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DIGESTS by MUSNI, Merwen Wretzel Q. November 8, 1990 MATEO CAASI vs.CA and MERITO C. MIGUEL, respondents.

FACTS These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. ISSUES (1) whether or not a green card is proof that the holder is a permanent resident of the United States YES (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988 NO REASONING Section 18, Article XI of the 1987 Constitution provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides: SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC). In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was,"Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: Person identified by this card is entitled to reside permanently and work in US Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the US with the intention to have there permanently as evidenced by his application for an

immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it. An immigrant is a person who removes into a country for the purpose of permanent residence. However, statutes sometimes give a broader meaning to the term "immigrant." As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides. This is in return for the protection given to him during the period of his residence therein. In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code. To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988. 1

In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. DISPOSITIVE The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent. July 24, 1996 EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents. FACTS Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr. 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. 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.

SC in "Marquez, Jr. vs. COMELEC" promulgated on April 18, 1995 (MARQUEZ Decision) declared that: 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 and it may be so conceded as expressing the general and ordinary connotation of the term." 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." COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA No. 95-089 (disqualification case). 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 At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the position of governor. ISSUE 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 NO REASONING 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. 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 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 2

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 theMARQUEZ 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) 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 3

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." 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. DISPOSITIVE 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. July 5, 1996 ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents. FACTS Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC.[1] The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991)[2] which provides as follows: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence; (b) x x x xxx x x x. In disqualifying the petitioner, the COMELEC held that: Documentary evidence x x x established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1,1990. Respondent appealed the said conviction with the Regional Trial Court which however, affirmed respondents conviction in a Decision dated November 14,1990. Respondents conviction became final on January 18,1991. there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D.1612 x x x, the nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude x x x. Petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well. ISSUES 1. Whether or not the crime of fencing involves moral turpitude YES 2. Whether or not a grant of probation affects Section 40 (a)s applicability NO REASONING Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude as: x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. Not every criminal act, however, involves moral turpitude. It is for this reason that as to what crime involves moral turpitude, is for the Supreme Court to determine. In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in Zari v. Flores, to wit: It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited. This guideline nonetheless proved short of providing a clear-cut solution, for in International Rice Research Institute v. NLRC,[10] the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a 4

crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute.[11] The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone. Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as: a. x x x the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.[12] From the foregoing definition may be gleaned the elements of the crime of fencing which are: "1. A crime of robbery or theft has been committed; 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft ; and [Underscoring supplied.] 4. There is, on the part of the accused, intent to gain for himself or for another. Moral turpitude is deducible from the third element. Actual knowledge by the fence of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the fence and the actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for gain thus deliberately reneging in the process private duties they owe their fellowmen or society in a manner contrary to x x x accepted and customary rule of right and duty x x x, justice, honesty x x x or good morals. The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on Human Relations and Solutio Indebiti, to wit: Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Article 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. The same underlying reason holds even if the fence did not have actual knowledge, but merely should have known the origin of the property received. In this regard, the Court held: When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words should know denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists. Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that mere possession of any goods, x x x, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing- a presumption that is, according to the Court, reasonable for no other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft. All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. The legal effect of probation is only to suspend the execution of the sentence. Petitioners conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. DISPOSITIVE Petition for certiorari is hereby DISMISSED. October 4, 2002 NESTOR B. MAGNO, petitioner, vs. COMMISSION ON ELECTIONS and CARLOS C. MONTES, respondents. FACTS 5

This petition originated from a case filed by private respondent on March 21, 2001 for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, petitioner was sentenced to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, petitioner applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija. Meanwhile, Sonia Lorenzo was proclaimed by the COMELEC as the duly elected mayor of San Isidro, Nueva Ecija. ISSUE Whether or not petitioner was disqualified to run for mayor in the 2001 elections NO In resolving this, two sub-issues need to be threshed out, namely: (1) whether the crime of direct bribery involves moral turpitude YES (2) whether it is the Omnibus Election Code or the Local Government Code that should apply in this situation LGC (2 years) REASONING Regarding the first sub-issue, the Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude as: x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. Not every criminal act, however, involves moral turpitude. It frequently depends on the circumstances surrounding the violation of the law. In this case, we need not review the facts and circumstances relating to the commission of the crime considering that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery: 1. the offender is a public officer; 2. the offender accepts an offer or promise or receives a gift or present by himself or through another; 3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and 4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties. Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society

in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. It is the second sub-issue which is problematical. There appears to be a glaring incompatibility between the five-year disqualification period provided in Section 12 of the Omnibus Election Code and the two-year disqualification period in Section 40 of the Local Government Code. It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will. Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of RA 7160 or the Local Government Code states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed. In David vs. COMELEC, we declared that RA 7160 is a codified set of laws that specifically applies to local government units. Section 40 thereof specially and definitively provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with theelection of all public officers. Thus, Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law. The reduction of the disqualification period from five to two years is the manifest intent. Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioners disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections. Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the validity of Sonia Lorenzos proclamation and (2) the declaration of petitioner as the rightful winner. Inasmuch as Sonia Lorenzo had already been proclaimed as the winning candidate, the legal remedy of petitioner would have been a timely election protest. 6

DISPOSITIVE Petitioners prayer in his supplemental petition for his proclamation as the winner in the May 14, 2001 mayoralty elections in San Isidro, Nueva Ecija, not being within our jurisdiction, is hereby denied. November 13, 2002 ATTY. MIGUEL M. LINGATING vs.COMELEC and CESAR B. SULONG FACTS On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to 40(b) of Republic Act No. 7160 (Local Government Code), which disqualifies from running for any elective 3 local position "those removed from office as a result of an administrative case." It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan 4 and several other individuals, was administratively charged (AC No. 12-91) with various 5 offenses, and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 6 1992. Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulongs motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulongs) motion had consequently remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-91. Petitioner contends that the COMELEC en banc erred in applying the ruling in 13 Aguinaldo v. Commission on Elections in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. 14 Petitioner cites Reyes v. Commission on Elections in which we held that an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under 40(b) of the Local Government Code. ISSUE WON Sulong is disqualified NO REASONING We stated in Reyes:

Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, . . . the decision in the administrative case, . . . was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. The records of this case show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a "motion for reconsideration and/or notice of appeal;" that on February 27, 1992, the Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91, to comment; and that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang Panlalawigan resolved respondents motion. The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a 15 motion for reconsideration. Thus, it was held that a party in a disbarment proceeding under Rule 139-B, 12(c) can move for a reconsideration of a resolution of the Integrated Bar of the Philippines although Rule 139-B does not so provide: Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration, nothing in its text or history suggests that such motion is prohibited. It may therefore be filed . . . . Indeed, the filing of such motion should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment [an] opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of evidence. There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was "overtaken by the local elections of May [11,]1992." 7

Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had 16 become final because it appears to have been made pursuant to 68 of the Local Government Code, which makes decisions in administrative cases immediately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since, at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. Having come to the conclusion that respondent Sulong is not disqualified from holding the position of mayor of Lapuyan, it is unnecessary to pass upon petitioners contention that, as the candidate who obtained the second highest number of votes, he is entitled to be installed as mayor because the votes cast in favor of respondent Sulong were void. DISPOSITIVE Petition for certiorari is DISMISSED June 22, 1993 ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner, vs. HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents. FACTS
1

Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position 3 during his tenure," because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be 4 authorized by law to appoint", since it was Congress through the questioned proviso and 5 not the President who appointed the Mayor to the subject posts; and, (c) Sec. 261, par. 1 (g), of the Omnibus Election Code , for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections. ISSUE Whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other government posts YES REASONING In full, Sec. 7 of Art. IX-B of the Constitution provides: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a
1

The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational 2 expenses attached to the office . . . ." Paragraph (d) reads (d) Chairman administrator The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficiochairman of the Board and who shall serve as the chief executive officer of the Subic Authority:Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority (emphasis supplied). Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian Employees Association in U.S.

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. During the period of forty-five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need:Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in governmentowned or controlled corporations . . . .

full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. 6 No. 83815, ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ." Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official will work for his appointment in an 7 executive position in government, and thus neglect his constituents . . . ." In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment. It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so allowed by law or by the 8 primary functions of his office. But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity. In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of anelective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and 9 planning agency; the Vice-President, who may be appointed Member of the 10 Cabinet; and, a member of Congress who may be designated ex officio member of the 11 Judicial and Bar Council. The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials, because in the case of appointive officials, there may be a law that will allow them to hold other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the 12 law should allow them to hold some other positions. The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph. It is further argued that the SBMA posts are merely ex officioto the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. 13 Executive Secretary, where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor. This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word 14 "appointed" and, instead, "ex officio" would have been used. Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio. Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative 15 choice." The Senator took a view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex officio. The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if no elective official may be appointed or designated to another post then 16 Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized by law. 9

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City. As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or 17 trust," or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the 18 19 same. In his treatise, Philippine Political Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office." Considering that appointment calls for a selection, the appointing power necessarily 20 exercises a discretion. According to Woodbury, J., "the choice of a person to fill an office 21 constitutes the essence of his appointment," and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of 22 23 discretion." In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we held: The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power . . . . Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power. Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to 24 choose and constitutes an irregular restriction on the power of appointment. In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the provisonevertheless limits the appointing authority to only one eligible,i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only

one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative. Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office. Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expressly provided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 26 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." "Where the constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. State ex rel. Van Antwerp v. 27 Hogan, 218 So 2d 258, 283 Ala 445)." As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the 10

same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell 28 [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been received by respondent Gordon pursuant to his appointment may be retained by him. The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the questionedproviso as well as the appointment of said respondent made pursuant thereto need no longer be discussed. One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit 31 political expediency, personal ambitions or ill-advised agitation for change." DISPOSITIVE The proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID. However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD. April 18, 1997 LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents., supra January 18, 1991 PERFECTO V. GALIDO, petitioner, vs. COMMISSION ON ELECTIONS and SATURNINO R. GALEON, respondents. FACTS Petitioner and private respondent were candidates during the 18 January 1988 local elections for the position of mayor in the Municipality of Garcia-Hernandez, Province of Bohol. Petitioner was proclaimed duly-elected Mayor of Garcia-Hernandez, by the Municipal Board of Canvassers. On 25 January 1988, private respondent Saturnino R. Galeon filed an election protest before the Regional Trial Court of Bohol, 7th Judicial Region, Branch I, Tagbilaran

City. After hearing, the said court upheld the proclamation of petitioner as the duly-elected Mayor of Garcia-Hernandez, by a majority of eleven (11) votes. Private respondent appealed the RTC decision to the Commission on Elections (COMELEC). Through its First Division, the COMELEC reversed the trial court's decision and declared private respondent the duly-elected mayor by a plurality of five (5) votes. COMELEC en banc affirmed the decision of its First Division. The COMELEC held that the fifteen (15) ballots in the same precinct containing the initial "C" after the name "Galido" were marked ballots and, therefore, invalid. ISSUE WON petition must be granted NO REASONING The Commission on Elections (COMELEC) has exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials and has appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction. (Article IX (C), Section 2 (2), paragraph 1 of the 1987 Constitution). In the present case, after a review of the trial court's decision, the respondent COMELEC found that fifteen (15) ballots in the same precinct containing the letter "C" after the name Galido are clearly marked ballots. May this COMELEC decision be brought to this court by a petition for certiorari by the aggrieved party (the herein petitioner)? Under Article IX (A) Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: "(U)nless otherwise provided by this Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." On the other hand, private respondent relies on Article IX, (C), Section 2(2), paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the Commission on Elections in contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (Emphasis supplied) We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening. Thus MR. FOZ. So, the amendment is to delete the word "inappealable." MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions are always final, as distinguished from interlocutory orders. So, it should read: "However, decisions, final orders or rulings," to distinguish them from intercolutory orders, ". . . of the Commission on Elections on municipal and barangay officials shall be final and IMMEDIATELY executory." That would be my proposed amendment. MR. FOZ. Accepted, Mr. Presiding Officer. 11

MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and municipal officials are final and immediately executory and, therefore, not appealable, that does not rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as the case may be, under Rule 65 of the Rules of Court. MR. FOZ. That is understood, Mr. Presiding Officer. MR. REGALADO. At least it is on record. 1 Thank you, Mr. Presiding Officer. We do not, however, believe that the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering the questioned decision. It is settled that the function of a writ of certiorari is to keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse of discretion amounting to lack or excess of jurisdiction. As correctly argued by public respondent COMELEC, it has the inherent power to decide an election contest on physical evidence, equity, law and justice, and apply established jurisprudence in support of its findings and conclusions; and that the extent to which such precedents apply rests on its discretion, the exercise of which should not be controlled unless such discretion has been abused to the prejudice of either party. ( Rollo, p. 107) Finally, the records disclose that private respondent had already assumed the position of Mayor of Garcia-Hernandez as the duly-elected mayor of the municipality by virtue of the COMELEC decision. The main purpose of prohibition is to suspend all action and prevent the further performance of the act complained of. In this light, the petition at bar has become moot and academic. DISPOSITIVE Petition is DISMISSSED. July 12, 1991 JUAN GARCIA RIVERA, petitioner, vs. COMMISSION ON ELECTIONS and JUAN MITRE GARCIA II, respondents. FACTS Petitioner Juan Garcia Rivera and private respondent Juan Mitre Garcia II were candidates for the position of Mayor of Guinobatan, Albay, during the local elections in January 1988. The Municipal Board of Canvassers proclaimed Rivera as the duly elected Mayor by a majority of ten (10) votes. On 26 January 1988, Garcia filed an election protest with the Regional Trial Court, Legazpi City, docketed as Case No. 01-88. After due hearing, and upon considering the report of a Revision Committee it had earlier created, the trial court rendered its verdict on 9 September 1989, finding Garcia to have obtained 6,376 votes as against Rivera's 6,222. Rivera appealed to the COMELEC. Through its First Division, the COMELEC sustained with modification the appealed judgment of the Regional Trial Court, as follows:

1. Affirming the Trial court's annulment of the Board of Canvasser's proclamation of Protestee-Appellant Juan G. Rivera as the duly elected Municipal Mayor; 2. Declaring Protestant-Appellee Juan Mitre Garcia II as the duly elected Municipal Mayor of Guinobatan, Albay, by a majority of ONE HUNDRED FIFTY THREE (153) votes over Protestee-Appellant Juan G. Rivera instead of a plurality of ONE HUNDRED FIFTY FOUR (154) votes; and 3. Protestee-Appellant Juan Garcia Rivera is hereby directed to turn over the Office of the Municipal Mayor to Protestant-Appellee Juan Mitre Garcia II. xxx xxx xxx Rivera's motion for reconsideration was acted upon by the COMELEC en banc. In its per curiam decision, dated 6 September 1990, the COMELEC denied the motion and reaffirmed the decision of its First Division declaring Garcia as the duly elected Mayor of Guinobatan, Albay but with a winning margin of one hundred twenty-three (123) votes over Rivera. Garcia commenced to discharge the duties and functions of Mayor of Guinobatan on 10 October 1990, by virtue of a writ of execution implementing the COMELEC decision of 6 September 1990. He continued as mayor until 10 November 1990 when he was served notice of this Court's temporary restraining order, issued upon Rivera's motion. Rivera filed the present petition on 5 October 1990 seeking annulment of the COMELEC en banc decision rendered in favor of respondent Garcia. He also prayed for the issuance of an order restraining the implementation of the said judgment, arguing that the same had not yet become final and executory as of the time this petition was filed. He cites Article IX-C, Section 2, Par. (2) of the 1987 Constitution, in relation to Part VII, Rule 39, Section 1 of the COMELEC Rules of Procedure. He also contends that since the COMELEC decision of 6 September 1990 has not yet become final and executory, the COMELEC has no authority to issue the assailed order and writ of execution. Petitioner maintains further that he has a period of thirty (30) days from 6 September 1990 or until 6 October 1990 within which to elevate the COMELEC decision, on certiorari, to this Court, pursuant to Section 1, Rule 39 of the COMELEC Rules of Procedure. He submits that the questioned COMELEC decision is not one that became final and executory unless restrained by this Court as provided under Section 3, Rule 39 of the COMELEC Rules, as said rule applies only to "decisions in pre-proclamation cases and petitions to deny due course or to disqualify a candidate, and postpone or suspend elections." Lastly, according to petitioner, Section 13(a) of Rule 18 (finality of Comelec decisions or resolutions) and Section 1 of Rule 39 (review by the Supreme Court of Comelec decisions, orders and rulings) of the COMELEC Rules of Procedure, should be read in the context of Section 7, Article IX-A of the Constitution (Supreme Court authority to review on certiorari a Comelec decision, order or ruling). Upon the other hand, respondent Garcia contends that: 1. The Constitution declares the decisions of the COMELEC on election contests involving elective municipal and barangay officials to be final, executory and not appealable (Article IX-C, Sec. 2, par. (2), second sentence, 1987 Constitution). 2. In an earlier petition for certiorari filed by Rivera with this Court, docketed as G.R. No. 87046, charging the Regional Trial Court of grave abuse of discretion in Case No. 01-88, 12

wherein the same issue now raised in this petition was raised by Rivera, this Court dismissed the petition for lack of merit on 7 March 1989. 3. The supplemental ground raised by petitioner Rivera that the COMELEC committed grave abuse of discretion "by not excluding from the total votes of Garcia at least ten (10) votes which were misappreciated in Garcia's favor, outside of those objected votes already ruled upon by the COMELEC" does not deserve any consideration. If true, it is an error in judgment, correctible by appeal, not by a petition for certiorari pursuant to Rule 65, Section 1, of the Rules of Court. ISSUE WON the petition must be granted NO REASONING The environmental facts of this petition are similar to those in the Galido case (G.R. No. 95346, decided 18 January 1991). The issue of whether the decisions of the COMELEC in election contests involving elective municipal and barangay officials, being final and executory and not appealable, preclude the filing of a special civil action of certiorari, was decided in the said Galido case. The Court held: Under Article IX (A), Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: "(U)nless otherwise provided by the Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." On the other hand, private respondent relies on Article IX, (C), Section 2 (2), paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the Commission on Elections in contests involving elective municipal and barangay offices shall be final, executory and not appealable. (Emphasis supplied) We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening. Thus MR. FOZ. So, the amendment is to delete the word "inappealable". MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions are always orders. So, it should read: "However, decisions, final orders or rulings," to distinguish them from interlocutory orders. ". . . of the Commission on Elections on municipal and barangay officials shall be final and IMMEDIATELY executory." That would be my proposed amendment. MR. FOZ. Accepted, Mr. Presiding Officer. MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and municipal officials are final and immediately executory and, therefore, not appealable, that does not rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as the case may be, under Rule 65 of the Rules of Court. MR. FOZ. That is understood, Mr. Presiding Officer.

MR. REGALADO. At least it is on record. Thank you, Mr. Presiding Officer. Earlier, the Court had occasion to resolve the same issue in the case of Flores vs. COMELEC (G.R. No. 89604, 20 April 1990) where the Court stated: Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. We eschew a literal reading of that provision that would contradict such authority. Actually, the main thrust of the present petition for certiorari is that the respondent COMELEC en banc committed grave abuse of discretion when it affirmed the decision of its First Division, promulgated on 2 May 1990, annulling the proclamation of the petitioner as the duly elected Mayor of Guinobatan, Albay and when it did not exclude from the total votes of Garcia at least ten (10) votes which were allegedly misappreciated in Garcia's favor. We have closely scrutinized the challenged COMELEC decision and find that the said decision was not arrived at capriciously or whimsically by respondent COMELEC. A painstaking re-evaluation of the questioned 67 ballots was made by the COMELECen banc. In fact, fourteen (14) ballots originally adjudicated in Garcia's favor were overruled by the Commission en banc, thus reducing the number of votes in his favor to 894 votes out of the 2,445 contested ballots. On the other hand, 16 ballots were added in Rivera's favor, thus increasing the votes in his favor to 1,087 votes. Moreover, the appreciation and re-evaluation of ballots are factual determinations. It is settled that in a petition for certiorari, findings of fact of administrative bodies are final unless grave abuse of discretion has marred such factual determinations. We find none in this case. DISPOSITIVE DISMISS the petition.

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