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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 104732 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.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for
petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 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 expenses
attached to the office . . . ." 2 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 oficio chairman 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. Facilities in
the Philippines, maintain that theproviso 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. IXB, 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 during his tenure," 3 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 authorized by law to

appoint", 4 since it was Congress through the questioned proviso and not the President who
appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus
Election Code, which says:
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 governmentowned 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 government-owned or controlled corporations . . . .
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.
The principal question is 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.
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 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. No. 83815, 6 ". . . .
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 executive position
in government, and thus neglect his constituents . . . ." 7
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 primary functions of his
office. 8 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 appointiveofficial 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 an elective official to the government post, except as
are particularly recognized in the Constitution itself, e.g., the President as head of the
economic and planning agency; 9 the Vice-President, who may be appointed Member of the
Cabinet; 10 and, a member of Congress who may be designated ex officio member of the
Judicial and Bar Council. 11
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 law should
allow them to hold some other positions. 12
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 officio to the position of Mayor of
Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive
Secretary, 13 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 "appointed" and,
instead, "ex officio" would have been used. 14
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 choice." 15 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 Sec. 8, Art. IX-B, of the
Constitution allowing him to receive double compensation 16 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.
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 trust," 17 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 same. 18 In his
treatise, Philippine Political
Law, 19 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
exercises a discretion. According to Woodbury, J., 20 "the choice of a person to fill an office
constitutes the essence of his appointment," 21 and Mr. Justice Malcolm adds that an
"[a]ppointment to office is intrinsically an executive act involving the exercise of
discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court 23 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 choose and constitutes an
irregular restriction on the power of appointment. 24
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 proviso nevertheless 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.
The deliberation in the Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of
the word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for
one to resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive position.
MR. DAVIDE. Besides, it may turn out in a given case that because of, say,
incapacity, he may leave the service, but if he is prohibited from being
appointed within the term for which he was elected, we may be
depriving the government of the needed expertise of an individual. 25
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 ALR 945) or
voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "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. Hogan, 218 So 2d 258, 283 Ala
445)." 27
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 same is adjudged to be such (State vs.
Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's
Case, 122 Mass, 445, 23 Am. Rep., 323)." 28
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 questioned proviso as well as the appointment of said respondent
made pursuant thereto need no longer be discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he
expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated

. . . . (much) as we would like to have the present Mayor of Olongapo City


as the Chief Executive of this Authority that we are creating; (much) as I,
myself, would like to because I know the capacity, integrity, industry and
dedication of Mayor Gordon; (much) as we would like to give him this
terrific, burdensome and heavy responsibility, we cannot do it because of
the constitutional prohibition which is very clear. It says: "No elective
official shall be appointed or designated to another position in any
capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of
storms or a rock in the ocean amidst the raging of the waves." 30 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 political expediency, personal ambitions or illadvised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
WHEREFORE, 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.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon,
Melo and Quiason, JJ., concur.
Padilla, J., is on leave.
# Footnotes
1 An Act Accelerating the Conversion of Military Reservations into Other Productive Uses, Creating the Bases
Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other Purposes," approved
13 March 1992, to take effect upon its publication in a newspaper of general circulation.
2 See "Action to Declare Unconstitutional Provisions of R.A. 7227 with Prohibition and Application for a Writ of
Preliminary Injunction," dated 7 April 1992, p. 6; Rollo p. 7.

3 Sec. 7, Art. IX-B, 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 governmentowned or controlled corporations or their subsidiaries."
4 Sec. 16, Art. VII, provides: "The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and other officers whose appointments are not vested in him in
this Constitution. He shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commission, or boards.
"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress."
5 Petitioners allege that the proviso constitutes a "limitation to the power of appointment of the President and
therefore violates the separation of powers" and that "Congress cannot create the position and at the same time
specify the person to fill up such position" (Petition, pp. 4-5; Rollo, pp. 5-6).

MR. COLAYCO. Personally, I find the policy established in this provision meritorious. To make it a firm policy, I suggest
that we delete the prefatory phrase "Unless otherwise provided by law.
MR. FOZ. We agree with the Commissioner (Ibid., Vol. 1, p. 549).
As revised, known later as Sec. 4 of Resolution No. 10, and approved on third reading, the subject section read: "No
elective official shall be eligible for appointment or designation in any capacity to any public office or position during his
tenure" (Ibid., Vol. II, p. 788).
13 Supra, p. 335.
14 . . . . When, in the exigencies of government, it is necessary to create and define new duties, the legislative
department has the discretion to determine whether additional offices shall be created, or these duties shall be
attached to and become ex officio duties of existing offices. The power extends to the consolidation of offices resulting
in abolishing one and attaching its powers and duties to the other. It matters not that the name commission or board is
given to the body created . . . ." (Tayloe v. Davis, 212 Ala 282, 102 So. 433, 40 ALR 1052, 1057).
15 Transcripts of Session Proceedings, Senate, 6 February 1992, p. 57.
16 Sec. 8, Art. IX-B, provides: "No elective or appointive public officer or employee shall receive additional, double, or
indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any
present, emolument, office, or title of any kind from any foreign government.
"Pensions or gratuities shall not be considered as additional, double, or indirect compensation."

6 G.R. Nos. 83896 and 83815 were consolidated and decided jointly on 22 February 1991, 194 SCRA 317, 339.
17 Black's Law Dictionary, 4th ed., p. 128 citing In re Nicholson's Estate, 104 Colo, 561, 93 P. 2d 880, 884.
7 Record of the Constitutional Commission, Vol. 1, p. 546.
18 Ibid., citing State v. Braman, 173 Wis. 596, 181 N.W. 729, 730.
8 Sec. 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in an Election. (a) No elective
or appointive local official shall be eligible for appointment or designation in any capacity to any public office or position
during his tenure.
"Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official shall
hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
"(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year
after such election, be appointed to any office in the government or any government-owned or controlled corporations
or in any of their subsidiaries."

19 1987 ed., p. 180.


20 Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers (1890), p. 48, citing In Johnston v. Wilson, 2
N.H. 205, 9 Am. Dec. 50.
21 Mechem, ibid., citing Marbury v. Madison, I Cranch (U.S.) 137; Craig v. Norfolk, I Mod. 122.
22 Concepcion v. Paredes, No. 17539, 23 December 1921; 42 Phil. 599, 603, citing Keim vs. U.S. (1900), 177 U.S., 290.

9 Sec. 9, Art. XII, of the Constitution.

23 G.R. No. 65439, 13 November 1985; 140 SCRA 22, 35.

10 Sec. 3, second par., Art. VII, of the Constitution.

24 While it is inarguable that Congress has plenary authority to prescribe qualifications to a public office, it "may not
however prescribe qualifications such that the President is entirely stripped of discretion, thus converting appointment
to a mere ministerial act" (Gonzales, Neptali A.,Administrative Law, Law on Public Officers and Election Law, 1966 ed., p.
173, citing Manalang v. Quitoriano, No. L-6898, 30 April 1954; 94 Phil. 903).

11 Sec. 8, par. (1), Art. VIII, of the Constitution. This particular provision was approved in anticipation of a unicameral
legislature. However, as it turn out, we adopted instead a bicameral form of government so that the seat allocated to
the representative of Congress has to be split between a member of the Senate and a member of the House of
Representative. Each being entitled to one-half vote in the deliberations in the Judicial and Bar Council.
12 Record of the Constitutional Commission, Vol. 5, p. 156.
Section 4 of the Proposed Resolution No. 468, the precursor of the first paragraph of Sec. 7, read: "Unless
otherwise provided by law, no elective official shall be eligible for appointment or designation in a temporary or acting
capacity to any public office or position during his term" (Record of the Constitutional Commission, Vol. 1, p. 524).
The following were reactions on the floor:
FR. BERNAS. On page 3, Section 4, line 5, the provision begins with the phrase "Unless otherwiseprovided by law" which
does not exist in the 1973 Constitution. This was inserted in a 1981 amendment. We know the reason why this was put
here. It practically renders the provision useless because the whole matter becomes discretionary with the legislature. It
is one of those instance in the 1973 Constitution, as amended and constantly reamended, where they threw in the
phrase "Unless otherwise provided by law" precisely to give the President a free hand in his decree-making power.
xxx xxx xxx
MR. FOZ. As presently worded now, the provision would allow the legislature to really provide otherwise, meaning, to
allow an elective official to be appointed to an executive office. (Ibid., Vol. 1, p. 539.)
xxx xxx xxx
MR. COLAYCO . . . . The way I understand this is that we are giving the legislature the power to authorize the
appointment or designation in a temporary or acting capacity of an elective official to any public office or position
during his term, Am I right?
MR. FOZ. If a law is passed regarding this matter, then such law may reverse this provision as worded, but we have said
earlier that we will entertain suggestions from the floor.

25 Record of the Constitutional Commission, vol. 1, p. 591.


26 63 Am Jur 2d 678-679.
27 67 CJS 295.
28 Lino Luna v. Rodriguez and De los Angeles, No. 12647, 26 November 1917, 37 Phil, 186, 192 (emphasis supplied).
29 Transcripts of Session Proceedings, Senate, 29 January 1992, pp. 89-90.
30 Vanhorne v. Dorrance, 1 L. ed. 391, cited in Cruz, Isagani A., Constitutional Law, 1987 ed., p. 7.
31 Cruz, Isagani A., Constitutional Law, supra.

Republic of the Philippines


SUPREME COURT
Manila

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:

EN BANC
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.

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 preproclamation 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 institutedquo 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 533 2 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.

DAVIDE JR., J., concurring:


Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for
elective provincial, city, municipal, and barangay officials shall be those provided for in the
Local Government Code. The quondam Local Government Code was B.P. Blg. 337, which was
superseded by R.A. No. 7160, otherwise known as the Local Government Code of 1991.
Section 39 of the latter provides for the qualifications and election of local elective officials.
Section 40 enumerates those who are disqualified from running for any elective local
position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or abroad.
The term "fugitive from justice" refers not only to those who flee after conviction to avoid
punishment but also to those who, after being charged, flee to avoid prosecution. In
his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight
Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article
73 of the Rules and Regulations Implementing the Local Government Code of 1991, as
inordinate and as undue circumscription of the law. I agree.
But this is only one side of the coin. I further submit that it also unreasonably expands the
scope of the disqualification in the 1991 Local Government Code because it
disqualifies all those who have been convicted by final judgment, regardless of the extent of
the penalty imposed and of whether they have served or are serving their sentences or have
evaded service of sentence by jumping bail or leaving for another country. The definition
thus disregards the true and accepted meaning of the word fugitive. This new definition is
unwarranted for nothing in the legislative debates has been shown to sustain it and the clear
language of the law leaves no room for a re-examination of the meaning of the term.
I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification
based on the presumption of innocence clause of the Bill of Rights. There are certain
fundamental considerations which do not support the applications of the presumption
Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to
determine who are disqualified from exercising the right of suffrage. Since the minimum
requirement of a candidate for a public office is that he must be a qualified voter, it logically
follows that Congress has the plenary power to determine who are disqualified to seek
election for a public office.
Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly
provides:

SO ORDERED.
Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur.
Separate Opinions

Sec. 1. Public office is public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.

A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN
BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40,
citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public
office may thus be required by law.
Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption
of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the
filing of an information or criminal complaint against him. He is disqualified because he is a
"fugitive from justice," i.e., he 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. In the
face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it
is not the challenged disqualifying provision which overcomes the presumption of innocence
but rather the disqualified person himself who has proven his guilt.
Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the
validity of the challenged disqualification. Dumlao struck out as violative of the constitutional
presumption of innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52
providing that "the filing of charges for the commission of such crimes before a civil court or
military tribunal after preliminary investigation shall be prima facie evidence of such fact." It
is clear that the law challenged therein did in fact establish a presumption of guilt from the
mere filing of the information or criminal complaint, in violation of the constitutional right to
presumption of innocence.
Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.
Separate Opinions

73 of the Rules and Regulations Implementing the Local Government Code of 1991, as
inordinate and as undue circumscription of the law. I agree.
But this is only one side of the coin. I further submit that it also unreasonably expands the
scope of the disqualification in the 1991 Local Government Code because it
disqualifies all those who have been convicted by final judgment, regardless of the extent of
the penalty imposed and of whether they have served or are serving their sentences or have
evaded service of sentence by jumping bail or leaving for another country. The definition
thus disregards the true and accepted meaning of the word fugitive. This new definition is
unwarranted for nothing in the legislative debates has been shown to sustain it and the clear
language of the law leaves no room for a re-examination of the meaning of the term.
I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification
based on the presumption of innocence clause of the Bill of Rights. There are certain
fundamental considerations which do not support the applications of the presumption
Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to
determine who are disqualified from exercising the right of suffrage. Since the minimum
requirement of a candidate for a public office is that he must be a qualified voter, it logically
follows that Congress has the plenary power to determine who are disqualified to seek
election for a public office.
Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly
provides:
Sec. 1. Public office is public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.

DAVIDE JR., J., concurring:


Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for
elective provincial, city, municipal, and barangay officials shall be those provided for in the
Local Government Code. The quondam Local Government Code was B.P. Blg. 337, which was
superseded by R.A. No. 7160, otherwise known as the Local Government Code of 1991.
Section 39 of the latter provides for the qualifications and election of local elective officials.
Section 40 enumerates those who are disqualified from running for any elective local
position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or abroad.
The term "fugitive from justice" refers not only to those who flee after conviction to avoid
punishment but also to those who, after being charged, flee to avoid prosecution. In
his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight
Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article

A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN
BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40,
citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public
office may thus be required by law.
Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption
of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the
filing of an information or criminal complaint against him. He is disqualified because he is a
"fugitive from justice," i.e., he 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. In the
face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it
is not the challenged disqualifying provision which overcomes the presumption of innocence
but rather the disqualified person himself who has proven his guilt.

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the
validity of the challenged disqualification. Dumlao struck out as violative of the constitutional
presumption of innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52
providing that "the filing of charges for the commission of such crimes before a civil court or
military tribunal after preliminary investigation shall be prima facie evidence of such fact." It
is clear that the law challenged therein did in fact establish a presumption of guilt from the
mere filing of the information or criminal complaint, in violation of the constitutional right to
presumption of innocence.

(e) The sum of Five million pesos (P5,000,000.00), which shall be charged against the Contingent Fund, is hereby
allotted to the Committee to fund the undertaking of an information campaign on this Code. The Committee shall
formulate the guidelines governing the conduct of said campaign, and shall determine the national agencies or offices
to be involved for this purpose.
3 Rollo, pp. 221-223.
4 Rollo, p. 220.
5 Art. 73, Rule XIV, Rules and Regulations Implementing the Local Government Code of 1991.

Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.


Footnotes
1 Rollo, p. 31.
2 Sec. 533. Formulation of Implementing Rules and Regulations.
(a) Within one (1) month after the approval of this Code, the President shall convene the Oversight Committee as
herein provided for. The said Committee shall formulate and issue the appropriate rules and regulations necessary for
the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the
principles of local autonomy as defined under the Constitution.
(b) The Committee shall be composed of the following:
1.
2.
3.
4.

The Executive Secretary, who shall be the Chairman;


Three (3) members of the Senate to be appointed by the President of the Senate, to include
the Chairman of the Committee on Local Government;
Three (3) members of the House of Representatives to be appointed by the Speaker, to include the
Chairman of the Committee on Local Government;
The Cabinet, represented by the following:
(i) Secretary of the interior and Local Government;
(ii) Secretary of Finance;
(iii) Secretary of Budget and Management; and
One (1) representative from each of the following:

5.

6.
i.
ii.
iii.
iv.

The League of Provinces;


The League of Cities;
The League of Municipalities; and
The Liga ng mga Barangay.

(c) The Committee shall submit its report and recommendation to the President within two (2) months after its
organization. If the President fails to act within thirty (30) days from receipt thereof, the recommendation of the
Oversight Committee shall be deemed approved. Thereafter, the committee shall supervise the transfer of such powers
and functions mandated under this Code to the local government units, together with the corresponding personnel,
properties, assets and liabilities of the offices or agencies concerned, with the least possible disruptions to existing
programs and projects. The Committee shall likewise recommend the corresponding appropriations necessary to effect
the said transfer.
For this purpose, the services of a technical staff shall be enlisted from among the qualified employees of Congress, the
government offices, and the leagues constituting the Committee.
(d) The funding requirements and the secretariat of the Committee shall be provided by the Office of the Executive
Secretary.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 118577 March 7, 1995
JUANITO MARIANO, JR. et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

(a) it increased the legislative district of Makati only by special law (the Charter in violation of
the constitutional provision requiring a general reapportionment law to be passed by
Congress within three (3) years following the return of every census;
(b) the increase in legislative district was not expressed in the title of the bill; and
(c) the addition of another legislative district in Makati is not in accord with Section 5 (3),
Article VI of the Constitution for as of the latest survey (1990 census), the population of
Makati stands at only 450,000.
G.R. No. 118627 was filed by the petitioner John H. Osmea as senator, taxpayer, and
concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the
same grounds as aforestated.

G.R. No. 118627 March 7, 1995


We find no merit in the petitions.
JOHN R. OSMEA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

I
Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati,
thus:

PUNO, J.:
At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act
Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of
Makati." 1
G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by
petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie
Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and
Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are
residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as
unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:

Sec. 2. The City of Makati. The Municipality of Makati shall be converted into a highly
urbanized city to be known as the City of Makati, hereinafter referred to as the City, which
shall comprise the present territory of the Municipality of Makati in Metropolitan Manila
Area over which it has jurisdiction bounded on the northeast by Pasig River and beyond by
the City of Mandaluyong and the Municipality of Pasig; on the southeast by the
municipalities of Pateros and Taguig; on the southwest by the City of Pasay and the
Municipality of Taguig; and, on the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the appropriate
agency or forum of existing boundary disputes or cases involving questions of territorial
jurisdiction between the City of Makati and the adjoining local government units. (Emphasis
supplied)

1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial jurisdiction
of Makati by metes and bounds, with technical descriptions, in violation of Section 10, Article
X of the Constitution, in relation to Sections 7 and 450 of the Local Government Code;

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the
Local Government Code which require that the area of a local government unit should be
made by metes and bounds with technical descriptions. 2

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive term" limit
for local elective officials, in violation of Section 8, Article X and Section 7, Article VI of the
Constitution.

The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the
limits of the territorial jurisdiction of a local government unit. It can legitimately exercise
powers of government only within the limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly conflicts in the
exercise of governmental powers which ultimately will prejudice the people's welfare. This is
the evil sought to avoided by the Local Government Code in requiring that the land area of a
local government unit must be spelled out in metes and bounds, with technical descriptions.

3. Section 52 of R.A. No. 7854 is unconstitutional for:

Given the facts of the cases at bench, we cannot perceive how this evil can be brought about
by the description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated
that the delineation of the land area of the proposed City of Makati will cause confusion as to
its boundaries. We note that said delineation did not change even by an inch the land area
previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or
multiply the established land area of Makati. In language that cannot be any clearer, section
2 stated that, the city's land area "shall comprise the present territory of the municipality."
The deliberations of Congress will reveal that there is a legitimate reason why the land area
of the proposed City of Makati was not defined by metes and bounds, with technical
descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over Fort Bonifacio was under court
litigation. Out of a becoming sense of respect to co-equal department of government,
legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue. This
would have ensued if they defined the land area of the proposed city by its exact metes and
bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress has
also refrained from using the metes and bounds description of land areas of other local
government units with unsettled boundary disputes. 4
We hold that the existence of a boundary dispute does not per se present an insurmountable
difficulty which will prevent Congress from defining with reasonable certitude the territorial
jurisdiction of a local government unit. In the cases at bench, Congress maintained the
existing boundaries of the proposed City of Makati but as an act of fairness, made them
subject to the ultimate resolution by the courts. Considering these peculiar circumstances,
we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain
the submission of the Solicitor General in this regard, viz.:
Going now to Sections 7 and 450 of the Local Government Code, it is
beyond cavil that the requirement stated therein, viz.: "the territorial
jurisdiction of newly created or converted cities should be described by
meted and bounds, with technical descriptions" was made in order to
provide a means by which the area of said cities may be reasonably
ascertained. In other words, the requirement on metes and bounds was
meant merely as tool in the establishment of local government units. It is
not an end in itself. Ergo, so long as the territorial jurisdiction of a city
may be reasonably ascertained, i.e., by referring to common boundaries
with neighboring municipalities, as in this case, then, it may be concluded
that the legislative intent behind the law has been sufficiently served.
Certainly, Congress did not intends that laws creating new cities must
contain therein detailed technical descriptions similar to those appearing
in Torrens titles, as petitioners seem to imply. To require such description
in the law as a condition sine qua non for its validity would be to defeat
the very purpose which the Local Government Code to seeks to serve.
The manifest intent of the Code is to empower local government units
and to give them their rightful due. It seeks to make local governments
more responsive to the needs of their constituents while at the same

time serving as a vital cog in national development. To invalidate R.A. No.


7854 on the mere ground that no cadastral type of description was used
in the law would serve the letter but defeat the spirit of the Code. It then
becomes a case of the master serving the slave, instead of the other way
around. This could not be the intendment of the law.
Too well settled is the rule that laws must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute.
Courts will not follow the letter of the statute when to do so would
depart from the true intent of the legislature or would otherwise yield
conclusions inconsistent with the general purpose of the act. (Torres v.
Limjap, 56 Phil., 141; Taada v. Cuenco, 103 Phil. 1051; Hidalgo v.
Hidalgo, 33 SCRA 1105). Legislation is an active instrument of
government, which, for purposes of interpretation, means that laws have
ends to achieve, and statutes should be so construed as not to defeat but
to carry out such ends and purposes (Bocolbo v. Estanislao, 72 SCRA 520).
The same rule must indubitably apply to the case at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A.
No. 7854. Section 51 states:
Sec. 51. Officials of the City of Makati. The represent elective officials
of the Municipality of Makati shall continue as the officials of the City of
Makati and shall exercise their powers and functions until such time that
a new election is held and the duly elected officials shall have already
qualified and assume their offices: Provided, The new city will acquire a
new corporate existence. The appointive officials and employees of the
City shall likewise continues exercising their functions and duties and
they shall be automatically absorbed by the city government of the City
of Makati.
They contend that this section collides with section 8, Article X and section 7, Article VI of the
Constitution which provide:
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.
xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for


a term of three years which shall begin, unless otherwise provided by
law, at noon on the thirtieth day of June next following their election.
No Member of the House of Representatives shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.
Petitioners stress that under these provisions, elective local officials, including Members of
the House of Representative, have a term of three (3) years and are prohibited from serving
for more than three (3)consecutive terms. They argue that by providing that the new city shall
acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the
present municipal elective officials of Makati and disregards the terms previously served by
them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor,
respondent Jejomar Binay, who has already served for two (2) consecutive terms. They
further argue that should Mayor Binay decide to run and eventually win as city mayor in the
coming elections, he can still run for the same position in 1998 and seek another three-year
consecutive term since his previous three-year consecutive term asmunicipal mayor would
not be counted. Thus, petitioners conclude that said section 51 has been conveniently
crafted to suit the political ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of section 51. The requirements
before a litigant can challenge the constitutionality of a law are well delineated. They are: 1)
there must be an actual case or controversy; (2) the question of constitutionality must be
raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision on the constitutional question must be necessary
to the determination of the case itself. 5
Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming
mayoralty elections; that he would be re-elected in said elections; and that he would seek reelection for the same position in the 1998 elections. Considering that these contingencies
may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen
to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano)
are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic
issue in a petition for declaratory relief over which this Court has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52,
Article X of R.A. No. 7854. Section 52 of the Charter provides:
Sec. 52. Legislative Districts. Upon its conversion into a highlyurbanized city, Makati shall thereafter have at least two (2) legislative
districts that shall initially correspond to the two (2) existing districts
created under Section 3(a) of Republic Act. No. 7166 as implemented by

the Commission on Elections to commence at the next national elections


to be held after the effectivity of this Act. Henceforth, barangays
Magallanes, Dasmarias and Forbes shall be with the first district, in lieu
of Barangay Guadalupe-Viejo which shall form part of the second district.
(emphasis supplied)
They contend. that the addition of another legislative district in Makati is unconstitutional
for: (1) reapportionment6 cannot made by a special law, (2) the addition of a legislative
district is not expressed in the title of the bill 7 and (3) Makati's population, as per the 1990
census, stands at only four hundred fifty thousand (450,000).
These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we
ruled that reapportionment of legislative districts may be made through a special law, such
as in the charter of a new city. The Constitution 9 clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless otherwise fixed by law.
As thus worded, the Constitution did not preclude Congress from increasing its membership
by passing a law, other than a general reapportionment of the law. This is its exactly what
was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's
legislative district. Moreover, to hold that reapportionment can only be made through a
general apportionment law, with a review of all the legislative districts allotted to each local
government unit nationwide, would create an inequitable situation where a new city or
province created by Congress will be denied legislative representation for an indeterminate
period of time. 10 The intolerable situations will deprive the people of a new city or province
a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is
indivisible. It must be forever whole or it is not sovereignty.
Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand
(450,000). 13 Said section provides, inter alia, that a city with a population of at least two
hundred fifty thousand (250,000) shall have at least one representative. Even granting that
the population of Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the
Ordinance appended to the Constitution provides that a city whose population has increased
to more than two hundred fifty thousand (250,000) shall be entitled to at least one
congressional representative. 14
Finally, we do not find merit in petitioners' contention that the creation of an additional
legislative district in Makati should have been expressly stated in the title of the bill. In the
same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal
construction of the "one title-one subject" rule so as not to impede legislation. To be sure,
with Constitution does not command that the title of a law should exactly mirror, fully index,
or completely catalogue all its details. Hence, we ruled that "it should be sufficient
compliance if the title expresses the general subject and all the provisions are germane to
such general subject."

WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.

(b) The territorial jurisdiction of a newly created city shall be properly


identified by metes and bounds. . . .

SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a
few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code and subject
to the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991
(R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to
be created or converted should be properly identified by metes and bounds with technical
descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine qua
non for the creation of a local government unit or its conversion from one level to another.
The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The petitioners' reliance on
Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a
municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It
pertinently reads as follows:

The constitution classifies cities as either highly urbanized or component. Section 12 of


Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The
voters of component cities within a province, whose charters contain no
such prohibition, shall not be deprived of their right to vote for elective
provincial officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code
shall not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose
charters prohibit their voters from voting for provincial elective officials.
Independent component cities shall be independent of the province.
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed
by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of
the reapportionment mentioned in the succeeding paragraph (4) of the said Section which
reads in full as follows:
Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the
standards provided in this section.
In short, the clause refers to a general reapportionment law.

Sec. 450. Requisite for creation. (a) A municipality or a cluster of


barangays may be converted into a component city if it has an average
annual income, as certified by the Department of Finance, of at least
Twenty million pesos (P20,000,000.00) for the last two (2) consecutive
years based on 1991 constant prices, and if it has either of the following
requisites:
xxx xxx xxx

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the
Constitution proposed by the 1986 Constitutional Commissionand
subsequent elections, and until otherwise provided by law, the Members
thereof shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila Areaas follows:

METROPOLITAN MANILA AREA


xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to at least
one Member or such number of Members as it may be entitled to on the
basis of the number of its inhabitants and according to the standards set
forth in paragraph (3), Section 5 of Article VI of the Constitution. The
number of Members apportioned to the province out of which such new
province was created, or where the city, whose population has so
increased, is geographically located shall be correspondingly adjusted by
the Commission on Elections but such adjustment shall not be made
within one hundred and twenty days before the election. (Emphases
supplied)
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a
few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code and subject
to the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991
(R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to
be created or converted should be properly identified by metes and bounds with technical
descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine qua
non for the creation of a local government unit or its conversion from one level to another.
The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The petitioners' reliance on
Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a
municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It
pertinently reads as follows:

Sec. 450. Requisite for creation. (a) A municipality or a cluster of


barangays may be converted into a component city if it has an average
annual income, as certified by the Department of Finance, of at least
Twenty million pesos (P20,000,000.00) for the last two (2) consecutive
years based on 1991 constant prices, and if it has either of the following
requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly
identified by metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of
Article X thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The
voters of component cities within a province, whose charters contain no
such prohibition, shall not be deprived of their right to vote for elective
provincial officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code
shall not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose
charters prohibit their voters from voting for provincial elective officials.
Independent component cities shall be independent of the province.
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed
by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of
the reapportionment mentioned in the succeeding paragraph (4) of the said Section which
reads in full as follows:
Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the
standards provided in this section.
In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the
Constitution proposed by the 1986 Constitutional Commissionand
subsequent elections, and until otherwise provided by law, the Members
thereof shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila Areaas follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx

Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to at least
one Member or such number of Members as it may be entitled to on the
basis of the number of its inhabitants and according to the standards set
forth in paragraph (3), Section 5 of Article VI of the Constitution. The
number of Members apportioned to the province out of which such new
province was created, or where the city, whose population has so
increased, is geographically located shall be correspondingly adjusted by
the Commission on Elections but such adjustment shall not be made
within one hundred and twenty days before the election. (Emphases
supplied)
Footnotes
1 R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by Congressman Joker
Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente Sotto III.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and
bounds. . . .
3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.
4 Ibid, citing as example the City of Mandaluyong.
5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law, 1991 ed., p. 24.
6 Section 5(4), Article VI of the Constitution provides:
(4) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section.
7 Section 26(1), Article VI of the Constitution provides:
Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject which shall be
expressed in the title thereof.
8 G.R. No. 114783, December 8, 1994.
9 Section 5(1), Article VI.
10 In this connection, we take judicial notice of the fact that since 1986 up to this time,
Congress has yet to pass a general reapportionment law.
11 Section 1, Article II provides that "the Philippines is a democratic and republican state.
Sovereignty resides in the people and all government authority from them."
12 Sec. 5. . . .
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
xxx xxx xxx

2 Sec. 7. Creation and Conversion. As a general rule, the creation of a local government unit
or its conversion from one level to another level shall be based on verifiable indicators of
viability and projected capacity to provide services, to wit:
xxx xxx xxx
(c) Land Area. It must be contiguous, unless it comprises two (2) or more islands or is
separated by a local government unit independent of the others; properly identified by metes
and bounds with technical descriptions and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance
the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the
Department of Environment and Natural Resources (DENR).
xxx xxx xxx
Sec. 450. Requisites for Creation. . . .

13 As per the certificate issued by Administration Tomas Africa of the National Census and
Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4, 1994, Senate
Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized city), p. 15.
14 Sec. 3 provides: "Any province that may hereafter be created, or any city whose population
may hereafter increase to more than two hundred fifty thousand shall be entitled in the
immediately following election to at least one Member or such number of Members as it may
be entitled to on the basis of the number of its inhabitants and according to the standards set
forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members
apportioned to the province out of which such new province was created or where the city,
whose population has so increased, is geographically located shall be correspondingly adjusted
by the Commission on Elections but such adjustment shall not be made within one hundred,
and twenty days before the election."

Republic of the Philippines


SUPREME COURT
Manila

Filipino father and a Filipino mother. He was born in the United States,
San Francisco, California, September 14, 1955, and is considered in
American citizen under US Laws. But notwithstanding his registration as
an American citizen, he did not lose his Filipino citizenship.

EN BANC
G.R. No. 135083 May 26, 1999
ERNESTO S. MERCADO, petitioner,
vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates
for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel
V. Daza III. The results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275 1
The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was
not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the
petition of Mamaril and ordered the cancellation of the certificate of candidacy of private
respondent on the ground that he is a dual citizen and, under 40(d) of the Local
Government Code, persons with dual citizenship are disqualified from running for any
elective position. The COMELEC's Second Division said:
What is presented before the Commission is a petition for disqualification
of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of
Makati City in the May 11, 1998 elections. The petition is based on the
ground that the respondent is an American citizen based on the record of
the Bureau of Immigration and misrepresented himself as a natural-born
Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent
admitted that he is registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration No. B-31632 and
alleged that he is a Filipino citizen because he was born in 1955 of a

Judging from the foregoing facts, it would appear that respondent


Manzano is born a Filipino and a US citizen. In other words, he holds dual
citizenship.
The question presented is whether under our laws, he is disqualified from
the position for which he filed his certificate of candidacy. Is he eligible
for the office he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual
citizenship are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo
Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati
City.
On May 8, 1998, private respondent filed a motion for reconsideration. 3 The motion
remained pending even until after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the
COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but
suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for disqualification. 4 Petitioner's
motion was opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered
its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en
banc reversed the ruling of its Second Division and declared private respondent qualified to
run for vice mayor of the City of Makati in the May 11, 1998 elections. 5The pertinent
portions of the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San
Francisco, California, U.S.A. He acquired US citizenship by operation of
the United States Constitution and laws under the principle ofjus soli.
He was also a natural born Filipino citizen by operation of the 1935
Philippine Constitution, as his father and mother were Filipinos at the
time of his birth. At the age of six (6), his parents brought him to the
Philippines using an American passport as travel document. His parents
also registered him as an alien with the Philippine Bureau of Immigration.
He was issued an alien certificate of registration. This, however, did not

result in the loss of his Philippine citizenship, as he did not renounce


Philippine citizenship and did not take an oath of allegiance to the United
States.
It is an undisputed fact that when respondent attained the age of
majority, he registered himself as a voter, and voted in the elections of
1992, 1995 and 1998, which effectively renounced his US citizenship
under American law. Under Philippine law, he no longer had U.S.
citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second
Division, adopted on May 7, 1998, was not yet final. Respondent
Manzano obtained the highest number of votes among the candidates
for vice-mayor of Makati City, garnering one hundred three thousand
eight hundred fifty three (103,853) votes over his closest rival, Ernesto S.
Mercado, who obtained one hundred thousand eight hundred ninety
four (100,894) votes, or a margin of two thousand nine hundred fifty nine
(2,959) votes. Gabriel Daza III obtained third place with fifty four
thousand two hundred seventy five (54,275) votes. In applying election
laws, it would be far better to err in favor of the popular choice than be
embroiled in complex legal issues involving private international law
which may well be settled before the highest court (Cf. Frivaldo vs.
Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of
the Second Division, adopted on May 7, 1998, ordering the cancellation
of the respondent's certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED
as a candidate for the position of vice-mayor of Makati City in the May
11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati City Board of
Canvassers, upon proper notice to the parties, to reconvene and proclaim
the respondent Eduardo Luis Barrios Manzano as the winning candidate
for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening
of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the
COMELEC en banc and to declare private respondent disqualified to hold the office of vice
mayor of Makati City. Petitioner contends that
[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained
the age of majority when he was already 37 years old;
and,
2. He renounced his U.S. citizenship when he (merely)
registered himself as a voter and voted in the
elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of ViceMayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second
Division adopted on 7 May 1998 was not yet final so that, effectively,
petitioner may not be declared the winner even assuming that Manzano
is disqualified to run for and hold the elective office of Vice-Mayor of the
City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano
whether petitioner Mercado his personality to bring this suit considering that he was not an
original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's
motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore,
cannot bring this suit to set aside the ruling denying his motion for intervention:
Sec. 1. When proper and when may be permitted to intervene. Any
person allowed to initiate an action or proceeding may, before or during
the trial of an action or proceeding, be permitted by the Commission, in
its discretion to intervene in such action or proceeding, if he has legal
interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or when he is so situated as to be
adversely affected by such action or proceeding.
xxx xxx xxx
Sec. 3. Discretion of Commission. In allowing or disallowing a motion
for intervention, the Commission or the Division, in the exercise of its
discretion, shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties
and whether or not the intervenor's rights may be fully protected in a
separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in
litigation nor an interest to protect because he is "a defeated candidate for the
vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor
of Makati City if the private respondent be ultimately disqualified by final and
executory judgment."
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of
the election for the vice mayoralty contest for Makati City, on the basis of which petitioner
came out only second to private respondent. The fact, however, is that there had been no
proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting
private respondent from the race at the time he sought to intervene. The rule in Labo v.
COMELEC, 6 reiterated in several cases, 7 only applies to cases in which the election of the
respondent is contested, and the question is whether one who placed second to the
disqualified candidate may be declared the winner. In the present case, at the time petitioner
filed a "Motion for Leave to File Intervention" on May 20, 1998, there had been no
proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under 40(d) of R.A.
No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a
registered voter of Makati City, was competent to bring the action, so was petitioner since
the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioner's interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have
garnered the highest number of votes among the candidates for vice mayor. That petitioner
had a right to intervene at that stage of the proceedings for the disqualification against
private respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral
Reform Law of 1987, which provides:
Any candidate who his been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue
with the trial and hearing of action, inquiry, or protest and, upon motion
of the complainant or any intervenor, may during the pendency thereof
order the suspension of the proclamation of such candidate whenever
the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even
after election if there has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioner's motion for intervention was
tantamount to a denial of the motion, justifying petitioner in filing the instant petition
for certiorari. As the COMELEC en banc instead decided the merits of the case, the present
petition properly deals not only with the denial of petitioner's motion for intervention but

also with the substantive issues respecting private respondent's alleged disqualification on
the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses
dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of
Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought under 40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for
any elective local position: . . . (d) Those with dual citizenship." This provision is incorporated
in the Charter of the City of Makati. 8
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides
with him in this case, contends that through 40(d) of the Local Government Code, Congress
has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to
hold local elective office."
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a
result of the concurrent application of the different laws of two or more states, a person is
simultaneously considered a national by the said states. 9 For instance, such a situation may
arise when a person whose parents are citizens of a state which adheres to the principle
of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person,ipso
facto and without any voluntary act on his part, is concurrently considered a citizen of both
states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if
by the laws of their father's' country such children are citizens of that
country;
(3) Those who marry aliens if by the laws of the latter's country the
former are considered citizens, unless by their act or omission they are
deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing
any act, be also a citizen of another state; but the above cases are clearly possible given the
constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously
owes, by some positive act, loyalty to two or more states. While dual citizenship is
involuntary, dual allegiance is the result of an individual's volition.

With respect to dual allegiance, Article IV, 5 of the Constitution provides: "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law." This provision was
included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained
its necessity as follows: 10
. . . I want to draw attention to the fact that dual allegiance is not dual
citizenship. I have circulated a memorandum to the Bernas Committee
according to which a dual allegiance and I reiterate a dual allegiance
is larger and more threatening than that of mere double citizenship
which is seldom intentional and, perhaps, never insidious. That is often a
function of the accident of mixed marriages or of birth on foreign soil.
And so, I do not question double citizenship at all.
What we would like the Committee to consider is to take constitutional
cognizance of the problem of dual allegiance. For example, we all know
what happens in the triennial elections of the Federation of FilipinoChinese Chambers of Commerce which consists of about 600 chapters all
over the country. There is a Peking ticket, as well as a Taipei ticket. Not
widely known is the fact chat the Filipino-Chinese community is
represented in the Legislative Yuan of the Republic of China in Taiwan.
And until recently, sponsor might recall, in Mainland China in the People's
Republic of China, they have the Associated Legislative Council for
overseas Chinese wherein all of Southeast Asia including some European
and Latin countries were represented, which was dissolved after several
years because of diplomatic friction. At that time, the Filipino-Chinese
were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled
kind of allegiance of Filipinos, of citizens who are already Filipinos but
who, by their acts, may be said to be bound by a second allegiance, either
to Peking or Taiwan. I also took close note of the concern expressed by
some Commissioners yesterday, including Commissioner Villacorta, who
were concerned about the lack of guarantees of thorough assimilation,
and especially Commissioner Concepcion who has always been worried
about minority claims on our natural resources.
Dull allegiance can actually siphon scarce national capital to Taiwan,
Singapore, China or Malaysia, and this is already happening. Some of the
great commercial places in downtown Taipei are Filipino-owned, owned
by Filipino-Chinese it is of common knowledge in Manila. It can mean a
tragic capital outflow when we have to endure a capital famine which
also means economic stagnation, worsening unemployment and social
unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on

Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO


CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus: 11
. . . A significant number of Commissioners expressed their concern about
dual citizenship in the sense that it implies a double allegiance under a
double sovereignty which some of us who spoke then in a freewheeling
debate thought would be repugnant to the sovereignty which pervades
the Constitution and to citizenship itself which implies a uniqueness and
which elsewhere in the Constitution is defined in terms of rights and
obligations exclusive to that citizenship including, of course, the
obligation to rise to the defense of the State when it is threatened, and
back of this, Commissioner Bernas, is, of course, the concern for national
security. In the course of those debates, I think some noted the fact that
as a result of the wave of naturalizations since the decision to establish
diplomatic relations with the People's Republic of China was made in
1975, a good number of these naturalized Filipinos still routinely go to
Taipei every October 10; and it is asserted that some of them do renew
their oath of allegiance to a foreign government maybe just to enter into
the spirit of the occasion when the anniversary of the Sun Yat-Sen
Republic is commemorated. And so, I have detected a genuine and deep
concern about double citizenship, with its attendant risk of double
allegiance which is repugnant to our sovereignty and national security. I
appreciate what the Committee said that this could be left to the
determination of a future legislature. But considering the scale of the
problem, the real impact on the security of this country, arising from, let
us say, potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at the
proper time that will prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual
citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as
referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall
under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject
to strict process with respect to the termination of their status, for candidates with dual
citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual citizenship considering
that their condition is the unavoidable consequence of conflicting laws of different states. As
Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission,
pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino mother. But
whether she is considered a citizen of another country is something completely beyond our
control." 12

By electing Philippine citizenship, such candidates at the same time forswear allegiance to
the other country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment as the
following discussion on 40(d) between Senators Enrile and Pimentel clearly shows:13
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41,
page 17: "Any person with dual citizenship" is disqualified to run for any
elective local position. Under the present Constitution, Mr. President,
someone whose mother is a citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the Republic. There is no
requirement that such a natural born citizen, upon reaching the age of
majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging to the
Republic of the Philippines, may such a situation disqualify the person to
run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the
moment when he would want to run for public office, he has to repudiate
one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the
country of origin or the country of the father claims that person,
nevertheless, as a citizen? No one can renounce. There are such countries
in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public
office would, in effect, be an election for him of his desire to be
considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not
require an election. Under the Constitution, a person whose mother is a
citizen of the Philippines is, at birth, a citizen without any overt act to
claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under
the Gentleman's example, if he does not renounce his other citizenship,
then he is opening himself to question. So, if he is really interested to run,
the first thing he should do is to say in the Certificate of Candidacy that: "I
am a Filipino citizen, and I have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine
law, Mr. President. He will always have one citizenship, and that is the
citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts


that will prove that he also acknowledges other citizenships, then he will
probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce "all
allegiance and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at
the time he is a subject or citizen before he can be issued a certificate of naturalization as a
citizen of the Philippines. In Parado v. Republic, 15 it was held:
[W]hen a person applying for citizenship by naturalization takes an oath
that he renounce, his loyalty to any other country or government and
solemnly declares that he owes his allegiance to the Republic of the
Philippines, the condition imposed by law is satisfied and compiled with.
The determination whether such renunciation is valid or fully complies
with the provisions of our Naturalization Law lies within the province and
is an exclusive prerogative of our courts. The latter should apply the law
duly enacted by the legislative department of the Republic. No foreign
law may or should interfere with its operation and application. If the
requirement of the Chinese Law of Nationality were to be read into our
Naturalization Law, we would be applying not what our legislative
department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is absurd.
It must be resisted by all means and at all cost. It would be a brazen
encroachment upon the sovereign will and power of the people of this
Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San Francisco, California on
September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus
sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at
birth at least, he was a national both of the Philippines and of the United States. However,
the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and
1998, private respondent "effectively renounced his U.S. citizenship under American law," so
that now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is
not sufficient evidence of renunciation and that, in any event, as the alleged renunciation
was made when private respondent was already 37 years old, it was ineffective as it should
have been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of
the United States, which provided that "A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political
election in a foreign state or participating in an election or plebiscite to determine the
sovereignty over foreign territory." To be sure this provision was declared unconstitutional

by the U.S. Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S.
Congress to regulate foreign relations. However, by filing a certificate of candidacy when he
ran for his present post, private respondent elected Philippine citizenship and in effect
renounced his American citizenship. Private respondent's certificate of candidacy, filed on
March 27, 1998, contained the following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN
xxx xxx xxx
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE
CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE
THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY
THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I
IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION
OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND
CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship,
effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo
v. COMELEC it was held: 17
It is not disputed that on January 20, 1983 Frivaldo became an American.
Would the retroactivity of his repatriation not effectively give him dual
citizenship, which under Sec. 40 of the Local Government Code would
disqualify him "from running for any elective local position?" We answer
this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance
and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long abandoned his
American citizenship long before May 8, 1995. At best, Frivaldo was
stateless in the interim when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship."
On this point, we quote from the assailed Resolution dated December 19,
1995:
By the laws of the United States, petitioner Frivaldo lost his American citizenship
when he took his oath of allegiance to the Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioner's contention that the oath of allegiance contained
in private respondent's certificate of candidacy is insufficient to constitute renunciation that,
to be effective, such renunciation should have been made upon private respondent reaching
the age of majority since no law requires the election of Philippine citizenship to be made
upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an
American passport which he used in his last travel to the United States on April 22, 1997.
There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he
had dual citizenship. The acts attributed to him can be considered simply as the assertion of
his American nationality before the termination of his American citizenship. What this Court
said in Aznar v.COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and
an American, the mere fact that he has a Certificate staring he is an
American does not mean that he is not still a Filipino. . . . [T]he
Certification that he is an American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities or citizenships. Indeed,
there is no express renunciation here of Philippine citizenship; truth to
tell, there is even no implied renunciation of said citizenship. When We
consider that the renunciation needed to lose Philippine citizenship must
be "express," it stands to reason that there can be no such loss of
Philippine citizenship when there is no renunciation, either "express" or
"implied."
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he
is not a permanent resident or immigrant of another country; that he will defend and
support the Constitution of the Philippines and bear true faith and allegiance thereto and
that he does so without mental reservation, private respondent has, as far as the laws of this
country are concerned, effectively repudiated his American citizenship and anything which
he may have said before as a dual citizen.
On the other hand, private respondent's oath of allegiance to the Philippines, when
considered with the fact that he has spent his youth and adulthood, received his education,
practiced his profession as an artist, and taken part in past elections in this country, leaves no
doubt of his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under
oath. Should he betray that trust, there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in appropriate proceedings. In Yu v. DefensorSantiago, 19 we sustained the denial of entry into the country of petitioner on the ground

that, after taking his oath as a naturalized citizen, he applied for the renewal of his
Portuguese passport and declared in commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against any one who, in electing
Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.

14 C.A. No. 473, 12.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.1wphi1.nt

17 257 SCRA 727, 759-760 (1996).

SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena,
Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Panganiban and Purisima, JJ., are on leave.
Pardo, J., took no part.
Footnotes
1 Petition, Rollo, p. 5.
2 Per Commissioner Amado M. Calderon and concurred in by Commissioners Julio F. Desamito and Japal M. Guiani.
3 Id., Annex E, Rollo, pp. 50-63.
4 Rollo, pp. 78-83.
5 Per Chairman Bernardo P. Pardo and concurred in by Commissioners Manolo B. Gorospe, Teresita Dy-Liaco Flores,
Japal M. Guiani, and Luzviminda G. Tancangco. Commissioner Julio F. Desamito dissented.
6 176 SCRA 1 (1989).
7 Abella v. COMELEC, 201 SCRA 253 (1991); Benito v. COMELEC, 235 SCRA 436 (1991); Aquino v. COMELEC, 248 SCRA
400 (1995); Frivaldo v. COMELEC, 257 SCRA 727 (1996).
8 R.A. No. 7854, the Charter of the City of Makati, provides: "SEC. 20 The following are disqualified from running for
any elective position in the city: . . . (d) Those with dual citizenship."
9 JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 166 (1995).
10 Id., at 361 (Session of July 8, 1986).
11 Id., at 233-234 (Session of June 25, 1986).
12 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (Session of June 23, 1986).
13 Transcript, pp. 5-6, Session of Nov. 27, 1990.

15 86 Phil. 310, 343 (1950).


16 387 U.S. 18 L. Ed. 2d 757 (1967), overruling Perez v. Brownell, 356 U.S. 2 L. Ed. 2d 603 (1958).

18 185 SCRA 703, 711 (1990). See also Kawakita v. United States, 343 U.S. 717, 96 L. Ed. 1249 (1952).
19 169 SCRA 364 (1989).

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 126661 December 3, 1999
JOSE S. ANDAYA and EDGARDO L. INCIONG, petitioners,
vs.
REGIONAL TRIAL COURT, Cebu City, Branch 20, and THE CITY OF CEBU, respondents.
PARDO, J.:
The case is an appeal via certiorari from a decision 1 of the Regional Trial Court, Cebu City,
Branch 20, commanding petitioner Jose S. Andaya as Regional Police Command No. 7, to
include P/Chief Inspector Andres Sarmiento in the list of five (5) recommendees to be
submitted to the mayor from which list the mayor shall select the City Director, Cebu City
Police Command (chief of police).
On January 3, 1996, the position of City Director, Cebu City Police Command (chief of police)
became vacant after P/Supt. Antonio Enteria was relieved of command.
Sometime in January 1996, petitioner Andaya submitted to the City Mayor, Cebu City a list of
five (5) eligibles for the mayor choose one to be appointed as the chief of police of Cebu City.
The mayor did not choose anyone from the list of five (5) recommendees because the name
of P/Chief Inspector Andres Sarmiento was not included therein.
However, petitioner Andaya refused to agree to Mayor Alvin B. Garcia's request to include
the name of Major Andres Sarmiento in the list of police officers for appointment by the
mayor to the position of City Director (chief of police), Cebu City Police Command. Petitioner
Andaya's refusal was based on his contention that Major Andres Sarmiento was not qualified
for the position of City Director (chief of police), Cebu City Police Command, under
NAPOLCOM Memorandum Circular No. 95-04 dated January 12, 1995, particularly Item No.
8, paragraph D thereof, which provides that the minimum qualification standards for
Directors of Provincial/City Police Commands, include completion of the Officers Senior
Executive Course (OSEC) and the rank of Police Superintendent.
Due to the impasse, on March 22, 1996, the City of Cebu filed with the Regional Trial Court,
Branch 20, Cebu City, a complaint for declaratory relief with preliminary prohibitory and
mandatory injunction and temporary restraining order against P/Chief Supt. Jose S. Andaya
and Edgardo L. Inciong, Regional Director, National Police Commission. 2
On April 10, 1996, petitioners filed with the trial court their respective answer to the
complaint. Petitioners stated that the power to designate the chief of police of Cebu City
(City Director, Cebu City Police Command) is vested with the Regional Director, Regional

Police Command No. 7. However, the mayor is authorized to choose the chief of police from
a list of five (5) eligibles submitted by the Regional Director. In case of conflict between the
Regional Director and the mayor, the issue shall be elevated to the Regional Director,
National Police Commission, who shall resolve the issue within five (5) working days from
receipt and whose decision on the choice of the chief of police shall be final and executory.
Thus, petitioners prayed for dismissal of the complaint for lack of legal basis and failure to
exhaust administrative remedies. 3
On April 18, 1996, the trial court issued a writ of preliminary injunction against petitioner
Jose S. Andaya enjoining him from replacing C/Insp. Andres Sarmiento as OIC Director or
Chief of Police of the Cebu City Police Command by designating another as OIC Chief of Police
or appointing a regular replacement for said officer, and, from submitting to the mayor a list
of five (5) eligibles which did not include the name of Major Andres Sarmiento. 4
On July 12, 1996, the trial court rendered decision in favor of respondent City of Cebu, the
dispositive portion of which reads as follows:
WHEREFORE, in view of all the foregoing premises, judgment is hereby
rendered in favor of plaintiff as against defendants, declaring that
P/CInsp. Andres Sarmiento is qualified under RA 6975 to be appointed as
Chief Director or Chief of Police of the Cebu City Police Command and
whose name must be included in the list of five (5) eligibles
recommended as regular replacement to the position of the Chief of
Police of said Cebu City Police Command.
The writ of preliminary prohibitory injunction issued in this case against
defendants and their agents, or, representatives or any other persons
acting for and in their behalf enjoining and preventing them from
replacing P/CInsp. Andres Sarmiento as OIC Chief of Police of Cebu City
Police Command by designating anyone from the eligibles recommended
in the two (2) lists thereof submitted to Mayor Garcia or from any other
list of said eligible recommendees for said position is hereby made
permanent.
Let a permanent writ of preliminary mandatory injunction be issued
against defendant Jose S. Andaya or his successor ordering the latter to
include Major Andres Sarmiento in the list of five (5) eligible persons
recommended for the replacement to the position of Chief of Police of
Cebu City Police Command.
SO ORDERED.
Cebu City, July 12, 1996. (signed Ferdinand Marcos)

In due time, petitioners filed with the trial court their joint motion for reconsideration 6 on
the ground that the decision is contrary to Section 51 of Republic Act 6975 which only
empowers the mayor to choose one (1) from the five (5) eligibles recommended by the
Regional Police Director to be named chief of police. The mayor cannot superimpose his will
on the recommending authority by insisting that his protg be included in the list of five
eligibles from which the chief of police is to be chosen.
On September 11, 1996, the trial court denied petitioners' motion for reconsideration ruling
that no new matters had been raised therein. 7
Hence, this petition 8 review on certiorari on pure question of law. 9
On June 11, 1997, we gave due course to the petition. 10
At issue is whether or not the Mayor of Cebu City may require the Regional Director,
Regional Police Command No. 7, to include the mayor's protg in the list of five (5) eligibles
to be recommended by the Regional Police Director to the mayor from which the mayor shall
choose the City Director, City Police Command (chief of police) City of Cebu.
We resolve the issue against the position of the city mayor.
Republic Act No. 6975, Section 51, gives authority to the mayor of Cebu City 11 to choose the
chief of police from a list of five (5) eligibles recommended by the Regional Director, Regional
Police Command No. 7.

within five (5) working days from receipt and whose decision on the choice of the Chief of
Police shall be final and executory. 13 As deputy of the Commission, the authority of the
mayor is very limited. In reality, he has no power of appointment; he has only the limited
power of selecting one from among the list of five eligibles to be named the chief of police.
Actually, the power to appoint the chief of police of Cebu City is vested in the Regional
Director, Regional Police Command No. 7. Much less may the mayor require the Regional
Director, Regional Police Command, to include the name of any officer, no matter how
qualified, in the list of five to be submitted to the mayor. The purpose is to enhance police
professionalism and to isolate the police service from political domination.
Consequently, we find that the trial court erred in granting preliminary injunction that
effectively restrained the Regional Director, Regional Police Command, Region 7, from
performing his statutory function. The writ of preliminary injunction issued on April 18, 1996,
is contrary to law and thus void. Similarly, the lower court's decision sustaining the City
Mayor's position suffers from the same legal infirmity.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the decision of the Regional
Trial Court, Branch 20, Cebu City, dated July 12, 1996, in Civil Case No. CEB-18545. In lieu
thereof, the Court renders judgment upholding the sole discretion of the Regional Director,
Regional Police Command No. 7, to submit to the mayor of Cebu City a list of five (5) eligibles
from which the mayor shall choose the chief of police. In case of the mayor's refusal to make
his choice within a given period due to disagreement as to the eligible nominees, the issue
shall be submitted to the Regional Director, National Police Commission, whose decision shall
be final.
No costs.

The National Police Commission has issued Memorandum Circular No. 95-04, dated January
12, 1995, for the implementation of Republic Act No. 6975. It provides that among the
qualifications for chief of police of highly urbanized cities are (1) completion of the Officers'
Senior Executive Course (OSEC) and (2) holding the rank of Police Superintendent.
The mayor of Cebu City submits that Memorandum Circular No. 95-04 of the National Police
Commission prescribing such additional qualifications is not valid as it contravenes the law.
We do not agree. Under Republic Act No. 6975, Section 51, the mayor of Cebu City shall be
deputized as representative of the Commission (National Police Commission) in his territorial
jurisdiction and as such the mayor shall have authority to choose the chief of police from a
list of five (5) eligibles recommended by the Police Regional Director. The City Police Station
of Cebu City is under the direct command and control of the PNP Regional Director, Regional
Police Command No. 7, and is equivalent to a provincial office. 12 Then, the Regional Director,
Regional Police Command No. 7 appoints the officer selected by the mayor as the City
Director, City Police Command (chief of police) Cebu City. It is the prerogative of the Regional
Police Director to name the five (5) eligibles from a pool of eligible officers screened by the
Senior Officers Promotion and Selection Board, Headquarters, Philippine National Police,
Camp Crame, Quezon City, without interference from local executives. In case of
disagreement between the Regional Police Director and the Mayor, the question shall be
elevated to the Regional Director, National Police Commission, who shall resolve the issue

SO ORDERED.
Kapunan and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., like Justice Puno, on the ground of non-exhaustion of administrative
remedies.
Puno, J., I concur but on the ground of non-exhaustion of adm. remedies.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 125955 June 19, 1997
WILMER GREGO, petitioner,
vs.
COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.
ROMERO, J.:
The instant special civil action for certiorari and prohibition impugns the resolution of the
Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996,
dismissing petitioner's motion for reconsideration of an earlier resolution rendered by the
COMELEC's First Division on October 6, 1995, which also dismissed the petition for
disqualification 1 filed by petitioner Wilmer Grego against private respondent Humberto
Basco.
The essential and undisputed factual antecedents of the case are as follows:
On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than
this Court upon a finding of serious misconduct in an administrative complaint lodged by a
certain Nena Tordesillas. The Court held:
WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO
BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS
MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY
DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT
BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION
IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES
AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.
xxx xxx xxx 2
Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of
Manila during the January 18, 1988, local elections. He won and, accordingly, assumed office.
After his term, Basco sought re-election in the May 11, 1992 synchronized national elections.
Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors.
However, his victory this time did not remain unchallenged. In the midst of his successful reelection, he found himself besieged by lawsuits of his opponents in the polls who wanted to
dislodge him from his position.

One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon
Ronquillo, another candidate for councilor in the same district, who alleged Basco's
ineligibility to be elected councilor on the basis of the Tordesillas ruling. At about the same
time, two more cases were also commenced by Honorio Lopez II in the Office of the
Ombudsman and in the Department of Interior and Local Government. 4 All these challenges
were, however, dismissed, thus, paving the way for Basco's continued stay in office.
Despite the odds previously encountered, Basco remained undaunted and ran again for
councilor in the May 8, 1995, local elections seeking a third and final term. Once again, he
beat the odds by emerging sixth in a battle for six councilor seats. As in the past, however, his
right to office was again contested. On May 13, 1995, petitioner Grego, claiming to be a
registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a
petition for disqualification, praying for Basco's disqualification, for the suspension of his
proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected
Councilor of Manila's Second District.
On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly
furnished with a copy of the petition. The other members of the BOC learned about this
petition only two days later.
The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties
to submit simultaneously their respective memoranda.
Before the parties could comply with this directive, however, the Manila City BOC proclaimed
Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing
sixth among several candidates who vied for the seats. 5 Basco immediately took his oath of
office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial
Court, Branch I, Manila.
In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to
annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by
the Manila City BOC. He reiterated Basco's disqualification and prayed anew that candidate
Romualdo S. Maranan be declared the winner. As expected, Basco countered said motion by
filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or
Motion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining
Order).
On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the
reservation he made earlier, summarizing his contentions and praying as follows:
Respondent thus now submits that the petitioner is not entitled to relief
for the following reasons:
1. The respondent cannot be disqualified on the ground of Section 40
paragraph b of the Local Government Code because the Tordesillas

decision is barred by laches, prescription, res judicata, lis pendens, bar by


prior judgment, law of the case and stare decisis;

Section 40 (b) of Republic Act No. 7160, otherwise known as the Local Government Code (the
Code), which took effect on January 1, 1992. 8

2. Section 4[0] par. B of the Local Government Code may not be validly
applied to persons who were dismissed prior to its effectivity. To do so
would make it ex post facto, bill of attainder, and retroactive legislation
which impairs vested rights. It is also a class legislation and
unconstitutional on the account.

Petitioner wants the Court to likewise resolve the following issues, namely:
1. Whether or not Section 40 (b) of Republic Act No. 7160 applies
retroactively to those removed from office before it took effect on
January 1, 1992;

3. Respondent had already been proclaimed. And the petition being a


preproclamation contest under the Marquez v. Comelec Ruling, supra, it
should be dismissed by virtue of said pronouncement.

2. Whether or not private respondent's election in 1988, 1992 and in


1995 as City Councilor of Manila wiped away and condoned the
administrative penalty against him;

4. Respondent's three-time election as candidate for councilor


constitutes implied pardon by the people of previous misconduct
(Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401;
Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd 237,
etc.).

3. Whether or not private respondent's proclamation as sixth winning


candidate on May 17, 1995, while the disqualification case was still
pending consideration by COMELEC, is void ab initio; and

5. As petition to nullify certificate of candidacy, the instant case has


prescribed; it was premature as an election protest and it was not
brought by a proper party in interest as such protest.:
PRAYER
WHEREFORE it is respectfully prayed that the instant case be dismissed
on instant motion to dismiss the prayer for restraining order denied (sic).
If this Honorable Office is not minded to dismiss, it is respectfully prayed
that instant motion be considered as respondent's answer. All other
reliefs and remedies just and proper in the premises are likewise hereby
prayed for.
After the parties' respective memoranda had been filed, the COMELEC's First Division
resolved to dismiss the petition for disqualification on October 6, 1995, ruling that "the
administrative penalty imposed by the Supreme Court on respondent Basco on October 31,
1981 was wiped away and condoned by the electorate which elected him" and that on
account of Basco's proclamation on May 17, 1995, as the sixth duly elected councilor of the
Second District of Manila, "the petition would no longer be viable." 6
Petitioner's motion for reconsideration of said resolution was later denied by the
COMELEC en banc in its assailed resolution promulgated on July 31, 1996. 7 Hence, this
petition.
Petitioner argues that Basco should be disqualified from running far any elective position
since he had been "removed from office as a result of an administrative case" pursuant to

4. Whether or not Romualdo S. Maranan, who placed seventh among the


candidates for City Councilor of Manila, may be declared a winner
pursuant to Section 6 of Republic Act No. 6646.
While we do not necessarily agree with the conclusions and reasons of the COMELEC in the
assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing
the petition for disqualification. The instant petition must, therefore, fail.
We shall discuss the issues raised by petitioner in seriatim.
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed
from office before it took effect on January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged
disqualification to run as City Councilor states:
Sec. 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case;
xxx xxx xxx
In this regard, petitioner submits that although the Code took effect only on January 1, 1992,
Section 40 (b) must nonetheless be given retroactive effect and applied to Basco's dismissal
from office which took place in 1981. It is stressed that the provision of the law as worded

does not mention or even qualify the date of removal from office of the candidate in order
for disqualification thereunder to attach. Hence, petitioner impresses upon the Court that as
long as a candidate was once removed from office due to an administrative case, regardless
of whether it took place during or prior to the effectivity of the Code, the disqualification
applies. 9 To him, this interpretation is made more evident by the manner in which the
provisions of Section 40 are couched. Since the past tense is used in enumerating the
grounds for disqualification, petitioner strongly contends that the provision must have also
referred to removal from office occurring prior to the effectivity of the Code. 10
We do not, however, subscribe to petitioner's view. Our refusal to give retroactive
application to the provision of Section 40 (b) is already a settled issue and there exist no
compelling reasons for us to depart therefrom. Thus, inAguinaldo v. COMELEC, 11 reiterated
in the more recent cases of Reyes v. COMELEC 12 and Salalima v. Guingona, Jr.,13 we ruled,
thus:
The COMELEC applied Section 40 (b) of the Local Government Code
(Republic Act 7160) which provides:
Sec. 40. The following persons are disqualified from
running for any elective local positions:
xxx xxx xxx
(b) Those removed from office as a result of an
administrative case.
Republic Act 7160 took effect only on January 1, 1992.
The rule is:
xxx xxx xxx
. . . Well-settled is the principle that while the
Legislature has the power to pass retroactive laws
which do not impair the obligation of contracts, or
affect injuriously vested rights, it is equally true that
statutes are not to be construed as intended to have
a retroactive effect so as to affect pending
proceedings, unless such intent is expressly declared
or clearly and necessarily implied from the language
of the enactment. . . . (Jones v. Summers, 105 Cal.
App. 51, 286 Pac. 1093; U.S. v. Whyel 28 (2d) 30;
Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo
v. Court of Appeals, 128 SCRA 519 [1974]. See also
Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah
Islamic Investment Bank of the Philippines v. Civil

Service Commission, et al., G.R. No. 100599, April 8,


1992).
There is no provision in the statute which would clearly indicate that the
same operates retroactively.
It, therefore, follows that [Section] 40 (b) of the Local Government Code
is not applicable to the present case. (Emphasis supplied).
That the provision of the Code in question does not qualify the date of a candidate's removal
from office and that it is couched in the past tense should not deter us from applying the law
prospectively. The basic tenet in legal hermeneutics that laws operate only prospectively and
not retroactively provides the qualification sought by petitioner. A statute, despite the
generality in its language, must not be so construed as to overreach acts, events or matters
which transpired before its passage. Lex prospicit, non respicit. The law looks forward, not
backward.14
II. Did private respondent's election to office as City Councilor of Manila in the 1988,
1992 and 1995 elections wipe away and condone the administrative penalty
against him, thus restoring his eligibility for public office?
Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo
v. COMELEC 15 to the effect that a candidate's disqualification cannot be erased by the
electorate alone through the instrumentality of the ballot. Thus:
. . . (T)he qualifications prescribed for elective office cannot be erased by
the electorate alone. The will of the people as expressed through the
ballot cannot cure the vice of ineligibility, especially if they mistakenly
believed, as in this case, that the candidate was qualified. . . .
At first glance, there seems to be a prima facie semblance of merit to petitioner's argument.
However, the issue of whether or not Basco's triple election to office cured his alleged
ineligibility is actually beside the point because the argument proceeds on the assumption
that he was in the first place disqualified when he ran in the three previous elections. This
assumption, of course, is untenable considering that Basco was NOT subject to any
disqualification at all under Section 40 (b) of the Local Government Code which, as we said
earlier, applies only to those removed from office on or after January 1, 1992. In view of the
irrelevance of the issue posed by petitioner, there is no more reason for the Court to still
dwell on the matter at length.
Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement
to any position in the national or local government, including its agencies and
instrumentalities, as well as government-owned or controlled corporations, we are of the
view that petitioner's contention is baseless. Neither does petitioner's argument that the
term "any position" is broad enough to cover without distinction both appointive and local
positions merit any consideration.

Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for
any elective position. As can be gleaned from the decretal portion of the said decision, the
Court couched the prohibition in this wise:
. . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE
NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND
INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.
In this regard, particular attention is directed to the use of the term
"reinstatement." Under the former Civil Service Decree, 16 the law applicable at the
time Basco, a public officer, was administratively dismissed from office, the term
"reinstatement" had a technical meaning, referring only to an appointive position.
Thus:
Art. VIII. PERSONNEL POLICIES AND STANDARDS.

III. Is private respondent's proclamation as sixth winning candidate on May 17,


1995, while the disqualification case was still pending consideration by COMELEC,
void ab initio?
To support its position, petitioner argues that Basco violated the provisions of Section 20,
paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our
ruling in the cases of Duremdes v.COMELEC, 18 Benito v. COMELEC 19 and Aguam
v. COMELEC. 20
We are not convinced. The provisions and cases cited are all misplaced and quoted out of
context. For the sake of clarity, let us tackle each one by one.
Section 20, paragraph (i) of Rep. Act 7166 reads:
Sec. 20. Procedure in Disposition of Contested Election Returns.
xxx xxx xxx

Sec. 24. Personnel Actions.


xxx xxx xxx
(d) Reinstatement. Any person who has been
permanently APPOINTED to a position in the career service and who has,
through no delinquency or misconduct, been separated therefrom, may
be reinstated to a position in the same level for which he is qualified.
xxx xxx xxx
(Emphasis supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service Commission
on November 10, 1975, 17 provides a clearer definition. It reads:
RULE VI. OTHER PERSONNEL ACTIONS
Sec. 7. Reinstatement is the REAPPOINTMENT of a person who was
previously separated from the service through no delinquency or
misconduct on his part from a position in the career service to which he
was permanently appointed, to a position for which he is qualified.
(Emphasis supplied).
In light of these definitions, there is, therefore, no basis for holding that Basco is likewise
barred from running for an elective position inasmuch as what is contemplated by the
prohibition in Tordesillas is reinstatement to anappointive position.

(i) The board of canvassers shall not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the
objections brought to it on appeal by the losing party. Any proclamation
made in violation hereof shall be void ab initio, unless the contested
returns will not adversely affect the results of the election.
xxx xxx xxx
The inapplicability of the abovementioned provision to the present case is very much patent
on its face considering that the same refers only to a void proclamation in relation to
contested returns and NOT to contested qualifications of a candidate.
Next, petitioner cites Section 6 of Rep. Act 6646 which states:
Sec. 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason, a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis supplied).
This provision, however, does not support petitioner's contention that the COMELEC, or
more properly speaking, the Manila City BOC, should have suspended the proclamation. The
use of the word "may" indicates that the suspension of a proclamation is

merely directory and permissive in nature and operates to confer discretion. 21What is merely
made mandatory, according to the provision itself, is the continuation of the trial and hearing
of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the
question of whether or not evidence of guilt is so strong as to warrant suspension of
proclamation must be left for its own determination and the Court cannot interfere
therewith and substitute its own judgment unless such discretion has been exercised
whimsically and capriciously. 22 The COMELEC, as an administrative agency and a specialized
constitutional body charged with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall,23 has more than enough expertise in its field that its findings or conclusions are
generally respected and even given finality. 24 The COMELEC has not found any ground to
suspend the proclamation and the records likewise fail to show any so as to warrant a
different conclusion from this Court. Hence, there is no ample justification to hold that the
COMELEC gravely abused its discretion.
It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states that:
Sec. 5. Effect of petition if unresolved before completion of canvass. . .
. (H)is proclamation shallbe suspended notwithstanding the fact that he
received the winning number of votes in such election.
However, being merely an implementing rule, the same must not override, but instead
remain consistent with and in harmony with the law it seeks to apply and implement.
Administrative rules and regulations are intended to carry out, neither to supplant nor to
modify, the law. 26 Thus, in Miners Association of the Philippines, Inc. v. Factoran, Jr., 27 the
Court ruled that:
We reiterate the principle that the power of administrative officials to
promulgate rules and regulations in the implementation of a statute is
necessarily limited only to carrying into effect what is provided in the
legislative enactment. The principle was enunciated as early as 1908 in
the case ofUnited States v. Barrias. The scope of the exercise of such rulemaking power was clearly expressed in the case of United States v. Tupasi
Molina, decided in 1914, thus: "Of course, the regulations adopted under
legislative authority by a particular department must be in harmony with
the provisions of the law, and for the sole purpose of carrying into effect
its general provisions. By such regulations, of course, the law itself can
not be extended. So long, however, as the regulations relate solely to
carrying into effect the provision of the law, they are valid.
Recently, the case of People v. Maceren gave a brief delineation of the
scope of said power of administrative officials:
Administrative regulations adopted under legislative authority by a
particular department must be in harmony with the provisions of the law,
and should be for the sole purpose of carrying into effect its general
provisions. By such regulations, of course, the law itself cannot be

extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot


amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon
vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33
SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29,
1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA
350).
The rule-making power must be confined to details for regulating the
mode or proceeding to carry into effect the law as it has been enacted.
The power cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute. Rules
that subvert the statute cannot be sanctioned (University of Santo Tomas
v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to
invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil.
319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans
Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).
xxx xxx xxx
. . . The rule or regulations should be within the scope of the statutory
authority granted by the legislature to the administrative agency (Davis,
Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social
Security Commission, 114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or regulation
issued to implement said law, the basic law prevails because said rule or
regulations cannot go beyond the terms and provisions of the basic law
(People v. Lim, 108 Phil. 1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of
Procedure seeks to implement, employed the word "may," it is, therefore, improper and
highly irregular for the COMELEC to have used instead the word "shall" in its rules.
Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as
the sixth winning City Councilor. Absent any determination of irregularity in the election
returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a
mandatory and ministerial duty of the Board of Canvassers concerned to count the votes
based on such returns and declare the result. This has been the rule as early as in the case
of Dizon v. Provincial Board of Canvassers of Laguna 28 where we clarified the nature of the
functions of the Board of Canvassers, viz.:
The simple purpose and duty of the canvassing board is to ascertain and
declare the apparent result of the voting. All other questions are to be
tried before the court or other tribunal for contesting elections or in quo
warranto proceedings. (9 R.C.L., p. 1110)

To the same effect is the following quotation:


. . . Where there is no question as to the genuineness of the returns or
that all the returns are before them, the powers and duties of canvassers
are limited to the mechanical or mathematical function of ascertaining
and declaring the apparent result of the election by adding or compiling
the votes cast for each candidate as shown on the face of the returns
before them, and then declaring or certifying the result so ascertained.
(20 C.J., 200-201) [Emphasis supplied]
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant
and inapplicable to the factual circumstances at bar and serve no other purpose than to
muddle the real issue. These three cases do not in any manner refer to void proclamations
resulting from the mere pendency of a disqualification case.
In Duremdes, the proclamation was deemed void ab initio because the same was made
contrary to the provisions of the Omnibus Election Code regarding the suspension of
proclamation in cases of contested election returns.
In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of
Canvassers' violation of its ministerial duty to proclaim the candidate receiving the highest
number of votes and pave the way to succession in office. In said case, the candidate
receiving the highest number of votes for the mayoralty position died but the Board of
Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere
second-placer, the mayor.
Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was
based only on advanced copies of election returns which, under the law then prevailing,
could not have been a proper and legal basis for proclamation.
With no precedent clearly in point, petitioner's arguments must, therefore, be rejected.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning
candidate?
Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified
candidate pursuant to our disquisition above. Furthermore, he clearly received the winning
number of votes which put him in sixth place. Thus, petitioner's emphatic reference to Labo
v. COMELEC, 29 where we laid down a possible exception to the rule that a second placer may
not be declared the winning candidate, finds no application in this case. The exception is
predicated on the concurrence of two assumptions, namely: (1) the one who obtained the
highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law
of a candidate's disqualification so as to bring such awareness within the realm of notoriety
but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions,
however, are absent in this case. Petitioner's allegation that Basco was well-known to have
been disqualified in the small community where he ran as a candidate is purely speculative

and conjectural, unsupported as it is by any convincing facts of record to show notoriety of


his alleged disqualification. 30
In sum, we see the dismissal of the petition for disqualification as not having been attended
by grave abuse of discretion. There is then no more legal impediment for private
respondent's continuance in office as City Councilor for the Second District of Manila.
WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack
of merit. The assailed resolution of respondent Commission on Elections (COMELEC) in SPA
95-212 dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima, Jr.,
Panganiban and Torres, Jr., JJ., concur.
Padilla, Bellosillo, Kapunan and Francisco, JJ., are on leave.
Footnotes
1 "In re: Petition to Disqualify Candidate for Councilor, Humberto Basco, Second District, City
of Manila, in the May 8, 1995 Local Elections," Annex, "A," Rollo, pp. 40-44.
2 Adm. Matter No. P-2363, 108 SCRA 551 (1981).
3 Docketed as SPC No. 92-93, Rollo, p. 183.
4 Rollo, p, 162.
5 Annex "B," Rollo, p. 46. The names of the winning candidates and their corresponding votes
are as follows:
(1) NESTOR C. PONCE 48,088
(2) MARLON M. LACSON 41,611
(3) FLAVIANO F. CONCEPCION, JR. 39,548
(4) FRANCISCO B. VARONA, JR. 37,635
(5) ABELARDO C. VICEO 37,183
(6) HUMBERTO B. BASCO 34,358
6 Rollo, pp. 101-102.
7 Supra, note 1.
8 Both parties made errors in their respective pleadings as to the date of effectivity of Rep. Act
7160.
9 Rollo, p. 14.

10 Id.
11 G.R. Nos. 105128-30, promulgated on June 9, 1992.
12 254 SCRA 514 (1996).
13 257 SCRA 55 (1996).
14 R.E. AGPALO, STATUTORY CONSTRUCTION 254 (2nd ed., 1990), citing Laceste v. Santos, 56
Phil. 472. Cf . also Article 4, Civil Code.
15 174 SCRA 245 (1989).
16 Presidential Decree No. 807, issued on October 6, 1975. This law has been superseded by
Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known as the Administrative
Code of 1987, which took effect on November 29, 1989, or two years after its publication in
the Official Gazette.
17 Implementing Rules of P.D. 807.
18 178 SCRA 746 (1989).
19 235 SCRA 436 (1994).
20 23 SCRA 883 (1968).
21 R.E. AGPALO, STATUTORY CONSTRUCTION 239 (2nd ed., 1990).
22 Provident Tree Farms, Inc. v. Batario, Jr., 231 SCRA 463 (1994).
23 Sec. 2, Sub-title C, Art. IX, 1987 Constitution.
24 Cf . Ting v. Court of Appeals, 237 SCRA 797 (1994); Sesbreno v. Ala, 208 SCRA 359 (1992);
San Miguel Corp. v. Javate, Jr., 205 SCRA 469 (1992).
25 Published in the Official Gazette on June 27, 1988, Vol. 84, No. 26.
26 Commissioner of Internal Revenue v. Court of Appeals, 240 SCRA 368 (1995).
27 240 SCRA 100 (1995).
28 52 Phil. 47.
29 211 SCRA 456 (1992).
30 Frivaldo v. COMELEC, 257 SCRA 727 (1996).

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

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 petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of
Canvassers.

G.R. No. 133495 September 3, 1998


BENJAMIN U. BORJA, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.
MENDOZA, J.:
This case presents for determination the scope of the constitutional provision barring
elective local 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 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. 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

This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the
COMELEC and to seek a declaration that private respondent is disqualified to serve another
term as mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capco's service as mayor from September 2,
1989 to June 30, 1992 should be considered as service for one full 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 Article X, 8 of the Constitution reveals


that the members of the Constitutional Commission were as much concerned with
preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years
there should be no further reelection for local and legislative officials. Instead, they adopted
the alternative proposal of Commissioner Christian Monsod that such officials be simply
barred from running for the same position in the of the succeeding election following the
expiration of the third consecutive term. 4 Monsod warned against "prescreening candidates
[from] whom the people will choose" as a result of the proposed absolute disqualification,
considering that the draft constitution contained provisions "recognizing people's power." 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 positions and to accumulate those powers and perquisites that
permit them to stay on indefinitely or to transfer these posts to members
of their families in a subsequent election. I think that is taken care of
because we put a gap on the continuity or 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

Commissioner 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 ofservice of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they
wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so
on the assumption that the officials concerned were serving by reason of election. This is
clear from the following exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI, 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
Committee's stand. 10
Indeed a fundamental tenet of representative democracy is that the people should be
allowed to choose those 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 local 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 notwithstanding
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 to 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 VicePresident 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
latter's office and serves for the remainder of the term.
The framers of the Constitution included such a provision because, without it, the VicePresident, who simply steps into the Presidency by succession, would be qualified to run

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

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?

Regalado, J., is on leave.


Footnotes
1 Rollo, pp. 5-6, 124-125.
2 Id., pp. 63-71.
3 Id., pp. 30-32.
4 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 (Session of July 25, 1986)
(hereafter cited as RECORD).
5 Id., at 236.
6 Id., at 239-240.
7 Id., at 242.
8 Id., at 242.

Yes, because he was not elected to the office of mayor in the first term
but simply found himself thrust into it by operation of law. Neither had
he served the full term because he only continued the service,
interrupted by the death, of the deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to
run a third time for reelection would be not only to falsify reality but also to unduly restrict
the right of the people to choose whom they wish to govern them. If the vice-mayor turns
out to be a bad mayor, the people can remedy the situation by simply not reelecting him for
another term. But if, on the other hand, he proves to be a good mayor, there will be no way
the people can return him to office (even if it is just the third time he is standing for
reelection) if his service of the first term is counted as one for the purpose of applying the
term limit.
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
monopoly of political power may bring about, care should be taken that their freedom of
choice is not unduly curtailed.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.

9 Id., at 243.
10 Id., 590 (August 7, 1986).
11 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 131 L.Ed.2d 881 (1995).
12 JOAQUIN BERNAS, THE 1987 CONSTITUTION 637 (1996).
13 2 RECORD 592 (Session of August 7, 1986).
14 LOCAL GOVERNMENT CODE of 1991, R.A. No. 7160, 44(a).
15 Art. VI, 8.
16 RA. No. 7160, 445 (1991).

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 125416 September 26, 1996
SUBIC BAY METROPOLITAN AUTHORITY, petitioner,
vs.
COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and CATALINO A.
CALIMBAS, respondents.
PANGANIBAN, J.:
The 1987 Constitution is unique in many ways. For one thing, it institutionalized
people power in law-making. Learning from the bitter lesson of completely
surrending to Congress the sole authority to make, amend or repeal laws, the
present Constitution concurrently vested such prerogatives in the electorate by
expressly recognizing their residual and sovereign authority to ordain legislation
directly through the concepts and processes of initiative and of referendum.
In this Decision, this Court distinguishes referendum from initiative and discusses
the practical and legal implications of such differences. It also sets down some
guidelines in the conduct and implementation of these two novel and vital features
of popular democracy, as well as settles some relevant questions on jurisdiction
all with the purpose of nurturing, protecting and promoting the people's exercise
of direct democracy.
In this action for certiorari and prohibition, petitioner seeks to nullify the
respondent Commission on Elections' Ruling 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 Economic Zone, thus:
Sec. 12. Subic Special Economic Zone. Subject to the concurrence by
resolution of the Sangguniang Panlugnsod of the City of Olongapo and
the Sangguniang Bayan of the Municipalities of Subic. Morong and
Hermosa, there is hereby created a Special Economic and Free-port Zone
consisting of the City of Olongapo and the Municipality of Subic, Province

of Zambales, the lands occupied by the Subic Naval Base and its
contiguous extensions as embraced, covered and defined by the 1947
Military Bases Agreement between the Philippines and the United States
of America as amended, and within the territorial jurisdiction of the
Municipalities of Morong and Hermosa, Province of Bataan, hereinafter
referred to as the Subic Special Economic Zone whose metes and bounds
shall be delineated in a proclamation to be issued by the President of the
Philippines. Within thirty (30) days after the approval of this Act, each
local government unit shall submit its resolution of concurrence to join
the Subic Special Economic Zone to the Office of the President.
Thereafter, the President of the Philippines shall issue a proclamation
defining the metes and bounds of the zone as provided herein."
(Emphasis supplied)
RA 7227 likewise created petitioner to implement the declared national policy of
converting the Subic military reservation into alternative productive
uses. 2 Petitioner was organized with an authorized capital stock of P20 billion
which was fully subscribed and fully paid up by the Republic of the Philippines with,
among other assets, "(a)ll lands embraced, covered and defined in Section 12
hereof, as well as permanent improvements and fixtures upon proper inventory
not otherwise alienated, conveyed, or transferred to another government
agency". 3
On November 24, 1992, the American navy turned over the Subic military
reservation to the Philippines government. Immediately, petitioner commenced
the implementation of its task, particularly the preservation of the sea-ports,
airport, buildings, houses and other installations left by the American navy.
In April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang
Kapasyahan Bilang 10, Serye 1993, expressing therein its absolute concurrence, as
required by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone. On
September 5, 1993, the Sangguniang Bayan of Morong submittedPambayang
Kapasyahan Bilang 10, Serye 1993 to the Office of the President.
On May 24, 1993, respondents Garcia, Calimbas and their companions filed a
petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan
Blg. 10, Serye 1993. The petition prayed for the following:
I. Bawiin, nulipikahin at pawalang-bisa and Pambayang Kapasyahang Blg.
10, Serye 1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa
SSEFZ na walang kundisyon.
II. Palitan ito ng isang Pambayang kapasyahan na aanib lamang ang
Morong sa SSEFZ kung ang mga sumusunod na kondisyones ay
ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interest ng
Morong at Bataan:

(A) Ibalik sa Bataan ang "Virgin Forests" isang bundok na hindi nagagalaw at punong-puno
ng malalaking 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" and bawat bayan ng Morong,
Hermosa at Dinalupihan.
(E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.
(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.
(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa
magbukas pa ng pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng
pagkakataong umunlad rin ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan.
(I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-TasigDinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng
mga kabundukan.
(J) Magkakaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa
at Bataan.
The Sangguniang Bayan ng Morong acted upon the petition of respondents Garcia,
Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993,
requesting Congress of the Philippines so amend certain provisions of RA 7227,
particularly those concerning the matters cited in items (A), (B), (K), (E), and (G) of
private respondent's petition. The Sangguniang Bayan of Morong also informed
respondents that items (D) and (H) had already been referred to and favorably
acted upon by the government agencies concerned, such as the Bases Conversion
Development Authority and the Office of the President.
Not satisfied, and within 30 days from submission of their petition, herein
respondents resorted to their power initiative under the Local Government Code of
1991, 4 Sec. 122 paragraph (b) of which provides as follows:
Sec. 122. Procedure in Local Initiative.
xxx xxx xxx

(b) If no favorable action thereon is taken by the sanggunian concerned,


the proponents, through their duly authorized and registered
representatives, may invoke their power of initiative, giving notice
thereof to the sangguniang concerned.
xxx xxx xxx
On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 931623 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 ComelecEn Banc (thru
Comelec Resolution no. 93-1676) further directed its Provincial Election Supervisor
to hold action on the authentication of signatures being solicited by private
respondents.
On August 15, 1993, private respondents instituted a petition
for certiorari and mandamus 5 before this Court against the Commission on
Elections and the Sangguniang Bayan of Morong, Bataan, to set aside Comelec
Resolution No. 93-1623 insofar as it disallowed the conduct of a local initiative to
annul Pambayang Kapasyahan Bilang 10, Serye 1993, and Comelec Resolution No.
93-1676 insofar as it prevented the Provincial Election Supervisor of Bataan from
proceeding with the authentication of the required number of signatures in
support of the initiative and the gathering of signatures.
On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the
Philippines issued Proclamation No. 532 defining the metes and bounds of the
SSEZ. Said proclamation included in the SSEZ all the lands within the former Subic
Naval Base, including Grande Island and that portion of the former naval base
within the territorial jurisdiction of the Municipality of Morong.
On June 18, 19956, respondent Comelec issued Resolution No. 2845, adopting
therein a "Calendar of Activities for local referendum on certain municipal
ordinance passed by the Sangguniang Bayan of Morong, Bataan", and which
indicated, among others, the scheduled Referendum Day (July 27, 1996, Saturday).
On June 27, 1996, the Comelec promulgated the assailed Resolution No. 2848
providing for "the rules and guidelines to govern the conduct of the referendum
proposing to annul or repealKapasyahan Blg. 10, Serye 1993 of the Sangguniang
Bayan of Morong, Bataan".
On July 10, 1996, petitioner instituted the present petition for certiorari and
prohibition contesting the validity of Resolution No. 2848 and alleging, inter alia,
that public respondent "is intent on proceeding with a local initiative that proposes
an amendment of a national law. . . .
The Issues

The petition 6 presents the following "argument":


Respondent Commission on Elections committed a grave abuse of
discretion amounting to lack of jurisdiction in scheduling a local initiative
which seeks the amendment of a national law.
In his Comment, private respondent Garcia claims that (1) petitioner has failed to
show the existence of an actual case of controversy: (2) . . . petitioner seeks to
overturn a decision/judgment which has long become final and executory; (3) . . .
public respondent has not abused its discretion and has in fact acted within its
jurisdiction; (and) (4) . . . the concurrence of local government units is required for
the establishment of the Subic Special Economic Zone."
Private respondent Calimbas, now the incumbent Mayor of Morong, in his Reply
(should be Comment) joined petitioner's cause because "(a)fter several meetings
with petitioner's Chairman and staff and after consultation with legal counsel,
respondent Calimbas discovered that the demands in the petition for a local
initiative/referendum were not legally feasible." 7
The Solicitor General, as counsel for public respondent, identified two issues, as
follows:
1. Whether or not the Comelec can be enjoined from
scheduling/conducting the local initiative proposing to annul Pambayang
Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong,
Bataan.
2. Whether or not the Comelec committed grave abuse of discretion in
denying the request of petitioner SBMA to stop the local initiative.
On July 23, 1996, the Court heard oral argument by the parties, after which, it
issued the following Resolution:
The Court Resolved to: (1) GRANT the Motion to Admit the Attachment
Comment filed by counsel for private respondent Enrique T. Garcia, dated
July 22, 1996 and (2) NOTE the: (a) Reply (should be comment) to the
petition for certiorari and prohibition with prayer for temporary
restraining order and/or writ of preliminary injunction, filed by counsel
for respondent Catalino Calimbas, date July 22, 1996; (b) Separate
Comments on the petition, filed by: (b-1) the Solicitor General for
respondent Commission on Elections dated July 19, 1996 and (b-2)
counsel for private respondent Enrique T. Garcia, dated July 22, 1996, all
filed in compliance with the resolution of July 16, 1996 and (c)
Manifestation filed by counsel for petitioner, dated July 22, 1996.

At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared
and argued for petitioner Subic Bay Metropolitan Authority (SBMA) while
Atty. Sixto Brillantes for private respondent Enrique T. Garcia, and Atty.
Oscar L. Karaan for respondent Catalino Calimbas. Solicitor General Raul
Goco, Assistant Solicitor General Cecilio O. Estoesta and Solicitor Zenaida
Hernandez-Perez appeared for respondent Commission on Elections with
Solicitor General Goco arguing.
Before the Court adjourned, the Court directed the counsel for both
parties to INFORM this Court by Friday, July 26, 1996, whether or not
Commission on Elections would push through with the
initiative/referendum this Saturday, July 27, 1996.
Thereafter, the case shall be considered SUBMITTED for resolution.
At 2:50 p.m., July 23, 1996, the Court received by facsimile transmission
an Order dated also on July 23, 1996 from the respondent Commission on
Elections En Banc inter alia "to hold in abeyance the scheduled
referendum (initiative) on July 27, 1996 pending resolution of G.R. No.
125416." In view of this Order, the petitioner's application for a
temporary restraining order and/or writ of preliminary injunction has
become moot and academic and will thus not be passed upon by this
Court at this time. Puno, J., no part due to relationship. Bellosillo, J., is on
leave.
After careful study of and judicious deliberation on the submissions and arguments
of the parties, the Court believes that the issues may be restated as follows:
(1) Whether this petition "seeks to overturn a decision/judgment which
has long become final and executory"; namely, G.R. No. 111230, Enrique
Garcia, et al. vs. Commission on Elections, et al.;
(2) Whether the respondent Comelec committed grave abuse of
discretion in promulgating and implementing its Resolution No. 2848
which "govern(s) the conduct of the referendum proposing to annul or
repeal Pambayang Kapasyahan Blg. 10, Serye 1993 of the Sangguniang
Bayan of Morong, Bataan;" and
(3) Whether the questioned local initiative covers a subject within the
powers of the people of Morong to enact; i.e., whether such initiative
"seeks the amendment of a national law."
First Issue: Bar by Final Judgment
Respondent Garcia contends that this Court had already ruled with finality
in Enrique T. Garcia, et al. vs.Commission on Elections, et al. 8 on "the very issue

raised in (the) petition: whether or not there can be an initiative by the people of
Morong, Bataan on the subject proposition the very same proposition, it bears
emphasizing, the submission of which to the people of Morong, Bataan is now
sought to be enjoined by petitioner . . .".
We disagree. The only issue resolved in the earlier Garcia case is whether a
municipal resolution as contra-distinguished from an ordinance may be the proper
subject of an initiative and/or referendum. We quote from our said Decision: 9
In light of this legal backdrop, the essential issue to be resolved in the
case at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of
the Sangguniang Bayan of Morong, Bataan is the proper subject of an
initiative. Respondents take the negative stance as they contend that
under the Local Government Code of 1991 only an ordinance can be the
subject of initiative. They rely on Section 120, Chapter 2, Title XI, Book I of
the Local Government Code of 1991 which provides: "Local Initiative
Defined. Local initiative is the legal process whereby the registered
voters of a local government until may directly propose, enact, or amend
any ordinance."
We reject respondents' narrow and literal reading of the above provision
for it will collide with the Constitution and will subvert the intent of the
lawmakers in enacting the provisions of the Local Government of 1991 on
initiative and referendum.
The Constitution clearly includes not only ordinance but resolutions as
appropriate subjects of a local initiative. Section 32 of Article VI provides
in luminous language: "The Congress shall, as early as possible, provide
for a system of initiative and referendum, and the exceptions therefrom,
whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress, or local
legislative body . . .". An act includes a resolution. Black defines an act as
"an expression of will or purpose . . . it may denote something done . . .
as a legislature, including not merely physical acts, but also decrees,
edicts, laws, judgments, resolves, awards, and determinations . . .". It is
basic that a law should be construed in harmony with and not in violation
of the Constitution. In line with this postulate, we held in In Re Guarina
that "if there is doubt or uncertainty as to the meaning of the legislative,
if the words or provisions are obscure, or if the enactment is fairly
susceptible of two or more constructions, that interpretation will be
adopted which will avoid the effect of unconstitutionality, even though it
may be necessary, for this purpose, to disregard the more usual or
apparent import of the language used."
Moreover, we reviewed our rollo in said G.R. No. 111230 and we found that the
sole issue presented by the pleadings was the question of "whether or not a

Sangguniang Bayan Resolution can be the subject of a valid initiative or


referendum". 10
In the present case, petitioner is not contesting the propriety of a municipal
resolution as the form by which these two new constitutional prerogatives of the
people may be validly exercised. What is at issue here is whether Pambayang
Kapasyahan Blg. 10, Serye 1993, as worded, is sufficient in form and substance for
submission to the people for their approval; in fine, whether the Comelec acted
properly and juridically in promulgating and implementing Resolution No. 2848.
Second Issue: Sufficiency of Comelec Resolution No. 2848
The main issue in this case may be re-stated thus: Did respondent Comelec commit
grave abuse of discretion in promulgating and implementing Resolution No. 2848?
We answer the question in the affirmative.
To begin with, the process started by private respondents was an INITIATIVE but
respondent Comelec made preparations for a REFERENDUM only. In fact, in the
body of the Resolution 11 as reproduced in the footnote below, the word
"referendum" is repeated at least 27 times, but "initiative" is not mentioned at all.
The Comelec labeled the exercise as a "Referendum"; the counting of votes was
entrusted to a "Referendum Committee"; the documents were called "referendum
returns"; the canvassers, "Referendum Board of Canvassers" and the ballots
themselves bore the description "referendum". To repeat, not once was the word
"initiative" used in said body of Resolution No. 2848. And yet, this exercise is
unquestionably an INITIATIVE.
There are statutory and conceptual demarcations between a referendum and an
initiative. In enacting the "Initiative and Referendum Act, 12 Congress differentiated
one term from the other, thus:
(a) "Initiative" is the power of the people to propose amendments to the
Constitution or to propose and enact legislations through an election
called for the purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;
a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation;
and
a.3. Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance.

(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to
Congress or the local legislative body for action.
(c) "Referendum" is the power of the electorate to approve or reject a legislation through an
election called for the purpose. It may be of two classes, namely:
c.1. Referendum on statutes which refers to a petition to approve or reject an act
or law, or part thereof, passed by Congress; and
c.2 Referendum on local law which refers to a petition to approve or reject a law,
resolution or ordinance enacted by regional assemblies and local legislative bodies.
Along these statutory definitions, Justice Isagani A. Cruz 13 defines initiative as the
"power of the people to propose bills and laws, and to enact or reject them at the
polls independent of the legislative assembly." On the other hand, he explains that
referendum "is the right reserved to the people to adopt or reject any act or
measure which has been passed by a legislative body and which in most cases
would without action on the part of electors become a law." The foregoing
definitions, which are based on Black's 14 and other leading American authorities,
are echoed in the Local Government Code (RA 7160) substantially as follows:
Sec. 120. Local Initiative Defined. Local initiative is the legal process
whereby the registered voters of local government unit may directly
propose, enact, or amend any ordinance.
Sec. 126. Local Referendum Defined. Local referendum is the legal
process whereby the registered voters of the local government units may
approve, amend or reject any ordinance enacted by the sanggunian.
The local referendum shall be held under the control and direction of the
Comelec within sixty (60) days in case of provinces and cities, forty-five
(45) days in case of municipalities and thirty (30) days in case of
baranggays.
The Comelec shall certify and proclaim the results of the said
referendum.
Prescinding from these definitions, we gather that initiative is resorted to (or
initiated) by the people directly either because the law-making body fails or refuses
to enact the law, ordinance, resolution or act that they desire or because they want
to amend or modify one already existing. Under Sec. 13 of R.A. 6735, the local
legislative body is given the opportunity to enact the proposal. If it refuses/neglects
to do so within thirty (30) days from its presentation, the proponents through their
duly-authorized and registered representatives may invoke their power of
initiative, giving notice thereof to the local legislative body concerned. Should the
proponents be able to collect the number of signed conformities within the period

granted by said statute, the Commission on Elections "shall then set a date for the
initiative (not referendum) at which the proposition shall be submitted to the
registered voters in the local government unit concerned . . .".
On the other hand, in a local referendum, the law-making body submits to the
registered voters of its territorial jurisdiction, for approval or rejection, any
ordinance or resolution which is duly enacted or approved by such law-making
authority. 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 lawmaking by the people themselves without the participation and against the wishes
of their elected representatives, while referendum consists merely of the
electorate approving or rejecting what has been drawn up or enacted by a
legislative body. Hence, the process and the voting in an initiative are
understandably more complex than in a referendum where expectedly the voters
will simply write either "Yes" of "No" in the ballot.
[Note: While the above quoted laws variously refer to initiative and referendum as
"powers" or "legal processes", these can be also be "rights", as Justice Cruz terms
them, or "concepts", or "the proposal" itself (in the case of initiative) being referred
to in this Decision.]
From the above differentiation, it follows that there is need for the Comelec to
supervise an initiative more closely, its authority thereon extending not only to the
counting and canvassing of votes but also to seeing to it that the matter or act
submitted to the people is in the proper form and language so it may be easily
understood and voted upon by the electorate. This is especially true where the
proposed legislation is lengthy and complicated, and should thus be broken down
into several autonomous parts, each such part to be voted upon separately. Care
must also be exercised that "(n)o petition embracing more than one subject shall
be submitted to the electorate," 16 although "two or more propositions may be
submitted in an initiative". 17
It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary of Local
Government or his designated representative shall extend assistance in the
formulation of the proposition."
In initiative and referendum, the Comelec exercises administration and supervision
of the process itself, akin to its powers over the conduct of elections. These lawmaking 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 sangguniang to enact." Elsewise
stated, a local initiative may enact only such ordinances or resolutions as the
municipal council itself could, if it decided to so enact. 19 After the Sangguniang
Bayan of Morong and the other municipalities concerned (Olongapo, Subic and
Hermosa) gave their resolutions of concurrence, and by reason of which the SSEZ
had been created, whose metes and bounds had already been delineated by
Proclamation No. 532 issued on February 1, 1995 in accordance with Section 12 of
R.A. No. 7227, the power to withdraw such concurrence and/or to substitute
therefor a conditional concurrence is no longer within the authority and
competence of the Municipal Council of Morong to legislate. Furthermore,
petitioner adds, the specific conditionalities included in the questioned municipal
resolution are beyond the powers of the Council to impose. Hence, such
withdrawal can no longer be enacted or conditionalities imposed by initiative. In
other words, petitioner insists, the creation of SSEZ is now a faith accompli for the
benefit of the entire nation. Thus, Morong cannot unilaterally withdraw its
concurrence or impose new conditions for such concurrence as this would
effectively render nugatory the creation by (national) law of the SSEZ and would
deprive the entire nation of the benefits to be derived therefrom. Once created.
SSEZ has ceased to be a local concern. It has become a national project.
On the other hand, private respondent Garcia counters that such argument is
premature and conjectural because at this point, the resolution is just a proposal. If
the people should reject it during the referendum, then there is nothing to declare
as illegal.
Deliberating on this issue, the Court agrees with private respondent Garcia that
indeed, the municipal resolution is still in the proposal stage. It is not yet an
approved law. Should the people reject it, then there would be nothing to contest
and to adjudicate. It is only when the people have voted for it and it has become an
approved ordinance or resolution that rights and obligations can be enforced or
implemented thereunder. At this point, it is merely a proposal and the writ or
prohibition cannot issue upon a mere conjecture or possibility. Constitutionally
speaking, courts may decide only actual controversies, not hypothetical questions
or cases. 20
We also note that the Initiative and Referendum Act itself provides 21 that
"(n)othing in this Act shall prevent or preclude the proper courts from declaring
null and void any proposition approved pursuant to this Act . . . ."

So too, the Supreme Court is basically a review court. 22 It passes upon errors of law
(and sometimes of fact, as in the case of mandatory appeals of capital offenses) of
lower courts as well as determines whether there had been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any "branch or
instrumentality" of government. In the present case, it is quite clear that the Court
has authority to review Comelec Resolution No. 2848 to determine the commission
of grave abuse of discretion. However, it does not have the same authority in
regard to the proposed initiative since it has not been promulgated or approved, or
passed upon by any "branch or instrumentality" or lower court, for that matter.
The Commission on Elections itself has made no reviewable pronouncements about
the issues brought by the pleadings. The Comelec simply included verbatim the
proposal in its questioned Resolution No. 2848. Hence, there is really no decision or
action made by a branch, instrumentality or court which this Court could take
cognizance of and acquire jurisdiction over, in the exercise of its review powers.
Having said that, we are in no wise suggesting that the Commelec itself has no
power to pass uponproposed resolutions in an initiative. Quite the contrary, we are
ruling that these matters are in fact within the initiatory jurisdiction of the
Commission to which then the herein basic questions ought to have been
addressed, and by which the same should have been decided in the first instance.
In other words, while regular courts may take jurisdiction over
"approved propositions" per said Sec. 18 of R.A. 6735, the Comelec in the exercise
of its quasi-judicial and administrative powers may adjudicate and pass upon such
proposals insofar as their form and language are concerned, as discussed earlier;
and it may be added, even as to content, where the proposals or parts thereof are
patently and clearly outside the "capacity of the local legislative body to
enact." 23 Accordingly, the question of whether the subject of this initiative is within
the capacity of the Municipal Council of Morong to enact may be ruled upon by the
Comelec upon remand and after hearing the parties thereon.
While on the subject of capacity of the local lawmaking body, it would be fruitful
for the parties and the Comelec to plead and adjudicate, respectively, the question
of whether Grande Island and the "virgin forest" mentioned in the proposed
initiative belong to the national government and thus cannot be segregated from
the Zone and "returned to Bataan" by the simple expedient of passing a municipal
resolution. We note that Sec. 13 (e) of R.A. 7227 speaks of the full subscription
and payment of the P20 billion authorized capital stock of the Subic Authority by
the Republic, with, aside from cash and other assets, the ". . . lands embraced,
covered and defined in Section 12 hereof, . . ." which includes said island and
forests. The ownership of said lands is question of fact that may be taken up in the
proper forum the Commission on Elections.
Another question which the parties may wish to submit to the Comelec upon
remand of the initiative is whether the proposal, assuming it is within the capacity
of the Municipal Council to enact, may be divided into several parts for purposes of
voting. Item "I" is a proposal to recall, nullify and render without effect (bawiin,
nulipikahin at pawalangbisa) Municipal Resolution No. 10, Series of 1993. On the
other hand, Item "II" proposes to change or replace (palitan) said resolution with

another municipal resolution of concurrenceprovided 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?

executives, but also in the formulation of the very rules and laws by which our
society shall be governed and managed.

All told, we shall not pass upon the third issue of ultra vires on the ground of
prematurity.

IT IS SO ORDERED.

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

WHEREFORE the petition is GRANTED. Resolution No. 2848 is ANNULLED and SET
ASIDE. The initiative on Pambayang Kapasyahan Blg. 10, Serye 1993 is REMANDED
to the Commission on Elections for further proceeding consistent with the
foregoing discussion. No costs.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Vitug, Kapunan, Francisco,
Hermosisima, Jr. and Torres, Jr., JJ., concur.
Puno, J., took no part.
Romero and Mendoza, JJ., are on leave.
Footnotes
1 Rollo, pp. 38-46; signed by Chairman Bernardo P. Pardo and Comms. Regalado E. Maambong, Remedios
A. Salazar-Fernando, Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liaco Flores and Japal M. Guiani.
2 Sec. 13 (a), RA 7227.
3 Sec. 13 (e) (1), RA 7227.
4 Republic Act No. 7160.
5 Enrique T. Garcia, et al. vs. Commission on Elections, et al., 237 SCRA 279, September 30, 1994.
6 p. 10; rollo, p. 12.
7 Reply, p. 3.
8 See footnote no. 5, supra.
9 Supra, at pp. 290-291.
10 Rollo, G.R. No. 111230, p. 82 (Solocitor General's Comment). See also petitioner Garcia's
Memorandum, rollo, pp. 134-147.
11 For easy references, quoted verbatim hereunder, minus the preamble or "whereas" clauses, is the next
of Resolution 2848:
NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested upon it by the
Constitution, Republic Act No. 6735, Republic Act No. 7160, the Omnibus Election Code and other related
election laws, RESOLVED AS IT HEREBY RESOLVES to promulgate the following rules and guidelines to

govern the conduct of the referendum proposing to annul or repeal Kapasyahan Blg. 10, Serye 1993, of the
Sangguniang Bayan of Morong, Bataan.

(D) Payagang magtatag rin ng sariling "special economic zones" ang bawal bayan ng Morong, Hermosa at
Dinalupihan.

Sec. 1. Supervision and control. The Commission on Elections shall have direct control and supervision
over the conduct of the referendum.

(E) Ibase sa laki ng kanya-kanya lupa ang pamamahagi ng kikitain ng SBMA.


(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.

Sec. 2. Expenses, forms and paraphernalia. The expenses in the holding of the referendum, which shall
include the printing of official ballots, referendum returns, and other forms and the procurement of
supplies and paraphernalia, as well as the per diems of the members of the Referendum committees and
overtime compensation of the members of the Board of Canvassers, shall be chargeable against the
available funds of the Commission. In case of deficiency, the Executive Director and the Director of the
Finance Services Department are directed to submit the budget thereon and to request the Department of
Budget and Management to immediately release the necessary amount.
Sec. 3. Date of referendum and voting hours. The referendum shall be held on July 27, 1996. The voting
shall start at seven o'clock in the morning and shall end at three o'clock in the afternoon.
Sec. 4. Area of coverage. The referendum shall be held in the entire municipality of Morong, Bataan.
Sec. 5. Who may vote. The qualified voters of Morong, Bataan, duly registered as such in the May 8,
1995 Congressional and Local Elections, and those who are registered in the special registration of voters
scheduled on June 29, 1996, shall be entitled to vote in the referendum. For this purpose, the Election
Officer, said municipality, shall prepare the lists of voters for the entire municipality.
Sec. 6. Precincts and polling places. The same precincts and polling places that functioned in the
municipality of Morong, Bataan during the May 8, 1995 Congressional and Local Elections shall function
and be used in the referendum, subject to such changes under the law as the Commission may find
necessary.
Sec. 7. Officials ballots. The official ballots to be used in the referendum shall bear the heading:
"OFFICIAL BALLOT"; "REFERENDUM"; "JULY 27, 1996", "MORONG, BATAAN"; and underneath, the
following instructions: "Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark
on any part of this ballot." The following question shall be provided in the official ballots:
DO YOU APPROVE OF THE PROPOSITIONS CONTAINED IN THE SIGNED PETITION TO ANNUL OR
REPEAL PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993, OF THE SANGGUNIANG BAYAN OF MORONG,
BATAAN, WHICH READ AS FOLLOWS:
I. Bawiin, nulipikahin at pawalang-bisa and Pambayang Kapasyahan Blg. 10, Serye 1993 ng Sangguniang
Bayan para sa pag-anib ng Morong sa SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang Kapasiyahan na aanib lamang ang Morong sa SSEZ kung and 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 SSEZ 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.

(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 pagkokonkre-to ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa
kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan.
(J) Magkaroon ng sapat na representation sa pamunuan ng SBMA ng Morong, Hermosa at Bataan.?
Sec. 8. Referendum Committee. The voting and counting of votes shall be conducted in each polling
place by a Referendum Committee composed of a Chairman, a Poll Clerk, and a Third Member who shall all
be public schools teachers, to be appointed by the Commission through the Election Officer of Morong,
Bataan. Each member of the Referendum Committee shall be entitled to a per diem of Two Hundred Pesos
(P200.00) for services rendered on the day of the referendum.
Sec. 9. Referendum returns and distribution of copies thereof. The referendum returns shall be prepared
by the Referendum Committee in three (3) copies, to distributed as follows:
(1) The first copy shall be delivered to the Referendum Board of Canvassers;
(2) The second copy shall be forwarded to the Election Records and Statistics Department of the
Commission; and
(3) The third copy shall be deposited inside ballot box.
Sec. 10. Referendum Board of Canvassers. There is hereby created a Referendum Board of Canvassers
which shall be composed of the Provincial Election Supervisor of Bataan as Chairman; and as Members
thereof, the Municipal Treasurer and the most senior District School Supervisor or, in the latter's absence, a
principal of the school district or the elementary school.
At least five (5) days before the day of the referendum, the Chairman shall issue a written notice to the
Members of the Board that it shall convene at four o'clock in the afternoon of Referendum Day to canvass
the referendum returns. Notice of said meeting shall be posted in conspicuous places in the Municipal Hall
and other public places within the municipality.
The Board shall meet at the session hall of the Sangguniang Bayan of Morong, Bataan not later than four
o'clock in the afternoon of Referendum Day, and shall immediately canvass the referendum returns and
shall not adjourn until the canvass is completed.
Sec. 11. Preparation and distribution of copies of the referendum results. As soon as all the returns have
been canvassed, the Board shall prepare and accomplish the Certificate of Canvass of Votes and
Proclamation in five (5) copies, supported by a Statement of Votes per Precinct, and, or on the basis
thereof, shall certify and proclaim the final results.
Said copies shall be distributed as follows:

(1) The original shall, within three (3) days from proclamation; be sent to the Election Records and Statistics
Department of the Commission;

17 Sec. 13 (d), RA 6735.


18 Rollo, pp. 10, 14.

(2) The second copy shall be filed in the Office of the Provincial Election Supervisor of Bataan;
(3) The third copy shall be submitted to the Provincial Governor of Bataan;

19 "Thus, local initiatives cannot propose the enactment of the death penalty for any crime because the
imposition of (such) penalty is not within the competence of the local sanggunian to enact." Pimentel,
The Local Government Code of 1991, 1993 edition, p. 237.

(4) The fourth copy shall be kept in the Office of the Election Officer of Morong, Bataan;
(5) The fifth copy shall be submitted to the Municipal Mayor of Morong, Bataan.
Sec. 12. Information campaign. There shall be a period of information campaign which shall commence
immediately, but shall not include the day before and the day of the referendum. During this period, the
Election Officer of Morong, Bataan shall convoke barangay assemblies or "pulong-pulongs" within the
municipality. Civic, professional, religious, business, youth and any other similar organizations may also
hold public rallies or meetings to enlighten the residents therein of the issues involved. Constructive
discussions and debates shall be encouraged and the voters assured of the freedom to voice their opinion
regarding the issue.
Sec. 13. Applicability of election laws. The pertinent provisions of the Omnibus Election Code (Batas
Pambansa Blg. 881), the Electoral Reforms Law of 1987 (Republic Act NO. 6646) and other related election
laws which are not inconsistent with this Resolution shall apply to this referendum.
Sec. 14. Implementation. The Executive Director, assisted by the Deputy Executive Director for
Operations and the Directors of the Finance Services Department, Administrative Services Department and
Election and Barangay Affairs Department, shall implement this Resolution to ensure the holding of a free,
orderly, honest, peaceful and credible referendum.
Sec. 15. Effectivity. This Resolution shall take effect on the seventh day after its publication in two (2)
daily newspapers of general circulation in the Philippines.

20 Judicial power has been defined in jurisprudence as "the right to determine actual controversies arising
between adverse litigants, duly instituted in courts of proper jurisdiction" (citing Muskrat v. United States,
219 U.S. 346 [1911]). It is "the authority to settle justiciable controversies or disputes involving rights that
are enforceable and demandable before the courts of justice or the redress of wrongs for violation of such
rights" (citing Lopez v. Roxas, 17 SCRA 756, 761 [1966]). Thus, there can be no occasion for the exercise of
judicial power unless real parties come to court for the settlement of an actual controversy and unless the
controversy is such that it can be settled in a manner that binds the parties by the application of existing
laws.
The 1987 Constitution now adds: "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." . . .
Fr. Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines A Commentary, Vol. II,
1988 edition, p. 255.
21 Sec. 18, RA 6735.
22 Andres R. Narvasa C.J., Handbook on the Courts and the Criminal Justice System, 1996 Ed., p. 5.
23 Cf. Sec. 12, RA 6735.

Sec. 16. Dissemination. The Education and Information Department shall cause the immediate
publication of this Resolution in two (2) daily newspapers of general circulation in the Philippines and give
this Resolution the widest publicity and dissemination possible. The Executive Director shall furnish the
Secretary of the Department of Budget and Management; the Secretary of the Department of Education,
Culture and Sports; the Provincial Governor of Bataan; the Provincial Election Supervisor of Bataan; and the
Municipal Mayor, the Municipal Treasurer, the District School Supervisor, and the Election Officer, all of
Morong, Bataan, each of a copy of this Resolution the widest publicity possible within the municipality.
SO ORDERED.
12 Sec. 3, Republic Act 6735; approved on August 4, 1989.
13 Philippine Political Law, 1991 edition, p. 169.
14 Black's Law Dictionary, 1979 edition, pp. 705 and 1152. See also Words and Phrases, Vol. 36A, 179 et
seq. and Vol. 21-A, pp. 56 et seq.; 42 Am. Jur 647 et seq.; Bouvier's Law Dictionary, Vol. I, 3rd edition, 1569.
15 Sec. 17, RA 6735.
16 Sec. 10 (a), RA 6735.

24 42 Am. Jr. 2d, p. 653.


25 Bernas, op. cit., Vol II, at p. 68.
26 R.A. 7160. See Book I, Title Nine, Chapter 2.
27 Garcia vs. Commission on Elections, et al., supra, at p. 288.