, Complaints and Grievances. Uniformed
personnel shall have the right to present complaints and grievances to their superiors or commanders and have them
heard and adjudicated as expeditiously as possible in the best interest of the service, with due regard to due process in
every case. Such complaints or grievances shall be resolved at the lowest possible level in the unit of command and the
respondent shall have the right to appeal from an adverse decision to higher authorities." (Also see Sec. 26 and Sec. 41
(b) of Rep. Act No. 6975) No better forum for the resolution of internal discipline and administrative matters can be found
than the organization (PNP) itself, particularly in the enforcement of its professional code of conduct. In matters pertaining
to their job or office, PNP men are afforded the proper channel for their complaints against colleagues, superiors or
commanding officers. The Chief of Police, Provincial Director, Police Regional Director and PNP Chief are the proper
conduits for offenses involving internal discipline, such as simple misconduct or negligence, insubordination, frequent
absences or tardiness, habitual drunkenness and gambling prohibited by law. (Sec. 41 (b), Rep. Act No. 6975) Even the
PLEB Rules provide that jurisdiction over offenses involving breach of internal discipline (or any offense committed by a
member of the PNP involving and affecting order and discipline within the ranks of the police organization) belongs to the
duly designated supervisors and equivalent officers of the PNP. The Chiefs of Police, Provincial Directors, Police Regional
Directors or their equivalent supervisors and the PNP Chief exercise disciplinary powers for breaches of internal discipline
committed by any regular member of their respective commands. (Secs. 3 and 4, Rules of Procedure Before the PLEB)
Having dealt with the areas over which the PLEB exercises jurisdiction, the next step is to determine whether the cases at
bench fall within the ambit of said jurisdiction.
ROMERO, J.:
Before us are consolidated petitions for prohibition and declaratory relief with a prayer for temporary restraining order
involving the issue of whether the People's Law Enforcement Board (PLEB) has jurisdiction over complaints filed by PNP
personnel against their superiors.
The salient facts bearing on these petitions follow.
In the first case (G.R. No. 109638), petitioner, police superintendent Florencio D. Fianza was assigned as Provincial
Director of the Philippine National Police (PNP) for the province Benguet (including the City of Baguio) with headquarters
at Camp Dangwa, La Trinidad, Benguet. 1
SPO3 Jesus Mason, SPO3 Fernando Tafaleng, PO3 Octavio Pawingi, PO3 Ferdinand Segundo, PO3 Metodio Aquino,
PO3 Benjamin Nakigo, PO3 Salvador Galiste, PO3 Romeo Bautista and PO3 Alfredo Matias, hereinafter referred to as
the respondent policemen, were members of the PNP assigned to the Baguio City Police Station.
On June 19, 1992, respondent policemen filed an Amended Complaint with the Baguio PLEB against herein petitioner
Supt. Florencio D. Fianza for "Grave Misconduct and Irregularity in the Performance of Duty," docketed as Administrative
Case No. 007-92. The case also named as respondent PNP Supt. Camilo S. Dugayen, who is not a party to the instant
petition.
2

The Amended Complaint reads in part:

AMENDED COMPLAINT
The undersigned, all of legal age, Filipino Citizens, and organic members of the Baguio City Police Station/PNP and with
residence at Baguio City, Philippines, accuse POLICE PROVINCIAL DIRECTOR FLORENCIO D. FIANZA for Grave
Misconduct and Irregularity in the performance of duty in violation of Rule VI, paragraphs b and c of the Napolcom
Memorandum Circular No. 91-002 in relation to Secs. 41, 42, 43, 44 and 45 of Republic Act No. 6975, otherwise known
as the Philippine National Police (PNP) law and Police Superintendent CAMILO S. DUGAYEN of Grave Misconduct,
Neglect of Duty, Incompetence, Dishonesty, Irregularity in the performance of duty in violation of Rule VI paragraphs b, c,
d, and f of the Napolcom Memorandum Circular No. 91-002 in relation to Secs. 41, 42, 43, 44 and 45 of Republic Act No.
6975, otherwise known as the Philippine National Police (PNP) Law committed as follows:
1. That on January 13, 1992, respondent CAMILO S. DUGAYEN issued Special Order No. 04-92 dropping the names of
SPO3 FERNANDO TAFALENG, PO3 OCTAVIO PAWINGI, PO3 BENJAMIN NAKIGO, PO3 EUSEBIO BENMAHO, PO2
FERDINAND SEGUNDO AND PO2 LORENZO TALLEDO from the rolls of the Baguio City Police Station without benefit
of due process of law;

1-a. That the aforestated unwarranted action of the respondent CAMILO S. DUGAYEN was supposedly in total and blind
obedience to an unlawful and illegal order from his superior officer, respondent FLORENClO D. FIANZA, who was then
the Provincial Director of the PNP Benguet Provincial Command and who issued SPECIAL ORDER No. 01-92 directing
respondent CAMILO S. DUGAYEN to transfer the following persons from the Baguio City Police Station to Mankayan
Police Station, to wit:
SPO3 FERNANDO S. TAFALENG
PO3 OCTAVIO D PAWINGI
PO3 BENJAMIN NAKIGO
PO3 EUSEBIO D. BENMAHO
PO2 FERNANDO SEGUNDO
PO2 LORENZO TALLEDO
2. That on January 18, 1992, respondent CAMILO S. DUGAYEN issued Special Order No. 06-92 dropping from the rolls
of the Baguio City Police Station of following: SPO3 JESUS MASON, PO3 SALVADOR GALISTE, PO3 ROMEO
BAUTISTA, PO3 ALFREDO MATIAS AND PO2 METODIO AQUINO without formal investigation;
2-a. That the aforestated unwarranted and irregular action of the respondent Camilo S. Dugayen, was supposedly in total
and blind obedience to the unlawful and irregular radio message from his superior officer, FLORENCIO D. FIANZA,
directing him to transfer the following non-officers from the Baguio City Police Station to:
Kibungan Police Station:
SPO3 Jesus T. Mason
PO3 Salvador M. Galiste
Tuba Police Station
PO3 Romeo M. Bautista
Baguias Police Station
PO3 Alfredo A. Matias
PO2 Metodio J. Aquino
2-b. That the orders of the respondent FLORENCIO D. FIANZA are highly irregular and illegal having been issued in utter
and total disregard to the provisions of R.A. 6975 otherwise known as the PNP Law and the provisions of Napolcom
Memorandum Circular No. 91-002 evidencing grave misconduct and irregularity in the performance of duty on his part;
2-c. That respondent CAMILO S. DUGAYEN cannot find shelter and defense by simply invoking obedience to patently
and highly irregular orders of a superior officer of which he is not duty bound to obey being contrary and violative of the
PNP Law and the Napolcom Memorandum Circular No. 91-002 of which he is expected to know by heart being a ranking
officer mandated by law to know the same;
xxx xxx xxx
Respondent policemen, in their complaint, allege that their transfer from the Baguio City Police Station to other stations
and their being dropped from the rolls wore irregularly and illegally made. The orders issued by Supt. Camilo S. Dugayen,
apparently upon the direction of Supt. Florencio D. Fianza, herein petitioner, were, according to respondent policemen,
instigated by or made in retaliation to the raids they conducted on jueteng operations in Baguio. The policemen claim that
Supt. Dugayen, their Station Commander, twice castigated them for conducting said raids and ordered the release of the
3
cash and paraphernalia seized, as well as persona accosted, as a consequence of the raids.
Petitioner contended, through counsel, that cases of this nature are not within the competence and jurisdiction of public
respondent PLEB since it involves an internal organizational matter of the PNP. Petitioner argued that:
This is not a "citizen's complaint" against the members of the PNP. Rather it is a case of PNP members versus PNP
members/officers. Although there is an ambiguous if tricky allegation of a purported "dropping from the rolls," there is no
question that the case essentially involves some PNP members who have decided to resist or contest their transfer or
reassignment and selected this forum wherein "to wash their dirty linen" in an evident attempt to harass or embarass (sic)
their superior officers.
You will agree that the power to direct technical and strategic deployment, placement and/or specific utilization of
individual PNP members is vested in the various levels of PNP commanders and is not within the purview of the
4
"operational supervision and control" now exercised by local civilian officials.

Petitioner further claimed that the PLEB can entertain only citizen's complaints and not complaints lodged by PNP
personnel.
Public respondent PLEB, in an order dated November 13, 1992, ruled that it had jurisdiction to try and hear Admin. Case
No. 007-92 for Grave Misconduct and Irregularity of Performance of Duty. It held that the complaint of the policemen can
be considered a citizen's complaint since the policemen have the same rights as other citizens. Furthermore, the PLEB
reasoned:
(T)he charges contained in the complaint are very grave and deserve to be heard. To rule otherwise would mean that
5
there would be no remedy for policemen who have legitimate grievances against their superiors.
6

Upon the request of petitioner, the Baguio PLEB referred the matter of its jurisdiction to public respondent National
Police Commission (NAPOLCOM). The latter, through the Acting Regional Director for the Cordillera Administrative
Region, rendered an opinion upholding the PLEB's assumption of jurisdiction.
. . . It must be noted that the word, "CITIZEN'S COMPLAINT" is a misnomer and do (sic) not necessarily signify to a
complaint filed by a private party or ordinary citizen alone but rather the phrase includes or embraces also all complaints
filed by any citizen of the Philippines whether he or she is a government employee or an ordinary person. 7
As a consequence, the PLEB continued to assume jurisdiction, ordered the submission of counter-affidavits and set the
case for hearing on April 30, 1993.
Petitioner brought the instant petition (G.R. No. 109638) for prohibition and declaratory relief with prayer for temporary
restraining order to restrain the Baguio PLEB from trying said administrative case 8 for lack of jurisdiction over the same.
In the other petition (G.R. No. 109639), petitioner Supt. July Cordoviz likewise claims that the PLEB has no jurisdiction
over the administrative case 9 filed against him by Pat. Ray Ekid, for alledgedly threatening the later and his family if he
would not report to the former's office. 10
In an Order dated March 19, 1993, 11 public respondent PLEB denied petioner's motion to dismiss and ruled that it has
proper jurisdiction over the said administrative case.
Supt. Cordoviz then brought this original action for prohibition and declaratory relief with prayer for a temporary restraining
order.
In support of their contention that the PLEB has no jurisdiction over the complaint filed by respondent policemen,
petitioners advance the following arguments:
In the first place, the PLEB has jurisdiction over citizen's complaints but not over matters involving internal discipline within
the PNP. Cases against PNP members are either citizen's complaints or breaches of internal discipline. 12
A citizen's complaint is one initiated by a private citizen qua private citizen. Since respondent policemen have filed their
complaints against petitioners, not in their capacity as private citizens but as members of the PNP, their complaint cannot
be denominated a citizen's complaint.
This is not to say that they are left within recourse or relief for complaints involving breaches of internal discipline may and
13
should be raised with their superiors or commanders. Respondent policemen's complaint concerning petitioner's
issuance of illegal and irregular transfer and dismissal orders is an internal organizational affair of the PNP, involving as
they do transfers, reassignment or deployment orders which, under Sec. 26 of Republic Act No. 6975 14 are under the
command and direction of the Chief of the PNP and may be delegated to subordinate officials. 15
16

In the second place, Rule VI, Section 2 A, B & C of the PLEB Rules enumerates acts constituting simple, less grave
and serious irregularities in the performance of duties as well as simple, less grave and serious misconduct. Petitioner
Fianza's alleged issuance of illegal transfer or reaasignment orders are not among the acts constituting either misconduct
or irregularity in the performance of duty.
17

In their consolidated comment, public respondents, People's Law Enforcement Board of Baguio City and the
NAPOLCOM, assert the jurisdiction of the PLEB to take cognizance of the complaints against petitioner on the following
grounds:

Respondent policemen may file a citizen's complaint since they do not cease to be citizens of the Philippines despite the
uniform they wear.
Nothing in the law, or Republic Act No. 6975, justifies the conclusion that PNP members no longer have the right to file a
citizen's complaint.
After conceding that offenses by PNP men may be classified either as citizen's complaint or as minor offenses involving
internal discipline, public respondents contend that complaints against members of the PNP are not necessarily classified
as merely offenses involving internal discipline.
In G.R. No. 109638, the accusation against petitioner Fianza concerns protection of jueteng operators, which, under the
PLEB Rules, constitutes a grave offense. It may even be considered as maliciously refraining from instituting prosecution
for the punishment of violators of the law or tolerating the commission of criminal offenses under the Revised Code. 18
In G.R. No. 109639, public respondents contend that the complaint against petitioner Cordoviz is covered by Rule VI-H (r)
of the PLEB Rules, thus:
xxx xxx xxx
r. Threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong
amounting to a crime (Grave Threats Art. 282);
xxx xxx xxx
Since respondent policeman in this case was never under petitioner's command, the complaint cannot plausibly be a
matter involving internal discipline.
Finally, public respondents assert that the policy of the law is for wider civilian participation in PNP affairs. The
Constitution envisions a police force civilian in character. The PLEB, as an avenue for greater citizen involvement in the
police force, must be deemed to have broad jurisdiction to effectuate this constitutional policy and promote people
empowerment.
The issue then before us in these twin petitions involves a clarification of the jurisdiction of PLEB as applicable to the
specific facts of this case and not merely as a petition for declaratory relief over which this Court has no jurisdiction.
In G.R. No. 109638, it is whether or not the PLEB may take cognizance of a case for grave misconduct and irregular
performance of duty filed by nine (9) policemen against their superior, Supt. Florencio D. Fianza.
In G.R. No. 109639, at issue is whether or not the PLEB may hear and try a case for "Threats, Grave Abuse of Authority
and Conduct Unbecoming an Officer" brought against Supt. July Cordoviz by a policeman outside the ambit of his
command.
At this point, a review of the PLEB's organic law is in order. The PLEB, established pursuant to Sec. 43 of Republic Act
19
No. 6975, is part of the PNP's administrative disciplinary machinery.
Sec. 43 reads, in part:
Sec. 43. People's Law Enforcement Board (PLEB). (a) Creation and Functions. Within thirty (30) days from the
issuance of the implementing rules and regulations by the Commission, there shall be created by the sangguniang
panglunsod/bayan in every city and municipality such number of People's Law Enforcement Boards' (PLEBs) as may be
necessary: Provided, That there shall be at least one (1) PLEB for every municipality and for each of the legislative
districts in a city. The PLEB shall have jurisdiction to hear and decide citizen's complaints or cases filed before it against
erring officers and members of the PNP. There shall be at least one (1) PLEB for every five hundred (500) city or
municipal police personnel.
xxx xxx xxx
(Emphasis supplied)

Each PLEB is composed of a member of the sangguniang panglunsod/ bayan chosen by his respective sanggunian;
barangay captain of the city or municipality concerned chosen by the association of barangay captains; and three other
members who shall be chosen by the peace and order council from among the respected members of the community
known for their probity and integrity. Membership in the PLEB is a civic duty; however PLEB membership may be paid per
diem as may be determined by the city or municipal council from city or municipal funds. 20
For emphasis, the abovecited provision of law states that the PLEB has jurisdiction to hear and decide citizen's complaints
or cases against erring officers and members of the PNP.
Petitioners, PNP Superintendents Fianza and Cordoviz, are in effect asking us to rule that the complaints against them
are not covered by the PLEB's jurisdiction because they cannot be considered as citizen's complaints.
Under Sec. 41 (a) of the PNP's enabling act, a citizen's complaint is "any complaint by an individual person against any
member of the PNP." Penalties imposable include withholding of privileges, restriction to specified limits, suspension or
forfeiture of salary, any combination thereof or dismissal. When the penalties imposable do not exceed fifteen days, the
citizen's complaint should be brought before the Chief of Police; and if for a period not less than sixteen but not exceeding
thirty days, before the city or municipal mayors. It is when the offense is punishable by the abovementioned penalties and
for a period exceeding thirty days or by dismissal, that the complaint should be brought before the PLEB.
Section 41 paragraph (b) provides:
(b) Internal Discipline. In dealing with minor offenses involving internal discipline found to have been committed by any
regular member of their respective commands, the duly designated supervisors and equivalent officers of the PNP shall,
after due notice and summary hearing, exercise disciplinary powers as follows:
(1) Chiefs of police or equivalent supervisors . . .;
(2) Provincial directors or equivalent supervisors . . .;
(3) Police regional directors or equivalent supervisors . . .;
(4) The Chief of the PNP . . . .
Nowhere in the aforecited provision is the PLEB jurisdiction over offenses concerning internal discipline.
Rule II, section 1 of the PLEB Rules defines a citizen's complaint as pertaining to "any complaint initiated by a private
citizen or his duly authorized representative on account of an injury, damage or disturbance sustained due to an irregular
or illegal act committed by a member of the PNP."
A citizen's complaint, then, is one filed by a private citizen against a member of the PNP for the redress of injury damage
or disturbance caused by the latter's illegal or irregular acts.
Petitioner contends that since the complainants are PNP policemen, they cannot be classified as "private citizens" for
purposes of filing a "citizen's complaint.'' Public respondents disagree and claim that respondent policemen,
nowithstanding their uniforms, do not cease to be citizens.
On this point, We rule that although respondent policemen continue to be citizens, as public respondents contend, they
are not the "private citizens" referred to in the laws cited above. Clearly, the term "private citizens" does not ordinarily
include men in uniform, such as the respondent PNP men. This is particularly evident in the PNP law which uses the term
"members of the PNP" as well as "private citizens" to refer to different groups of persons and not interchangeably. The
"plain meaning rule" or verba legis in statutory construction is applicable in this situation. When the words of a statute are
clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation. 21 The term "private citizen" in the PNP Law and PLEB Rules is used in its common signification and was
not meant to refer to the members of the PNP, such as respondent policemen.
One of the avowed objectives of the PLEB is to enhance civilian participation in the disciplinary process of errant
22
PNP. The PLEB is part of the system of coordination and members and cooperation among the citizenry, local
executives and PNP provided for in the law creating the Philippine National Police. 23

The citizen's complaint envisioned under Republic Act No. 6975 normally pertains to complaints by private individuals
against PNP men and not by PNP men against their co-members or officers in a professional capacity. An example used
in the Bicameral Conference Committee hearings is that of a policeman who takes fish from the market without paying for
24
it. Aside from the criminal liability attaching to the act of the policeman cognizable by the courts, the private party
prejudiced can sue him before the PLEB.
However, respondent policemen are not absolutely excluded from bringing citizen's complaints with the PLEB. PNP
members can file suit as private citizens only when they do so in their private capacity and not as members of the PNP.
This means that the complaining PNP personnel can sue on matters of private concern and not on matters properly
cognizable by the PNP chain of command. If a policeman complains against another colleague before the PLEB, he can
do so when the subject matter of the complaint is one that can similarly be raised by a private individual or citizen.
But if subject of the complaint bears a direct relation to the office of the complainant-policeman as member of the PNP, it
can hardly be considered as a citizen's complaint and is, therefore, neither cognizable nor triable by the PLEB.
This conclusion is ineluctable as the PNP is the proper venue for matters involving its internal organization or discipline.
The PNP hierarchy possesses the power and responsibility over its men in these matters. Section 81 of Republic Act No.
6975 reads:
Sec. 81. Complaints and Grievances. Uniformed personnel shall have the right to present complaints and grievances to
their superiors or commanders and have them heard and adjudicated as expeditiously as possible in the best interest of
the service, with due regard to due process in every case. Such complaints or grievances shall be resolved at the lowest
possible level in the unit of command and the respondent shall have the rigth to appeal from an adverse decision to higher
authorities. 25
No better forum for the resolution of internal discipline and administrative matters can be found than the organization
(PNP) itself, particularly in the enforcement of its professional code of conduct.
In matters pertaining to their job or office, PNP men are channel for their complaints against colleagues, superiors or
commanding officers. The Chief of Police Provincial Director, Police Regional Director and PNP Chief are the proper
conduits for offenses involving internal discipline, such as simple misconduct or negligence, insubordination, frequent
absences or tardiness, habitual drunkenness and gambling prohibited by law. 26 Even the PLEB Rules provide that
jurisdiction over offenses involving breach of internal discipline (or any offense committed by a member of the PNP
involving and affecting order and discipline within the ranks of the police organization) belongs to the duly designated
supervisors and equivalent officers of the PNP. The Chiefs of Police, Provincial Directors, Police Regional Directors or
their equivalent supervisors and the PNP Chief exercises disciplinary powers for breaches of internal discipline committed
by any regular member of their respective commands. 27
Having dealt with the areas over which the PLEB exercises jurisdiction, the next step is to determine whether the cases at
bench fall within the ambit of said jurisdiction.
Respondent policemen in the first petition accuse petitioner Fianza of issuing illegal orders pertaining to transfers of
assignment and dropping from the rolls without any formal investigation. They accuse him of issuing these orders in
retaliation for their raids on jueteng operations protected by him.
The merits of the case are not disputed in the instant petition. What is at issue is where the case should be adjudicated.
Though the policemen impute ill motives to petitioner for issuing illegal orders, there is no question that the principal and
basic issue is the wrongful issuance of such order. In other words, accusations of "coddling" or
protecting jueteng operators do not alter the fact that the main dispute refers to the ensuing transfer and dismissal orders
issued by respondent policemen's superiors in the PNP.
We
pointed
out
earlier
that
the
Chief
of
the
PNP
and
his
subordinates
have the power to transfer and utilize PNP personnel in accordance with their strategy. 28 The issuance of the questioned
orders comes within the purview of the abovementioned power. Hence, the propriety or illegality of the orders should be
raised before the proper superiors or commanding officers 29 and not before a civilian body like the PLEB. To repeat,
nowhere in the law creating the PLEB is this power or function mentioned. 30
For the foregoing reasons, We rule that the PLEB has no jurisdiction over the complaint lodged against petitioner Fianza
by respondent policemen.

A close scrutiny of the second petition (G.R. No. 109639) discloses that the administrative case 31 was for threats made
by a superior officer of the PNP against another PNP policeman who is not under his command.
Again, the same cannot be considered as citizen's complaint because the conduct complained of pertains to their work
and offices. That the alledged threats were made in connection with private respondent policeman's position is shown by
the following allegation in his complaint:
. . . he pointed his right forefinger at me and shouted the following and I quote: "SIKA, NO SAAN DA NGA AG-REPORT
KANIAK IDIAY OPISINA, ITULOY KO DIAY ILLEGAL SEARCH NGA DEMANDA KANYAM"; meaning: YOU, IF YOU
WILL NOT REPORT TO MY OFFICE, I WILL CONTINUE THE ILLEGAL SEARCH CHARGES AGAINST YOU;
xxx xxx xxx
Although complainant below was a policeman who did not belong to petitioner Cordoviz' command, the controversy
between them continues to be a festering internal disciplinary matter. Who can better understand the standard of conduct
imposed in the PNP than the members of the PNP themselves? Certainly, it is doubtful whether a civilian body like the
PLEB can better police the ranks of the policeman. Accordingly, we rule that the complaint, like in the preceding case, is
one which properly lodged with their common superior or commanding officer and not with the PLEB.
WHEREFORE, the petitions are hereby GRANTED. The People's Law Enforcement Board of Baguio is directed to
CEASE and DESIST from further trying Administrative Case No. 007-92 (Jesus Mason, et al. v. Supt. Florencio Fianza
and Supt. Camilo Dugayen) and Administrative Case no. 042-92 (Pat. Ray Ekid v. Col. July Cordoviz).
SO ORDERED.