G.R. No. L-80160 June 26, 1989 f.
f. On May 29, 1974, there issued OP Decision 954, Series of 1974 reversing the CSC
GOVERNOR FELICISIMO T. SAN LUIS, THE SANGGUNIANG PANLALAWIGAN,
PROVINCIAL ENGINEER JUANITO C. RODIL AND PROVINCIAL TREASURER AMADEO C.
ROMEY, ALL OF LAGUNA, petitioners,
vs.
COURT OF APPEALS AND MARIANO L. BERROYA, JR., respondents.
CORTES, J.:
The instant petition for certiorari and mandamus and/or appeal by certiorari assails
the appellate court's ruling that mandamus lies to compel the reinstatement of a
quarry superintendent in the provincial government of Laguna who was initially
detailed or transferred to another office, then suspended, and finally dismissed
following his expose of certain anomalies and irregularities committed by
government employees in the province.
The background facts, as narrated by the respondent Court of Appeals are:
Records show that at all pertinent times, petitioner-appellant (private respondent
herein) had been the quarry superintendent in the Province of Laguna since his
appointment as such on May 31, 1959. In April and May of 1973, petitioner-
appellant denounced graft and corrupt practices by employees of the provincial
government of Laguna. Thereafter, the development of events may be briefly
encapsulated as follows:
a. On July 20, l973, herein respondent-appellee provincial governor (one of the
petitioners herein) issued Office Order No. 72 transferring Berroya to the office of
the Provincial Engineer. An amended office order invoked LOI 14-B for said transfer.
b. Berroya challenged said transfer, and on October 25, 1973, the Civil Service
Commission ruled the same violative of Section 32, RA 2260, and ordered that
Berroya be reverted to his regular position of quarry superintendent.
c. On December 12, 1973, instead of complying with the CSC directive that Berroya
be reverted to his regular position, herein respondent-appellee provincial governor
suspended Berroya for alleged gross discourtesy, inefficiency and insubordination.
On that basis, reconsideration of the CSC directive that Berroya be reverted to the
position of quarry superintendent was sought as academic (sic).
d. On February 26, 1974 the Civil Service Commission reiterated its October 25,
1973 directive for the immediate reversion of Berroya to his former position, and
ruled the one-year suspension illegal.
e. Respondent-appellee provincial governor appealed to the Office of the President
from the CSC rulings alluded to.
rulings without prejudice to the decision of the Local Review Board [which had in
fact already sustained the one-year suspension under date of May 6, 1974].
g. On petitioner-appellant's motion for reconsideration, the Office of the President
rendered OP Decision 1834, Series of 1976, dated May 19, 1976, setting aside OP
Decision 954, declaring the one-year suspension improper, and ordering payment of
back salaries to Berroya.
h. Respondent-appellant moved for reconsideration of OP Decision 1834 on June
14, 1976. The said motion for reconsideration was denied on November 6, 1978.
i. In the interim, respondent-appellant provincial governor issued an Order of April
27, 1977 dismissing Berroya for alleged neglect of duty, frequent unauthorized
absences, conduct prejudicial to the best interest of duty and abandonment of
office, which order of dismissal was appealed by Berroya to the Civil Service
Commission on May 12, 1977.
j. On January 23, 1979, the Civil Service Commission resolved said appeal by
declaring the dismissal unjustified, exonerating Berroya of charges, and directing his
reinstatement as quarry superintendent.
k. On February l4, 1979, respondent-appellee provincial governor sought relief from
the CSC decision of January 23, 1979 declaring Berroya's dismissal unjustified.
1. On October 15, 1979, the CSC Merit System Board denied said motion for
reconsideration in its Resolution No. 567.
m. Thereafter, respondent-appellee provincial governor moved anew to set aside
O.P. Decision 1834, Series of 1976-the first motion for reconsideration of which had
been denied on November 6, 1978. (ref. #h, supra). The Office of the President
dismissed said motion on March 27, 1981.
Petitioner-appellant's formal demand for reinstatement to the position of quarry
superintendent having been disdained despite the factual antecedents aforestated,
he filed, [on May 27, 1980] the antecedent Civil Case No. SC-1834 for mandamus to
compel his reversion to the position of quarry superintendent at the Oogong
Quarry, with back salaries for the entire period of his suspension and dismissal
(exclusive of leaves of absence with pay), and prayed for moral and exemplary
damages, attorney's fees and expenses of suit.
Respondents-appellees moved to dismiss said petition for mandamus, as amended,
and opposed the therein application for preliminary injunctive relief for immediate
reinstatement.
In an Order of December 1, 1980, the trial court denied the application for
preliminary injunctive relief "until after the parties shall have adduced evidence, pro
and con the grant of injunctive relief", and similarly deferred its resolution on the
motion to dismiss "for lack of merit for the present ... until after the trial."
On December 15, 1980, respondents-appellees answered the petition for
mandamus and prayed that judgment be rendered-
1. Dismissing the Complaint and denying the prayer for Preliminary Injunction;
2. Declaring petitioner to have been legally separated or dismissed from the
government service;
3. Order petitioner to pay each of them the sum of P 200,000.00 by way of moral
damages; P 100,000.00 as exemplary damages and P 10,000.00 as attorney's fees
plus P 300.00 each per court appearance; other litigation expenses which may be
incurred as may be proved in due course; and to pay the costs of suit [Rollo, pp. 35-
37].
During the pendency of the civil case for mandamus, on April 9, 1981 petitioner
provincial governor filed a petition for relief from O.P. Decision 1834 with the Office
of the President. This was denied on November 27, 1984 on the ground that only
one motion for reconsideration of O.P. Decision 1834 was allowed, the petition for
relief being the third such motion filed by petitioner.
On May 17, 1985, after trial, the court a quo rendered its decision finding the
transfer of petitioner- appellant from his position of quarry superintendent to the
office of the Provincial Engineer sufficiently warranted. Furthermore, his one-year
suspension was found to be proper under LOI 14-B and unassailable upon
affirmation by the Local Review Board. His summary dismissal was likewise found to
be a justified exercise of the authority granted under LOI 14-B. The trial Court
further decided "that none of the respondents should be held personally liable in
their private capacity to the petitioner because their actuations are not at all
tainted with malice and bad faith" [Rollo, p. 38].
However, although the trial court upheld the validity of Berroya's dismissal, it
nevertheless ordered his reinstatement to an equivalent position as a matter of
equity. Hence, the dispositive portion of its decision reads as follows:
WHEREFORE, judgment is hereby rendered:
1. Ordering respondents to reinstate petitioner to any position equivalent to that of
a quarry superintendent which has been abolished in the present plantilla of the
provincial government of Laguna as reorganized pursuant to PD 1136 without
diminution in rank and salary;
2. Ordering respondents to pay the back salary of petitioner from April 26, 1977 to
September 1, 1977 only and appropriating funds therefor, as soon as this decision
becomes final;
3. Dismissing all claims and counterclaims of both parties for other damages
including attorney's fees [Rollo, p. 35].
On June 6, 1985, herein private respondent Berroya appealed from the decision of
the Regional Trial Court dated May 17, 1985. The appeal was resolved by the
respondent Court of Appeals in his favor in a decision which was promulgated on
April 30, 1987, the decretal portion of which states:
WHEREFORE, the present appeal is accordingly resolved as follows:
(a) Petitioner-appellant is ordered to be reinstated to the position of quarry
superintendent of the Oogong Quarry in Laguna or to the position which said office
may now be called pursuant to the reorganization of the plantilla of the Provincial
Government of Laguna under PD 1136, without diminution in rank and salary;
(b) Respondents-appellees are ordered to pay the back salary of petitioner-
appellant corresponding to the period of suspension and of illegal dismissal from
the service, exclusive of that corresponding to leaves of absences with pay;
(c) Respondents-appellants (sic) are ordered, jointly and severally, to pay petitioner-
appellant the sum of P 50,000.00 as and for moral damages;
(d) Respondents-appellants (sic) are ordered, jointly and severally, to pay
petitioner-appellant the further sum of P 20,000.00 as and for attorney's fees, plus
costs and expenses of suit.
The decision of May 17, 1985, in Civil Case No. SC-1748 is accordingly set aside
forthwith.
With costs against respondents-appellees.
SO ORDERED. [Rollo, p. 43.]
Petitioners moved to reconsider the decision of the appellate court but their
motion was denied. Hence, the instant petition docketed as G.R. No. 80160, which
is "both or alternatively an original action for certiorari and mandamus and an
appeal by certiorari" [See Rollo, p. 1, et seq.] Another petition for review of the
Court of Appeals' decision was filed with this Court on October 8, 1987 docketed as
G.R. No. 79985 by the same petitioners. However, in a resolution dated November
16, 1987, the Court noted the manifestation/motion filed by petitioners stating,
among other things, that the petition docketed as G.R. No. 79985 be considered
withdrawn and the petition dated October 16, 1987 which was filed on October 19,
1987 and docketed as G.R. No. 80160 be considered as the main and real petition
[Rollo, p. 50].
Accordingly, the parties were required to submit their respective pleadings in G.R.
No. 80160. The petition in G.R. No. 80160 contains the following assignment of
errors:
First
THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION AS WELL AS EXCEEDED
ITS JURISDICTION IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION BY
MEANS OF A MERE MINUTE RESOLUTION, STATING NO LEGAL BASIS THEREFOR, IN
GROSS VIOLATION OF THE CONSTITUTION'S EXPRESS MANDATE AND WHEN IT
STATED AND HELD IN SAID RESOLUTION "THAT NO NEW REASON HAS BEEN
ADDUCED [IN SAID MOTION] TO JUSTIFY A REVERSAL OR MODIFICATION OF [ITS]
FINDINGS AND CONCLUSIONS".
Second
THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL
AS EXCEEDED ITS JURISDICTION IN FINDING THAT THE RESPONDENT MARIANO L.
BERROYA, JR. DOES NOT FALL UNDER THE CATEGORY OF "NOTORIOUSLY
UNDESIRABLE" AND THAT THE "APPLICABILITY OF LOI 14-B TO RESPONDENT
BERROYA IS OPEN TO QUESTION AS HE WAS NEVER ASKED TO RESIGN AS BEING
NOTORIOUSLY UNDESIRABLE".
Third
THE RESPONDENT COURT BLATANTLY ERRED AND GRAVELY ABUSED ITS
DISCRETION AS WELL AS EXCEEDED ITS JURISDICTION IN FINDING THAT THE
"RECALL" OF THE DISMISSAL ORDER IS ITSELF ATTENDED BY A TOUCH OF MYSTERY,
MENTIONED ONLY IN THE TESTIMONY OF PETITIONER PROVINCIAL GOVERNOR,
UNFORTIFIED BY ANY WRITING THEREOF, AND NOT ADVERTED TO IN THE
DECEMBER 15, 1980 ANSWER FILED IN THE ANTECEDENT mandamus ACTION, AND
IN NOT FINDING THAT RESPONDENT BERROYA COMMITTED ABANDONMENT OF
OFFICE.
Fourth
THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL
AS EXCEEDED ITS JURISDICTION IN FINDING THAT THE DECISION OF THE LOCAL
BOARD OF REVIEW UNDER LOI 14-B MAY BE REVIEWED UNDER THE
CONSTITUTIONAL PREROGATIVE OF THE PRESIDENT TO SUPERVISE LOCAL
GOVERNMENT UNITS, WHICH INCLUDES THE AUTHORITY TO REVIEW, MODIFY OR
REVERSE DECISION INVOLVING SUSPENSION OF LOCAL OFFICIALS AND EMPLOYEES.
Fifth
THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL
AS EXCEEDED ITS JURISDICTION IN CONCLUDING IN RATHER STRONG LANGUAGE
THAT THE "ABOLITION OF THE POSITION OF QUARRY SUPERINTENDENT FROM THE
PLANTILLA OF THE PROVINCIAL GOVERNMENT OF LAGUNA MUST BE VIEWED WITH
(sic) ABERRATION AND AN ANOMALY, IN THE LIGHT OF UNCONTROVERTED
SHOWING THAT QUARRY OPERATIONS AT THE SAME SITE CONTINUE TO DATE, AS
WOULD MILITATE AGAINST ATTENDANCE OF GOOD FAITH IN THE ABOLITION OF
SAID OFFICE."
Sixth
THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL
AS EXCEEDED ITS JURISDICTION IN ORDERING THE PAYMENT OF PRIVATE
RESPONDENTS BACK SALARIES FOR THE PERIOD OF HIS SUSPENSION AS WELL AS
DISMISSAL UNTIL REINSTATEMENT AS QUARRY SUPERINTENDENT, AND IN
AWARDING MORAL DAMAGES IN THE SUM OF P50,000.00 AND ATTORNEY'S FEES
IN THE SUM OF P20,000.00 IN FAVOR OF THE PRIVATE RESPONDENT BERROYA, AND
IN HOLDING ALL THE PETITIONERS HEREIN SOLIDARILY LIABLE FOR THE PAYMENT
OF AFORESAID BACK SALARIES AND DAMAGES [Rollo, pp. 13-14].
The first error assigned in the instant petition is not well taken. A thorough perusal
of the assailed resolution of the respondent CA denying petitioners' motion for
reconsideration reveals clearly its legal basis. Thus, its resolution stating that
Considering that the motion for reconsideration of the decision promulgated on
April 30, 1987 filed by respondent-appellee merely reiterates the grounds and
arguments already discussed, thoroughly analyzed and passed upon by this Court;
and that no new reason has been adduced to justify a reversal or modification of
the findings and conclusion of this Court.
WHEREFORE, the motion for reconsideration is DENIED for lack of merit [Rollo, p.
45; Emphasis supplied].
constitutes sufficient compliance with the constitutional mandate that no motion
for reconsideration of a decision of the court shall be denied without stating the
legal basis therefor (1987 Constitution, Art. VIII, Sec. 14, par. 2).
The resolution of the remaining assigned errors hinges on a determination of the
effect of the decisions rendered in favor of Berroya by two administrative agencies.
A. It is worth noting that the issue of legality of the order of suspension by
petitioner Governor dated December 12, 1973 had already been passed upon in a
decision of the Office of the President (O.P. Decision No. 1834) dated May 19, 1976
reversing its earlier ruling in O.P. Decision No. 954 dated May 29, 1974. The Office
of the President categorically ruled as follows:
xxx xxx xxx
It is not disputed that the Governor, in issuing his Order of Suspension, was
exercising an authority legally endowed upon (sic) him by LOI 14-B, but it must not
be an unbridled exercise of such authority....
A review of the records discloses that the only act of the governor which was
sustained by the Local Review Board was his imposing the suspension on Berroya
for alleged discourtesy. This Office is prone to adopt a contrary stand on the matter
taking into consideration the circumstances leading to the writing of the so-called
"dishonest' statements of the petitioner. It is unfortunate that the Local Review
Board took it as an infraction of the Civil Service Rules and Regulations. It must be
observed that the said statements were made in the course of a pending case
before the Civil Service Commission, and in defense of the position of the
petitioner. Although the said statements, by themselves, may be considered as
lacking in refinement, still this fact alone does not justify the drastic action taken
against the petitioner in this case. . . .
In view of the foregoing, this Office rules that the suspension order was unjustified.
Considering that respondent Berroya has already served the suspension order and
that his suspension was not proper, it is hereby ordered that he be entitled to the
payment of his back salaries corresponding to the period of his suspension [Folder
of Exhibits, Vol. 1, pp. 102-103].
From this decision of the Office of the President, petitioner Governor filed a petition
for reconsideration dated June 14, 1976 which was denied for lack of merit in a
resolution of the Office of the President dated November 6, 1978 [Folder of
Exhibits, Vol. 1, p. 170]. On July 3, 1979, petitioner governor filed a second petition
to reconsider O.P. Decision No. 1834 on the main ground that the disputed decision
is null and void ab initio allegedly because Berroya filed his motion for
reconsideration of O.P. Decision No. 954 only on July 15, 1975 or after a lapse of
one year and forty seven (47) days from the date when the said decision was
rendered. The Office of the President denied such petition in a resolution dated
March 27, 1981 [Folder of Exhibits, Vol. 1, p. 210] on the strength of Executive
Order No. 19, Series of 1966 which empowers said office to act upon petitions for
reconsideration, even if filed late, in exceptionally meritorious cases. Said Office
further pointed out that upon review of the records of the case, it was shown that
Berroya's motion for reconsideration was filed on July 15, 1974 and not on July 15,
1975 as erroneously indicated in O.P. Decision No. 1834 [Folder of Exhibits, Vol. 1,
p. 213].
From the foregoing, it can be seen that OP Decision No. 1834 had already attained
finality upon denial of the first motion for reconsideration in view of the clear
provisions of the applicable law at the time. Executive Order No. 19, Series of 1966,
which provides:
xxx xxx xxx
5. Petitions for reconsideration filed after the lapse of the aforesaid period (fifteen
days from receipt of the decision) shall not be entertained unless the Office of the
President, for exceptionally meritorious causes, decides to act thereon, provided
that only one petition for reconsideration by any party shall be allowed [Emphasis
supplied.]
Accordingly, the filing of the second petition for reconsideration could not have
stayed the finality of the aforesaid decision.
In a last ditch attempt to assail the validity of O.P. Decision No. 1834, a petition for
relief was filed by herein petitioners on April 9, 1981, during the pendency of the
mandamus case. This petition was finally denied in a resolution of the office dated
November 27, 1984.
B. On the other hand, the validity of Berroya's dismissal was already passed upon by
the Merit Systems Board of the Civil Service Commission in MSB Case No. 40. In a
decision promulgated on January 23, 1979, the Merit Systems Board held as
follows:
After carefully perusing the records of this case, this board is convinced that there is
no strong evidence of guilt against Berroya. In fact, there is not even sufficient
evidence to maintain the charges against him. Hence, the same does not fall within
the scope of Section 40, Presidential Decree No. 807.
The record does not show that Berroya is notoriously undesirable. On the contrary,
his performance ratings from the period ending December 31, 1969 to the period
ending June 30, 1973 are all very satisfactory.
Such being the case, he is not notoriously undesirable under the standard laid down
by the President, to wit: "the test of being notoriously undesirable is two-fold:
whether it is common knowledge or generally known as universally believed to be
true or manifest to the world that petitioner committed the acts imputed against
him, and whether he had contracted the habit for any of the enumerated
misdemeanors". The same are not present in the case of Berroya. On the contrary
he should be given recognition for his efforts in exposing the irregularities allegedly
committed by some authorities of the Laguna Provincial Government which led to
the filing of criminal as well as administrative cases against such officials.
Foregoing premises considered, this Board finds the order of dismissal dated April
27, 1977, without justifiable basis. Wherefore, the Board hereby exonerates Engr.
Mariano Berroya, Jr. of the charges against him. Consequently, it is hereby directed
that he be reinstated to his position as Quarry Superintendent of Laguna
immediately, [Folder of Exhibits, Vol. 1, pp. 175-176].
The motion for reconsideration from this decision was denied in a resolution of the
Board dated October 15, 1979. This decision was therefore already final when
Berroya instituted suit in 1980 to compel petitioner to reinstate him to his former
position and to pay his back salaries.
Since the decisions of both the Civil Service Commission and the Office of the
President had long become final and executory, the same can no longer be
reviewed by the courts. It is well-established in our jurisprudence that the decisions
and orders of administrative agencies, rendered pursuant to their quasi-judicial
authority, have upon their finality, the force and binding effect of a final judgment
within the purview of the doctrine of resjudicata [Brillantes v. Castro, 99 Phil. 497
(1956), Ipekdjian Merchadising Co., Inc. v. Court of Tax Appeals, G.R. No. L-15430,
September 30, 1963, 9 SCRA 72.] The rule of res judicata which forbids the
reopening of a matter once judicially determined by competent authority applies as
well to the judicial and quasi-judicial acts of public, executive or administrative
officers and boards acting within their jurisdiction as to the judgments of courts
having general judicial powers [Brillantes v. Castro, supra at 503].
Indeed, the principle of conclusiveness of prior adjudications is not confined in its
operation to the judgments of what are ordinarily known as courts, but it extends
to all bodies upon whom judicial powers had been conferred. Hence, whenever any
board, tribunal or person is by law vested with authority to judicially determine a
question, like the Merit Systems Board of the Civil Service Commission and the
Office of the President, for instance, such determination, when it has become final,
is as conclusive between the same parties litigating for the same cause as though
the adjudication had been made by a court of general jurisdiction [Ipekdjian
Merchandising Co., Inc. v. Court of Tax Appeals, supra at 76].
Furthermore, the trial court's act of reviewing and setting aside the findings of the
two administrative bodies was in gross disregard of the basic legal precept that
accords finality to administrative findings of facts.
The general rule, under the principles of administrative law in force in this
jurisdiction, is that decisions of administrative officers shall not be disturbed by the
courts, except when the former have acted without or in excess of their jurisdiction,
or with grave abuse of discretion. Findings of administrative officials and agencies
who have acquired expertise because their jurisdiction is confined to specific
matters are generally accorded not only respect but at times even finality if such
findings are supported by substantial] evidence. . . . [Lianga Bay Logging Co., Inc. v.
Lopez Enage, G.R. No. L-30637, July 16, 1987,152 SCRA 80].
Finally, the Court cannot ignore the undisputed fact that the decisions rendered by
the Office of the President and the Merit Systems Board had attained finality
without petitioners having taken any timely legal recourse to have the said
decisions reviewed by the courts. On the other hand, Berroya, in order to enforce
his right to reinstatement and to back salaries pursuant to these final and executory
administrative rulings, instituted a suit for mandamus to compel petitioners to
comply with the directives issued by the two administrative agencies.
Since private respondent Berroya had established his clear legal right to
reinstatement and back salaries under the aforementioned final and executory
administrative decisions, it became a clear ministerial duty on the part of the
authorities concerned to comply with the orders contained in said decisions [Tanala
v. Legaspi, G.R. No. L-22537, March 31, 1965,13 SCRA 566 at 574-575].
The established rule is that a writ of mandamus lies to enforce a ministerial duty or
"the performance of an act which the law specifically enjoins as a duty resulting
from office, trust or station" [Section 3, Rule 65 of the Revised Rules of Court; Lianto
v. Mohamad Ali Dimaporo, et al., G.R. No. L-21905, March 31, 1966, 16 SCRA 599].
In this case, the appropriate administrative agencies having determined with finality
that Berroya's suspension and dismissal were without just cause, his reinstatement
becomes a plain ministerial duty of the petitioner Provincial Governor, a duty
whose performance may be controlled and enjoined by mandamus [Ynchausit and
Co. v. Wright, 47 Phil. 866 (1925); Tee and Co. v. Wright, 53 Phil. 194 (1929);
Gementiza v. Court of Appeals, G.R. Nos. L-41717-33, April 12, 1982,113 SCRA 477;
Laganapan v. Asedillo, G.R. No. L-28353, September 30, 1987, 154 SCRA 377].
Thus, this Tribunal upholds the appellate court's judgment for the reinstatement of
respondent Berroya and payment of his back salaries corresponding to the period
of suspension and of illegal dismissal from service, exclusive of that corresponding
to leaves of absences with pay. However, as respondent Berroya can no longer be
reinstated because he has already reached the compulsory retirement age of sixty
five years on December 7, 1986,** he should be paid his back salaries [Salcedo v.
Court of Appeals, G.R. No. L-40846, January 31, 1978, 81 SCRA 408] and also all the
retirement and leave privileges that are due him as a retiring employee in
accordance with law [Tanala v. Legaspi, supra at 576].
According to settled jurisprudence, Berroya, as an illegally terminated civil service
employee is entitled to back salaries limited only to a maximum period of five years
Laganapan v. Asedillo, supra; Balquidra v. CFI of Capiz, Branch II, G.R. No. L-40490,
October 28, 1977, 80 SCRA 123; Salcedo v. Court of Appeals, supra, Gementiza v.
Court of Appeals, supra].
That petitioners Provincial Governor, Provincial Treasurer and Provincial Engineer of
Laguna, the Sangguniang Panlalawigan of Laguna and the Province of Laguna,
formally impleaded herein,'** are liable for back salaries in case of illegal
termination of a civil service employee finds support in earlier decisions of this
Court [Balquidra v. Court of First Instance of Capiz, Branch II, supra; Gementiza v.
Court of Appeals, supra; Rama v. Court of Appeals, G.R. Nos. L-44484, 1,44842, L-
44894, L-44591, March 16, 1987,148 SCRA 496; Laganapan v. Asedillo, supra].
However, the petitioners Juanito Rodil and Amado Romey must be held liable only
in their official capacities as Provincial Engineer and Provincial Treasurer,
respectively since they had been expressly sued by Berroya as such [Petition for
mandamus with Preliminary Injunction, Record, Vol. 1, p. 1, et seq.; Gray v. De Vera,
G.R. No. L-23966, May 22, 1969, 28 SCRA 268].
The same does not hold true for petitioner provincial governor who was found by
the appellate court to have acted in bad faith as manifested by his contumacious
refusal to comply with the decisions of the two administrative agencies, thus
prompting respondent Berroya to secure an indorsement from the Minister of Local
Government and Community Development dated November 15, 1979 for his
reinstatement [Annex "Y-9", Folder of Exhibits, Vol. 1, p. 207]. The Minister's
directive having been ignored, Berroya was compelled to bring an action for
mandamus.
Where, as in this case, the provincial governor obstinately refused to reinstate the
petitioner, in defiance of the orders of the Office of the President and the Ministry
of Local Government and in palpable disregard of the opinion of the Civil Service
Commission, the appellate court's finding of bad faith cannot be faulted and
accordingly, will not be disturbed by this Tribunal Enciso v. Remo, G.R. No. L-23670,
September 30, 1969, 29 SCRA 580.] This is in line with our previous ruling in Remo v.
Palacio [107 Phil. 803 (1960)] that
xxx xxx xxx
(i)t having been clearly shown by evidence, that respondent, Deogracias Remo, in
his capacity as Mayor of Goa, refused to reinstate the petitioner to his former
position in the police force of Goa, despite the orders of Malacanang to do so (Exhs.
G and I), and inspite of the opinion of the Secretary of Finance (Exh. H), the
respondent Mayor of Goa, willfully acted in bad faith, and therefore, he, as Mayor
of Goa, should pay for damages caused to the petitioner, Angel Enciso. [At pp. 807-
808.]
It is well-settled that when a public officer goes beyond the scope of his duty,
particularly when acting tortiously, he is not entitled to protection on account of his
office, but is liable for his acts like any private individual [Palma v. Graciano, 99 Phil.
72 (1956)].
Thus, in Mendoza v. De Leon [33 Phil. 508 (1916)], it was held:
Nor are officers or agents of the Government charged with the performance of
governmental duties which are in their nature legislative or quasi-judicial liable for
the consequences of their official acts, unless it be shown that they act wilfully and
maliciously and with the express purpose of inflicting injury upon the plaintiff [at
513; Emphasis supplied].
Accordingly, applying the principle that a public officer, by virtue of his office alone,
is not immune from damages in his personal capacity arising from illegal acts done
in bad faith [Tabuena v. Court of Appeals, G.R. No. L-16290, October 31, 1961, 3
SCRA 413; Correa v. Court of First Instance of Bulacan, G. R. No. L-46096, July 30,
1979, 92 SCRA 312], the Court holds that petitioner Felicisimo T. San Luis, the
Provincial Governor of Laguna who has been sued both in his official and private
capacities, must be held personally liable to Berroya for the consequences of his
illegal and wrongful acts.
In this regard, the Court sustains the appellate court's finding that petitioner San
Luis must be held liable to Berroya for moral damages since justice demands that
the latter be recompensed for the mental suffering and hardship he went through
in order to vindicate his right, apart from the back salaries legally due him [Rama v.
Court of Appeals,supra at p. 5061]. The appellate court was clearly warranted in
awarding moral damages in favor of respondent Berroya because of the obstinacy
of petitioner Governor who arbitrarily and without legal justification refused
Berroya's reinstatement in defiance of directives of the administrative agencies with
final authority on the matter. We agree with the appellate court that the sum of P
50,000.00 for moral damages is a reasonable award considering the mental anguish
and serious anxiety suffered by Berroya as a result of the wrongful acts of petitioner
Governor in refusing to reinstate him.
Finally, as correctly adjudged by respondent court, petitioner San Luis must likewise
answer to Berroya for attorney's fees plus costs and expenses of suit, which have
been fixed by said court at P 20,000.00, in view of the wrongful refusal of petitioner
provincial governor to afford Berroya his plainly valid and just claim for
reinstatement and back salaries [Rollo, p. 42].
WHEREFORE, the assailed decision of the appellate court is hereby MODIFIED as
follows: (1) the petitioners, in their official capacities, are ordered to pay private
respondent Berroya, his back salaries for a maximum period of five years; (2) since
the reinstatement of Berroya can no longer be ordered by reason of his having
reached the retirement age, he should instead be paid all the retirement benefits to
which he is entitled under the law; and (3) petitioner Felicisimo T. San Luis, in his
personal capacity, is further ordered to pay Berroya the sum of P 50,000.00 as and
for moral damages, the sum of P 20,000.00 as and for attorney's fees plus costs and
other expenses of suit. This decision shall be IMMEDIATELY EXECUTORY.
SO ORDERED.
 relief considering that it is the petitioner who is directly liable for the payment of
respondent's money claims, it would be in the best interest of justice if the
G.R. No. 154961. February 18, 2003] petitioner is allowed to ventilate its position extensively and for the Court to
MUNICIPALITY OF JASAAN vs. GENTALLAN adequately pass upon the issues raised.

EN BANC IN VIEW OF THE FOREGOING, the Court Resolved to GRANT the Motion for Leave to
File a Second Motion for Reconsideration and to ADMIT the aforesaid Second
Gentlemen: Motion for Reconsideration. The Comment filed by respondent dated December 26,
2002, is NOTED. The petition for Review filed on October 22, 2002 is REINSTATED.
Quoted hereunder, for your information, is a resolution of this Court dated FEB 18 The respondent is directed to file a COMMENT on the petition within ten (10) days
2003. from notice hereof.
G.R. No. 154961 (The Municipality of Jasaan, represented by the Municipal Mayor, Ynares-Santiago, J., on leave.
Huberto C. Paurom vs. Jocelyn Gentallan.)

In the Resolution dated September 24, 2002, the Court denied the Motion for
Extension of Time dated 2 September filed by counsel for the petitioner for failure
to serve a copy of the petition on the Court of Appeals.

The Motion for Reconsideration dated October 15, 2002 was denied after the Court
found no compelling reason to warrant the reversal of the questioned resolution.
The petition for review subsequently filed was thereby denied in view of the denial
of the motion for extension of time.[1]cralaw

Petitioner filed the instant motion for leave to file a second motion for
reconsideration and the aforesaid motion for second reconsideration alleging that
there is a similar petition filed by the Civil Service Commission, assailing the same
Court of Appeals Decision (CA-G.R. SP No. 61615). This was docketed as G.R. No.
152833 entitled "Civil Service Commission vs. Jocelyn S. Gentallan." A verification of
our records reveal that in the Resolution dated November 26, 2002, the Court En
Banc required private respondent Jocelyn Gentallan to comment on the petition for
review filed by the Civil Service Commission.

The issue that needs to be resolved in the instant case is whether or not respondent
is entitled to the representation and transportation allowances (RATA), backwages,
and differential bonuses for the period that she was disqualified from assuming her
post as the Local Civil Registrar of the Municipality of Jasaan, Misamis Oriental.

On January 24, 2003, respondent filed a Comment (to the Pleadings Received on
December 19, 2002) or to the petitioner's motion for leave to file a second motion
for reconsideration and the attached second motion for reconsideration.

It is a matter of public policy and sound practice that the Court does not grant a
second motion for reconsideration except on meritorious grounds or when the
circumstances warrant it. In the instant case, the petitioner has called our attention
to the pendency of another case with this Court, G.R. No. 152833 involving the
same parties, facts, issues and subject matter. So as not to foreclose any right for

G.R. No. 105909 June 28, 1994
MUNICIPALITY OF PILILLA, RIZAL, petitioner,
vs.
HON. COURT OF APPEALS, HON. ARTURO A. MARAVE, as Presiding Judge, Regional
Trial Court, Branch 78, Morong, Rizal, and PHILIPPINE PETROLEUM
CORPORATION, respondents.
Felix E. Mendiola for petitioner.
Makalintal, Barot, Torres & Ibarra for respondent Philippine Petroleum Corporation.
REGALADO, J.:
Petitioner questions and seeks the nullification of the resolution of respondent
Court of Appeals in CA-G.R. SP. No. 27504 dated March 31, 1992, dismissing the
petition for having been filed by a private counsel, as well as its succeeding
resolution dated June 9, 1992, denying petitioner's motion for reconsideration. 1
The records show that on March 17, 1989, the Regional Trial Court of Tanay, Rizal,
Branch 80, rendered judgment in Civil Case No. 057-T in favor of plaintiff, now
herein petitioner Municipality of Pililla, Rizal, against defendant, now herein private
respondent Philippine Petroleum Corporation (PPC, for short), ordering therein
defendant to pay said plaintiff (1) the amount of P5,301,385.00 representing the tax
on business due from the defendant under Section 9(A) of Municipal Tax Ordinance
No. 1 of said municipality for the period from 1979 to 1983, inclusive, plus such
amount of tax as may accrue until final determination of the case; (2) storage
permit fee in the amount of P3,321,730.00 due from the defendant under Section
10, paragraph Z(13)
(b-1-c) of the same municipal tax ordinance for the period from 1975 to 1986,
inclusive, plus the amount of said fee that may accrue until final determination of
the case; (3) mayor's permit fee due from the defendant under Section 10,
paragraph (P) (2) of said municipal tax ordinance from 1975 to 1984, inclusive, in
the amount of P12,120.00, plus such amount of the same fee as may accrue until
final determination of the case; (4) sanitary inspection fee in the amount of
P1,010.00 for the period from 1975 to 1984, plus the amount of this fee that may
accrue until final determination of the case; and (5) the costs of suit. 2
On June 3, 1991, in G.R. No. 90776 this Court affirmed the aforesaid judgment, with
the modification that business taxes accruing prior to 1976 are not to be paid by
PPC because the same have prescribed, and that storage fees are not also to be
paid by PPC since the storage tanks are owned by PPC and not by the municipality
and, therefore, cannot be the bases of a charge for service by the
municipality.3 This judgment became final and executory on July 13, 1991 and the
records were remanded to the trial court for execution.
On October 14, 1991, in connection with the execution of said judgment, Atty. Felix
E. Mendiola filed a motion in behalf of plaintiff municipality with the Regional Trial
Court, Branch 78, Morong, Rizal* for the examination of defendant corporation's
gross sales for the years 1976 to 1978 and 1984 to 1991 for the purpose of
computing the tax on business imposed under the Local Tax Code, as amended. On
October 21, 1991, defendant corporation filed a manifestation to the effect that on
October 18, 1991, Pililla Mayor Nicomedes Patenia received from it the sum of
P11,457,907.00 as full satisfaction of the above-mentioned judgment of the
Supreme Court, as evidence by the release and quitclaim documents executed by
said mayor. Accordingly, on October 31, 1991 the court below issued an order
denying plaintiff municipality's motion for examination and execution of judgment
on the ground that the judgment in question had already been satisfied.4
Thereafter, on November 21, 1991 Atty. Mendiola filed a motion for
reconsideration of the court's aforesaid order of October 31, 1991, claiming that the
total liability of defendant corporation to plaintiff municipality amounted to
P24,176,599.00, while the amount involved in the release and quitclaim executed
by Mayor Patenia was only P12,718,692; and that the said mayor could not waive
the balance which represents the taxes due under the judgment to the municipality
and over which judgment the law firm of Atty. Mendiola had registered two liens
for alleged consultancy services of 25% and attorneys' fees of 25% which, when
quantified and added, amount to more than P12 million.
On January 28,1992, the trial court denied the aforesaid motion for
reconsideration.5
On February 18, 1992, Atty. Mendiola, again ostensibly in behalf of herein
petitioner municipality, filed a petition for certiorari with us, which petition we
referred to the Court of Appeals for proper disposition and was docketed therein as
CA-G.R. SP No. 27504.6 On March 2, 1992, respondent PPC filed a motion
questioning Atty. Mendiola's authority to represent petitioner
municipality.7 Consequently, on March 31, 1992 respondent Court of Appeals
dismissed the petition for having been filed by a private counsel in violation of law
and jurisprudence, but without prejudice to the filing of a similar petition by the
Municipality of Pililla through the proper provincial or municipal legal
officer.8Petitioner filed a motion for reconsideration which was denied by the Court
of Appeals in its resolution of June 9, 1992.9
Petitioner is once again before us with the following assignment of errors:
1. It is an error for the Court of Appeals to consider private respondent's new issue
raised for the first time on appeal, as it could no longer be considered on appeal,
because it was never been (sic) raised in the court below.
2. It is an error for the Court of Appeals in dismissing (sic) the instant petition with
alternative remedy of filing similar petition as it is a departure from established
jurisprudence.
3. It is an error for the Court of Appeals to rule that the filing of the instant petition
by the private counsel is in violation of law and jurisprudence.10
We find the present petition devoid of merit.
The Court of Appeals is correct in holding that Atty. Mendiola has no authority to
file a petition in behalf of and in the name of the Municipality of Pililla. The matter
of representation of a municipality by a private attorney has been settled in Ramos
vs. Court of Appeals, et al.,11 and reiterated in Province of Cebu vs. Intermediate
Appellate Court, et al.,12 where we ruled that private attorneys cannot represent a
province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in
litigation. — The provincial fiscal shall represent the province and any municipality
or municipal district thereof in any court, except in cases whereof original
jurisdiction is vested in the Supreme Court or in cases where the municipality or
municipal district in question is a party adverse to the provincial government or to
some other municipality or municipal district in the same province. When the
interests of a provincial government and of any political division thereof are
opposed, the provincial fiscal shall act on behalf of the province.
When the provincial fiscal is disqualified to serve any municipality or other political
subdivision of a province, a special attorney may be employed by its council.13
Under the above provision, complemented by Section 3, Republic Act No. 2264, the
Local Autonomy Law,14 only the provincial fiscal and the municipal attorney can
represent a province or municipality in their lawsuits. The provision is mandatory.
The municipality's authority to employ a private lawyer is expressly limited only to
situations where the provincial fiscal is disqualified to represent it.15
For the aforementioned exception to apply, the fact that the provincial fiscal was
disqualified to handle the municipality's case must appear on
record.16 In the instant case, there is nothing in the records to show that the
provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on
appeal, hence the appearance of herein private counsel is without authority of law.
The submission of Atty. Mendiola that the exception is broad enough to include
situations wherein the provincial fiscal refuses to handle the case cannot be
sustained. The fiscal's refusal to represent the municipality is not a legal justification
for employing the services of private counsel. Unlike a practicing lawyer who has
the right to decline employment, a fiscal cannot refuse to perform his functions on
grounds not provided for by law without violating his oath of office. Instead of
engaging the services of a special attorney, the municipal council should request the
Secretary of Justice to appoint an acting provincial fiscal in place of the provincial
fiscal who has declined to handle and prosecute its case in court, pursuant to
Section 1679 of the Revised Administrative Code.17
It is also significant that the lack of authority of herein counsel,
Atty. Mendiola, was even raised by the municipality itself in its comment and
opposition to said counsel's motion for execution of his lien, which was filed with
the court a quo by the office of the Provincial Prosecutor of Rizal in behalf of said
municipality.18
The contention of Atty. Mendiola that private respondent cannot raise for the first
time on appeal his lack of authority to represent the municipality is untenable. The
legality of his representation can be questioned at any stage of the proceedings. In
the cases hereinbefore cited,19 the issue of lack of authority of private counsel to
represent a municipality was only raised for the first time in the proceedings for the
collection of attorney's fees for services rendered in the particular case, after the
decision in that case had become final and executory and/or had been duly
executed.
Furthermore, even assuming that the representation of the municipality by Atty.
Mendiola was duly authorized, said authority is deemed to have been revoked by
the municipality when the latter, through the municipal mayor and without said
counsel's participation, entered into a compromise agreement with herein private
respondent with regard to the execution of the judgment in its favor and thereafter
filed personally with the court below two pleadings
entitled and constitutive of a "Satisfaction of Judgment" and a "Release and
Quitclaim".20
A client, by appearing personally and presenting a motion by himself, is considered
to have impliedly dismissed his lawyer. Herein counsel cannot pretend to be
authorized to continue representing the municipality since the latter is entitled to
dispense with his services at any time. Both at common law and under Section 26,
Rule 138 of the Rules of Court, a client may dismiss his lawyer at any time or at any
stage of the proceedings, and there is nothing
to prevent a litigant from appearing before the court to conduct his own
litigation.21
The client has also an undoubted right to compromise a suit without the
intervention of his lawyer.22 Even the lawyers' right to fees from their clients may
not be invoked by the lawyers themselves as a ground for disapproving or holding in
abeyance the approval of a compromise agreement. The lawyers concerned can
enforce their rights in the proper court in an appropriate proceeding in accordance
with the Rules of Court, but said rights may not be used to prevent the approval of
the compromise agreement.23

The apprehension of herein counsel that it is impossible that the municipality will
file a similar petition, considering that the mayor who controls its legislative body
will not take the initiative, is not only conjectural but without factual basis. Contrary
to his pretensions, there is presently a manifestation and motion pending with the
trial court filed by the aforesaid municipal mayor for the withdrawal of the
"Satisfaction of Judgment" and the "Release and Quitclaim"24 previously filed in the
case therein as earlier mentioned.

WHEREFORE, the petition at bar is DENIED for lack of merit and the judgment of
respondent Court of Appeals is hereby AFFIRMED.

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.
x---------------------------------------------x
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 Dee’s
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 three-term 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 Dee’s 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 Court’s 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 Capco’s 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 Capco’s 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
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 people’s 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 voter’s 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 petitioner’s 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 vice-mayor 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. 163256. November 10, 2004]
CICERON P. ALTAREJOS, petitioner, vs. COMMISSION ON ELECTIONS, JOSE ALMIE
and VERNON VERSOZA, respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari, with prayer for the issuance of a temporary
restraining order and/or a writ of prohibitory and mandatory injunction, to set aside
the Resolution promulgated by the Commission on Elections (COMELEC), First
Division, on March 22, 2004 disqualifying petitioner Ciceron P. Altarejos from
running as mayor of San Jacinto, Masbate, and another resolution of the
COMELEC en banc promulgated on May 7, 2004 denying petitioners motion for
reconsideration.
The factual antecedents are as follows:
Petitioner Altarejos was a candidate for mayor in the Municipality of San Jacinto,
Masbate in the May 10, 2004 national and local elections.
On January 15, 2004, private respondents Jose Almie Altiche and Vernon Versoza,
registered voters of San Jacinto, Masbate, filed with the COMELEC, a petition to
disqualify and to deny due course or cancel the certificate of candidacy of petitioner
on the ground that he is not a Filipino citizen and that he made a false
representation in his certificate of candidacy that [he] was not a permanent
resident of or immigrant to a foreign country.
Private respondents alleged that based on a letter[1] from the Bureau of
Immigration dated June 25, 2001, petitioner was a holder of a permanent U.S.
resident visa, an Alien Certificate of Registration No. E139507 issued on November
3, 1997, and an Immigration Certificate of Residence No. 320846 issued on
November 3, 1997 by the Bureau of Immigration.[2]
On January 26, 2004, petitioner filed an Answer[3] stating, among others, that he
did not commit false representation in his application for candidacy as mayor
because as early as December 17, 1997, he was already issued a Certificate of
Repatriation by the Special Committee on Naturalization, after he filed a petition for
repatriation pursuant to Republic Act No. 8171. Thus, petitioner claimed that his
Filipino citizenship was already restored, and he was qualified to run as mayor in
the May 10, 2004 elections. Petitioner sought the dismissal of the petition.
On the date of the hearing, the parties were required to submit their Memoranda
within three days. Private respondents filed their Memorandum, while petitioner
did not file one within the required period.[4] Petitioner, however, filed a Reply
Memorandum[5] subsequently.
Atty. Zacarias C. Zaragoza, Jr., regional election director for Region V and hearing
officer of this case, recommended that petitioner Altarejos be disqualified from
being a candidate for the position of mayor of San Jacinto, Masbate in the May 10,
2004 national and local elections. He found, thus:
xxx
The provisions of law governing the qualifications and disqualifications of elective
local officials are found in Sections 39 and 40 of Republic Act No. 7160 otherwise
known as the Local Government Code of 1991, which provide as follows:
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 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.
xxx.
(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.
[SEC. 40. Disqualifications. The following persons are disqualified from running for
any elective position:]
xxx.
(d) Those with dual citizenship.
xxx.
(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; xxx
Under the terms of the above quoted statutory provisions, it is required that an
elective local official must be a citizen of the Philippines, and he must not have a
dual citizenship; must not be a permanent resident in a foreign country or must not
have acquired the right to reside abroad.
In the present case, it has been established by clear and convincing evidence that
respondent is a citizen of the United States of America. Such fact is proven by his
Alien Certificate of Registration (ACR) No. E139507 issued on 3 November 1997 and
Immigration Certificate of Residence (ICR) with No. 320846 issued on 3 November
1997 by the Alien Registration Division, Bureau of Immigration and Deportation.
This was further confirmed in a letter dated 25 June 2001 of then Commissioner
ANDREA D. DOMINGO of the Bureau of Immigration and Deportation.
Although respondent had petitioned for his repatriation as a Filipino citizen under
Republic Act No. 8171 on 17 December 1997, this did not restore to respondent his
Filipino citizenship, because Section 2 of the aforecited Republic Act No. 8171
specifically provides that repatriation shall be effected by taking the necessary oath
of allegiance to the Republic of the Philippines and registration in the proper civil
registry and in the Bureau of Immigration.
It appears from the records of this case that respondent failed to prove that he has
fully complied with requirements of the above-quoted Section 2 of Republic Act
8171 to perfect his repatriation and reacquire his Filipino citizenship. Respondent
has not submitted any document to prove that he has taken his oath of allegiance
to the Republic of the Philippines and that he has registered his fact of repatriation
in the proper civil registry and in the Bureau of Immigration. In fact, in a letter date
25 June 2001, Commissioner ANDREA DOMINGO stated that RESPONDENT is still a
holder of visa under Section 13 (g) of the Philippine Immigration Act of 1940 as
amended, with an indefinite authorized stay in the Philippines, implying that
respondent did not register his supposed Certificate of Repatriation with the Bureau
of Immigration otherwise his Alien Visa would have already been cancelled. The rule
is that in case of doubt concerning the grant of citizenship, such doubt should be
resolved in favor of the State and against the applicant (Cheng vs. Republic, L-
16999, 22 June 1965).
xxx
Not having been able to prove that he has fully reacquired his Filipino citizenship
after being naturalized as a citizen of the United States, it is clear that respondent is
not qualified to be candidate for the position of Mayor of San Jacinto, Masbate, in
the 10 May 2004 National and Local Elections, pursuant to the aforequoted Sections
39 and 40 of the Local Government Code of 1991.
As a further consequence of his not being a Filipino citizen, respondent has also
committed false representation in his certificate of candidacy by stating therein that
he is a natural-born Filipino citizen, when in fact, he has not yet even perfected the
reacquisition of Filipino citizenship. Such false representation constitutes a material
misrepresentation as it relates to his qualification as a candidate for public office,
which could be a valid ground for the cancellation of his certificate of candidacy
under Section 78 of the Omnibus Election Code x x x. [6]
In its Resolution promulgated on March 22, 2004, the COMELEC, First Division,
adopted the findings and recommendation of Director Zaragoza. The dispositive
portion of said Resolution stated, thus:
WHEREFORE, premises considered, respondent CICERON PEREZ ALTAREJOS is
hereby disqualified to run as Mayor of San Jacinto, Masbate. Accordingly, his
certificate of candidacy for the position of Municipal Mayor of San Jacinto, Masbate
is denied due course and cancelled and his name deleted from the certified list of
candidates for the May 10, 2004 elections.[7]
On March 25, 2004, petitioner filed a motion for reconsideration and attached the
following documents to prove that he had completed all the requirements for
repatriation which thus entitled him to run for an elective office, viz:
(1) Oath of Allegiance dated December 17, 1997;
(2) Identification Certificate No. 116543 issued by the Bureau of Immigration on
March 1, 2004;
(3) Certification from the City Civil Registration Office, Makati City, that the
Certificate of Repatriation and Oath of Allegiance of petitioner was received by said
office and registered, with the corresponding fee paid, on February 18, 2004;
(4) A letter dated December 17, 1997 from the Special Committee on Naturalization
to the Bureau on Immigration and Deportation that it was furnishing said office with
the Oath of Allegiance and Certificate of Repatriation of petitioner for the
cancellation of petitioners registration in said office as an alien, and the issuance to
him of the corresponding Identification Card as Filipino citizen;
(5) A letter dated December 17, 1997 from the Special Committee on Naturalization
to the Local Registrar of San Jacinto, Masbate that it was sending petitioners Oath
of Allegiance and Certificate of Repatriation for registration in their records and for
petitioners reacquisition of his former Philippine citizenship.
On May 7, 2004, the COMELEC en banc promulgated a resolution denying the
motion for reconsideration, the dispositive portion of which reads:
WHEREFORE, premises considered, the Commission (En Banc) RESOLVED as it
hereby RESOLVES to DENY the Motion for Reconsideration for UTTER LACK OF
MERIT and AFFIRMS the Resolution of the First Division.[8]
The Comelec en banc held, thus:
The Comelec Rules of Procedure provides that insufficiency of evidence to justify
the decision is a ground for a motion for reconsideration (Rule 19, Section 1). The
evidence referred to in the above provision and to be considered in the Motion for
Reconsideration are those which were submitted during the hearing and attached
to the respective Memoranda of the parties which are already part of the records of
the case. In this regard, the evidence of the respondent were not able to overcome
the evidence of the petitioners.
When the entire records of the case was forwarded to the Commission (First
Division) the respondents only evidence was his Certificate of Repatriation dated 17
December 1977 and marked as Annex 1 of his answer. This piece of evidence was
not enough to controvert the evidence of the petitioners which consist of the letter
of the then Bureau of Immigration Commissioner Andrea Domingo dated 25 June
2001 which stated that as of the even date respondent is a holder of permanent
resident visa (page 15 of the records) and the certification of Josephine C. Camata
dated 28 January 2004 certifying, that the name of the respondent could not be
found in the records of repatriation. (page 42 of the records) The questioned
resolution, is therefore, in order as the evidence submitted by the respondent were
insufficient to rebut the evidence of the petitioner.
Now, the respondent, in his Motion for Reconsideration, attempted to introduce to
the record new pieces of evidence, which introduction is not anymore allowed in a
Motion for Reconsideration. These are the following a) Annex 2 Oath of Allegiance;
b) Annex 3 Bureau of Immigration Identification Certificate; c) Annex 4 Certification
of the City Civil Registrar of Makati City; d) Annex 5 Letter addressed to the Local
Civil Registrar of San Jacinto, Masbate by Aurora P. Cortes of Special Committee on
Naturalization; and e) Annex 6 Letter addressed to the Bureau of Immigration and
Deportation by Aurora P. Cortes of Special Committee on Naturalization.
Assuming that the new evidence of the respondent are admitted, with more reason
should we cancel his certificate of candidacy for his act of [misrepresenting] himself
as a Filipino citizen when at the time he filed his certificate of candidacy, he has not
yet perfected the process of repatriation. He failed to comply with the
requirements under Section 2 of [Republic Act No.] 8171 which provides that
repatriation shall be effected by taking the necessary oath of allegiance to the
Republic of the Philippines and registration in the proper civil registry and in the
Bureau of Immigration.
The certification was issued by the same Ms. Josephine C. Camata, City Civil
Registrar, dated February 18, 2004. This time, she certifies that Ciceron Perez
Altarejos was registered under Registry No. 1, Page 19, Book No. 1, Series of 2004
and paid under OR nos. 88325/8833256 dated February 18, 2004. (page 65 of the
records). Obviously, he was able to register in the proper civil registry only on
February 18, 2004.
The respondent was able to register with the Bureau of Immigration only on March
1, 2004 as evidenced by the Bureau of Immigration Identification Certificate
attached to the Motion as Annex 3.
This fact confirms the finding of the Commission (First Division) that at the time
respondent filed his certificate of candidacy he is yet to complete the requirement
under section two (2) of RA 8171.
As a consequence of not being a Filipino citizen, he has committed false
representation in his certificate of candidacy. Such false representation constitutes
a material misrepresentation as it relates to his qualification as a candidate. As such
the certificate of candidacy may be cancelled on such ground. (Ycain vs. Caneja, 18
Phil. 778)[9]
On May 10, 2004, the election day itself, petitioner filed this petition praying that:
(1) The petition be given due course and a temporary restraining order and/or writ
of preliminary injunction be issued ex parte restraining the respondents and all
persons acting on their behalf, from fully implementing the questioned COMELEC
Resolutions promulgated on March 22, 2004 and May 7, 2004; (2) a writ of
preliminary mandatory injunction be issued ordering the COMELEC and all persons
acting on its behalf to allow petitioner to run as Mayor of San Jacinto, Masbate in
the May 10, 2004 elections, and to count and canvass the votes cast in his favor and
to proclaim him as the winning mayor of San Jacinto, Masbate; and (3) after proper
proceedings, judgment be rendered declaring null and void and setting aside the
COMELEC Resolutions promulgated on March 22, 2004 and May 7, 2004 and other
related Orders of the COMELEC or its representatives which have the effect of
illegally preventing petitioner from running as Mayor of San Jacinto, Masbate.
In its Comment,[10] the Office of the Solicitor General stated that, based on the
information relayed to it by the COMELEC, petitioners name, as a mayoralty
candidate in San Jacinto, Masbate, was retained in the list of candidates voted upon
by the electorate in the said municipality. Hence, the cancellation of petitioners
certificate of candidacy was never implemented. The COMELEC also informed the
Office of the Solicitor General that petitioners opponent, Dr. Emilio Aris V. Espinosa,
was already proclaimed duly elected Mayor of San Jacinto, Masbate.
The Office of the Solicitor General contends that said supervening event has
rendered the instant petition moot and academic, and it prayed for the dismissal of
the petition.
In his Reply,[11] petitioner opposed the dismissal of his petition. He claims that the
COMELEC resolutions disqualifying him from running as a mayoralty candidate
adversely affected his candidacy, since his supporters were made to believe that his
votes would not be counted. Moreover, he stated that said COMELEC resolutions
cast a doubt on his Philippine citizenship.
Petitioner points out that he took his Oath of Allegiance to the Republic of the
Philippines on December 17, 1997. In view thereof, he ran and was even elected as
Mayor of San Jacinto, Masbate during the 1998 elections. He argues that if there
was delay in the registration of his Certificate of Repatriation with the Bureau of
Immigration and with the proper civil registry, the same was brought about by the
inaction on the part of said offices since the records of the Special Committee on
Naturalization show that his Certificate of Repatriation and Oath of Allegiance have
long been transmitted to said offices.
Petitioner also asserts that the subsequent registration of his Certificate of
Repatriation with the Bureau of Immigration and with the Civil Registry of Makati
City prior to the May 10, 2004 elections has the effect of curing the defect, if any, in
the reacquisition of his Filipino citizenship as his repatriation retroacted to the date
of his application for repatriation as held in Frivaldo v. Comelec.
The pertinent issues raised are the following: (1) Is the registration of petitioners
repatriation with the proper civil registry and with the Bureau of Immigration a
prerequisite in effecting repatriation; and (2) whether or not the COMELEC en
banc committed grave abuse of discretion amounting to excess or lack of
jurisdiction in affirming the Resolution of the COMELEC, First Division.
As stated by the Office of the Solicitor General, where the issues have become moot
and academic, there is no justiciable controversy, thereby rendering the resolution
of the same of no practical use or value.[12] Nonetheless, courts will decide a
question otherwise moot and academic if it is capable of repetition, yet evading
review.[13]
First Issue: Is the registration of petitioners repatriation
with the proper civil registry and with the Bureau of
Immigration a prerequisite in effecting repatriation?
The provision of law applicable in this case is Section 2 of Republic Act No.
8171,[14] thus:
SEC. 2. Repatriation shall be effected by taking the necessary oath of allegiance to
the Republic of the Philippines and registration in the proper civil registry and in the
Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the
pertinent alien certificate of registration and issue the certificate of identification as
Filipino citizen to the repatriated citizen.
The law is clear that repatriation is effected by taking the oath of allegiance to the
Republic of the Philippines and registration in the proper civil registry and in the
Bureau of Immigration. Hence, in addition to taking the Oath of Allegiance to the
Republic of the Philippines, the registration of the Certificate of Repatriation in the
proper civil registry and the Bureau of Immigration is a prerequisite in effecting the
repatriation of a citizen.
In this case, petitioner took his Oath of Allegiance on December 17, 1997, but his
Certificate of Repatriation was registered with the Civil Registry of Makati City only
after six years or on February 18, 2004, and with the Bureau of Immigration on
March 1, 2004. Petitioner, therefore, completed all the requirements of repatriation
only after he filed his certificate of candidacy for a mayoralty position,
but before the elections.
When does the citizenship qualification of a candidate for an elective office apply?
In Frivaldo v. Commission on Elections,[15] the Court ruled that the citizenship
qualification must be construed as applying to the time of proclamation of the
elected official and at the start of his term. The Court, through Justice Artemio V.
Panganiban, discussed, thus:
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 x x x 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 x x x 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 years 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, 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 re-assumed his citizenship
on June 30, 1995the very day the term of office of governor (and other elective
officials) beganhe 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. x x x
Paraphrasing this Courts ruling in Vasquez v. Giap and Li Seng Giap & Sons, 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.[16](Emphasis supplied.)
Moreover, in the case of Frivaldo v. Commission on Elections, the Court ruled that
the repatriation of Frivaldo RETROACTED to the date of the filing of his application.
In said case, the repatriation of Frivaldo was by virtue of Presidential Decree No.
725, which took effect on June 5, 1975. The Court therein declared that Presidential
Decree No. 725 was a curative statute, which is retroactive in nature. The
retroactivity of Frivaldos repatriation to the date of filing of his application was
justified by the Court, thus:
xxx
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 eventsi.e., situations and
transactions existing even before the law came into beingin 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 x x x 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.
xxx
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 Frivaldohaving already renounced his American citizenshipwas, 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.[17]
Republic Act No. 8171[18] has impliedly repealed Presidential `Decree No. 725.
They cover the same subject matter: Providing for the repatriation of Filipino
women who have lost their Philippine citizenship by marriage to aliens and of
natural-born Filipinos. The Courts ruling in Frivaldo v. Commission on Elections that
repatriation retroacts to the date of filing of ones application for repatriation
subsists for the same reasons quoted above.
Accordingly, petitioners repatriation retroacted to the date he filed his application
in 1997. Petitioner was, therefore, qualified to run for a mayoralty position in the
government in the May 10, 2004 elections. Apparently, the COMELEC was cognizant
of this fact since it did not implement the assailed Resolutions disqualifying
petitioner to run as mayor of San Jacinto, Masbate.
Second Issue: Whether or not the COMELEC en banc
gravely abused its discretion in affirming the
Resolution of the COMELEC, First Division?
The Court cannot fault the COMELEC en banc for affirming the decision of the
COMELEC, First Division, considering that petitioner failed to prove before the
COMELEC that he had complied with the requirements of repatriation. Petitioner
submitted the necessary documents proving compliance with the requirements of
repatriation only during his motion for reconsideration, when the COMELEC en
banc could no longer consider said evidence. As the COMELEC en banc correctly
stated:
The Comelec Rules of Procedure provides that insufficiency of evidence to justify
the decision is a ground for a motion for reconsideration (Rule 19, Section 1). The
evidence referred to in the above provision and to be considered in the Motion for
Reconsideration are those which were submitted during the hearing and attached
to the respective Memoranda of the parties which are already part of the records of
the case. In this regard, the evidence of the respondent were not able to overcome
the evidence of the petitioners.[19]
It is, therefore, incumbent upon candidates for an elective office, who are
repatriated citizens, to be ready with sufficient evidence of their repatriation in case
their Filipino citizenship is questioned to prevent a repetition of this case.
WHEREFORE, the petition seeking the nullification of the Resolution of the
COMELEC en banc of May 7, 2004, affirming the Resolution of its First Division
dated March 22, 2004, is hereby DENIED. No costs.
SO ORDERED.
G.R. No. 120099. July 24, 1996]
EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO
O. MARQUEZ, JR., respondents.
DECISION
FRANCISCO, J.:
Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr.
(Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post
of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed
duly-elected governor.
Marquez challenged Rodriguez victory via petition for quo warranto before the
COMELEC (EPC No. 92-28). Marquez revealed that Rodriguez left the United States
where a charge, filed on November 12, 1985, is pending against the latter before
the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and
attempted grand theft of personal property.Rodriguez is therefore a "fugitive from
justice" which is a ground for his disqualification/ineligibility under Section 40(e) of
the Local Government Code (R.A. 7160), so argued Marquez.
The COMELEC dismissed Marquez quo warranto petition (EPC No. 92-28) in a
resolution of February 2, 1993, and likewise denied a reconsideration thereof.
Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via
petition for certiorari, docketed as G.R. No. 112889. The crux of said petition is
whether Rodriguez is a "fugitive from justice" as contemplated by Section 40(e) of
the Local Government Code based on the alleged pendency of a criminal charge
against him (as previously mentioned).
In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs.
COMELEC" promulgated on April 18, 1995, now appearing in Volume 243, page 538
of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that:
x x x, fugitive from justice includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged, flee to avoid
prosecution. This definition truly finds support from jurisprudence (x x x), and it may
be so conceded as expressing the general and ordinary connotation of the term."[1]
Whether or not Rodriguez is a "fugitive from justice" under the definition thus given
was not passed upon by the Court. That task was to devolve on the COMELEC upon
remand of the case to it, with the directive to proceed therewith with dispatch
conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration
thereof. He also filed an "Urgent Motion to Admit Additional Argument in Support
of the Motion for Reconsideration" to which was attached a certification from the
Commission on Immigration showing that Rodriguez left the US on June 25, 1985
roughly five (5) months prior to the institution of the criminal complaint filed
against him before the Los Angeles court. The Court however denied a
reconsideration of the MARQUEZ Decision.
In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the
same position of governor. This time, Marquez challenged Rodriguez' candidacy via
petition for disqualification before the COMELEC, based principally on the same
allegation that Rodriguez is a "fugitive from justice." This petition for
disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when
Rodriguez' petition for certiorari (112889) from where the April 18, 1995 MARQUEZ
Decision sprung was still then pending before the Court.
On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the
COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo
warranto case) and SPA No. 95-089 (disqualification case). In justifying a joint
resolution of these two (2) cases, the COMELEC explained that:
1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases;
2. the parties, facts and issue involved are identical in both cases
3. the same evidence is to be utilized in both cases in determining the common
issue of whether Rodriguez is a "fugitive from justice"
4. on consultation with the Commission En Banc, the Commissioners unanimously
agreed that a consolidated resolution of the two (2) cases is not procedurally
flawed.
Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly
having kept in mind the MARQUEZ Decision definition of "fugitive from justice",
found Rodriguez to be one. Such finding was essentially based on Marquez'
documentary evidence consisting of
1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the
Los Angeles Municipal Court against Rodriguez, and
2. an authenticated copy of the felony complaint
which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out
of the hearing of the case on April 26, 1995 following the COMELEC's denial of
Rodriguez' motion for postponement. With the walk-out, the COMELEC considered
Rodriguez as having waived his right to disprove the authenticity of Marquez'
aforementioned documentary evidence. The COMELEC thus made the following
analysis:
"The authenticated documents submitted by petitioner (Marquez) to show the
pendency of a criminal complaint against the respondent (Rodriguez) in the
Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an
outstanding warrant against him amply proves petitioner's contention that the
respondent is a fugitive from justice. The Commission cannot look with favor on
respondent's defense that long before the felony complaint was allegedly filed,
respondent was already in the Philippines and he did not know of the filing of the
same nor was he aware that he was being proceeded against criminally. In a sense,
thru this defense, respondent implicitly contends that he cannot be deemed
a fugitive from justice, because to be so, one must be aware of the filing of the
criminal complaint, and his disappearance in the place where the long arm of the
law, thru the warrant of arrest, may reach him is predicated on a clear desire to
avoid and evade the warrant. This allegation in the Answer, however, was not even
fortified with any attached document to show when he left the United States and
when he returned to this country, facts upon which the conclusion of absence of
knowledge about the criminal complaint may be derived. On the contrary, the fact
of arrest of respondent's wife on November 6, 1985 in the United States by the
Fraud Bureau investigators in an apartment paid for respondent in that country can
hardly rebut whatever presumption of knowledge there is against the
respondent."[2]
And proceeding therefrom, the COMELEC, in the dispositive portion, declared:
"WHEREFORE, considering that respondent has been proven to be fugitive from
justice, he is hereby ordered disqualified or ineligible from assuming and
performing the functions of Governor of Quezon Province. Respondent is ordered
to immediately vacate said office. Further, he is hereby disqualified from running
for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate
of candidacy for the May 8, 1995 elections is hereby set aside."
At any rate, Rodriguez again emerged as the victorious candidate in the May 8,
1995 election for the position of governor.
On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez'
proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of
Canvassers nonetheless proclaimed Rodriguez on May 12, 1995.
The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and
the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to
the filing of the instant petition for certiorari (G.R. No. 120099) on May 16, 1995.
On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation Of
Rodriguez To Proclaim Marquez And To Cite The Provincial Board of Canvassers in
Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089).
Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23,
1995, nullified Rodriguez' proclamation and ordered certain members of the
Quezon Province Provincial Board of Canvassers to explain why they should not be
cited in contempt for disobeying the poll body's May 11, 1995 Resolution
suspending Rodriguez' proclamation. But with respect to Marquez' motion for his
proclamation, the COMELEC deferred action until after this Court has resolved the
instant petition (G.R. No. 120099).
Rodriguez filed a motion to admit supplemental petition to include the aforesaid
COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995
Resolutions (Consolidated Resolution and Order to suspend Rodriguez'
proclamation, respectively).
As directed by the Court, oral arguments were had in relation to the instant petition
(G.R. No. 120099) on July 13, 1995.
Marquez, on August 3, 1995, filed an "Urgent Motion For Temporary Restraining
Order Or Preliminary Injunction" which sought to restrain and enjoin Rodriguez
"from exercising the powers, functions and prerogatives of Governor of Quezon x x
x." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued
a temporary restraining order. Rodriguez' "Urgent Motion To Lift Temporary
Restraining Order And/Or For Reconsideration" was denied by the Court in an
August 15, 1995 Resolution. Another similar urgent motion was later on filed by
Rodriguez which the Court also denied.
In a Resolution dated October 24, 1995, the Court
"x x x RESOLVED to DIRECT the Chairman of the Commission on Elections
('COMELEC') to designate a Commissioner or a ranking official of the COMELEC to
RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner
Eduardo Rodriguez may be minded to present by way of refuting the evidence
heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which
can tend to establish petitioner's contention that he does not fall within the legal
concept of a fugitive from justice. Private respondent Marquez may likewise, if he
so desires, introduce additional and admissible evidence in support of his own
position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be
applied in the reception of the evidence. The Chairman of the COMELEC shall have
the proceedings completed and the corresponding report submitted to this Court
within thirty (30) days from notice hereof."
The COMELEC complied therewith by filing before the Court, on December 26,
1995, a report entitled "EVIDENCE OF THE PARTIES and COMMISSION'S
EVALUATION" wherein the COMELEC, after calibrating the parties' evidence,
declared that Rodriguez is NOT a "fugitive from justice" as defined in the main
opinion of the MARQUEZ Decision, thus making a 180-degree turnaround from its
finding in the Consolidated Resolution. In arriving at this new conclusion, the
COMELEC opined that intent to evade is a material element of the MARQUEZ
Decision definition. Such intent to evade is absent in Rodriguez' case because
evidence has established that Rodriguez arrived in the Philippines (June 25, 1985)
long before the criminal charge was instituted in the Los Angeles Court (November
12, 1985).
But the COMELEC report did not end there. The poll body expressed what it
describes as its "persistent discomfort" on whether it read and applied correctly
the MARQUEZ Decisiondefinition of "fugitive from justice". So as not to miss
anything, we quote the COMELEC's observations in full:
x x x. The main opinion's definition of a 'fugitive from justice includes not only those
who flee after conviction to avoid punishment but also those who, after being
charged, flee to avoid prosecution.' It proceeded to state that:
This definition truly finds support from jurisprudence (Philippine Law Dictionary
Third Edition, p. 399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671;
King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter
980; Tobin v. Casaus, 275 Pacific Reporter 2d p. 792), and it may be so conceded as
expressing the general and ordinary connotation of the term.
But in the majority of the cases cited, the definition of the term 'fugitive from
justice' contemplates other instances not explicitly mentioned in the main
opinion. Black's Law Dictionary begins the definition of the term by referring to a
'fugitive from justice' as:
(A) person, who, having committed a crime, flees from jurisdiction of the court
where crime was committed or departs from his usual place of abode and conceals
himself within the district. x x x
Then, citing King v. Noe, the definition continues and conceptualizes a 'fugitive from
justice' as:
x x x a person who, having committed or been charged with a crime in one state,
has left its jurisdiction and is found within the territory of another when it is sought
to subject him to the criminal process of the former state. (our emphasis)
In Hughes v. Pflanz, the term was defined as:
a person who, having committed within a state a crime, when sought for, to be
subjected to criminal process, is found within the territory of another state.
Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:
expression which refers to one having committed, or being accused, of a crime in
one jurisdiction and is absent for any reason from that jurisdiction.
Specifically, one who flees to avoid punishment x x x (Italics ours)
From the above rulings, it can be gleaned that the objective facts sufficient to
constitute flight from justice are: (a) a person committed a 'crime' or has been
charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of
the court where said crime was committed or his usual place of abode.
Filing of charges prior to flight is not always an antecedent requirement to label one
a 'fugitive from justice. Mere commission of a 'crime' without charges having been
filed for the same and flight subsequent thereto sufficiently meet the
definition. Attention is directed at the use of the word 'crime' which is not
employed to connote guilt or conviction for the commission thereof. Justice
Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for
being a fugitive does not involve the issue of the presumption of innocence, the
reason for disqualification being that a person 'was not brought within the
jurisdiction of the court because he had successfully evaded arrest; or if he was
brought within the jurisdiction of the court and was tried and convicted, he has
successfully evaded service of sentence because he had jumped bail or
escaped. The disqualification then is based on his flight from justice.
Other rulings of the United States Supreme Court further amplify the view that
intent and purpose for departure is inconsequential to the inquiry. The texts, which
are persuasive in our jurisdiction, are more unequivocal in their pronouncements. In
King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80) the United States
Supreme Court held:
x x x it is not necessary that the party should have left the state or the judicial
district where the crime is alleged to have been committed, after an indictment
found, or for the purpose of avoiding an anticipated prosecution, but that, having
committed a crime within a state or district, he has left and is found in another
jurisdiction (Italics supplied)
Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakable
language:
The simple fact that they (person who have committed crime within a state) are not
within the state to answer its criminal process when required renders them, in legal
intendment, fugitives from justice.
THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889,
THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND
THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A 'FUGITIVE
FROM JUSTICE.'
From the foregoing discussions, the determination of whether or not Rodriguez is
a fugitive from justice hinges on whether or not Rodriguez' evidence shall be
measured against the two instances mentioned in the main opinion, or is to be
expanded as to include other situations alluded to by the foreign jurisprudence
cited by the Court. In fact, the spirited legal fray between the parties in this case
focused on each camp's attempt to construe the Court's definition so as to fit or to
exclude petitioner within the definition of a 'fugitive from justice'. Considering,
therefore, the equally valid yet different interpretations resulting from the Supreme
Court decision in G.R. No. 112889, the Commission deems it most conformable to
said decision to evaluate the evidence in light of the varied constructions open to it
and to respectfully submit the final determination of the case to the Honorable
Supreme Court as the final interpreter of the law."
The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive
from justice, the determination of which, as we have directed the COMELEC on two
(2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995
Resolution), must conform to how such term has been defined by the Court in
the MARQUEZ Decision. To reiterate, a "fugitive from justice":
"x x x includes not only those who flee after conviction to avoid punishment but
likewise who, after being charged, flee to avoid prosecution."
The definition thus indicates that the intent to evade is the compelling factor that
animates one's flight from a particular jurisdiction. And obviously, there can only be
an intent to evade prosecution or punishment when there is knowledge by the
fleeing subject of an already instituted indictment, or of a promulgated judgment of
conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in
the Philippines from the US on June 25, 1985, as per certifications issued by the
Bureau of Immigrations dated April 27[3] and June 26 of 1995,[4] preceded the
filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of
the issuance on even date of the arrest warrant by that same foreign court, by
almost five (5) months. It was clearly impossible for Rodriguez to have known about
such felony complaint and arrest warrant at the time he left the US, as there was in
fact no complaint and arrest warrant much less conviction to speak of yet at such
time. What prosecution or punishment then was Rodriguez deliberately running
away from with his departure from the US? The very essence of being a "fugitive
from justice" under the MARQUEZ Decision definition, is just nowhere to be found
in the circumstances of Rodriguez.
With that, the Court gives due credit to the COMELEC in having made the. same
analysis in its "x x x COMMISSION'S EVALUATION". There are, in fact, other
observations consistent with such analysis made by the poll body that are equally
formidable so as to merit their adoption as part of this decision, to wit:
"It is acknowledged that there was an attempt by private respondent to show
Rodriguez' intent to evade the law. This was done by offering for admission a
voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive)
on the alleged crimes committed which led to the filing of the charges against
petitioner. It was offered for the sole purpose of establishing the fact that it was
impossible for petitioner not to have known of said investigation due to its
magnitude. Unfortunately, such conclusion misleads because investigations of this
nature, no matter how extensive or prolonged, are shrouded with utmost secrecy
to afford law enforcers the advantage of surprise and effect the arrest of those who
would be charged. Otherwise, the indiscreet conduct of the investigation would be
nothing short of a well-publicized announcement to the perpetrators of the
imminent filing of charges against them. And having been forewarned, every effort
to sabotage the investigation may be resorted to by its intended objects.But if
private respondent's attempt to show Rodriguez' intent to evade the law at the
time he left the United States has any legal consequence at all, it will be nothing
more than proof that even private respondent accepts that intent to evade the law
is a material element in the definition of a fugitive.
"The circumstantial fact that it was seventeen (17) days after Rodriguez' departure
that charges against him were filed cannot overturn the presumption of good faith
in his favor. The same suggests nothing more than the sequence of events which
transpired. A subjective fact as that of petitioner's purpose cannot be inferred from
the objective data at hand in the absence of further proof to substantiate such
claim.In fact, the evidence of petitioner Rodriguez sufficiently proves that his
compulsion to return to the Philippines was due to his desire to join and participate
vigorously in the political campaigns against former President Ferdinand E.
Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval
wrought by the political forces and the avalanche of events which occurred resulted
in one of the more colorful events in Philippine history. The EDSA Revolution led to
the ouster of former Pres. Marcos and precipitated changes in the political
climate. And being a figure in these developments, petitioner Rodriguez began
serving his home province as OIC-Board Member of the Sangguniang Panlalawigan
ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be
involved in politics in the same capacity as re-elected Governor in 1992 and the
disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner
a period of relentless, intensive and extensive activity of varied political campaigns
first against the Marcos government, then for the governorship. And serving the
people of Quezon province as such, the position entails absolute dedication of one's
time to the demands of the office.
"Having established petitioner's lack of knowledge of the charges to be filed against
him at the time he left the United States, it becomes immaterial under such
construction to determine the exact time when he was made aware thereof. While
the law, as interpreted by the Supreme Court, does not countenance flight from
justice in the instance that a person flees the jurisdiction of another state after
charges against him or a warrant for his arrest was issued or even in view of the
imminent filing and issuance of the same, petitioner's plight is altogether a different
situation. When, in good faith, a person leaves the territory of a state not his own,
homeward bound, and learns subsequently of charges filed against him while in the
relative peace and service of his own country, the fact that he does not subject
himself to the jurisdiction of the former state does not qualify him outright as
a fugitive from justice.
"The severity of the law construed in the manner as to require of a person that he
subject himself to the jurisdiction of another state while already in his country or
else be disqualified from office, is more apparent when applied in petitioner's
case. The criminal process of the United States extends only within its territorial
jurisdiction. That petitioner has already left said country when the latter sought to
subject him to its criminal process is hardly petitioner's fault. In the absence of an
intent to evade the laws of the United States, petitioner had every right to depart
therefrom at the precise time that he did and to return to the Philippines. No
justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave
the United State and return home. Hence, sustaining the contrary proposition
would be to unduly burden and punish petitioner for exercising a right as he cannot
be faulted for the circumstances that brought him within Philippine territory at the
time he was sought to be placed under arrest and to answer for charges filed
against him.
"Granting, as the evidence warrants, that petitioner Rodriguez came to know of the
charges only later, and under his circumstances, is there a law that requires
petitioner to travel to the United States and subject himself to the monetary
burden and tedious process of defending himself before the country's courts?
"It must be noted that moral uprightness is not a standard too far-reaching as to
demand of political candidate the performance of duties and obligations that are
supererogatory in nature. We do not dispute that an alleged 'fugitive from justice'
must perform acts in order not to be so categorized. Clearly, a person who is aware
of the imminent filing of charges against him or of the same already filed in
connection with acts he committed in the jurisdiction of a particular state, is under
an obligation not to flee said place of commission. However, as in petitioner's case,
his departure from the United States may not place him under a similar
obligation. His subsequent knowledge while in the Philippines and non-submission
to the jurisdiction of the former country does not operate to label petitioner
automatically a fugitive from justice. As he was a public officer appointed and
elected immediately after his return to the country, petitioner Rodriguez had every
reason to devote utmost priority to the service of his office. He could not have gone
back to the United States in the middle of his term nor could he have traveled
intermittently thereto without jeopardizing the interest of the public he serves. To
require that of petitioner would be to put him in a paradoxical quandary where he
is compelled to violate the very functions of his office."
However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as
earlier quoted) seem to urge the Court to re-define "fugitive from justice." They
espouse the broader concept of the term as culled from foreign authorities (mainly
of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a
"fugitive from justice" by the mere fact that he leaves the jurisdiction where a
charge is pending against him, regardless of whether or not the charge has already
been filed at the time of his flight.
Suffice it to say that the "law of the case" doctrine forbids the Court to craft an
expanded re-definition of "fugitive from justice" (which is at variance with
the MARQUEZ Decision) and proceed therefrom in resolving the instant
petition. The various definitions of that doctrine have been laid down in
People v. Pinuila, 103 Phil. 992, 999, to wit:
"'Law of the case' has been defined as the opinion delivered on a former
appeal. More specifically, it means that whatever is once irrevocably established as
the controlling legal rule of decision between the same parties in the same case
continues to be the law of the case, whether correct on general principles or not, so
long as the facts on which such decision was predicated continue to be the facts of
the case before the court." (21 C.J.S. 330)
"It may be stated as a rule of general application that, where the evidence on a
second or succeeding appeal is substantially the same as that on the first or
preceding appeal, all matters, questions, points, or issues adjudicated on the prior
appeal are the law of the case on all subsequent appeals and will not be considered
or readjudicated therein." (5 C.J.S. 1267)
"In accordance with the general rule stated in Section 1821, where, after a definite
determination, the court has remanded the cause for further action below, it will
refuse to examine question other than those arising subsequently to such
determination and remand, or other than the propriety of the compliance with its
mandate; and if the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a second
appeal.
"As a general rule a decision on a prior appeal of the same case is held to be the law
of the case whether that decision is right or wrong, the remedy of the party
deeming himself aggrieved being to seek a rehearing." (5 C.J.S. 1276-77).
"Questions necessarily involved in the decision on a former appeal will be regarded
as the law of the case on a subsequent appeal, although the questions are not
expressly treated in the opinion of the court, as the presumption is that all the facts
in the case bearing on the point decided have received due consideration whether
all or none of them are mentioned in the opinion." (5 C.J.S. 1286-87).
To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not
Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and
the instant petition.The MARQUEZ Decision was an appeal from EPC No. 92-28 (the
Marquez' quo warranto petition before the COMELEC). The instant petition is also
an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly
with SPA No. 95-089 (Marquez' petition for the disqualification of
Rodriguez). Therefore, what was irrevocably established as the controlling legal rule
in the MARQUEZ Decision must govern the instant petition. And we specifically
refer to the concept of "fugitive from justice" as defined in the main opinion in
the MARQUEZ Decision which highlights the significance of an intent to evade but
which Marquez and the COMELEC, with their proposed expanded definition, seem
to trivialize.

Besides, to re-define "fugitive from justice" would only foment instability in our
jurisprudence when hardly has the ink dried in the MARQUEZ Decision.

To summarize, the term "fugitive from justice" as a ground for the disqualification
or ineligibility of a person seeking to run for any elective local position under
Section 40(e) of the Local Government Code, should be understood according to the
definition given in the MARQUEZ Decision, to wit:

"A 'fugitive from justice' includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged, flee to avoid prosecution."
(Italics ours.)"

Intent to evade on the part of a candidate must therefore be established by proof

that there has already been a conviction or at least, a charge has already been filed,
at the time of flight.Not being a "fugitive from justice" under this definition,
Rodriguez cannot be denied the Quezon Province gubernatorial post.

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and
the assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated
Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and
June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the
Quezon Province Provincial Board of Canvassers to explain why they should not be
cited in contempt) are SET ASIDE.

SO ORDERED.

G.R. No. 112889 April 18, 1995
BIENVENIDO O. MARQUEZ, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.
VITUG, J.:
The Court is called upon, in this petition for certiorari, to resolve the conflicting
claims of the parties on the meaning of the term "fugitive from justice as that
phrase is so used under the provisions of Section 40(e) of the Local Government
Code (Republic Act No. 7160). That law states:
Sec. 40. Disqualifications. The following persons are disqualified from running for
any elective local position:
xxx xxx xxx
(e) Fugitive from justice in criminal or non-political cases here or abroad(.)
Bienvenido Marquez, a defeated candidate for the elective position for the elective
position in the Province of Quezon in the 11th May 1992 elections filed this petition
for certiorari praying for the reversal of the resolution of the Commission on
Elections ("COMELEC") which dismissed his petition for quo warranto against the
winning candidate, herein private respondent Eduardo Rodriguez, for being
allegedly a fugitive from justice.
It is averred that at the time private respondent filed his certificate of candidacy, a
criminal charge against him for ten (10) counts of insurance fraud or grand theft of
personal property was still pending before the Municipal Court of Los Angeles
Judicial District, County of Los Angeles, State of California, U.S.A. A warrant issued
by said court for his arrest, it is claimed, has yet to be served on private respondent
on account of his alleged "flight" from that country.
Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of
respondent's certificate of candidacy, on the ground of the candidate's
disqualification under Section 40(e) of the Local Government Code, was filed by
petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed the
petition.
Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th
May 1992 resolution of COMELEC was dismissed without prejudice, however, to the
filing in due time of a possible post-election quo warranto proceeding against
private respondent. The Court, in its resolution of 02 June 1992, held:
Evidently, the matter elevated to this Court was a pre-proclamation controversy.
Since the private respondent had already been proclaimed as the duly elected
Governor of the Province of Quezon, the petition below for disqualification has
ceased to be a pre-proclamation controversy. In Casimiro vs. Commission on
Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos.
84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a
pre-proclamation controversy is no longer viable at this point of time and should be
dismissed. The proper remedy of the petitioner is to pursue the disqualification suit
in a separate proceeding.
ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the
filing of the appropriate proceedings in the proper forum, if so desired, within ten
(10) days from notice. 1
Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992.
Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against
private respondent before the COMELEC. In its 02 February 1993 resolution, the
COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02
December 1993, denied a reconsideration of the resolution.
Hence, this petition for certiorari, the core issue of which, such as to be expected,
focuses on whether private respondent who, at the time of the filing of his
certificate of candidacy (and to date), is said to be facing a criminal charge before a
foreign court and evading a warrant for his arrest comes within the term "fugitive
from justice" contemplated by Section 40(e) of the Local Government Code and,
therefore, disqualified from being a candidate for, and thereby ineligible from
holding on to, an elective local office.
Petitioner's position is perspicuous and to the point. The law, he asseverates, needs
no further interpretation and construction. Section 40(e) of Republic Act No. 7160,
is rather clear, he submits, and it disqualifies "fugitive from justice" includes not
only those who flee after conviction to avoid punishment but likewise those who,
after being charged flee to avoid prosecution. This definition truly finds support
from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B.
Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137
S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275
Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general
and ordinary connotation of the term.
In turn, private respondent would have the Court respect the conclusions of
the Oversight Committee which, conformably with Section 5332 of R.A. 7160, was
convened by the President to "formulate and issue the appropriate rules and
regulations necessary for the efficient and effective implementation of any and all
provisions of the Code to ensure compliance with the principles of Local Autonomy.
Here are some excerpts from the committee's deliberations:
CHAIRMAN MERCADO. Session is resumed.
So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39.
CHAIRMAN DE PEDRO. Kay Benny Marquez.
REP. CUENCO: What does he want?
CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung
kuwestiyunin ang constitutionality nito before the Supreme Court later on.
REP. CUENCO. Anong nakalagay diyan?
CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.
Any person who is a fugitive from justice in criminal or nonpolitical cases here or
abroad.
Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest
pending, unserved. . .
HONORABLE SAGUISAG. I think that is even a good point, ano — what is a fugitive?
It is not defined. We have loose understanding. . .
CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive.
Si Benny umalis na, with the understanding na okay na sa atin ito.
THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive
from justice. Mrs. Marcos can run at this point and I have held that for a long time
ago. So can. . .
MS. DOCTOR. Mr. Chairman. . .
THE CHAIRMAN. Yes.
MS. DOCTOR. Let's move to. . .
THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very
important. Manny, can you come up?
MR. REYES. Let's use the word conviction by final judgment.
THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment.
Okay,. Fugitive means somebody who is convicted by final judgment. Insert that on
Line 43 after the semi-colon. Is that approved? No objection, approved (TSN,
Oversight Committee, 07 May 1991).
xxx xxx xxx
THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang
gumawa nito? Okay, on page 2, lines 43 and 44, "fugitive from justice". What
"fugitive"? Sino ba ang gumawa nito, ha?
MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the
word "fugitive".
THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha?
MR. SANCHEZ. Means a person...
THE CHAIRMAN. Ha?
HON. REYES. A person who has been convicted.
THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall mean or
means one who has been convicted by final judgment. It means one who has been
convicted by final judgment.
HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.
THE CHAIRMAN. Ano? Sige, tingnan natin.
HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?
THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by
final judgment, meaning that if he is simply in jail and because he put up, post bail,
but the case is still being reviewed, that is not yet conviction by final judgment. 3
The Oversight Committee evidently entertained serious apprehensions on the
possible constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the
disqualification therein meant were to be so taken as to embrace those who merely
were facing criminal charges. A similar concern was expressed by Senator R. A. V.
Saguisag who, during the bicameral conference committee of the Senate and the
House of Representatives, made this reservation:
. . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive.
Medyo bothered ako doon, a. 4
The Oversight Committee finally came out with Article 73 of the Rules and
Regulations Implementing the Local Government Code of 1991. It provided:
Art. 73. Disqualifications. — The following persons shall be disqualified from
running for any elective local position:
(a) . . .
(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive
from justice refers to a person who has been convicted by final
judgment.5 (Emphasis supplied)

Private respondent reminds us that the construction placed upon law by the
officials in charge of its enforcement deserves great and considerable weight (Atlas
Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court
certainly agrees; however, when there clearly is no obscurity and ambiguity in an
enabling law, it must merely be made to apply as it is so written. An administrative
rule or regulation can neither expand nor constrict the law but must remain
congruent to it. The Court believes and thus holds, albeit with some personal
reservations of the ponente (expressed during the Court's en banc deliberations),
that Article 73 of the Rules and Regulations Implementing the Local Government
Code of 1991, to the extent that it confines the term "fugitive from justice" to refer
only to a person (the fugitive) "who has been convicted by final judgment." is an
inordinate and undue circumscription of the law.

Unfortunately, the COMELEC did not make any definite finding on whether or not,
in fact, private respondent is a "fugitive from justice" as such term must be
interpreted and applied in the light of the Court's opinion. The omission is
understandable since the COMELEC dismissed outrightly the petition for quo
warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated
by the Oversight Committee. The Court itself, not being a trier of facts, is thus
constrained to remand the case to the COMELEC for a determination of this
unresolved factual matter.

WHEREFORE, the questioned resolutions of the Commission on Elections are

REVERSED and SET ASIDE, and the case is hereby REMANDED to the Commission
which is DIRECTED to proceed and resolve the case with dispatch conformably with
the foregoing opinion. No special pronouncement on costs.

SO ORDERED.

G.R. No. 133495. September 3, 1998]
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and JOSE T.
CAPCO, JR., respondents.
DECISION
MENDOZA, J.:
This case presents for determination the scope of the constitutional provision
barring elective officials, with the exception of barangay officials, from serving more
than three consecutive terms. In particular, the question is whether a vice-mayor
who succeeds to the office of mayor by operation of law and serves the remainder
of the term is considered to have served a term in that office for the purpose of the
three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January
18, 1988 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.[1]
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.[2]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.[3] The majority stated in its decision:
In both the Constitution and the Local Government Code, the three-term limitation
refers to the term of office for which the local official was elected. It made no
reference to succession to an office to which he was not elected. In the case before
the Commission, respondent Capco was not elected to the position of mayor in the
January 18, 1988 local elections. He succeeded to such office by operation of law
and served for the unexpired term of his predecessor. Consequently, such
succession into office is not counted as one (1) term for purposes of the
computation of the three-term limitation under the Constitution and the Local
Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558
votes against petitioners 7,773 votes and was proclaimed elected by the Municipal
Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7,
1998, of he COMELEC and to seed a declaration that private respondent is
disqualified to serve another term as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from
September 2, 1989 to June 30, 992 should be considered as service for full one
term, and since he thereafter served from 1992 to 1998 two more terms as mayor,
he should be considered to have served three consecutive terms within the
contemplation of Art. X, 8 of the Constitution and 43(b) of the Local Government
Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja on
September 2, 1989, private respondent became the mayor and thereafter served
the remainder of the term. Petitioner argues that it is irrelevant that private
respondent became mayor by succession because the purpose of the constitutional
provision in limiting the number of terms elective local officials may serve is to
prevent a monopolization of political power.
This contention will not bear analysis. Article X, 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 provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
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.
First, to prevent the establishment of political dynasties is not the only policy
embodied in the constitutional provision in question. The other policy is that of
enhancing the freedom of choice of the people. To consider, therefore, only stay in
office regardless of how the official concerned came to that office whether by
election or by succession by operation of law would be to disregard one of the
purposes of the constitutional provision in question.
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.[4] Monsod warned against prescreening candidates [from] whom the people
will choose asa result of the proposed absolute disqualification, considering that the
draft constitution provision recognizing peoples power.[5]
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
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 this 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 cap 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 position 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 the unbroken service of all of these
officials. But where we now 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.[6]
Other commissioners went on record against perpetually disqualifying elective
officials who have served a certain number of terms as this would deny the right of
the people to choose. As Commissioner Yusup R. Abubakar asked, why should we
arrogate unto ourselves the right to decide what the people want?[7]
Commisioner Felicitas S. Aquino spoke in the same vein when she called on her
colleagues to "allow the people to exercise their own sense of proportion and [rely]
on their own strength to curtail power when it overreaches itself.[8]
Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual
disqualification after serving a number of terms] 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 them
longer?[9]
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 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 reelection. This is clear from the following exchange in the Constitutional
Commission concerning term limits, now embodied in Art. VI 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.[10]
Indeed, a fundamental tenet of representative democracy is that the people should
be allowed to choose whom they please to govern them.[11] To bar the election of
a local official because he has already served three terms, although the first as a
result of succession by operation of law rather than election, would therefore be to
violate this principle.
Second, not only historical examination but textual analysis as well supports the
ruling of the COMELEC that Art. X, 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 official[s] from serving for more than
three consecutive terms. The second sentence, in explaining when an elective local
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 this provision is to prevent a circumvention of the
limitation on the number of terms an elective official may serve. Conversely, if he is
not serving a term for which he was elected because he is simply continuing the
service of the official he succeeds, such official cannot be considered to have fully
served the term now withstanding his voluntary renunciation of office prior to its
expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly
bars members of the House of Representatives from serving for more than three
terms. Commissioner Bernas states 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.[12]
This is actually based on the opinion expressed by Commissioner Davide in answer
to a query of Commissioner 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? Commissioner Davide said: 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.[13]
There is a difference, however, between the case of a vice-mayor and that of a
member of the House of Representatives who succeeds another who dies, resigns,
becomes incapacitated, or is removed from office. The vice-mayor succeeds to the
mayorship by operation of law.[14] On the other hand, the Representative is
elected to fill the vacancy.[15] In a real sense, therefore, such Representative serves
a term for which he was elected. As the purpose of the constitutional provision is to
limit the right ot be elected and to serve in Congress, his service of the unexpired
term is rightly counted as his first term.Rather than refute what we believe to be
the intendment of Art. X, 8 with regard to elective local officials, the case of a
Representative who succeeds another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of
the Vice-President to the Presidency in case of vacancy in that office. After stating
that The President shall not be eligible for any reelection, this provision says that No
person who has succeeded as President and has served as such for more than four
years shall be qualified for election to the same office at any time.Petitioner
contends that, by analogy, the vice-mayor should likewise be considered to have
served a full term as mayor if he succeeds to the latters office and serves for the
remainder of the term.
The framers of the Constitution included such a provision because, without it, the
Vice-President, who simply steps into the Presidency by succession would be
qualified to run for President even if he has occupied that office for more than four
years. The absence of a similar provision in Art. X, 8 on elective local officials throws
in bold relief the difference between the two cases. It underscores the
constitutional intent to cover only the terms of office to which one may have
been elected for purpose of the three-term limit on local elective officials,
disregarding for this purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the Presidency
and serves in that office for more than four years is ineligible for election as
President. The Vice-President is elected primarily to succeed the President in the
event of the latters death, permanent disability, removal or resignation. While he
may be appointed to the cabinet, his becoming so is entirely dependent on the
good graces of the President. In running for Vice-President, he may thus be said to
also seek the Presidency. For their part, the electors likewise choose as Vice-
President the candidate who they think can fill the Presidency in the event it
becomes vacant. Hence, service in the presidency for more than four years may
rightly be considered as service for a full term.
This is not so in the case of the vice-mayor. Under the local Government Code, he is
the presiding officer of the sanggunian and he appoints all officials and employees
of such local assembly. He has distinct powers and functions, succession to
mayorship in the event of vacancy therein being only one of them.[16] It cannot be
said of him, as much as of the Vice-President in the event of a vacancy in the
Presidency, that in running for vice-mayor, he also seeks the mayorship. His
assumption of the mayorship in the event of vacancy is more a matter of chance
than of design. Hence, his service in that office should not be counted in the
application of any term limit.
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 To consider C as eligible for reelection would be in accord with the understanding of
of the incumbent. Six months before the next election, he resigns and is twice the Constitutional Commission that while the people should be protected from the
elected thereafter. Can he run again for mayor in the next election. evils that a monopoly of political power may bring about, care should be taken that
their freedom of choice is not unduly curtailed.
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 WHEREFORE, the petition is DISMISSED.
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 SO ORDERED.
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.

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.

In both cases, 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. In the second case, the local official has been elected three consecutive
times, but he has not fully served three consecutive terms.

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 the 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 of the purpose of applying the term limit.

FRANCIS G. ONG, G.R. No. 163295 Petitioner,
Present:
PANGANIBAN, C.J.
JOSEPH STANLEY ALEGRE and Promulgated:
COMMISSION ON ELECTIONS,
Respondents. January 23, 2006
x---------------------x
ROMMEL G. ONG,
Petitioner,
- versus - G.R. No. 163354
JOSEPH STANLEY ALEGRE and
COMMISSION ON ELECTIONS,
Respondents.
x----------------------------------------x
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 resolution[1] 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, 2004[2] 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 Candidacy[3] 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. 6850before 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 resolution[5] 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
resolution[6] 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.
3. On May 10, 2004, Alegre wrote[8] 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, 2004[9] addressed 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. Comelec[15], 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)
that he has fully served three (3) consecutive terms.[16]
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] citing Borja vs. Comelec[19]. 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 COMELEC en banc resolution even before its finality[20] 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:
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.

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.
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.

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 Costs against petitioners.
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 SO ORDERED.
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,
G.R. No. 141307. March 28, 2001] On March 25, 1999, Mayor Cesar Calimlim died. A vacancy was thus created in the
Office of the Mayor so by operation of law, Section 44 of Republic Act 7160,
PURTO J. NAVARRO and DANNY B. TAMAYO, petitioner, vs. COURT OF APPEALS and otherwise known as the Local Government Code of 1991, then Vice-Mayor Baltazar
ADOLFO AQUINO, ROLANDO LALAS, ABRAHAM MORALES, BLANDO QUINTO, Aquino succeeded him. Accordingly, the highest ranking member of the
ROMEO VISPERAS, ANTONIO PENULIAR, EDUARDO ABULENCIA, EMILIO PENULIAR, Sangguniang Bayan, i.e. the one who garnered the highest number of votes, was
JR., ERNESTO SERAPION, VICTORIO LALANGAN, ANTONIO BURGUILLOS, MIGUEL elevated to the position of the Vice-Mayor, pursuant to the same law. This was
JIMENEZ, and ELPIDIO VILLANUEVA, respondents. petitioner Danny B. Tamayo who belonged to the REFORMA-LM political party.
DECISION Since a vacancy occurred in the Sangguniang Bayan by the elevation of petitioner
KAPUNAN, J.: Tamayo to the office of the Vice-Mayor, Governor Victor Agbayani of Pangasinan
appointed herein petitioner Purto J. Navarro as Member of the Sangguniang
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Bayan. Navarro belonged to the same political party as that of petitioner Tamayo.
Procedure, assailing as erroneous the decision of the Court of Appeals, Fourth
Division,[1] dated October 7, 1999 in CA-G.R. SP No. 5475 which granted the Private respondents filed Civil Case No. 99-12958-D to nullify the appointment of
petition for certiorari filed by herein respondents and declared as null and void the petitioner Navarro before the Regional Trial Court of Dagupan City, Branch 44
appointment of herein petitioner Purto J. Navarro to the Sanggunian Bayan of presided by Judge Crispin Laron. Their motions for the issuance of a temporary
Mapandan, Pangasinan. restraining order and for the inhibition of Judge Laron having been denied, private
respondents filed a Petition for Review on Certiorari with this Court.
The facts are undisputed.
In a Resolution dated August 25, 1999, this Court referred the case to the Court of
In the May 11, 1997 local elections, the following officials were elected to office in Appeals due to the hierarchy of courts.
the Municipality of Mapandan, Pangasinan:
Private respondents argued before the Court of Appeals that it was the former vice-
Cesar M. Calimlim - Mayor - Lakas NUCD-KAMPI mayor, succeeding to the position of the mayor, who created the permanent
vacancy in the Sanggunian Bayan because under the law he was also a member of
Baltazar Aquino - Vice-Mayor - Lakas NUCD-KAMPI the Sanggunian. Thus, the appointee must come from said former vice-
Elected as members of the Sangguniang Bayan ranked according to the highest mayor's political party, in this case, the Lakas-NUCD-Kampi.
number of votes obtained were the following councilors: Petitioners, on the other hand, contended that it was the elevation of petitioner
Political Party Tamayo, who was the highest-ranking member of the Sanggunian Bayan, to the
office of the Vice-Mayor which resulted in a permanent vacancy in the
1. Danny B. Tamayo REFORMA-LM Sanggunian Bayan. Pursuant to Section 45 (b) of RA 7160, the person to be
appointed to the position vacated by him should come from the same political party
2. Rolando S. Soriano REFORMA-LM
affiliation as that of petitioner Tamayo. Hence, the appointment extended by
3. Leopoldo C. Biagtan REFORMA-LM Governor Agbayani to petitioner Navarro, who was a member of and recommended
by the REFORMA-LM, is valid.
4. Florentino Z. Lalas REFORMA-LM
The Court of Appeals in a decision dated October 7, 1999 resolved the petition in
5. Mamerto Eden, Jr. REFORMA-LM favor of private respondents but for the reason different from that posited by
private respondents. According to the appellate court, the vacancy which resulted
6. Victorio C. Lalangan LAKAS-NUCD-KAMPI
from the death of the mayor created a series of vacancies and successions by
7. Judy A. Pascual REFORMA-LM operation of law. By this interpretation, petitioner Tamayo's former position as the
highest-ranking member of the Sanggunian Bayan was filled up by the second
8. Rolando Lalas LAKAS-NUCD-KAMPI highest-ranking member and that vacated by the second highest-ranking member
was succeeded by the third highest-ranking member, and so forth. And the last
vacancy created was the position of the lowest ranking-member of the Sanggunian,
that is, the eighth position occupied by Rolando Lalas. The Court of Appeals then
concluded that it was the appointment of the eighth councilor, who was Rolando
Lalas to the number seven position which created the "last vacancy;" therefore, the
person to be appointed to the vacant position should come form the same political
party to which Rolando Lalas belonged, which was the Lakas-NUCD-Kampi.
Aggrieved by the decision of the Court of Appeals, petitioners brought the instant
petition.
We give due course to the petition.
Sections 44 and 45 of RA 7160 governing vacancies and succession are quoted
hereunder:
Sec. 44. Permanent Vacancies in the Offices of the 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 in the offices of the governor, vice-governor, mayor or vice-
mayor, the highest 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:
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest
ranking sanggunian barangay members or, in case of his permanent inability, 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.
Sec. 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 panglungsod of highly urbanized cities and
independent component cities;
(2) The governor, in the case of the sangguniang panglunsod of component cities
and the sangguniang bayan;
(3) The city or municipal mayor, in the case of 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.
Under Section 44, a permanent vacancy arises when an elective 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.
What is crucial is the interpretation of Section 45 (b) providing that "xxx only the
nominee of the political party under which the Sanggunian member concerned has
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 political party as that of the
Sanggunian member who caused the vacancy xxx."
The reason behind the right given to a political party to nominate a replacement
where a permanent vacancy occurs in the Sanggunian is to maintain the party
representation as willed by the people in the election.[2]
With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the
position of Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled
up with someone who should belong to the political party of petitioner
Tamayo. Otherwise, REFORMA-LM's representation in the Sanggunian would be
diminished. To argue that the vacancy created was that formerly held by Rolando
Lalas, a LAKAS-NUCD-Kampi member, would result in the increase of that party's
representation in the Sanggunian at the expense of the REFORMA-LM. This
interpretation is contrary to the letter and spirit of the law and thus violative of a
fundamental rule in statutory construction which is to ascertain and give effect to
the intent and purpose of the law.[3] As earlier pointed out, the reason behind par.
(b), section 44 of the Local Government Code is the maintenance party
representation in the Sanggunian in accordance with the will of the electorate.

The "last vacancy" in the Sanggunian refers to that created by the elevation of the
member formerly occupying the next higher in rank which in turn also had become
vacant by any of the causes already enumerated. The term "last vacancy" is thus
used in Sec. 45 (b) to differentiate it from the other vacancy previously created. The
term by no means refers to the vacancy in the No. 8 position which occurred with
the election of Rolando Lalas to the seventh position in the Sanggunian. Such
construction will result in absurdity.

Petitioners also allege that the Court of Appeals erred in giving due course to the
petition because the verification is defective. It is argued that the affidavit merely
stated that the allegations therein are "true and correct to the best of my own
knowledge and information" whereas Section 4, Rule 7 of the Rules of Court
specifically requires that the allegations be "true and correct of his knowledge and
belief."

The contention is without merit. Verification based on the affiant's own knowledge
and information is sufficient under the circumstances. Verification is merely a
formal and not a jurisdictional requisite which does not affect the validity or efficacy
of the pleading, or the jurisdiction of the court.[4] Therefore, a defective
verification, as in the present case, does not render the pleading or the petition
invalid and the Court of Appeals did not err in giving due course to the petition.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals
in CA-G.R. SP No. 54675 dated October 7, 1999 is REVERSED and SET ASIDE. The
appointment of petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan,
Pangasinan is hereby AFFIRMED as valid and legal.

SO ORDERED.
G.R. No. 117618. March 29, 1996]
VIRGINIA MALINAO, petitioner, vs. HON. LUISITO REYES, in his capacity as Governor
of the Province of Marinduque, SANGGUNIANG PANLALAWIGAN OF MARINDUQUE
and WILFREDO RED, in his capacity as Mayor of Sta. Cruz,
Marinduque, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari and mandamus to annul the decision dated October
21, 1994 of the Sangguniang Panlalawigan of Marinduque, dismissing the
administrative case filed by petitioner against respondent Mayor Wilfredo Red of
Sta. Cruz, Marinduque. The ground for the present petition is that the same body
already found respondent Mayor guilty of abuse of authority in removing petitioner
from her post as Human Resource Manager without due process in another
decision which is now final and executory.
The facts are as follows:
Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz,
Marinduque. Respondent Mayor filed a case against her in the Office of the
Ombudsman for gross neglect of duty, inefficiency and incompetence. While the
case was pending, he appointed a replacement for petitioner.
On February 24, 1994 petitioner filed an administrative case, docketed as
Administrative Case No. 93-03, against respondent Mayor in the Sangguniang
Panlalawigan of Marinduque, charging him with abuse of authority and denial of
due process.
On August 12, 1994, the case was taken up in executive session of the
Sanggunian. The transcript of stenographic notes of the session[1] shows that the
Sanggunian, by the vote of 5to 3 of its members, found respondent Mayor guilty of
the charge and imposed on him the penalty of one-month suspension,
The result of the voting was subsequently embodied in a Decision dated September
5, 1994,[2] signed by only one member of the Sanggunian, Rodrigo V. Sotto, who
did so as Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.
Copies of the Decision were served on respondent Mayor Red as well as on
respondent Governor Luisito Reyes on September 12, 1994.
On September 14, 1994, respondent Mayor filed a manifestation[3] before the
Sanggunian, questioning the Decision on the ground that it was signed by Sotto
alone, apparently acting in his capacity and designated as Presiding Chairman, Blue
Ribbon Committee, Sangguniang Panlalawigan. He contended that because of this
the decision could only be considered as a recommendation of the Blue Ribbon
Committee and he was not bound thereby.
On September 13, 1994, respondent Mayor sought the opinion of the Secretary of
the Department of the Interior and Local Government regarding the validity of the
Decision.
In his letter dated September 14, 1994,[4] DILG Secretary Rafael M. Alunan III
opined that the decision alluded to does not appear to be in accordance with
Section 66 of the Local Government Code of 1991 and settled jurisprudence since
in the instant case, the purported decision of the Blue Ribbon Committee should
have been submitted to, approved and/or adopted by the Sangguniang
Panlalawigan as a collegial body inasmuch as the Sangguniang Panlalawigan has the
administrative jurisdiction to take cognizance thereof in conformity with Section 61
and Section 66 of the Code. It is not for the said committee to decide on the merits
thereof, more so to impose the suspension, as its duty and function is purely
recommendatory. If it were at all the intention of the Sangguniang Panlalawigan to
adopt entirely the recommendation of the Blue Ribbon Committee, it should have
so stated and the members of the Sangguniang Panlalawigan, who may have
affirmatively voted thereon or participated in its deliberations, should have affixed
their respective signatures on whatever decision that could have been arrived at. . .
.
On the other hand petitioner sent a letter[5] on October 14, 1994 to respondent
Governor Reyes, demanding that the Decision suspending respondent Mayor from
office be implemented without further delay.
In his letter dated October 20, 1994,[6] respondent Governor informed the
Sanggunian that he agreed with the opinion of the DILG for which reason he could
not implement the Decision in question.
On October 21, 1994,[7] the Sanggunian, voting 7 to 2, acquitted respondent Mayor
of the charges against him. The vote was embodied in a Decision of the same date,
which was signed by all members who had thus voted.[8]
Hence this petition.
I. Petitioners basic contention is that inasmuch as the Decision
of September 5, 1994 had become final and executory, for failure of respondent
Mayor to appeal, it was beyond the power of the Sanggunian to render another
decision on October 21, 1994 which in effect reversed the first decision.
These contentions are without merit. What petitioner claims to be the September
5, 1994 Decision of the Sangguniang Panlalawigan bore the signature of only one
member (Rodrigo V. Sotto) who signed the Decision as Presiding Chairman, Blue
Ribbon Committee, Sangguniang Panlalawigan. Petitioner claims that at its session
on August 12, 1994, the Sanggunian by the vote of five members against three Kgd. Muhi
found respondent Mayor guilty of having removed petitioner as Human Resources
Officer III without due process and that this fact is shown in the minutes of the Kgd. Raza
session of the Sanggunian. The minutes referred to read in pertinent part as Kgd. Pinaroc
follows:
Kgd. Lagran
KGD. SOTTO - No if he [respondent Mayor] is acquitted, then lets acquit
it. Whatever is the decision everybody goes to the majority. Kgd. De Luna

(There was nominal voting from the Sangguniang Panlalawigan member. For NOT Three (3) voted NOT GUILTY:
GUILTY OR GUILTY)
Kgd. Rejano
KGD. ZOLETA - I vote not guilty.
Kgd. Zoleta
KGD. MUHI - Guilty.
Kgd. Lim
KGD. LIM - Not guilty.
KGD. SOTTO - Punishment...
KGD. RAZA - First I would like to say that I will decide on the merit of the case. The
fact that the Civil Service ordered the reinstatement wherein Virginia Molinao is Censure? Reprimand? Suspension?
included, only means that the Supreme Court duly constituted has found the merit KGD. LAGRAN - I suggest that only those who voted guilty should vote as to what
of the decision of the Civil Service. punishment should be given.
I vote that the Mayor is guilty. KGD. LIM - All the members should be given the right to vote.
KGD. PINAROC - Guilty. (THE VOTING PROCEEDED.)
KGD. DE LUNA - Guilty, there is no due process and to protect the integrity of the Kgd. Muhi - Suspension
Sangguniang Panlalawigan.
Kgd. Raza - Suspension
KGD. LAGRAN - Guilty.
Kgd. Pinaroc - Suspension
KGD. ZOLETA - My reason for voting not guilty is that the mayor acted in good faith,
he just followed the order of the reorganization recommended by the Placement Kgd. Lagran - Suspension
Committee.
Kgd. de Luna - Suspension
KGD. REJANO - The order of the reorganization was given by the Civil Service
KGD. ZOLETA - Since we voted not guilty therefore no punishment.
Commission and based on the contention made by Kgd. Palamos that since there
should be reorganization to be conducted by the Civil Service Commission the KGD. REJANO - No punishment.
mayor was supposed to go on with that reorganization and based on the
reorganization there should be a screening committee to check whether the KGD. LIM - No punishment.
employees are really working efficiently. Based on the case that has been given to
KGD. SOTTO - How many months?
Mrs. Malinao, based on the witnesses, Ligeralde, Monterozo and Pastrana and then
decided that Mayor Red has done in good faith. KGD. MUHI - One month.
So I vote Not Guilty. KGD. RAZA - One month.
Five (5) voted GUILTY: KGD. PINAROC - One month.
KGD. LAGRAN - One month.
KGD. DE LUNA - One month.
KGD SOTTO - Be it on record that on August 12, 1994 during the Executive Session
of the Sangguniang Panlalawigan en banc the respondent is hereby found guilty.
Effective upon receipt of the Decision, copy furnished: the counsel for Respondent,
the Counsel for Complainant, the Municipal Treasurer, Sta. Cruz, Marinduque, the
Provincial Auditor, the Civil Service Commission, Boac, Marinduque, the DILG, Boac,
Marinduque, the Provincial Governor.
Contrary to petitioners claim, what the minutes only show is that on August 12,
1994 the Sanggunian took a vote on the administrative case of respondent Mayor
and not that it then rendered a decision as required by 66(a) of the Local
Government Code (R.A. No. 7160) which provides as follows:
66. Form and Notice of Decision. - (a) The investigation of the case shall be
terminated within ninety (90) days from the start thereof. Within thirty (30) days
after the end of the investigation, the Office of the President or the sanggunian
concerned shall render a decision in writing stating clearly and distinctly the facts
and the reasons for such decision. Copies of said decision shall immediately be
furnished the respondent and all interested parties.
In order to render a decision in administrative cases involving elective local officials,
the decision of the Sanggunian must thus be in writing stating clearly and distinctly
the facts and the reasons for such decision. What the Sanggunian, therefore, did
on August 12, 1994 was not to render a decision.
Neither may the so-called Decision prepared by Sanggunian Member Rodrigo V.
Sotto on September 5, 1994 be regarded as the decision of the Sanggunian for lack
of the signatures of the requisite majority. Like the procedure in the Supreme Court,
the voting following the deliberation of the members of the Sanggunian did not
necessarily constitute their decision unless this was embodied in an opinion
prepared by one of them and concurred in by the others, in the same way that the
voting following the deliberation on a case in the Supreme Court becomes its
decision only after the opinion prepared by a Justice is concurred in by others
composing the majority. Until they have signed the opinion and the decision is
promulgated, the Justices are free to change their votes.[9]
Indeed, in his comment[10] in this case, Member Sotto admits that the draft
decision he prepared had only his signature due to the reluctance of some
Kagawads to affix their signatures. Consequently the draft never became a
decision. It is noteworthy that the draft was signed by Member Sotto in his capacity
as Presiding Chairman of the Blue Ribbon Committee of the Sangguniang
Panlalawigan and that it did not provide spaces for the signatures of other members
of the Sanggunian had it been intended that it be signed by them. This fact led the
DILG to conclude that the draft was simply the report and recommendation of the
Blue Ribbon Committee to the Sanggunian.
Now, as already stated, the Sanggunian, at its session on October 21, 1994, took
another vote and, 7 to 2, decided to dismiss the case against respondent
Mayor. This time its decision was made in writing, stating the facts and the law on
which it was based, and it was signed by the members taking part in the
decision. This, and not the so-called decision of September 5, 1994, is the decision
of the Sanggunian.
Petitioner complains that no notice of the session by the Sanggunian on October 21,
1994 was given to her. None was really required to be given to her. The deliberation
of the Sanggunian was an internal matter.
II. Petitioner brought this case by way of Petition for certiorari and mandamus. A
prime specification of the writ of certiorari, however, is that there is no appeal nor
any plain, speedy and adequate remedy in the ordinary course of law available to
petitioner. But, in the case at bar, petitioner could have appealed the decision of
the Sanggunian to the Office of the President as provided in 67(b) of the Local
Government Code.
III. At all events, this case is now moot and academic as a result of the expiration of
respondents term during which the act complained of was allegedly committed,
and further proceedings against respondent Mayor are barred by his reelection
on May 8, 1995.
Pursuant to 66(b) of the Code, the penalty of suspension cannot exceed the
unexpired term of the respondent or a period of six (6) months for every
administrative offense. On the other hand, any administrative disciplinary
proceeding against respondent is abated if in the meantime he is reelected,
because his reelection results in a condonation of whatever misconduct he might
have committed during his previous term.[11]
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.

THE SANGGUNIANG BARANGAY OF
BARANGAY DON MARIANO MARCOS,
MUNICIPALITY OF BAYOMBONG
PROVINCE OF NUEVA VISCAYA
represented by BARANGAY KAGAWAD
JOSE CENEN SANTOS, MARIO BACUD,
WALTER FRANCISCO, ROSITA SEBASTIAN,
LAURETA CABAUATAN, CECILIA ALINDAYU
and MELY SIMANGAN,
Petitioners,
- versus -
PUNONG BARANGAY
SEVERINO MARTINEZ,
Respondent.
x-------------------------------------------------x
DECISION
CHICO-NAZARIO, J.:
G.R. No. 170626
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the Orders dated 20 October 2005[1] and 30 November 2005[2] of the
Regional Trial Court (trial court), Branch 27, of Bayombong, Nueva Vizcaya, in
Present: Special Civil Action No. 6727. In its assailed Orders, the trial court ruled that
the Sangguniang Bayan of Bayombong, Neuva Vizcaya (Sangguniang Bayan),
exceeded its jurisdiction when it imposed upon respondent Severino Martinez the
administrative penalty of removal from office.
YNARES-SANTIAGO, J.,
Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano
Chairperson, Marcos, Bayombong, Nueva Vizcaya, a local government unit created, organized
AUSTRIA-MARTINEZ, and existing as such under pertinent laws of the Republic of the Philippines.
Respondent Martinez is the incumbent Punong Barangay of the said local
CHICO-NAZARIO, government unit.[3]
NACHURA, and
REYES, JJ. On 5 November 2004, Martinez was administratively charged with Dishonesty and
Graft and Corruption by petitioner through the filing of a verified complaint before
the Sangguniang Bayan as the disciplining authority over elective barangay officials
pursuant to Section 61[4] of Rep. Act No. 7160, otherwise known as the Local
Government Code. Petitioner filed with the Sangguniang Bayan an Amended
Promulgated: Administrative Complaint against Martinez on 6 December 2004 for Dishonesty,
Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices
Act.[5] Petitioner alleged that Martinez committed the following acts:
1. Failure to submit and fully remit to the Barangay Treasurer the income of their
solid waste management project since 2001 particularly the sale of fertilizer derived
from composting.
March 3, 2008
2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials
taken from garbage collection.
3. Using the garbage truck for other purposes like hauling sand and gravel for
private persons without monetary benefit to the barangay because no income from
this source appears in the year end report even if payments were collected x x x.

4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other
spare parts of the garbage truck instead of using the money or income of said truck
from the garbage fees collected as income from its Sold Waste Management
Project. x x x.
5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because
although a cash advance was made by the respondent for the said purpose, he,
however, did not attend said seminar because on the dates when he was supposed
to be on seminar they saw him in the barangay. x x x.
6. That several attempts to discuss said problem during sessions were all in vain
because respondent declined to discuss it and would adjourn the session.x x x.[6]
Upon his failure to file an Answer to the Amended Administrative Complaint
dated 6 December 2004, Martinez was declared by the Sangguniang Bayan as in
default.Pending the administrative proceedings, Martinez was placed under
preventive suspension for 60 days or until 8 August 2005.[7]
On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed
upon Martinez the penalty of removal from office.[8]
The Decision dated 28 July 2005 was conveyed to the Municipal Mayor
of Bayombong, Nueva Ecija, Severino Bagasao, for its implementation. On 3 August
2005, Municial Mayor Bagasao issued a Memorandum, wherein he stated that
the Sanggunaing Bayan is not empowered to order Martinezs removal from
service. However, the Decision remains valid until reversed and must be executed
by him. For the meantime, he ordered the indefinite suspension of Martinez since
the period of appeal had not yet lapsed.[9] The dispositive portion of the said
Memorandum states that:[10]
The FOREGOING considered come AUGUST 8, 2005, respondent SEVERINO D.
MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the
Office of the Punong Barangay of Barangay Don Mariano
Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN SANTOS to
CONTINUE assuming and discharging the functions of the said office in ACTING
CAPACITY pursuant to the provisions of Sections 67 and 68 of Republic Act No.
7160.
On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer
for Temporary Restraining Order and Preliminary Injunction before the trial court
against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the
validity of the Decision dated 28 July 2005 of the Sangguniang Bayan. This case was
docketed as Special Civil Action No. 6727, which was initially heard by Branch 28,
but later raffled to Branch 27 of the trial court.[11]
On 20 October 2005, the trial court issued an Order declaring the Decision of
the Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It
maintained that the proper courts, and not the petitioner, are empowered to
remove an elective local official from office, in accordance with Section 60 of the
Local Government Code. Thus, the Order of
the Sangguniang Bayan removing Martinez from service is void. As a consequence,
Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a
void order. The trial court further ruled that Martinez properly availed himself of
the remedy of Special Civil Action, where the order assailed was a patent nullity.[12]
On 10 November 2005, petitioner filed a Motion for Reconsideration[13] of the trial
courts Order dated 10 October 2005. The trial court denied the said motion in
another Order dated 30 November 2005.[14]
Hence, the present petition was filed.
Although Martinezs term as Punong Baranggay expired upon the holding of the 29
October 2007 Synchronized Barangay and Sangguniang Kabataan elections and,
thus, rendering this petition moot and academic, the Court will nevertheless settle a
legal question that is capable of repetition yet evading review.[15]
The pivotal issue in this case is whether or not the Sangguniang Bayan may
remove Martinez, an elective local official, from office. The pertinent legal
provisions and cases decided by this Court firmly establish that
the Sanggunaing Bayan is not empowered to do so.
Section 60 of the Local Government Code conferred upon the courts the power to
remove elective local officials from office
Section 60. Grounds for Disciplinary Actions.An elective local official may be
disciplined, suspended, or removed from office on any of the following grounds:
An elective local official may be removed from office on the grounds enumerated
above by order of the proper court. (Emphasis provided.
During the deliberations of the Senate on the Local Government Code,[16] the
legislative intent to confine to the courts, i.e., regional trial courts,
the Sandiganbayan and the appellate courts, jurisdiction over cases involving the
removal of elective local officials was evident:
Senator Pimentel. This has been reserved, Mr. President, including the issue of
whether or not the Department Secretary or the Office of the President can
suspend or remove an elective official.
Senator Saguisag. For as long as that is open for some later disposition, may I just
add the following thought: It seems to me that instead of identifying only the
proper regional trial court or the Sandiganbayan, and since we know that in the
case of a regional trial court, particularly, a case may be appealed or may be the
subject of an injunction, in the framing of this later on, I would like to suggest
that we consider replacing the phrase PROPER REGIONAL TRIAL COURT OR THE
SANDIGANBAYAN simply by
COURTS. Kasi po, maaaring sabihin nila na mali iyong regional trial court
o ang Sandiganbayan.
Senator Pimentel. OR THE PROPER COURT.
Senator Saguisag. OR THE PROPER COURT.
Senator Pimentel. Thank you. We are willing to accept that now, Mr. President.
Senator Saguisag. It is to be incorporated in the phraseology that we will craft to
capture the other ideas that have been elevated. (Emphasis provided.)
In Salalima v. Guingona, Jr.,[17] the Court en banc categorically ruled that the Office
of the President is without any power to remove elected officials, since the power is
exclusively vested in the proper courts as expressly provided for in the last
paragraph of Section 60 of the Local Government Code. It further invalidated Article
125, Rule XIX of the Rules and Regulations Implementing the Local Government
Code of 1991, which provided that:
Article 125. Grounds for Disciplinary Actions. x x x.
(b) An elective local official may be removed from office on the grounds
enumerated in paragraph (a) of this Article by order of the proper court or the
disciplining authority whichever first acquires jurisdiction to the exclusion of the
other.
The Court nullified the aforequoted rule since the Oversight Committee that
prepared the Rules and Regulations of the Local Government Code exceeded its
authority when it granted to the disciplining authority the power to remove elective
officials, a power which the law itself granted only to the proper courts. Thus, it is
clear that under the law, the Sangguniang Bayan is not vested with the power to
remove Martinez.
Petitioner contends that administrative cases involving elective barangay officials
may be filed with, heard and decided by
the Sangguniang Panlungsod or SangguniangBayan concerned, which can,
thereafter, impose a penalty of removal from office. It further claims that the courts
are merely tasked with issuing the order of removal, after
the Sangguniang Panlungsod or Sangguniang Bayan finds that a penalty of removal
is warranted.[18]
The aforementioned position put forward by the petitioner would run counter to
the rationale for making the removal of elective officials an exclusive judicial
prerogative.In Pablico v. Villapando,[19] the court declared that:
It is beyond cavil, therefore, that the power to remove erring elective local officials
from service is lodged exclusively with the courts. Hence, Article 124 (sic
125)[20] (b), Rule XIX, of the Rules and Regulations Implementing the Local
Government Code, insofar as it vests power on the disciplining authority to remove
from office erring elective local officials, is void for being repugnant to the last
paragraph of Section 60 of the Local Government Code of 1991. The law on
suspension or removal of elective public officials must be strictly construed and
applied, and the authority in whom such power of suspension or removal is vested
must exercise it with utmost good faith, for what is involved is not just an ordinary
public official but one chosen by the people through the exercise of their
constitutional right of suffrage. Their will must not be put to naught by the caprice
or partisanship of the disciplining authority. Where the disciplining authority is
given only the power to suspend and not the power to remove, it should not be
permitted to manipulate the law by usurping the power to remove. (Emphasis
supplied.)
The rule which confers to the proper courts the power to remove an elective local
official from office is intended as a check against any capriciousness or partisan
activity by the disciplining authority. Vesting the local legislative body with the
power to decide whether or not a local chief executive may be removed from office,
and only relegating to the courts a mandatory duty to implement the decision,
would still not free the resolution of the case from the capriciousness or
partisanship of the disciplining authority. Thus, the petitioners interpretation would
defeat the clear intent of the law.
Moreover, such an arrangement clearly demotes the courts to nothing more than
an implementing arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This
would be an unmistakable breach of the doctrine on separation of powers, thus
placing the courts under the orders of the legislative bodies of local
governments. The courts would be stripped of their power of review, and their
discretion in imposing the extreme penalty of removal from office is thus left to be
exercised by political factions which stand to benefit from the removal from office
of the local elective official concerned, the very evil which Congress sought to avoid
when it enacted Section 60 of the Local Government Code.
Congress clearly meant that the removal of an elective local official be done only
after a trial before the appropriate court, where court rules of procedure and
evidence can ensure impartiality and fairness and protect against political
maneuverings. Elevating the removal of an elective local official from office from an
administrative case to a court case may be justified by the fact that such removal
not only punishes the official concerned but also, in effect, deprives the electorate
of the services of the official for whom they voted.
As the law stands, Section 61 of the Local Government Code provides for the
procedure for the filing of an administrative case against an erring
elective barangay official before
the Sangguniang Panlungsod or Sangguniang Bayan. However,
the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an
erring elective barangayofficial from office, as the courts are exclusively vested with
this power under Section 60 of the Local Government Code. Thus, if the acts
allegedly committed by the barangayofficial are of a grave nature and, if found
guilty, would merit the penalty of removal from office, the case should be filed with
the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction
over the case even if it would be subsequently apparent during the trial that a
penalty less than removal from office is appropriate. On the other hand, the most
extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may
impose on the erring elective barangay official is suspension; if it deems that the
removal of the official from service is warranted, then it can resolve that the proper
charges be filed in court.
Petitioner alleged that an interpretation which gives the judiciary the power to
remove local elective officials violates the doctrine of separation of powers. This
allegation runs contrary to the 1987 Constitution itself, as well as jurisprudence.
The 1987 Constitution is explicit in defining the scope of judicial power. It
establishes the authority of the courts to determine in an appropriate action the
validity of acts of the political departments. It speaks of judicial prerogative in terms
of duty.[21] Paragraph 2, Section 1, Article VIII of the 1987 Constitution, provides
that:
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. (Emphasis provided.)
The doctrine of separation of powers is not absolute in its application; rather, it
should be applied in accordance with the principle of checks and balances. The
removal from office of elective officials must not be tainted with partisan politics
and used to defeat the will of the voting public. Congress itself saw it fit to vest that
power in a more impartial tribunal, the court. Furthermore, the local government
units are not deprived of the right to discipline local elective officials; rather, they
are prevented from imposing the extreme penalty of dismissal.
Petitioner questions the Decision dated 20 October 2005 of the trial court for
allowing the petition filed before it as an exception to the doctrine of exhaustion of
administrative remedies. If, indeed, the Sangguniang Bayan had no power to
remove Martinez from office, then Martinez should have sought recourse from
the SangguniangPanlalawigan. This Court upholds the ruling of the trial court.
The doctrine of exhaustion of administrative remedies calls for resort first to the
appropriate administrative authorities in the resolution of a controversy falling
under their jurisdiction before the same may be elevated to the courts of justice for
review. Non-observance of the doctrine results in lack of a cause of action, which is
one of the grounds allowed by the Rules of Court for the dismissal of the
complaint.[22]
The doctrine of exhaustion of administrative remedies, which is based on sound
public policy and practical consideration, is not inflexible. There are instances when
it may be dispensed with and judicial action may be validly resorted to
immediately. Among these exceptions are: 1) where there is estoppel on the part of
the party invoking the doctrine; 2) where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable
delay or official inaction that will irretrievably prejudice the complainant; 4) where
the amount involved is relatively small as to make the rule impractical and
oppressive; 5) where the question raised is purely legal and will ultimately have to
be decided by the courts of justice; 6) where judicial intervention is urgent; 7)
where its application may cause great and irreparable damage; 8) where
the controverted acts violate due process; 9) when the issue of non-exhaustion of
administrative remedies has been rendered moot; 10) where there is no other
plain, speedy and adequate remedy; 11) when strong public interest is involved;
and 13) in quo warranto proceedings.[23]
In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction
when it issued the assailed Order dated 28 July 2005 removing Martinez from
office.Such act was patently illegal and, therefore, Martinez was no longer required
to avail himself of an administrative appeal in order to annul the said Order of
the SangguniangBayan.[24] Thus, his direct recourse to regular courts of justice was
justified.
In addition, this Court in Castro v. Gloria[25] declared that where the case involves
only legal questions, the litigant need not exhaust all administrative remedies
before such judicial relief can be sought. The reason behind providing an exception
to the rule on exhaustion of administrative remedies is that issues of law cannot be
resolved with finality by the administrative officer. Appeal to the administrative
officer would only be an exercise in futility. A legal question is properly addressed to
a regular court of justice rather than to an administrative body.[26]
In the present case, Martinez raised before the trial court the sole issue of whether
the Sangguniang Bayan has jurisdiction over a case involving the removal of a local
elective official from office.[27] In Martinezs petition before the trial court, only a
legal question was raised, one that will ultimately be resolved by the courts. Hence,
appeal to the administrative officer concerned would only be circuitous and,
therefore, should no longer be required before judicial relief can be sought.
IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed
Decision of the Bayombong RTC in Special Civil Action No. 6727 is AFFIRMED.
SO ORDERED.

As a general rule, no recourse to courts can be had until all administrative remedies
have been exhausted. However, this rule is not applicable where the challenged
administrative act is patently illegal, amounting to lack of jurisdiction and where the
question or questions involved are essentially judicial.
 G.R. No. 173165 the Sangguniang Bayan, that is, the one who garnered the highest number of votes
for that office.[5] As a result, a permanent vacancy was created in the Sangguniang
Bayan.
Present:

To fill up the ensuing vacancy in the Sangguniang Bayan, San Isidro Mayor Abraham
CORONA, J., Chairperson, T. Lim (Mayor Lim) recommended to Governor Maria Gracia Cielo M. Padaca
(Governor Padaca), the appointment of respondent Oscar G. Tumamao (Tumamao),
VELASCO, JR., a member of the Laban ng Demokratikong Pilipino (LDP), the same political party to
which Alonzo belonged.[6]
NACHURA,

PERALTA, and
On April 15, 2005, Tumamao took his oath as a member of the Sangguninang Bayan
MENDOZA, JJ. before Mayor Lim.[7]

Promulgated: On April 26, 2005 and May 3, 2006, Tumamao attended the regular sessions of the
February 17, 2010 Sangguniang Bayan.[8]

x--------------------------------------------------x

DECISION
On May 5, 2005, petitioner Atty. Lucky Damasen (Damasen) became a member of
the LDP after taking his oath of affiliation before the LDP Provincial Chairman, Ms.
PERALTA, J.: Ana Benita Balauag (Provincial Chairman Balauag).[9] On even date, Damasen was
able to secure from LDP Provincial Chairman Balauag a letter of nomination
addressed to Governor Padaca for his appointment to the Sangguniang Bayan.[10]
Before this Court is a Petition for Review on Certiorari,[1] under Rule 45 of the 1997
Rules of Civil Procedure, assailing the June 14, 2006 Decision[2] of the Court of
Appeals (CA) in CA-G.R. SP No. 90882. On May 12, 2005, Damasen was appointed as Sangguniang Bayan member by
Governor Padaca.[11]
The facts of the case are as follows:

On May 16, 2005, Damasen took his oath as member of the Sangguniang Bayan
On December 2, 2004, Nelia Tumamao, the Vice-Mayor of San Isidro, Isabela,
before Governor Padaca.[12]
died.[3] As a result, a permanent vacancy was created in the Office of the Vice-
Mayor.

On May 17, 2005, Damasen attended the Sangguniang Bayan session, but with
Tumamao present thereat, the former was not duly recognized.[13] Hence, in the
Pursuant to Sec. 44 of Republic Act (RA) No. 7160,[4] Ligaya C. Alonzo (Alonzo) was
afternoon of the same day, Damasen filed with the Regional Trial Court of Santiago
elevated to the position of Vice-Mayor, she being the highest-ranking member of
City (RTC) a Petition for Quo Warranto with Prayer for the Issuance of a Writ of
Preliminary Injunction,[14] seeking to be declared the rightful member of the
Sangguniang Bayan, claiming that he had been nominated by LDP Provincial
Chairman Balauag and had been appointed thereto by Governor Padaca.[15] The
case was docketed as Special Civil Action Case No. 0234.
The RTC issued a Temporary Restraining Order effective for 72 hours. Thereafter,
the RTC issued an order extending the Temporary Restraining order to 17 days.
Later, in the hearing to determine the propriety of issuing a Writ of Preliminary
Injunction, Damasen testified that he is a member of the LDP and was nominated to
the position in question by LDP Provincial Chairman Balauag; that pursuant thereto,
he was appointed by Governor Padaca as a member of the Sangguniang Bayan, and
that he later took his oath before her; but that during session of the Sangguniang
Bayan on May 12, 2005, he was not recognized by a majority of its members.[16]
For his part, Tumamao called to the witness stand his counsel Atty. Ernest Soberano
(Soberano), who identified a letter dated June 14, 2005, signed by LDP Provincial
Chairman Balauag, which states that the latter was revoking her nomination of
Damasen, and that she was confirming Tumamaos nomination made by Mayor
Lim.[17] Later, Tumamao presented Provincial Chairman Balauag who affirmed the
contents of her letter revoking the nomination of Damasen.[18]
On August 4, 2005, the RTC rendered a Decision[19] ruling in favor of Damasen, the
dispositive portion of which reads:
WHEREFORE, after careful evaluation of the evidence presented, the Court resolves
the petition declaring petitioner, Atty. Lucky M. Damasen as the rightful person to
have the right to occupy and exercise the functions of Sangguniang Bayan member
of San Isidro, Isabela, enjoining, excluding respondent Oscar G. Tumamao from
occupying and exercising the function of Sangguniang Bayan member of San Isidro,
Isabela, from usurping and unlawfully holding or exercising said office. After
determining that herein petitioner is the rightful person to occupy and exercise the
functions of Sangguniang Bayan member of San Isidro, Isabela, it follows that he is
entitled to the salaries, benefits and other emoluments appurtenant to the
position. He is also entitled to recover his costs.
SO ORDERED.[20]
The RTC based its decision on Sec. 45 (b) of RA 7160,[21] which provides for the rule
on succession in cases of permanent vacancies in the Sangguninan. The RTC ruled
that the evidence submitted by Damasen proved that the requirements to be able
to qualify for the position was fully complied with.[22] Moreover, the RTC held that
the revocation of the political nomination issued by LDP Provincial Chairman
Balauag was done after Governor Padaca had acted on it and had issued the
appointment of Damasen.[23] Hence, the RTC declared that it could no longer undo
what Governor Padaca had done, absent any showing of grave abuse of
discretion.[24]
Tumamao appealed the RTC Decision to the CA. On June 14, 2006, the CA rendered
a Decision reversing the appealed Decision, the dispositive portion of which reads:
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed from must
be, as it hereby is, VACATED and SET ASIDE. The Quo Warranto case is hereby
DISMISSED for lack of merit. Without special pronouncement as to costs.
SO ORDERED.[25]
The CA held that Damasen was not entitled to assume the vacant position in the
Sangguniang Bayan, thus:
While Atty. Damasen might have been appointed by Governor Padaca, this
appointment must fly in the face of the categorical and unbending sine qua non
requirements of the statute.
Indeed, Atty. Damasen was nominated simply by Ms. Balauag, the Provincial
Chairman of the LDP, who obviously is not the highest official of this political party.
It cannot escape notice that the quoted provision particularizes: highest official of
the political party concerned without any additional qualifying or restrictive words.
According credence to the June 16, 2005 letter of the LDP Deputy Secretary Counsel
Demaree Raval, (and we have no reason not to), it should be easy enough to see
that Atty. Damasen also was not a member of the LDP, as his application for
membership therein was not endorsed to the LDPs National Council for approval.
More importantly, Atty. Damasens aforesaid nomination was eventually withdrawn,
cancelled or revoked by Ms. Balauag, who declared that she was misled into
accepting him as member of the LDP (owing to the fact that Atty. Damasen was
affiliated with the Lakas CMD-Party and under the banner of this party indeed ran
for Mayor of San Isidro against the LDP candidate for Mayor), and in nominating
him. That much is clear from Ms. Balauags letter of June 14, 2005 to Governor
Padaca, the contents whereof she affirmed in her testimony, as follows: x x x
Oddly enough, Atty. Damasen helped accentuate Ms. Balauags thesis by admitting
that he was previously a member of the Lakas-CMD, and that he did not resign
therefrom when he joined the LDP, and moreover, his joining the LDP was not
based on party ideals but because he just wanted to.[26]
Damasen did not file a motion for reconsideration of the CA Decision and instead
sought direct relief from this Court via the present petition for review. In his
petition, Damasen raised the following issues for this Courts resolution, to wit:
A.
THE COURT OF APPEALS ERRED IN DISMISSING THE QUO WARRANTO ON THE BASIS
THAT THE NOMINATION OF THE PETITIONER DID NOT COMPLY WITH THE
REQUIREMENTS OF SECTION 45 OF REPUBLIC ACT 7160.
B.
THE COURT OF APPEALS ERRED IN ITS DECISION WHEN IT DID NOT RULE ON THE
VALIDITY OF THE ASSUMPTION TO OFFICE OF PRIVATE RESPONDENT AS
SANGGUNIANG BAYAN.
C.
THE COURT OF APPEALS ERRED IN NOT DISMISSING THE APPEAL FAILED BY THE
PRIVATE RESPONDENT THE LATTER HAVING NO AUTHORITY TO QUESTION THE
VALIDITY OF THE APPOINTMENT OF PETITIONER.[27]
The petition is not meritorious.
At the outset, this Court shall address a procedural matter raised by Damasen.
Damasen argues that Tumamao was not appointed as Sangguniang Bayan and,
therefore, the latter has no right to question his appointment by way of
appeal.[28] More specifically, Damasen argues in the wise:
By reason of the appeal, the situation of the parties had been changed since it is
now the private respondent who is assailing petitioners exercise of a public office.
Else wise stated, the private respondent is now alleging that the petitioner is a
person who usurps, intrudes into, or unlawfully holding the position of Sangguniang
Bayan. This being the case, the proper legal remedy should be a separate case of
Quo Warranto to be filed against petitioner.[29]
Damasens contention that Tumamao should have filed a separate case of quo
warranto and not an appeal to the CA does not hold water. The determination of
who, between Damasen and Tumamao, is entitled to the contested position is the
crux of the controversy in the case at bar. Hence, a separate action would only be
tantamount to a multiplicity of suits, which is abhorred by law.
It is undisputed that the law applicable to herein petition is Sec. 45(b) of RA 7160,
which provides for the rule on succession in cases of permanent vacancies in the
Sanggunian, to wit:
Section 45. Permanent Vacancies in the Sanggunian.
(a) Permanent vacancies in the sanggunian where automatic succession 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 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 therefore.[30]
As can be gleaned from the above provision, the law provides for conditions for the
rule of succession to apply: First, the appointee shall come from the same political
party as that of the Sanggunian member who caused the vacancy. Second, the
appointee must have a nomination and a Certificate of Membership from the
highest official of the political party concerned.
It is the contention of Damasen that he has complied with the requirements of Sec.
45 (b) of RA 7160. Specifically, Damasens position is predicated on his submission of
the following documents:
1. Oath of Affiliation with the LDP[31] dated May 5, 2005;
2. Certificate of Membership with the LDP[32] dated May 5, 2005;
3. Letter of Nomination made by LDP Provincial Chairman Ana Benita G.
Balauag[33] dated May 5, 2005;
4. Letter of Appointment from Governor Padaca[34] dated May 12, 2005;
5. Panunumpa sa Katungkulan as Sangguniang Bayan member[35] dated
May 16, 2005.
For his part, Tumamao argued that Damasen has not complied with the
requirements of the law. Tumamao argued in the main that Damasen is not a bona-
fide member of the LDP and that Provincial Chairman Balauag is not the highest
official of the LDP as contemplated under Sec. 45 (b) of RA 7160.
In order to resolve the brewing dispute on Damasens membership in the LDP, this
Court shall hereunder discuss and scrutinize two documents which are vital for a
just resolution of the petition at bar, the first being the June 14, 2005 letter[36] of
LDP Provincial Chairman Balauag to Governor Padaca, and the second being the
June 16, 2005 letter[37] of Demaree J.B. Raval, the Deputy Secretary Counsel of the
LDP also to Governor Padaca.
Revocation of the nomination given by the LDP Provincial Chairman
On June 14 2005, LDP Provincial Chairman Balauag sent a letter to Governor Padaca
revoking the nomination she issued in favor of Damasen, the text of which in
hereunder reproduced in its entirety, to wit:
This refers to the nomination which I issued in favor of Atty. Lucky M. Damasen to
fill in the vacancy in the Sangguniang Bayan of San Isidro, Isabela dated May 5,
2005.
When Judge Jose O. Ramos (Ret.) together with Atty. Damasen came to see me at
my residence in Quezon City sometime in the month of May, 2005, to request the
nomination of Atty. Damasen, he did not inform me that Atty. Damasen was a
candidate for Mayor in the May 2004 elections affiliated with the Lakas Party and
who ran against our Partys candidate for Mayor in San Isidro. I was given the
impression that Atty. Damasen was not affiliated with any political party that is why
I signed the documents presented to me and endorsed his nomination. However, I
later learned that Atty. Damasen was actually a candidate for Mayor and a member
of Lakas so that his joining our Party and his nomination as such to the vacant
position of Sanggunian member is not accordance with our Partys principles
pursuant to Sec. 2, Art. IV of our By-Laws.
In view of the foregoing, as the Provincial Chairman of LDP-LABAN, I am constrained
to withdraw, cancel, and/or revoke the nomination issued to Atty. Lucky M.
Damasen dated May 5, 2005 for all legal intents and purposes.[38]
In his defense, Damasen maintains that he did not commit any misrepresentation
when he secured his Certificate of Nomination and Membership from LDP Provincial
Chairman Balauag. Damasen thus argued in this wise:
According to ANA BENITA BALAUAG when she testified, she claimed that she did
not know that petitioner was a candidate for Mayor during the last Local and
National Election. This is absurd because Echague, Isabela where ANA BENITA
BALAUAG also ran for Mayor is just an adjoining town of San Isidro, Isabela. xxx[39]
In addition, Damasen asservates that in the Philippines, politicians change their
political affiliation more often than not.[40] More importantly, Damasen is of the
belief that the subsequent revocation of the nomination after he was already
appointed by the Governor has no legal effect, to wit:
Respondent is of the view that since the nomination of the petitioner dated May 5,
2005 has been cancelled and/or revoked by LDP Isabela Provincial Chairman ANA
BENITA BALAUAG on June 14, 2005, petitioner no longer has a right to be a member
of the Sangguniang Bayan. This is wrong. The respondent should open its eyes and
must come to realize that the revocation and/or cancellation CAME AFTER the
petitioner has been APPOINTED. x x x x[41]
It is not the province of this Court to decide if in fact LDP Provincial Chairman
Balauag knew or should have known that Damasen was a member of the Lakas-
CMD party. However, as can be gleaned from the Transcript of Stenographic Notes
dated July 12, 2005, LDP Provincial Chairman Balauag repeatedly denied knowing
that Damasen ran for Mayor in San Isidro, Isabela.[42] The same notwithstanding,
this Court must take into consideration the fact that Damasen was previously a
member of the Lakas-CMD party. Likewise, while the revocation of
Damasens nomination came after the fact of his appointment by Governor Padaca,
the same should not serve to bar any contest on said appointment as the primordial
issue to be determined is whether or not Damasen has complied with the
requirements of Sec. 45 (b) of RA 7160.
Letter from the LDP that Damasen is not a bona fide member
What is damning to the cause of Damasen, is the letter of Demaree J.B. Raval, the
Deputy Secretary Counsel of the LDP, addressed to Governor Padaca wherein it is
categorically stated that Damasen is not a bona fide member of the LDP, to wit:
xxxx
As regards the claim of Mr. Lucky Magala Damasen, please be informed that
pursuant to the LDP Constitution, Mr. Damasen does not appear in our records as a
bona fide member of the LDP. While it is true that Mr. Damasen may have been
issued a Certificate of Membership dated May 5, 2005 by our Provincial Chairman
for Isabela, Mrs. Ana Benita G. Balauag, his membership has not been endorsed
(even to date) to the LDP National Council for approval. Besides, the Certificate of
Candidacy of Mr. Damasen for the May 10, 2004 elections shows that he was
nominated by the Lakas-CMD Party.[43]
Like the CA, this Court has no reason to doubt the veracity of the letter coming from
the LDP leadership. Quite clearly, from the tenor of the letter, it appears that the
membership of Damasen still had to be approved by the LDP National Council. Thus,
notwithstanding Damasens procurement of a Certificate of Membership from LDP
Provincial Chairman Balauag, to this Courts mind, the same merely started the
process of his membership in the LDP, and it did not mean automatic membership
thereto. While it may be argued that Damasen was already a member upon receipt
of a Certificate of Membership from LDP Provincial Chairman Balauag, this Court
cannot impose such view on the LDP. If the LDP leadership says that the
membership of Damasen still had to be endorsed to the National Council for
approval, then this Court cannot question such requirement in the absence of
evidence to the contrary. It is well settled that the discretion of accepting members
to a political party is a right and a privilege, a purely internal matter, which this
Court cannot meddle in.
In resolving the petition at bar, this Court is guided by Navarro v. Court of
Appeals[44](Navarro), where this Court explained the reason behind the rule of
succession under Sec. 45 (b) of RA 7160, to wit:
The reason behind the right given to a political party to nominate a replacement
where a permanent vacancy occurs in the Sanggunian is to maintain the party
representation as willed by the people in the election.
 WHEREFORE, premises considered, the petition is DENIED. The June 14, 2006
Decision of the Court of Appeals in CA-G.R. SP No. 90882, is AFFIRMED.
With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the
position of Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled
up with someone belonging to the political party of petitioner Tamayo. Otherwise,
REFORMA-LMs representation in the Sanggunian would be diminished. Xxx. As SO ORDERED.
earlier pointed out, the reason behind Par. (b), Sec. 45 of the Local Government
Code is the maintenance of party representation in the Sanggunian in accordance
with the will of the electorate.[45]

Since the permanent vacancy in the Sanggunian occurred because of the elevation
of LDP member Alonzo to vice-mayor, it follows that the person to succeed her
should also belong to the LDP so as to preserve party representation. Thus, this
Court cannot countenance Damasens insistence in clinging to an appointment when
he is in fact not a bona fide member of the LDP. While the revocation of the
nomination given to Damasen came after the fact of his appointment, this Court
cannot rule in his favor, because the very first requirement of Sec. 45 (b) is that the
appointee must come from the political party as that of the Sanggunian member
who caused the vacancy. To stress, Damasen is not a bona fide member of the LDP.

In addition, appointing Damasen would not serve the will of the electorate. He
himself admitts that he was previously a member of the Lakas-CMD, and that he ran
for the position of Mayor under the said party on the May 2004 Elections. Likewise,
he did not resign from the said party when he joined the LDP, and even admitted
that his joining the LDP was not because of party ideals, but because he just wanted
to.[46] How can the will of the electorate be best served, given the foregoing
admissions of Damasen? If this Court were to grant herein petition, it would
effectively diminish the party representation of the LDP in the Sanggunian, as
Damasen would still be considered a member of the Lakas-CMD, not having
resigned therefrom, a scenario that defeats the purpose of the law, and that
ultimately runs contrary the ratio of Navarro.

Lastly, the records of the case reveal that Tumamao has the nomination[47] of
Senator Edgardo J. Angara, the Party Chairman and, therefore, the highest official of
the LDP. In addition, he is a member in good standing of the LDP.[48] Thus, given
the foregoing, it is this Courts view that Tumamao has complied with the
requirements of law.
 MEYNARDO SABILI, G. R. No. 193261

Petitioner, SERENO, J.:

Present: Before us is a Petition for Certiorari under Rule 64 in relation to Rule 65 of the Rules
of Court, seeking to annul the Resolutions in SPA No. 09-047 (DC) dated 26 January
2010 and 17 August 2010 of the Commission on Elections (COMELEC), which denied
CORONA, C.J., due course to and canceled the Certificate of Candidacy (COC) of petitioner
Meynardo Sabili (petitioner) for the position of Mayor of Lipa City for the May 2010
CARPIO, elections. At the
VELASCO, JR.,

LEONARDO-DE CASTRO,
heart of the controversy is whether petitioner Sabili had complied with the one-
- versus - BRION, year residency requirement for local elective officials.
PERALTA, When petitioner filed his COC[1] for mayor of Lipa City for the 2010 elections, he
BERSAMIN, stated therein that he had been a resident of the city for two (2) years and eight (8)
months. Prior to the 2010 elections, he had been twice elected (in 1995 and in
DEL CASTILLO, 1998) as Provincial Board Member representing the 4th District of Batangas. During
the 2007 elections, petitioner ran for the position of Representative of the
ABAD,
4th District of Batangas, but lost. The 4th District of Batangas includes Lipa
VILLARAMA, JR., City.[2] However, it is undisputed that when petitioner filed his COC during the 2007
elections, he and his family were then staying at his ancestral home
COMMISSION ON ELECTIONS and FLORENCIO LIBREA, PEREZ, in Barangay (Brgy.) Sico, San Juan, Batangas.
Respondents. MENDOZA, Private respondent Florencio Librea (private respondent) filed a Petition to Deny
Due Course and to Cancel Certificate of Candidacy and to Disqualify a Candidate for
SERENO,
Possessing Some Grounds for Disqualification[3] against him before the COMELEC,
REYES, and docketed as SPA No. 09-047 (DC). Citing Section 78 in relation to Section 74 of the
Omnibus Election Code,[4] private respondent alleged that petitioner made
PERLAS-BERNABE, JJ. material misrepresentations of fact in the latters COC and likewise failed to comply
with the one-year residency requirement under Section 39 of the Local Government
Code. [5] Allegedly, petitioner falsely declared under oath in his COC that he had
Promulgated: already been a resident of Lipa City for two years and eight months prior to the
scheduled 10 May 2010 local elections.

In support of his allegation, private respondent presented the following:

April 24, 2012
1. Petitioners COC for the 2010 elections filed on 1 December 2009[6]

2. 2009 Tax Declarations for a house and lot (TCT Nos. 173355, 173356 and
x--------------------------------------------------x buildings thereon) in Pinagtong-ulan, Lipa City registered under the name of
Bernadette Palomares, petitioners common-law wife[7]

DECISION
3. Lipa City Assessor Certification of Property Holdings of properties under the
name of Bernadette Palomares[8]
4. Affidavit executed by private respondent Florencio Librea[9]
5. Sinumpaang Salaysay executed by Eladio de Torres[10]
6. Voter Certification on petitioner issued by COMELEC Election Officer Juan D.
Aguila, Jr.[11]
7. 1997 Voter Registration Record of petitioner[12]
8. National Statistics Office (NSO) Advisory on Marriages regarding
petitioner[13]
9. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 3, Brgy.
Lood, Lipa City registered in the name of petitioner[14]
10. NSO Certificate of No Marriage of Bernadette Palomares[15]
11. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 5, Brgy.
Lood, Lipa City registered in the name of petitioner[16]
12. Lipa City Permits and Licensing Office Certification that petitioner has no
business therein[17]
13. Apparent printout of a Facebook webpage of petitioners daughter, Mey
Bernadette Sabili[18]
14. Department of Education (DepEd) Lipa City Division Certification that the
names Bernadette Palomares, Mey Bernadette Sabili and Francis Meynard Sabili
(petitioners son) do not appear on its list of graduates[19]
15. Certification from the Office of the Election Officer of Lipa City that
Bernadette Palomares, Mey Bernadette Sabili and Francis Meynard Sabili do not
appear in its list of voters[20]
16. Affidavit executed by Violeta Fernandez[21]
17. Affidavit executed by Rodrigo Macasaet[22]
18. Affidavit Executed by Pablo Lorzano[23]
19. Petitioners 2007 COC for Member of House of Representative[24]
For ease of later discussion, private respondents evidence shall be grouped as
follows: (1) Certificates regarding ownership of real property; (2) petitioners Voter
Registration and Certification (common exhibits of the parties); (3) petitioners COCs
in previous elections; (3) Certifications regarding petitioners family members; and
(4) Affidavits of Lipa City residents.
On the other hand, petitioner presented the following evidence to establish the fact
of his residence in Lipa City:
1. Affidavit executed by Bernadette Palomares[25]
2. Birth Certificate of Francis Meynard Sabili[26]
3. Affidavit of Leonila Suarez (Suarez)[27]
4. Certification of Residency issued by Pinagtong-ulan Barangay Captain,
Dominador Honrade[28]
5. Affidavit executed by Rosalinda Macasaet[29]
6. Certificate of Appreciation issued to petitioner by the parish of Sto. Nino of
Pinagtong-ulan[30]
7. Designation of petitioner in the Advisory Body (AB) of Pinagtong-ulan, San
Jose/Lipa City Chapter of Guardians Brotherhood, Inc.[31]
8. COMELEC Voter Certification on petitioner issued by Election Officer Juan
Aguila, Jr.[32]
9. COMELEC Application for Transfer/Transfer with Reactivation dated 6 June
2009 signed by Election Officer Juan Aguila, Jr.[33]
10. Petitioners Income Tax Return for 2007[34]
11. Official Receipt for petitioners income tax payment for 2007[35]
12. Petitioners Income Tax Return for 2008[36]
13. Official Receipt for petitioners income tax payment for 2008[37]
14. Birth Certificate of Mey Bernadette Sabili[38]
15. Affidavit executed by Jacinto Cornejo, Sr.[39]
16. Joint Affidavit of twenty-one (21) Pinagtong-ulan residents,
including past and incumbent Pinagtong-ulan officials.[40]
For ease of later discussion, petitioners evidence shall be grouped as follows: (1) his
Income Tax Returns and corresponding Official Receipts for the years 2007 and
2008; (2) Certification from the barangay captain of Pinagtong-ulan; (3) Affidavit of
his common-law wife, Bernadette Palomares; and (4) Affidavits from a previous
property owner, neighbors, Certificate of Appreciation from the barangay parish
and Memorandum from the local chapter of Guardians Brotherhood, Inc.
The COMELEC Ruling
In its Resolution dated 26 January 2010,[41] the COMELEC Second Division granted
the Petition of private respondent, declared petitioner as disqualified from seeking
the mayoralty post in Lipa City, and canceled his Certificate of Candidacy for his not
being a resident of Lipa City and for his failure to meet the statutory one-year
residency requirement under the law.
Petitioner moved for reconsideration of the 26 January 2010 Resolution of the
COMELEC, during the pendency of which the 10 May 2010 local elections were held.
The next day, he was proclaimed the duly elected mayor of Lipa City after garnering
the highest number of votes cast for the said position. He accordingly filed a
Manifestation[42]with the COMELEC en banc to reflect this fact.
In its Resolution dated 17 August 2010,[43] the COMELEC en banc denied the
Motion for Reconsideration of petitioner. Although he was able to receive his copy
of the Resolution, no prior notice setting the date of promulgation of the said
Resolution was received by him. Meanwhile, Section 6 of COMELEC Resolution No.
8696 (Rules on Disqualification Cases Filed in Connection with the May 10, 2012
Automated National and Local Elections) requires the parties to be notified in
advance of the date of the promulgation of the Resolution.
SEC. 6. Promulgation. The promulgation of a Decision or Resolution of the
Commission or a Division shall be made on a date previously fixed, notice of which
shall be served in advance upon the parties or their attorneys personally, or by
registered mail, telegram, fax, or thru the fastest means of communication.
Hence, petitioner filed with this Court a Petition (Petition for Certiorari with
Extremely Urgent Application for the Issuance of a Status Quo Order and for the
Conduct of a Special Raffle of this Case) under Rule 64 in relation to Rule 65 of the
Rules of Court, seeking the annulment of the 26 January 2010 and 17 August 2010
Resolutions of the COMELEC. Petitioner attached to his Petition a Certificate of
Canvass of Votes and proclamation of Winning Candidates for Lipa City Mayor and
Vice-Mayor issued by the City/Municipal Board of Canvassers,[44] as well as a copy
of his Oath of Office.[45] He also attached to his Petition another Certification of
Residency[46] issued by Pinagtong-ulan Barangay Captain Dominador Honrade and
sworn to before a notary public.
On 7 September 2010, this Court issued a Status Quo Ante Order[47] requiring the
parties to observe the status quo prevailing before the issuance of the assailed
COMELEC Resolutions. Thereafter, the parties filed their responsive pleadings.
Issues
The following are the issues for resolution:
1. Whether the COMELEC acted with grave abuse of discretion when it failed to
promulgate its Resolution dated 17 August 2010 in accordance with its own Rules of
Procedure; and
2. Whether the COMELEC committed grave abuse of discretion in holding that
Sabili failed to prove compliance with the one-year residency requirement for local
elective officials.
The Courts Ruling
1. On whether the COMELEC acted with grave abuse of discretion when it failed to
promulgate its Resolution dated 17 August 2010 in accordance with its own Rules of
Procedure
Petitioner argues that the assailed 17 August 2010 COMELEC Resolution, which
denied petitioners Motion for Reconsideration, is null and void. The Resolution was
allegedly not promulgated in accordance with the COMELECs own Rules of
Procedure and, hence, violated petitioners right to due process of law.
The rules governing the Petition for Cancellation of COC in this case is COMELEC
Resolution No. 8696 (Rules on Disqualification of Cases Filed in Connection with the
May 10, 2010 Automated National and Local Elections), which was promulgated on
11 November 2009. Sections 6 and 7 thereof provide as follows:
SEC. 6. Promulgation. - The promulgation of a Decision or Resolution of the
Commission or a Division shall be made on a date previously fixed, notice of which
shall be served in advance upon the parties or their attorneys personally, or by
registered mail, telegram, fax or thru the fastest means of communication.
SEC. 7. Motion for Reconsideration. - A motion to reconsider a Decision, Resolution,
Order or Ruling of a Division shall be filed within three (3) days from the
promulgation thereof. Such motion, if not pro-forma, suspends the execution for
implementation of the Decision, Resolution, Order or Ruling.
Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission
shall notify the Presiding Commissioner. The latter shall within two (2) days
thereafter certify the case to the Commission en banc.
The Clerk of the Commission shall calendar the Motion for Reconsideration for the
resolution of the Commission en banc within three (3) days from the certification
thereof.
However, the COMELEC Order dated 4 May 2010[48] suspended Section 6 of
COMELEC Resolution No. 8696 by ordering that all resolutions be delivered to the
Clerk of the Commission for immediate promulgation in view of the proximity of the
Automated National and Local Elections and lack of material time. The Order states:
ORDER
Considering the proximity of the Automated National and Local Elections and lack of
material time, the Commission hereby suspends Sec. 6 of Resolution No. 8696
promulgated on November 11, 2009, which reads:
Sec. 6. Promulgation. The promulgation of a Decision or Resolution of the
Commission or a Division shall be made on a date previously fixed, notice of which
shall be served upon the parties or their attorneys personally, or by registered mail,
telegram, fax or thru the fastest means of communication.
Let all resolutions be delivered to the Clerk of the Commission for immediate
promulgation.
SO ORDERED.
Petitioner claims that he did not receive notice of the said suspension of Section 6
of COMELEC Resolution No. 8696. Thus, his right to due process was still violated.
On the other hand, the COMELEC claims that it has the power to suspend its own
rules of procedure and invokes Section 6, Article IX-A of the Constitution, which
gives it the power to promulgate its own rules concerning pleadings and practice
before it or before any of its offices.
We agree with the COMELEC on this issue.
In Lindo v. Commission on Elections,[49] petitioner claimed that there was no valid
promulgation of a Decision in an election protest case when a copy thereof was
merely furnished the parties, instead of first notifying the parties of a set date for
the promulgation thereof, in accordance with Section 20 of Rule 35 of the
COMELECs own Rules of Procedure, as follows:
Sec. 20. Promulgation and Finality of Decision. The decision of the court shall be
promulgated on a date set by it of which due notice must be given the parties. It
shall become final five (5) days after promulgation. No motion for reconsideration
shall be entertained.
Rejecting petitioners argument, we held therein that the additional rule requiring
notice to the parties prior to promulgation of a decision is not part of the process of
promulgation. Since lack of such notice does not prejudice the rights of the parties,
noncompliance with this rule is a procedural lapse that does not vitiate the validity
of the decision. Thus:
This contention is untenable. Promulgation is the process by which a decision is
published, officially announced, made known to the public or delivered to the clerk
of court for filing, coupled with notice to the parties or their counsel (Neria v.
Commissioner of Immigration, L-24800, May 27, 1968, 23 SCRA 812). It is the
delivery of a court decision to the clerk of court for filing and publication (Araneta v.
Dinglasan, 84 Phil. 433). It is the filing of the signed decision with the clerk of court
(Sumbing v. Davide, G.R. Nos. 86850-51, July 20, 1989, En Banc Minute Resolution).
The additional requirement imposed by the COMELEC rules of notice in advance of
promulgation is not part of the process of promulgation. Hence, We do not agree
with petitioners contention that there was no promulgation of the trial court's
decision. The trial court did not deny that it had officially made the decision public.
From the recital of facts of both parties, copies of the decision were sent to
petitioner's counsel of record and petitioners (sic) himself. Another copy was sent
to private respondent.
What was wanting and what the petitioner apparently objected to was not the
promulgation of the decision but the failure of the trial court to serve notice in
advance of the promulgation of its decision as required by the COMELEC rules. The
failure to serve such notice in advance of the promulgation may be considered a
procedural lapse on the part of the trial court which did not prejudice the rights of
the parties and did not vitiate the validity of the decision of the trial court nor (sic)
of the promulgation of said decision.
Moreover, quoting Pimping v. COMELEC,[50] citing Macabingkil v. Yatco,[51] we
further held in the same case that failure to receive advance notice of the
promulgation of a decision is not sufficient to set aside the COMELECs judgment, as
long as the parties have been afforded an opportunity to be heard before judgment
is rendered, viz:
The fact that petitioners were not served notice in advance of the promulgation of
the decision in the election protest cases, in Our view, does not constitute
reversible error or a reason sufficient enough to compel and warrant the setting
aside of the judgment rendered by the Comelec. Petitioners anchor their argument
on an alleged denial to them (sic) due process to the deviation by the Comelec from
its own made rules. However, the essence of due process is that, the parties in the
case were afforded an opportunity to be heard.
In the present case, we read from the COMELEC Order that the exigencies
attendant to the holding of the countrys first automated national elections had
necessitated that the COMELEC suspend the rule on notice prior to promulgation,
and that it instead direct the delivery of all resolutions to the Clerk of the
Commission for immediate promulgation. Notably, we see no prejudice to the
parties caused thereby. The COMELECs Order did not affect the right of the parties
to due process. They were still furnished a copy of the COMELEC Decision and were
able to reckon the period for perfecting an appeal. In fact, petitioner was able to
timely lodge a Petition with this Court.
Clearly, the COMELEC validly exercised its constitutionally granted power to make
its own rules of procedure when it issued the 4 May 2010 Order suspending Section
6 of COMELEC Resolution No. 8696. Consequently, the second assailed Resolution
of the COMELEC cannot be set aside on the ground of COMELECs failure to issue to
petitioner a notice setting the date of the promulgation thereof.
2. On whether the COMELEC committed grave abuse of discretion in holding that
Sabili failed to prove compliance with the one-year residency requirement for local
elective officials
As a general rule, the Court does not ordinarily review the COMELECs appreciation
and evaluation of evidence. However, exceptions thereto have been established,
including when the COMELEC's appreciation and evaluation of evidence become so
grossly unreasonable as to turn into an error of jurisdiction. In these instances, the
Court is compelled by its bounden constitutional duty to intervene and correct the
COMELEC's error.[52]
In Mitra v. Commission on Elections, (G.R. No. 191938, 2 July 2010), we explained
that the COMELECs use of wrong or irrelevant considerations in deciding an issue is
sufficient to taint its action with grave abuse of discretion -
As a concept, 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 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. Mere abuse of discretion is not enough;
it
must be grave. 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.
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 mind might accept to support
a conclusion.
In light of our limited authority to review findings of fact, we do not ordinarily
review in a certiorari case 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. When grave abuse of discretion is present, resulting errors arising
from the grave abuse mutate from error of judgment to one of jurisdiction.
Before us, petitioner has alleged and shown the COMELECs use of wrong or
irrelevant considerations in deciding the issue of whether petitioner made a
material misrepresentation of his residency qualification in his COC as to order its
cancellation. Among others, petitioner pointed to the COMELECs inordinate
emphasis on the issue of property ownership of petitioners declared residence in
Lipa City, its inconsistent stance regarding Palomaress relationship to the
Pinagtong-ulan property, and its failure to consider in the first instance the
certification of residence issued by the barangay captain of Pinagtong-ulan.
Petitioner bewails that the COMELEC required more evidence to show the change in
his residence, notwithstanding the various pieces of evidence he presented and the
fact that under the law, the quantum of evidence required in these cases is merely
substantial evidence and not clear and convincing evidence. Petitioner further
ascribes grave abuse of discretion in the COMELECs brushing aside of the fact that
he has been filing his ITR in Lipa City (where he indicates that he is a resident of
Pinagtong-ulan) on the mere expedient that the law allows the filing of the ITR not
only in the place of legal residence but, alternately, in his place of business.
Petitioner notes that private respondents own evidence shows that petitioner has
no business in Lipa City, leaving only his residence therein as basis for filing his ITR
therein.
Hence, in resolving the issue of whether the COMELEC gravely abused its discretion
in ruling that petitioner had not sufficiently shown that he had resided in Lipa City
for at least one year prior to the May 2010 elections, we examine the evidence
adduced by the parties and the COMELECs appreciation thereof.
In the present case, the parties are in agreement that the domicile of origin of Sabili
was Brgy. Sico, San Juan, Batangas. He claims that he abandoned his domicile of
origin and established his domicile of choice in Brgy. Pinagtong-ulan, Lipa City,
thereby making him qualified to run for Lipa City mayor. On the other hand,
respondent COMELEC held that no such change in domicile or residence took place
and, hence, the entry in his Certificate of Candidacy showing that he was a resident
of Brgy. Pinagtong-ulan, Lipa City constituted a misrepresentation that disqualified
him from running for Lipa City mayor.
To establish a new domicile of choice, personal presence in the place must be
coupled with conduct indicative of the intention to make it one's fixed and
permanent place of abode.[53] As in all administrative cases, the quantum of proof
necessary in election cases is substantial evidence, or such relevant evidence as a
reasonable mind will accept as adequate to support a conclusion.[54]
The ruling on private respondents evidence
We begin with an evaluation of the COMELECs appreciation of private respondents
evidence.
a) Petitioners Voter Certification, Registration and COCs in previous elections
Petitioners Voter Certification is a common exhibit of the parties. It states, among
others, that petitioner is a resident of Pinagtong-ulan, Lipa City, Batangas; that he
had been a resident of Lipa City for two (2) years and three (3) months; and that he
was so registered on 31 October 2009. The information therein was certified correct
by COMELEC Election Officer Juan B. Aguila, Jr.
Private respondent presented this document as proof that petitioner
misrepresented that he is a resident of Lipa City. On the other hand, the latter
presented this document as proof of his residency.
The COMELEC correctly ruled that the Voter Certification issued by the COMELEC
Election Officer, Atty. Juan B. Aguila, Jr., was not conclusive proof that petitioner
had been a resident of Lipa City since April 2007. It noted that Aguila is not the
competent public officer to certify the veracity of this claim, particularly because
petitioners COMELEC registration was approved only in October 2009.
The Voter Registration Record of petitioner accomplished on 21 June 1997 showing
that he was a resident of Sico, San Juan, Batangas, as well as his various COCs
dated21 June 1997 and March 2007 indicating the same thing, were no longer
discussed by the COMELEC and rightly so. These pieces of evidence showing that he
was a resident of Sico, San Juan, Batangas on the said dates are irrelevant as, prior
to April 2007, petitioner was admittedly a resident of Sico, San Juan Batangas.
Rather, the relevant time period for consideration is that from April 2007 onwards,
after petitioners alleged change of domicile.
b) Certificates regarding ownership of real property
The various certificates and tax declarations adduced by private respondent showed
that the Lipa property was solely registered in the name of petitioners common-law
wife, Bernadette Palomares. In discussing the import of this document, the
COMELEC reasoned that, being a seasoned politician, he should have registered the
Lipa property (which he claimed to have purchased with his personal funds) in his
own name. Such action would have offered positive proof of intent to change actual
residence from San Juan, Batangas to Lipa City, considering that he had previously
declared his ancestral home in San Juan, Batangas as his domicile. Since Palomares
and petitioner are common-law spouses not capacitated to marry each other, the
property relation between them is governed by Article 148 of the Family
Code,[55] where only the parties actual contributions are recognized. Hence,
petitioner cannot prove ownership of a property and residence in Lipa City through
the registered ownership of the common-law wife of the property in Lipa City.
On the other hand, petitioner bewails the inordinate emphasis that the COMELEC
bestowed upon the question of whether the Lipa property could be considered as
his residence, for the reason that it was not registered in his name. He stresses that
the issue should be residence, not property ownership.
It is true that property ownership is not among the qualifications required of
candidates for local election.[56] Rather, it is a candidates residence in a locality
through actual residence in whatever capacity. Indeed, 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.[57] In the more recent case
of Mitra v. Commission on Elections,[58] we reversed the COMELEC ruling that a
candidates sparsely furnished, leased room on the mezzanine of a feedmill could
not be considered as his residence for the purpose of complying with the residency
requirement of Section 78 of the Omnibus Election Code.[59]
The Dissent claims that the registration of the property in Palomaress name does
not prove petitioners residence as it merely showed donative intent without the
necessary formalities or payment of taxes.
However, whatever the nature of the transaction might be, this point is immaterial
for the purpose of ascertaining petitioners residence. We have long held that it is
not required that a candidate should have his own house in order to establish his
residence or domicile in a place. It is enough that he should live in the locality, even
in a rented house or that of a friend or relative.[60] What is of central concern then
is that petitioner identified and established a place in Lipa City where he intended
to live in and return to for an indefinite period of time.
Hence, while the COMELEC correctly ruled that, of itself, Palomares ownership of
the Lipa property does not prove that she or and in view of their common-law
relations, petitioner resides in Lipa City, nevertheless, the existence of a house and
lot apparently owned by petitioners common-law wife, with whom he has been
living for over two decades, makes plausible petitioners allegation of bodily
presence and intent to reside in the area.
c) Certifications regarding the family members of petitioner
Private respondent presented a Certification from the DepEd, Lipa City Division,
indicating that the names Bernadette Palomares, Mey Bernadette Sabili (petitioners
daughter) and Francis Meynard Sabili (petitioners son) do not appear on the list of
graduates of Lipa City. Private respondent also presented a Certification from the
Office of the Election Officer of Lipa City that the names of these family members of
petitioner do not appear in its list of voters.
As the issue at hand is petitioners residence, and not the educational or voting
record of his family, the COMELEC properly did not consider these pieces of
evidence in arriving at its Resolution.
The Dissent nevertheless asserts that because his children do not attend
educational institutions in Lipa and are not registered voters therein, and because
petitioner does not maintain a business therein nor has property
in his name, petitioner is unable to show the existence of real and substantial
reason for his stay in Lipa City.
As to the Dissents first assertion, it must be stressed that the children, like the wife,
do not dictate the family domicile. Even in the context of marriage, the family
domicile is jointly decided by both husband and wife.[61] In addition, we note that
the transfer to Lipa City occurred in 2007, when petitioners children were already
well into college and could very well have chosen to study elsewhere than in Lipa
City.
Also, it is petitioners domicile which is at issue, and not that of his children. But
even assuming that it was petitioner himself (rather than his children) who
attended educational institutions or who registered as a voter in a place other than
Lipa City, we have held that absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where one is elected,
does not constitute loss of residence.[62] In fact, Section 117 of the Omnibus
Election Code provides that transfer of residence to any other place by reason of
one's occupation; profession; employment in private and public service; educational
activities; work in military or naval reservations; service in the army, navy or air
force, the constabulary or national police force; or confinement or detention in
government institutions in accordance with law is not deemed as loss of residence.
As to the Dissents second assertion, petitioner apparently does not maintain a
business in Lipa City. However, apart from the Pinagtong-ulan property which both
Suarez (the previous property owner) and Palomares swear was purchased with
petitioners own funds, the records also indicate that there are two other lots in Lipa
City, particularly in Barangay Lodlod, Lipa City[63] which are registered jointly in the
name of petitioner and Palomares. In fact, it was private respondent who presented
the Lipa City Assessors Certificate to this effect. Even assuming that this Court were
to disregard the two Lodlod lots, it is well-established that property ownership (and
similarly, business interest) in the locality where one intends to run for local elective
post is not requirement of the Constitution.[64]
More importantly, we have gone so far as to rule that there is nothing wrong in an
individual changing residences so he could run for an elective post, for as long as he
is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the period required by
law.[65]
d) Affidavits of Lipa City residents
Private respondent also presented the affidavits of Violeta Fernandez[66] and
Rodrigo Macasaet,[67] who were also residents of Pinagtong-ulan. Both stated that
petitioner did not reside in Pinagtong-ulan, as they had rarely seen him in the area.
Meanwhile, Pablo Lorzano,[68] in his Affidavit, attested that although the Lipa
property was sometimes used for gatherings, he did not recall having seen
petitioner in their barangay. On the other hand, private respondent[69] and Eladio
de Torres,[70] both residents of Brgy. Calamias, reasoned that petitioner was not a
resident of Lipa City because he has no work or family there.
The COMELEC did not discuss these Affidavits in its assailed Resolution. It was
correct in doing so, particularly considering that these Affidavits were duly
controverted by those presented by petitioner.
Moreover, even assuming the truth of the allegation in the Affidavits that petitioner
was rarely seen in the area, this does not preclude the possibility of his residence
therein. In Fernandez v. House of Representatives Electoral Tribunal,[71] we held
that the averments of certain barangay health workers that they failed to see a
particular candidate whenever they made rounds of the locality of which he was
supposed to be a resident is of no moment. It is possible that the candidate was out
of the house to attend to his own business at the time. The law does not require a
person to be in his
home twenty-four (24) hours a day, seven (7) days a week, to fulfill the residency
requirement.
The ruling on petitioners evidence
We now evaluate how the COMELEC appreciated petitioners evidence:
a) Petitioners Income Tax Returns for 2007 and 2008
The Income Tax Returns of petitioner presented below showed that petitioner had
been paying his Income Tax (2007 and 2008) to the Revenue District Office of Lipa
City. In waving aside his Income Tax Returns, the COMELEC held that these were not
indications of residence since Section 51(B) of the National Internal Revenue Code
does not only state that it shall be filed in a persons legal residence, but that it may
alternatively be filed in a persons principal place of business.
In particular, Section 51(B) of the National Internal Revenue Code[72] provides that
the Income Tax Return shall be filed either in the place where a person resides or
where his principal place of business is located. However, private respondents own
evidence a Certification from the City Permits and Licensing Office of Lipa City
showed that there was no business registered in the City under petitioners name.
Thus, COMELEC failed to appreciate that precisely because an individual income tax
return may only be filed either in the legal residence OR the principal place of
business, as prescribed under the law, the fact that Sabili was filing his Income Tax
Returns in Lipa City notwithstanding that he had no business therein showed
that he had actively elected to establish his residence in that city.
The Dissent claims that since the jurisdiction of RDO Lipa City includes both San
Juan and Lipa City, petitioners filing of his ITR therein can also support an intent to
remain in San Juan, Batangas - petitioners domicile of origin.
However, a simple perusal of the Income Tax Returns and Revenue Official Receipts
for 2007 and 2008 shows that petitioner invariably declares his residence to be
Pinagtong-ulan, Lipa City, rather than San Juan, Batangas.[73] Hence, while
petitioner may be submitting his income tax return in the same RDO, the
declaration therein is unmistakable. Petitioner considers Lipa City to be his
domicile.
b) Certification from the Barangay Captain of Pinagtong-ulan
The COMELEC did not consider in the first instance the Certification issued by
Pinagtong-ulan Barangay Captain Dominador Honrade[74] (Honrade) that petitioner
had been residing in Brgy Pinagtong-ulan since 2007. When this oversight was
raised as an issue in petitioners Motion for Reconsideration, the COMELEC brushed
it aside on the ground that the said Certification was not sworn to before a notary
public and, hence, cannot be relied on. Subsequently, petitioner presented another,
substantially identical, Certification from the said Pinagtong-ulan Barangay Captain,
save for the fact that it had now been sworn to before a notary public.
We disagree with the COMELECs treatment of the Barangay Captains Certification
and find the same tainted with grave abuse of discretion.
Even without being sworn to before a notary public, Honrades Certification would
not only be admissible in evidence, but would also be entitled to due consideration.
Rule 130, Section 44 of the Rules of Court provides:
SEC. 44. Entries in official records.Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie evidence of the
facts therein stated.
In Country Bankers Insurance Corporation v. Lianga Bay and Community Multi-
purpose Cooperative, Inc.,[75] we explained that the following three (3) requisites
must concur for entries in official records to be admissible in evidence:
(a) The entry was made by a public officer, or by another person specially enjoined
by law to do so;
(b) It was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and
(c) The public officer or other person had sufficient knowledge of the facts stated by
him, which facts must have been acquired by him personally or through official
information.
As to the first requisite, the Barangay Secretary is required by the Local Government
Code to keep an updated record of all inhabitants of the barangay.[76] Regarding
the second requisite, we have explicitly recognized in Mitra v. Commission on
Elections,[77] that it is the business of a punong barangay to know who the
residents are in his own barangay. Anent the third requisite, the Barangay Captains
exercise of powers and duties[78] concomitant to his position requires him to be
privy to these records kept by the Barangay Secretary.
Accordingly, there is basis in faulting the COMELEC for its failure to consider
Honrades Certification on the sole ground that it was initially not notarized.
Meanwhile, the Dissent opines that the sworn affidavit of the barangay chair of
Pinagtong-ulan that petitioner is a resident of Lipa City does not help petitioners
case because it was not shown that the term resident as used therein carries the
same meaning as domicile, that is, not merely bodily presence but also, animus
manendi or intent to return. This Court has ruled otherwise.
In Mitra v. Commission on Elections,[79] the declaration of Aborlans punong
barangay that petitioner resides in his barangay was taken to have the same
meaning as domicile, inasmuch as the said declaration was made in the face of the
Courts recognition that Mitra might not have stayed in Aborlan nor in Palawan for
most of 2008 and 2009 because his office and activities as a Representative were in
Manila.
Assuming that the barangay captains certification only pertains to petitioners bodily
presence in Pinagtong-ulan, still, the COMELEC cannot deny the strength of this
evidence in establishing petitioners bodily presence in Pinagtong-ulan since 2007.
c) Affidavit of petitioners common law wife
To substantiate his claim of change of domicile, petitioner also presented the
affidavit of Palomares, wherein the latter swore that she and petitioner
began residing in Lipa City in 2007, and that the funds used to purchase the Lipa
property were petitioners personal funds. The COMELEC ruled that the Affidavit
was self-serving for having been executed by petitioners common-law wife. Also,
despite the presentation by petitioner of other Affidavits stating that he and
Palomares had lived in Brgy. Pinagtong-ulan since 2007, the latters Affidavit was
rejected by the COMELEC for having no independent collaboration.
Petitioner faults the COMELECs stand, which it claims to be inconsistent. He argues
that since the property regime between him and Palomares is governed by Article
148 of the Family Code (based on the parties actual contribution) as the COMELEC
stressed, then Palomaress Affidavit expressly stating that petitioners money alone
had been used to purchase the Lipa property (notwithstanding that it was
registered in her name) was not self-serving, but was in fact, a declaration against
interest.
Petitioners argument that Palomaress affidavit was a declaration against interest is,
strictly speaking, inaccurate and irrelevant. A declaration against interest, under the
Rules of Civil Procedure, refers to a declaration made by a person deceased, or
unable to testify against the interest of a declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to declarants own interest,
that a reasonable man in his position would not have made the declaration unless
he believed it to be true.[80] A declaration against interest is an exception to the
hearsay rule.[81] As such, it pertains only to the admissibility of, not the weight
accorded to, testimonial evidence.[82]
Nevertheless, we see the logic in petitioners claim that the COMELEC had
committed grave abuse of discretion in being inconsistent in its stand regarding
Palomares, particularly regarding her assertion that the Lipa property had been
purchased solely with petitioners money. If the COMELEC accepts the registration
of the Lipa property in her name to be accurate, her affidavit disavowing ownership
thereof in favor of petitioner was far from self-serving as it ran counter to her (and
her childrens) property interest.
The Dissent states that it was not unreasonable for the COMELEC to believe that
Palomares may have committed misrepresentations in her affidavit considering that
she had perjured herself as an informant on the birth certificates of her children
with respect to the supposed date and place of her marriage to
petitioner. However, this was not the reason propounded by the COMELEC when it
rejected Palomares affidavit.
Moreover, it is notable that Palomares assertion in her affidavit that she and
petitioner have been living in the Pinagtong-ulan property since April 2007 is
corroborated by other evidence, including the affidavits of Pinagtong-ulan barangay
officials and neighbors.
d) Affidavits from a previous property owner, neighbors, certificate from parish
and designation from socio-civic organization
The Affidavit issued by Leonila Suarez[83] (erstwhile owner of the Lipa house and
lot) states that in April 2007, after she received the down payment for the Lipa
property and signed an agreement that petitioner would settle her bank obligations
in connection with the said transaction, he and Palomares actually started residing
at Pinagtong-ulan. The COMELEC brushed this Affidavit aside as one that merely
narrates the circumstances surrounding the sale of the property and mentions in
passing that Sabili and Palomares lived in Pinagtong-ulan since April 2007 up to the
present.[84]
We disagree with the COMELECs appreciation of the Suarez Affidavit. Since she was
its owner, transactions for the purchase of the Lipa property was within her
personal knowledge. Ordinarily, this includes the arrangement regarding who shall
pay for the property and when, if ever, it shall be occupied by the buyers. We thus
consider that her statements impact positively on petitioners claim of residence.
The Dissent on the other hand argues that the claim that petitioner started living in
the Lipa house and lot in April 2007 is made dubious by the fact that (1) there might
not be enough time to effect an actual and physical change in residence a month
before the May 2007 elections when petitioner ran for representative of the
4th District of Batangas; and (2) the Deed of Absolute Sale was notarized, and the
subsequent transfer of ownership in the tax declaration was made, only in August
2008.
Before further discussing this, it is pertinent to point out that these were not the
reasons adduced by the COMELEC in the assailed Resolutions. Assuming that the
above reasons were the unuttered considerations of the COMELEC in coming up
with its conclusions, such reasoning still exhibits grave abuse of discretion.
As to the Dissents first argument, it must be remembered that a transfer of
domicile/residence need not be completed in one single instance. Thus, in Mitra v.
Commission on Elections,[85] where the evidence showed that in 2008, petitioner
Mitra had leased a small room at Maligaya Feedmills located in Aborlan and, in
2009 purchased in the same locality a lot where he began constructing his house,
we recognized that petitioner transferred by incremental process to Aborlan
beginning 2008 and concluded his transfer in early 2009 and thus, he transferred his
residence from Puerto Princesa City to Aborlan within the period required by law.
We cannot treat the transfer to
the Pinagtong-ulan house any less than we did Mitras transfer to the Maligaya
Feedmills room.
Moreover, the Joint Affidavit of twenty-one (21) Pinagtong-ulan residents, including
former and incumbent barangay officials, attests that petitioner had begun living in
the Pinagtong-ulan house and lot before the May 2007 elections such that it was
where his coordinators for the May 2007 elections went to meet him.[86] Jacinto
Cornejo Sr., the contractor who renovated the Pinagtong-ulan house when it was
bought by petitioner, also swore that petitioner and his family began living therein
even while it was being renovated.[87] Another Affidavit petitioner adduced was
that of Rosalinda Macasaet, a resident of Brgy. Pinagtong-ulan,[88] who stated that
she also sold a lot she owned in favor of petitioner and Palomares. The latter
bought her lot since it was adjacent to the Lipa house and lot they had earlier
acquired. Macasaet also swore that the couple had actually resided in the house
located in Pinagtong-ulan since April 2007, and that she knew this because her own
house was very near the couples own. Macasaets Affidavit is a positive assertion of
petitioners actual physical presence in Brgy. Pinagtong-ulan, Lipa City.
While private respondent had adduced affidavits of two Pinagtong-ulan residents
(that of Violeta Fernandez[89] and Rodrigo Macasaet)[90] attesting that petitioner
could not be a resident of Pinagtong-ulan as he was rarely seen in the area, these
affidavits were controverted by the Joint affidavit of twenty-one (21) Pinagtong-
ulan residents who plainly accused the two of lying. Meanwhile, the affidavits of
private respondent[91] and Eladio de Torres[92] stating that petitioner is not a
resident of Lipa City because he has no work or family there is hardly worthy of
credence since both are residents of Barangay Calamias, which is, and private
respondent does not contest this, about 15 kilometers from Pinagtong-ulan.
As to the Dissents second argument, the fact that the notarization of the deed of
absolute sale of the property was made months after April 2007 does not negate
petitioners claim that he started residing therein in April 2007. It is clear from the
Affidavit of the propertys seller, Leonila Suarez, that it was not yet fully paid in April
2007, so it was understandable that a deed of absolute sale was not executed at the
time. Thus:
That initially, the contract to sell was entered into by and between Mr. & Mrs.
Meynardo Asa Sabili and Bernadette Palomares and myself, but eventually the
spouses changed their mind, and after the couple settled all my loan obligations to
the bank, they requested me to put the name of Ms. Bernadette P. Palomares
instead of Mr. & Mrs. Meynardo Asa Sabili and Bernadette Palomares in the
absolute deed of sale;
That it was Mr. Meynardo Asa Sabili who came to my former residence at Barangay
Pinagtong-ulan sometime in the month of April 2007. At that time, Mr. Meynardo
Asa Sabili was still running for Representative (Congressman) in the 4th District of
Batangas;
That after payment of the down payment and signing of an agreement that Mr.
Meynardo Asa Sabili will be the one to settle my bank obligations, Mr. & Mrs.
Meynardo A. Sabili and Bernadette Palomares had an actual transfer of their
residence at Barangay Pinagtong-ulan, Lipa City;
That they started living and residing in Pinagtong-ulan in the month of April, 2007
up to this point in time; xxx[93]
As to the rest of the documents presented by petitioner, the COMELEC held that
the Memorandum issued by the Guardians Brotherhood Inc. San Jose/Lipa City
Chapter merely declares the designation of petitioner in the organization, without
any showing that residence in the locality was a requirement for that designation.
Meanwhile, the Certificate of Appreciation was nothing more than an
acknowledgment
of petitioners material and financial support, and not an indication of residence.
We agree that considered separately, the Guardians Brotherhood Memorandum
and the Pinagtong-ulan Parish Certificate of Appreciation do not establish
petitioners residence in Pinagtong-ulan, Lipa City. Nevertheless, coupled with the
fact that petitioner had twice been elected as Provincial Board Member
representing the Fourth District of Batangas, which encompasses Lipa City,
petitioners involvement in the religious life of the community, as attested to by the
certificate of appreciation issued to him by the Pinagtong-ulan parish for his
material and financial support as President of the Barangay Fiesta Committee in
2009, as well as his assumption of a leadership role in the socio-civic sphere of the
locality as a member of the advisory body of the Pinagtong-ulan, San Jose/Lipa City
Chapter of the Guardians Brotherhood Inc. , manifests a significant level of
knowledge of and sensitivity to the needs of the said community. Such, after all, is
the rationale for the residency requirement in our elections laws, to wit:
The Constitution and the law requires residence as a qualification for seeking and
holding elective public office, in order to give candidates the opportunity to be
familiar with the needs, difficulties, aspirations, potentials for growth and all
matters vital to the welfare of their constituencies; likewise, it enables the
electorate to evaluate the office seekers qualifications and fitness for the job they
aspire for xxx. [94]
Considering all of the foregoing discussion, it is clear that while separately, each
evidence presented by petitioner might fail to convincingly show the fact of his
residence at Pinagtong-ulan since 2007, collectively, these pieces of evidence tend
to sufficiently establish the said fact.
Petitioners actual physical presence in Lipa City is established not only by the
presence of a place (Pinagtong-ulan house and lot) he can actually live in, but also
the affidavits of various persons in Pinagtong-ulan, and the Certification of its
barangay captain. Petitioners substantial and real interest in establishing his
domicile of choice in Lipa City is also sufficiently shown not only by the acquisition
of additional property in the area and the transfer of his voter registration, but also
his participation in the communitys socio-civic and religious life, as well as his
declaration in his ITR that he is a resident thereof.
We therefore rule that petitioner has been able to adduce substantial evidence to
demonstrate compliance with the one-year residency requirement for local elective
officials under the law.
In view of this Courts finding that petitioner has not misrepresented his residence at
Pinagtong-ulan and the duration thereof, there is no need to further discuss
whether there was material and deliberate misrepresentation of the residency
qualification in his COC.
As a final note, we do not lose sight of the fact that Lipa City voters manifested their
own judgment regarding the qualifications of petitioner when they voted for him,
notwithstanding that the issue of his residency qualification had been raised prior
to the elections. Petitioner has garnered the highest number of votes (55,268 votes
as opposed to the 48,825 votes in favor of his opponent, Oscar Gozos)[95] legally
cast for the position of Mayor of Lipa City and has consequently been proclaimed
duly elected municipal Mayor of Lipa City during the last May 2010 elections[96]
In this regard, we reiterate our ruling in Frivaldo v. Commission on
Elections[97] that (t)o successfully challenge a winning candidate's qualifications,
the petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic 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.
Similarly, in Japzon v. Commission on Elections,[98] we concluded that when the
evidence of the alleged lack of residence qualification of a candidate for an elective
position is weak or inconclusive and it clearly appears that the purpose of the law
would not be thwarted by upholding the victor's right to the office, the will of the
electorate should be respected. For the purpose of election laws is to give effect to,
rather than frustrate, the will of the voters.
In sum, we grant the Petition not only because petitioner sufficiently established his
compliance with the one-year residency requirement for local elective officials
under the law. We also recognize that (a)bove and beyond all, the determination of
the true will of the electorate should be paramount. It is their voice, not ours or of
anyone else, that must prevail. This, in essence, is the democracy we continue to
hold sacred.[99]
WHEREFORE, premises considered, the Petition is GRANTED. The assailed COMELEC
Resolutions dated 26 January 2010 and 17 August 2010 in Florencio Librea v.
Meynardo A. Sabili [SPA No. 09-047(DC)] are ANNULLED. Private respondents
Petition to cancel the Certificate of Candidacy of Meynardo A. Sabili is DENIED. The
Status Quo Ante Order issued by this Court on 7 September 2010 is MADE
PERMANENT.SO ORDERED.
G.R. No. 206666 January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to
Rule 65, both of the Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal),
which essentially prays for the issuance of the writ of certiorari annulling and
setting aside the April 1, 20131 and April 23, 20132 Resolutions of the Commission
on Elections (COMELEC), Second Division and En bane, respectively, in SPA No. 13-
211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for having
been rendered with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (2) a Petition-in-Intervention3 filed by Alfredo S. Lim (Lim), wherein
he prays to be declared the 2013 winning candidate for Mayor of the City of Manila
in view of private respondent former President Joseph Ejercito Estrada’s (former
President Estrada) disqualification to run for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former President Estrada, a
former President of the Republic of the Philippines, for the crime of plunder in
Criminal Case No. 26558, entitled "People of the Philippines v. Joseph Ejercito
Estrada, et al." The dispositive part of the graft court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal
Case No. 26558 finding the accused, Former President Joseph Ejercito Estrada,
GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in and
penalized by Republic Act No. 7080, as amended. On the other hand, for failure of
the prosecution to prove and establish their guilt beyond reasonable doubt, the
Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the Court hereby orders their
ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No. 7080, as
amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being no
aggravating or mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article 63 of the Revised Penal Code. Accordingly, the
accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer the
penalty of Reclusion Perpetua and the accessory penalties of civil interdiction
during the period of sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph Ejercito Estrada has been
under detention shall be credited to him in full as long as he agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by
Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the
government of the following:
(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-
]One Thousand Pesos (₱545,291,000.00), with interest and income earned, inclusive
of the amount of Two Hundred Million Pesos (₱200,000,000.00), deposited in the
name and account of the Erap Muslim Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million Pesos (₱189,000,000.00),
inclusive of interests and income earned, deposited in the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed as "Boracay Mansion"
located at #100 11th Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S.
Serapio are hereby ordered cancelled and released to the said accused or their duly
authorized representatives upon presentation of the original receipt evidencing
payment thereof and subject to the usual accounting and auditing procedures.
Likewise, the hold-departure orders issued against the said accused are hereby
recalled and declared functus oficio.4
On October 25, 2007, however, former President Gloria Macapagal Arroyo (former
President Arroyo) extended executive clemency, by way of pardon, to former
President Estrada. The full text of said pardon states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing inmates who have reached
the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half
years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO ESTRADA,
convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion
Perpetua. He is hereby restored to his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full, including
all writs and processes issued by the Sandiganbayan in pursuance hereof, except for
the bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall
take effect.
Given under my hand at the City of Manila, this 25th Day of October, in the year of
Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada "received and
accepted"6 the pardon by affixing his signature beside his handwritten notation
thereon.
On November 30, 2009, former President Estrada filed a Certificate of
Candidacy7 for the position of President. During that time, his candidacy earned
three oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due
Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao
Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for "Disqualification as
Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No. 09-
104 (DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from Running as
President due to Constitutional Disqualification and Creating Confusion to the
Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate
Resolutions8 dated January 20, 2010 by the COMELEC, Second Division, however, all
three petitions were effectively dismissed on the uniform grounds that (i) the
Constitutional proscription on reelection applies to a sitting president; and (ii) the
pardon granted to former President Estrada by former President Arroyo restored
the former’s right to vote and be voted for a public office. The subsequent motions
for reconsideration thereto were denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections, however, former
President Estrada only managed to garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought recourse to this
Court and filed a petition for certiorari, which was docketed as G.R. No. 191988,
entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada and Commission
on Elections." But in a Resolution9 dated August 31, 2010, the Court dismissed the
aforementioned petition on the ground of mootness considering that former
President Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more ventured into the political
arena, and filed a Certificate of Candidacy,10 this time vying for a local elective
post, that ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for
Disqualification against former President Estrada before the COMELEC. The petition
was docketed as SPA No. 13-211 (DC). Risos Vidal anchored her petition on the
theory that "[Former President Estrada] is Disqualified to Run for Public Office
because of his Conviction for Plunder by the Sandiganbayan in Criminal Case No.
26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing
Him to Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute
Disqualification."11 She relied on Section 40 of the Local Government Code (LGC), in
relation to Section 12 of the Omnibus Election Code (OEC), which state respectively,
that:
Sec. 40, Local Government Code:
SECTION 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. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgmentfor
subversion, insurrection, rebellion, or for any offense for which he has been
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 public office,
unless he has been given plenary pardon or granted amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the
petition for disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for
utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of
the consolidated resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and
the 10 May 2010 En Banc resolution affirming it, this Commission will not be labor
the controversy further. Moreso, [Risos-Vidal] failed to present cogent proof
sufficient to reverse the standing pronouncement of this Commission declaring
categorically that [former President Estrada’s] right to seek public office has been
effectively restored by the pardon vested upon him by former President Gloria M.
Arroyo. Since this Commission has already spoken, it will no longer engage in
disquisitions of a settled matter lest indulged in wastage of government
resources."13
The subsequent motion for reconsideration filed by Risos-Vidal was denied in a
Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present
petition. She presented five issues for the Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S
PARDON WAS NOT CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT FINDING THAT
RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF MANILA UNDER
SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN CONVICTED
OF PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE PETITION
FOR DISQUALIFICATION ON THE GROUND THAT THE CASE INVOLVES THE SAME OR
SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS.
ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA
EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT RULING THAT
RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF SUFFRAGE
NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING
PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT HAVING EXERCISED ITS
POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA IN THE FACE OF HIS
PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS
PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO
VOTE RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER.14
While this case was pending beforethe Court, or on May 13, 2013, the elections
were conducted as scheduled and former President Estrada was voted into office
with 349,770 votes cast in his favor. The next day, the local board of canvassers
proclaimed him as the duly elected Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s opponents for the position
of Mayor, moved for leave to intervene in this case. His motion was granted by the
Court in a Resolution15 dated June 25, 2013. Lim subscribed to Risos-Vidal’s theory
that former President Estrada is disqualified to run for and hold public office as the
pardon granted to the latter failed to expressly remit his perpetual disqualification.
Further, given that former President Estrada is disqualified to run for and hold
public office, all the votes obtained by the latter should be declared stray, and,
being the second placer with 313,764 votes to his name, he (Lim) should be
declared the rightful winning candidate for the position of Mayor of the City of
Manila.
The Issue
Though raising five seemingly separate issues for resolution, the petition filed by
Risos-Vidal actually presents only one essential question for resolution by the Court,
that is, whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former President Estrada is
qualified to vote and be voted for in public office as a result of the pardon granted
to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the pardon
granted to former President Estrada was conditional as evidenced by the latter’s
express acceptance thereof. The "acceptance," she claims, is an indication of the
conditional natureof the pardon, with the condition being embodied in the third
Whereas Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office." She explains that the
aforementioned commitment was what impelled former President Arroyo to
pardon former President Estrada, without it, the clemency would not have been
extended. And any breach thereof, that is, whenformer President Estrada filed his
Certificate of Candidacy for President and Mayor of the City of Manila, he breached
the condition of the pardon; hence, "he ought to be recommitted to prison to serve
the unexpired portion of his sentence x x x and disqualifies him as a candidate for
the mayoralty [position] of Manila."16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former
President Estrada mustbe disqualified from running for and holding public elective
office is actually the proscription found in Section 40 of the LGC, in relation to
Section 12 ofthe OEC. She argues that the crime of plunder is both an offense
punishable by imprisonment of one year or more and involving moral turpitude;
such that former President Estrada must be disqualified to run for and hold public
elective office.
Even with the pardon granted to former President Estrada, however, Risos-Vidal
insists that the same did not operate to make available to former President Estrada
the exception provided under Section 12 of the OEC, the pardon being merely
conditional and not absolute or plenary. Moreover, Risos-Vidal puts a premium on
the ostensible requirements provided under Articles 36 and 41 of the Revised Penal
Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to
hold publicoffice, or the right of suffrage, unless such rights be expressly restored
by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.–
The penalties of reclusion perpetua and reclusion temporal shall carry with them
that of civil interdiction for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not enough that a
pardon makes a general statement that such pardon carries with it the restoration
of civil and political rights. By virtue of Articles 36 and 41, a pardon restoring civil
and political rights without categorically making mention what specific civil and
political rights are restored "shall not work to restore the right to hold public office,
or the right of suffrage; nor shall it remit the accessory penalties of civil interdiction
and perpetual absolute disqualification for the principal penalties of reclusion
perpetua and reclusion temporal."17 In other words, she considers the above
constraints as mandatory requirements that shun a general or implied restoration
of civil and political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and
Florentino P. Feliciano in Monsanto v. Factoran, Jr.18 to endorse her position that
"[t]he restoration of the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently pardoned, cannot be left
to inference, no matter how intensely arguable, but must be statedin express,
explicit, positive and specific language."
Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that
"such express restoration is further demanded by the existence of the condition in
the [third] [W]hereas [C]lause of the pardon x x x indubitably indicating that the
privilege to hold public office was not restored to him."19
On the other hand, the Office ofthe Solicitor General (OSG) for public respondent
COMELEC, maintains that "the issue of whether or not the pardon extended to
[former President Estrada] restored his right to run for public office had already
been passed upon by public respondent COMELEC way back in 2010 via its rulings in
SPA Nos. 09-024, 09-028 and 09-104, there is no cogent reason for it to reverse its
standing pronouncement and declare [former President Estrada] disqualified to run
and be voted as mayor of the City of Manila in the absence of any new argument
that would warrant its reversal. To be sure, public respondent COMELEC correctly
exercised its discretion in taking judicial cognizance of the aforesaid rulings which
are known toit and which can be verified from its own records, in accordance with
Section 2, Rule 129 of the Rules of Court on the courts’ discretionary power to take
judicial notice of matters which are of public knowledge, orare capable of
unquestionable demonstration, or ought to be known to them because of their
judicial functions."20
Further, the OSG contends that "[w]hile at first glance, it is apparent that [former
President Estrada’s] conviction for plunder disqualifies him from running as mayor
of Manila under Section 40 of the [LGC], the subsequent grant of pardon to him,
however, effectively restored his right to run for any public office."21 The
restoration of his right to run for any public office is the exception to the prohibition
under Section 40 of the LGC, as provided under Section 12 of the OEC. As to the
seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the
express restoration/remission of a particular right to be stated in the pardon, the
OSG asserts that "an airtight and rigid interpretation of Article 36 and Article 41 of
the [RPC] x x x would be stretching too much the clear and plain meaning of the
aforesaid provisions."22 Lastly, taking into consideration the third Whereas Clause
of the pardon granted to former President Estrada, the OSG supports the position
that it "is not an integral part of the decree of the pardon and cannot therefore
serve to restrict its effectivity."23
Thus, the OSG concludes that the "COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions."24
For his part, former President Estrada presents the following significant arguments
to defend his stay in office: that "the factual findings of public respondent
COMELEC, the Constitutional body mandated to administer and enforce all laws
relative to the conduct of the elections, [relative to the absoluteness of the pardon,
the effects thereof, and the eligibility of former President Estrada to seek public
elective office] are binding [and conclusive] on this Honorable Supreme Court;" that
he "was granted an absolute pardon and thereby restored to his full civil and
political rights, including the right to seek public elective office such as the mayoral
(sic) position in the City of Manila;" that "the majority decision in the case of
Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was erroneously cited by
both Vidal and Lim as authority for their respective claims, x x x reveal that there
was no discussion whatsoever in the ratio decidendi of the Monsanto case as to the
alleged necessity for an expressed restoration of the ‘right to hold public office in
the pardon’ as a legal prerequisite to remove the subject perpetual special
disqualification;" that moreover, the "principal question raised in this Monsanto
case is whether or not a public officer, who has been granted an absolute pardon by
the Chief Executive, is entitled to reinstatement toher former position without need
of a new appointment;" that his "expressed acceptance [of the pardon] is not proof
that the pardon extended to [him] is conditional and not absolute;" that this case is
a mere rehash of the casesfiled against him during his candidacy for President back
in 2009-2010; that Articles 36 and 41 of the Revised Penal Code "cannot abridge or
diminish the pardoning power of the President expressly granted by the
Constitution;" that the text of the pardon granted to him substantially, if not fully,
complied with the requirement posed by Article 36 of the Revised Penal Code as it
was categorically stated in the said document that he was "restored to his civil and
political rights;" that since pardon is an act of grace, it must be construed favorably
in favor of the grantee;25 and that his disqualification will result in massive
disenfranchisement of the hundreds of thousands of Manileños who voted for
him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully restored allhis
civil and political rights, which naturally includes the right to seek public elective
office, the focal point of this controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous, and unqualified. It is likewise
unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the Revised Penal Code. Recall that
the petition for disqualification filed by Risos-Vidal against former President
Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the LGC,
in relation to Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving moral turpitude,
former President Estrada must be disqualified to run for and hold public elective
office notwithstanding the fact that he is a grantee of a pardon that includes a
statement expressing "[h]e is hereby restored to his civil and political rights." Risos-
Vidal theorizes that former President Estrada is disqualified from running for Mayor
of Manila inthe May 13, 2013 Elections, and remains disqualified to hold any local
elective post despite the presidential pardon extended to him in 2007 by former
President Arroyo for the reason that it (pardon) did not expressly provide for the
remission of the penalty of perpetual absolute disqualification, particularly the
restoration of his (former President Estrada) right to vote and bevoted upon for
public office. She invokes Articles 36 and 41 of the Revised Penal Code as the
foundations of her theory.
It is insisted that, since a textual examination of the pardon given to and accepted
by former President Estrada does not actually specify which political right is
restored, it could be inferred that former President Arroyo did not deliberately
intend to restore former President Estrada’s rights of suffrage and to hold public
office, orto otherwise remit the penalty of perpetual absolute disqualification. Even
if her intention was the contrary, the same cannot be upheld based on the pardon’s
text.
The pardoning power of the President cannot be limited by legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article
IX-C, provides that the President of the Philippines possesses the power to grant
pardons, along with other acts of executive clemency, to wit:
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.
xxxx
Section 5. 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 Commission.
It is apparent from the foregoing constitutional provisions that the only instances in
which the President may not extend pardon remain to be in: (1) impeachment
cases; (2) cases that have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in which there was no
favorable recommendation coming from the COMELEC. Therefore, it can be argued
that any act of Congress by way of statute cannot operate to delimit the pardoning
power of the President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under
the 1935 Constitution,wherein the provision granting pardoning power to the
President shared similar phraseology with what is found in the present 1987
Constitution, the Court then unequivocally declared that "subject to the limitations
imposed by the Constitution, the pardoning power cannot be restricted or
controlled by legislative action." The Court reiterated this pronouncement in
Monsanto v. Factoran, Jr.29 thereby establishing that, under the present
Constitution, "a pardon, being a presidential prerogative, should not be
circumscribed by legislative action." Thus, it is unmistakably the long-standing
position of this Court that the exercise of the pardoning power is discretionary in
the President and may not be interfered with by Congress or the Court, except only
when it exceeds the limits provided for by the Constitution.
This doctrine of non-diminution or non-impairment of the President’s power of
pardon by acts of Congress, specifically through legislation, was strongly adhered to
by an overwhelming majority of the framers of the 1987 Constitution when they
flatly rejected a proposal to carve out an exception from the pardoning power of
the President in the form of "offenses involving graft and corruption" that would be
enumerated and defined by Congress through the enactment of a law. The
following is the pertinent portion lifted from the Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an
amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of corrupt practices
laws may be limited by legislation.
I suggest that this be deletedon the grounds that, first, violations of corrupt
practices may include a very little offense like stealing ₱10; second, which I think is
more important, I get the impression, rightly or wrongly, that subconsciously we are
drafting a constitution on the premise that all our future Presidents will bebad and
dishonest and, consequently, their acts will be lacking in wisdom. Therefore, this
Article seems to contribute towards the creation of an anti-President Constitution
or a President with vast responsibilities but no corresponding power except to
declare martial law. Therefore, I request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of Commissioner Davide
because of the fact that similar to the provisions on the Commission on Elections,
the recommendation of that Commission is required before executive clemency
isgranted because violations of the election laws go into the very political life of the
country.
With respect to violations of our Corrupt Practices Law, we felt that it is also
necessary to have that subjected to the same condition because violation of our
Corrupt Practices Law may be of such magnitude as to affect the very economic
systemof the country. Nevertheless, as a compromise, we provided here that it will
be the Congress that will provide for the classification as to which convictions will
still require prior recommendation; after all, the Congress could take into account
whether or not the violation of the Corrupt Practices Law is of such magnitude as to
affect the economic life of the country, if it is in the millions or billions of dollars.
But I assume the Congress in its collective wisdom will exclude those petty crimes of
corruption as not to require any further stricture on the exercise of executive
clemency because, of course, there is a whale of a difference if we consider a lowly
clerk committing malversation of government property or funds involving one
hundred pesos. But then, we also anticipate the possibility that the corrupt practice
of a public officer is of such magnitude as to have virtually drained a substantial
portion of the treasury, and then he goes through all the judicial processes and later
on, a President who may have close connections with him or out of improvident
compassion may grant clemency under such conditions. That is why we left it to
Congress to provide and make a classification based on substantial distinctions
between a minor act of corruption or an act of substantial proportions. SR. TAN. So,
why do we not just insert the word GROSS or GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a better distinction because
"GRAVE" or "GROSS" can be misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is essentially an executive
power, and that is precisely why it is called executive clemency. In this sentence,
which the amendment seeks to delete, an exception is being made. Congress, which
is the legislative arm, is allowed to intrude into this prerogative of the executive.
Then it limits the power of Congress to subtract from this prerogative of the
President to grant executive clemency by limiting the power of Congress to only
corrupt practices laws. There are many other crimes more serious than these.
Under this amendment, Congress cannot limit the power of executive clemency in
cases of drug addiction and drug pushing which are very, very serious crimes that
can endanger the State; also, rape with murder, kidnapping and treason. Aside from
the fact that it is a derogation of the power of the President to grant executive
clemency, it is also defective in that it singles out just one kind of crime. There are
far more serious crimes which are not included.
MR. REGALADO. I will just make one observation on that. We admit that the
pardoning power is anexecutive power. But even in the provisions on the COMELEC,
one will notice that constitutionally, it is required that there be a favorable
recommendation by the Commission on Elections for any violation of election laws.
At any rate, Commissioner Davide, as the principal proponent of that and as a
member of the Committee, has explained in the committee meetings we had why
he sought the inclusion of this particular provision. May we call on Commissioner
Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal. We have just
approved the Article on Accountability of Public Officers. Under it, it is mandated
that a public office is a public trust, and all government officers are under obligation
to observe the utmost of responsibility, integrity, loyalty and efficiency, to lead
modest lives and to act with patriotism and justice.
In all cases, therefore, which would go into the verycore of the concept that a public
office is a public trust, the violation is itself a violation not only of the economy but
the moral fabric of public officials. And that is the reason we now want that if there
is any conviction for the violation of the Anti-Graft and Corrupt Practices Act, which,
in effect, is a violation of the public trust character of the public office, no pardon
shall be extended to the offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the concurrence of the convicting
court, but the Committee left it entirely to the legislature to formulate the
mechanics at trying, probably, to distinguish between grave and less grave or
serious cases of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this is
now the best time, since we have strengthened the Article on Accountability of
Public Officers, to accompany it with a mandate that the President’s right to grant
executive clemency for offenders or violators of laws relating to the concept of a
public office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.
Madam President, over and over again, we have been saying and arguing before
this Constitutional Commission that we are emasculating the powers of the
presidency, and this provision to me is another clear example of that. So, I speak
against this provision. Even the 1935 and the 1973 Constitutions do not provide for
this kind of provision.
I am supporting the amendment by deletion of Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like to be recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the amendment by deletion
because I am in sympathy with the stand of Commissioner Francisco "Soc" Rodrigo.
I do believe and we should remember that above all the elected or appointed
officers of our Republic, the leader is the President. I believe that the country will be
as the President is, and if we systematically emasculate the power of this
presidency, the time may come whenhe will be also handcuffed that he will no
longer be able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this particular line.
MR. ROMULO. Commissioner Colayco would like to be recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend the approval of
proposals, but now I find that the proposal of Commissioner Tan is worthy of
approval of this body.
Why are we singling out this particular offense? There are other crimes which cast a
bigger blot on the moral character of the public officials.
Finally, this body should not be the first one to limit the almost absolute power of
our Chief Executive in deciding whether to pardon, to reprieve or to commute the
sentence rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will
be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been
called the Anti-Graft Court, so if this is allowed to stay, it would mean that the
President’s power togrant pardon or reprieve will be limited to the cases decided by
the Anti-Graft Court, when as already stated, there are many provisions inthe
Revised Penal Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the case merits the
consideration of the exercise of executive clemency, usually under Article V of the
Revised Penal Code the judge will recommend such exercise of clemency. And so, I
am in favor of the amendment proposed by Commissioner Tan for the deletion of
this last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. 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. I do not think they deserve this opprobrium and punishment under the new
Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to submit this to the
floor and also because of the objection of the main proponent, Commissioner
Davide. So we feel that the Commissioners should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed amendment of
Commissioner Tan to delete the last sentence of Section 17 appearing on lines 7, 8
and 9, please raise their hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (Few Members raised their hand.)
The results show 34 votes in favor and 4 votes against; the amendment is
approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons convicted of violating
penal statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles
contain specific textual commands which must be strictly followed in order to free
the beneficiary of presidential grace from the disqualifications specifically
prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to
hold publicoffice, or the right of suffrage, unless such rights be expressly restored
by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.–
The penalties of reclusion perpetua and reclusion temporal shall carry with them
that of civil interdiction for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by Risos-
Vidal, is unwarranted, especially so if it will defeat or unduly restrict the power of
the President to grant executive clemency.
It is well-entrenched in this jurisdiction that 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. Verba legis non est recedendum. From the words
of a statute there should be no departure.31 It is this Court’s firm view that the
phrase in the presidential pardon at issue which declares that former President
Estrada "is hereby restored to his civil and political rights" substantially complies
with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was
no express remission and/or restoration of the rights of suffrage and/or to hold
public office in the pardon granted to former President Estrada, as required by
Articles 36 and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal provisions must
be followed by the President, as they do not abridge or diminish the President’s
power to extend clemency. He opines that they do not reduce the coverage of the
President’s pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only
provide a procedural prescription. They are not concerned with areas where or the
instances when the President may grant pardon; they are only concerned with how
he or she is to exercise such power so that no other governmental instrumentality
needs to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in
the pardon the restoration of the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute disqualification,he or she
should do so expressly. Articles 36 and 41 only ask that the President state his or
her intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the
point, the President retains the power to make such restoration or remission,
subject to a prescription on the manner by which he or she is to state it.32
With due respect, I disagree with the overbroad statement that Congress may
dictate as to how the President may exercise his/her power of executive clemency.
The form or manner by which the President, or Congress for that matter, should
exercise their respective Constitutional powers or prerogatives cannot be interfered
with unless it is so provided in the Constitution. This is the essence of the principle
of separation of powers deeply ingrained in our system of government which
"ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally
allocated sphere."33 Moreso, this fundamental principle must be observed if
noncompliance with the form imposed by one branch on a co-equal and coordinate
branch will result into the diminution of an exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in
a way that will give full effect to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that may serve to impair or
diminish the import of the pardon which emanated from the Office of the President
and duly signed by the Chief Executive himself/herself. The said codal provisions
must be construed to harmonize the power of Congress to define crimes and
prescribe the penalties for such crimes and the power of the President to grant
executive clemency. All that the said provisions impart is that the pardon of the
principal penalty does notcarry with it the remission of the accessory penalties
unless the President expressly includes said accessory penalties in the pardon. It still
recognizes the Presidential prerogative to grant executive clemency and,
specifically, to decide to pardon the principal penalty while excluding its accessory
penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the
pardon so decided upon by the President on the penalties imposedin accordance
with law.
A close scrutiny of the text of the pardon extended to former President Estrada
shows that both the principal penalty of reclusion perpetua and its accessory
penalties are included in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was convicted by the
Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter
is the principal penalty pardoned which relieved him of imprisonment. The
sentence that followed, which states that "(h)e is hereby restored to his civil and
political rights," expressly remitted the accessory penalties that attached to the
principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41
of the Revised Penal Code, it is indubitable from the textof the pardon that the
accessory penalties of civil interdiction and perpetual absolute disqualification were
expressly remitted together with the principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is recognized by law as
falling under the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship
Retention and Reacquisition Act of 2003," 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: (1) Those intending to exercise their right
of suffrage must meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(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;
(3) Those appointed to any public office shall subscribe and swear an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities
prior to their assumption of office: Provided, That they renounce their oath of
allegiance to the country where they took that oath; (4) Those intending to practice
their profession in the Philippines shall apply with the proper authority for a license
or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which
theyare naturalized citizens; and/or
(b) are in active service as commissioned or non commissioned officers in the
armed forces of the country which they are naturalized citizens. (Emphases
supplied.)
No less than the International Covenant on Civil and Political Rights, to which the
Philippines is a signatory, acknowledges the existence of said right. Article 25(b) of
the Convention states: Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in Article 2 and without unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court
unequivocally referred to the right to seek public elective office as a political right,
to wit:
Stated differently, it is an additional qualification for elective office specific only to
Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It
is the operative act that restores their right to run for public office. The petitioner’s
failure to comply there with in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian Citizenship she executed
on September 18, 2006. As such, she is yet to regain her political right to seek
elective office. Unless she executes a sworn renunciation of her Australian
citizenship, she is ineligible to run for and hold any elective office in the Philippines.
(Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted
tohim, he regained his FULL civil and political rights – including the right to seek
elective office.
On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said
penal provisions; and prescribes a formal requirement that is not only unnecessary
but, if insisted upon, could be in derogation of the constitutional prohibition
relative to the principle that the exercise of presidential pardon cannot be affected
by legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v.
Factoran, Jr.36 to justify her argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and that the penalty of
perpetual absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned views of
Justices Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do
not form partof the controlling doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the majority opinion in Monsanto,
penned by no less than Chief Justice Marcelo B. Fernan, reveals no statement that
denotes adherence to a stringent and overly nuanced application of Articles 36 and
41 of the Revised Penal Code that will in effect require the President to use a
statutorily prescribed language in extending executive clemency, even if the intent
of the President can otherwise be deduced from the text or words used in the
pardon. Furthermore, as explained above, the pardon here is consistent with, and
not contrary to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the LGC in
relation to Section 12 of the OEC was removed by his acceptance of the absolute
pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any elective
local position. Risos-Vidal argues that former President Estrada is disqualified under
item (a), to wit:
(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.)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for
an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given plenary pardon or
granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction
for plunder disqualifies him from running for the elective local position of Mayor of
the City of Manila under Section 40(a) of the LGC. However, the subsequent
absolute pardon granted to former President Estrada effectively restored his right
to seek public elective office. This is made possible by reading Section 40(a) of the
LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the LGC is worded
in absolute terms, Section 12 of the OEC provides a legal escape from the
prohibition – a plenary pardon or amnesty. In other words, the latter provision
allows any person who has been granted plenary pardon or amnesty after
conviction by final judgment of an offense involving moral turpitude, inter alia, to
run for and hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates running for
local elective positions is not unprecedented. In Jalosjos, Jr. v. Commission on
Elections,37 the Court acknowledged the aforementioned provision as one of the
legal remedies that may be availed of to disqualify a candidate in a local election
filed any day after the last day for filing of certificates of candidacy, but not later
than the date of proclamation.38 The pertinent ruling in the Jalosjos case is quoted
as follows:
What is indisputably clear is that false material representation of Jalosjos is a
ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prision mayor, a petition under
Section 12 ofthe Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice whether to anchor his
petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40
of the Local Government Code. The law expressly provides multiple remedies and
the choice of which remedy to adopt belongs to petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to make the pardon
conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon,
i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek
any elective position or office," neither makes the pardon conditional, nor militate
against the conclusion that former President Estrada’s rights to suffrage and to seek
public elective office have been restored.
This is especially true as the pardon itself does not explicitly impose a condition or
limitation, considering the unqualified use of the term "civil and political rights"as
being restored. Jurisprudence educates that a preamble is not an essential part of
an act as it is an introductory or preparatory clause that explains the reasons for the
enactment, usually introduced by the word "whereas."40 Whereas clauses do not
form part of a statute because, strictly speaking, they are not part of the operative
language of the statute.41 In this case, the whereas clause at issue is not an integral
part of the decree of the pardon, and therefore, does not by itself alone operate to
make the pardon conditional or to make its effectivity contingent upon the
fulfilment of the aforementioned commitment nor to limit the scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt of COMELEC
Commissioner Maria Gracia Padaca’s separate concurring opinion in the assailed
April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which captured
the essence of the legal effect of preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20 January 2010 Resolution
did not conclude upon. Here, Petitioner Risos-Vidal raised the same argument with
respect to the 3rd "whereas clause" or preambular paragraph of the decree of
pardon. It states that "Joseph Ejercito Estrada has publicly committed to no longer
seek any elective position or office." On this contention, the undersigned reiterates
the ruling of the Commission that the 3rd preambular paragraph does not have any
legal or binding effect on the absolute nature of the pardon extended by former
President Arroyo to herein Respondent. This ruling is consistent with the traditional
and customary usage of preambular paragraphs. In the case of Echegaray v.
Secretary of Justice, the Supreme Court ruled on the legal effect of preambular
paragraphs or whereas clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely an
introduction to show its intent or purposes. It cannot be the origin of rights and
obligations. Where the meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation much less prevail over its
text.
If former President Arroyo intended for the pardon to be conditional on
Respondent’s promise never to seek a public office again, the former ought to have
explicitly stated the same in the text of the pardon itself. Since former President
Arroyo did not make this an integral part of the decree of pardon, the Commission
is constrained to rule that the 3rd preambular clause cannot be interpreted as a
condition to the pardon extended to former President Estrada.42 (Emphasis
supplied.)
Absent any contrary evidence, former President Arroyo’s silence on former
President Estrada’s decision torun for President in the May 2010 elections against,
among others, the candidate of the political party of former President Arroyo, after
the latter’s receipt and acceptance of the pardon speaks volume of her intention to
restore him to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the President
is in issue, the Court must turn to the only evidence available to it, and that is the
pardon itself. From a detailed review ofthe four corners of said document, nothing
therein gives an iota of intimation that the third Whereas Clause is actually a
limitation, proviso, stipulation or condition on the grant of the pardon, such that
the breach of the mentioned commitment not to seek public office will result ina
revocation or cancellation of said pardon. To the Court, what it is simply is a
statement of fact or the prevailing situation at the time the executive clemency was
granted. It was not used as a condition to the efficacy orto delimit the scope of the
pardon.
Even if the Court were to subscribe to the view that the third Whereas Clausewas
one of the reasons to grant the pardon, the pardon itself does not provide for the
attendant consequence of the breach thereof. This Court will be hard put to discern
the resultant effect of an eventual infringement. Just like it will be hard put to
determine which civil or political rights were restored if the Court were to take the
road suggested by Risos-Vidal that the statement "[h]e is hereby restored to his civil
and political rights" excludes the restoration of former President Estrada’s rights to
suffrage and to hold public office. The aforequoted text ofthe executive clemency
granted does not provide the Court with any guide asto how and where to draw the
line between the included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for resolution is not
whether the pardon is contingent on the condition that former President Estrada
will not seek janother elective public office, but it actually concerns the coverage of
the pardon – whether the pardon granted to former President Estrada was so
expansive as to have restored all his political rights, inclusive of the rights of
suffrage and to hold public office. Justice Leonen is of the view that the pardon in
question is not absolute nor plenary in scope despite the statement that former
President Estrada is "hereby restored to his civil and political rights," that is, the
foregoing statement restored to former President Estrada all his civil and political
rights except the rights denied to him by the unremitted penalty of perpetual
absolute disqualification made up of, among others, the rights of suffrage and to
hold public office. He adds that had the President chosen to be so expansive as to
include the rights of suffrage and to hold public office, she should have been more
clear on her intentions.
However, the statement "[h]e is hereby restored to his civil and political rights," to
the mind of the Court, iscrystal clear – the pardon granted to former President
Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in
scope, complete and plenary in character, as the term "political rights"adverted to
has a settled meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission of the
qualifying word "full" can be construed as excluding the restoration of the rights of
suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term "political rights" used alone
without any qualification. How to ascribe to the latter term the meaning that it is
"partial" and not "full" defies one’s understanding. More so, it will be extremely
difficult to identify which of the political rights are restored by the pardon, when
the text of the latter is silent on this matter. Exceptions to the grant of pardon
cannot be presumed from the absence of the qualifying word "full" when the
pardon restored the "political rights" of former President Estrada without any
exclusion or reservation.
Therefore, there can be no other conclusion but to say that the pardon granted to
former President Estrada was absolute in the absence of a clear, unequivocal and
concrete factual basis upon which to anchor or support the Presidential intent to
grant a limited pardon.
To reiterate, insofar as its coverageis concerned, the text of the pardon can
withstand close scrutiny even under the provisions of Articles 36 and 41 of the
Revised Penal Code.
The COMELEC did not commit grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did
not commit grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.
The Court has consistently held that a petition for certiorariagainst actions of the
COMELEC is confined only to instances of grave abuse of discretion amounting to
patentand substantial denial of due process, because the COMELEC is presumed to
be most competent in matters falling within its domain.43
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of
power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or
capricious exercise of power that amounts to an evasion or refusal to perform a
positive duty enjoined by law or to act at all in contemplation of law. For an act to
be condemned as having been done with grave abuse of discretion, such an abuse
must be patent and gross.44
The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual
or legal bases to prove that the assailed COMELEC Resolutions were issued in a
"whimsical, arbitrary or capricious exercise of power that amounts to an evasion
orrefusal to perform a positive duty enjoined by law" or were so "patent and gross"
as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it unnecessary to
separately discuss Lim's petition-in-intervention, which substantially presented the
same arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED.
The Resolution dated April 1, 2013 of the Commission on Elections, Second Division,
and the Resolution dated April 23, 2013 of the Commission on Elections, En bane,
both in SPA No. 13-211 (DC), are AFFIRMED.
SO ORDERED.

[G.R. No. 126576. March 5, 1997]
MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON ELECTIONS EN
BANC, and ATTY. AURORA S. DE ALBAN, respondents.
DECISION
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 Tumauni, Isabela, scheduled the recall election
on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining Order[2] 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 in Tumauni, 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 banc issued 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
and 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 Retraining 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 Sanches, 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 x x x 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 petitioners 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 x x x 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.lex
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.
Section 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 approval and
funding x x x.[9]
In the case of Sanchez v. COMELEC[10], 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:
lexWhile 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 COMELECs 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 x x x and, in
pursuance thereof, promulgate the necessary rules and regulations.[12]
We reiterated the foregoing ruling in the case of Evardone v. COMELEC[13] in this
wise:
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
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. x x x 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 officer by direction action of the people,
essayed in the case of Garcia v. COMELEC:[15]
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.
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 x x x
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 x x x.
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 Articles XIII expressly recognized the Role and Rights of
Peoples Organizations x x x.
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 x x x. 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 x x x municipal x x x 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 the presence of a represetantive of the official sought to be
recalled, and in public place in the x x x municipality x x x.[17] 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 constitution
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]the only logical reasons 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 parting 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 xxx. 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:
xxx 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 petitioners 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. 123169. November 4, 1996]
DANILO E. PARAS, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
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 petitioners 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 contempt for misrepresenting that the barangay recall
election was without COMELEC approval.[2]
In a resolution dated January 5, 1996, the COMELEC, for the third time, re-
scheduled the recall election on 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 Generals 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]
Petitioners 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 officials 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 officials
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 petitioners 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 effective law, and the legislature is not
presumed to have done a vain thing in the enactment of a statute.[5] 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,
inoperative or nugatory.[6]
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 mechanisms of recall, initiative, and referendum x
x x.
Moreover, petitioners 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 intention of its authors. That intention is
usually found not in the letter that killeth but in the spirit that vivifieth x x x[8]
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
officials 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.

G.R. No. 125416. September 26, 1996]
SUBIC BAY METROPOLITAN AUTHORITY, petitioner, vs. COMMISSION ON
ELECTIONS, ENRIQUE T. GARCIA and CATALINO A. CALIMBAS, respondents.
DECISION
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
surrendering 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 dated April 17, 1996 and Resolution
No. 2848 promulgated on June 27, 1996[1] 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 Special Economic Zone, thus:
"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 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." (Underscoring
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 Philippine government. Immediately, petitioner commenced the
implementation of its task, particularly the preservation of the seaports, airports,
buildings, houses and other installations left by the American navy.
In April 1993, the Sangguniang Bayan of Morong, Bataan passed
a 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 ang Pambayang Kapasyahan Blg. 10 Serye
1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEFZ na walang
kundisyon.
II. Palitan ito ng isang Pambayang kapasiyahan na aanib lamang ang Morong sa
SSEFZ 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 nagagalaw at
punong-puno ng malalaking punong-kahoy 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' 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) Magkakaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong,
Hermosa at Bataan."
The Sangguniang Bayan of Morong acted upon the petition of respondents Garcia,
Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye
1993, requesting Congress of the Philippines to amend certain provisions of R.A. No.
7227, particularly those concerning the matters cited in items (A), (B), (K), (E) and
(G) of private respondents' 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 of initiative under the Local Government Code
of 1991,[4] Sec. 122 paragraph (b) of which provides as follows:
"Sec. 122. Procedure in Local Initiative. -
xxxxxxxxx
(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 sanggunian concerned.
x x x x x x x x x."
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, 1996, 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 theSangguniang
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. x x x"
The Issues
The petition[6] presents the following "argument":
"Respondent Commission on Elections committed 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 or controversy; (2) x x x petitioner seeks to
overturn a decision/judgment which has long become final and executory; (3) x x x
public respondent has not abused its discretion and has in fact acted within its
jurisdiction; (and) (4) x x x 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 intiative 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 Attached 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
injunctiom, filed by counsel for respondent Catalino Calimbas, dated 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 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 x x x".
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 unit may directly propose, enact, or amend any
ordinance.'
We reject respondent's 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 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 x x x'. An act includes a resolution. Black
defines an acts 'an expression of will or purpose . . . it may denote something done .
. . as a legislature, including not merely physical acts, but also decrees, edicts, laws,
judgement, resolves, awards and determination x x x.' It is basic that a law should
be construed in harmony with and not in violation of the Constitution. In line with
this postulates, we held in In Re Guarina that if there is doubt or uncertainly 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 construction, that interpretations 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 municipal
resolution as the form by which these two new constitutional prerogatives of the
people may 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-started 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 a 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 barangays.
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 its
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 x
x x".
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. Said referendum shall be conducted also under the control and direction
of the Commission on Elections.[15]
In other words, while initiative is entirely the work of the electorate, referendum is
begun and consented to by the law-making 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" or "No" in the ballot.
[Note: While the above quoted laws variously refer to initiative and referendum as
"powers" or "legal processes", these can 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. 10, Serye 1993, is ultra vires or beyond the
powers of the Sangguniang Bayan to enact,[18] 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 sanggunians 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 fait 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 of
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 x x x."
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 Comelec itself has no power
to pass upon proposed 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 forests" 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 a 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; (ii) 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."[25] Impelled by a sense of 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 proceedings
consistent with the foregoing discussion. No costs.

IT IS SO ORDERED.