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SEC 11, RULE 66 Limitations.

There is no question that petitioner's right of action, if any, accrued in July, 1946, when
respondent allegedly usurped the office. From that day to August, 1948, more than one
Nothing contained in this Rule shall be construed to authorize an action against a public year has elapsed. This petition is , therefore, out of time and may not be entertained.
officer or employee for his ouster from office unless the same be commenced within one (Bautista vs. Fajardo, 38 Phil., 624; Abeto vs. Rodas, supra, p. 59 46 Off. Gaz., 930-938).
(1) year after the cause of such ouster, or the right of the petitioner to hold such office or
position, arose; nor to authorize an action for damages in accordance with the provisions During our deliberations, some doubt was expressed as to the validity of this period of
of the next preceding section unless the same be commenced within one (1) year after limitation when it refers to officers whose tenure is protected by the Constitution.
the entry of the judgment establishing the petitioner’s right to the office in question. Reduced to its simplest terms, the position seems to be that a statute may not limit the
period within which a constitutional right should be asserted or enforced before judicial
tribunals. The statement, however, would, in effect, contradict settled doctrines and
G.R. No. L-2451 February 24, 1949 practices. For instance, the right to recover real property admittedly prescribes after ten
years; yet nobody will deny that such right is verily protected by the Constitution.
JOSE M. TUMULAK, petitioner, Contracts are guaranteed by the Constitution; but none, question the applicability of the
vs. statute of limitations to belated proceedings to enforce contractual obligations.
PROTOLICO EGAY, respondent.
Furthermore, constitutional rights may certainly be waived,2 and the inaction of the
Petitioner Tumulak in his own behalf. officer for one year could be validly considered as a waiver, i.e., a renunciation which no
Respondent Egay in his own behalf. principle of justice may prevent, he being at liberty to resign of justice anytime he
pleases.
BENGZON, J.:
And there is good justification for the limitation period: it is not proper that the tile to
public office should be subjected to continued uncertainty, and the people's interest
Thought this quo warranto proceeding filed in August 1948, the petitioner seeks to wrest requires that such right should be determined as speedily as practicable.
from respondent the position of justice of the peace of the municipalities of Gigaquit and
Bacuag, Province of Surigao. He appointed that in December 1932, he became the duly
appointed judge of said towns and acted accordingly until August 1942, when the Remembering that the period fixed may not procedural in nature, it is quite that some
Japanese seized the province until August, 1942, when the Japanese seized the province; persons will question the validity of the rule of court on the point. However, it should be
that after the liberation and in January, 1946, he received from President Sergio Osmeña obvious that if we admit the inefficacy of the particular rule of court hereinbefore
an appointment ad interim for the same position; that in May, 1946, he duly qualified and transcribed, the previous statue on the subject (act (190, section 216) — equally
assumed the office; that thereafter he went to Cebu to fetch his family. but upon providing on the subject (Act 190 section 216) — equally providing for a one-year term
returning he found the respondent Protolico Egay occupying the pose beginning July, — would automatically come into effect and we return to where we started: one year has
1946; that he "had no other remedy" but to "accept the situation"; that in February, passed.
1948, he was informed of the decision of this Court in Tavora vs. Gavina,1 that thereafter
and pursuant to said decision he asked the Department of Justice for reinstatement; and It is also suggested that according to Agcaoili vs. Suguitan,3 the one year period does not
that, having failed to obtain relief, he instituted this litigation to vindicate his right to the refer to public officers, but to corporations. In that litigation, it is true that the court, on
office. this particular point, decided by a bare majority, the case for the petitioners on two
grounds, namely. (1) the one year period applies only to actions against corporations and
Required to answer, respondent submits a motion to dismiss the case, asserting that the not to actions against public officers and (b) even if its applied to officers the period had
action has lapsed because it was commenced more than one year after the cause of not lapsed in view of the particular circumstances. However, upon a reconsideration this
action had accrued. Court "modified" the decision "heretofore announced"4 by limiting it the second ground.

The Rules provide that: And thereafter — this is conclusive — this Court, with the concurrence of justices who
had signed the original Agcaoili decision, expressly applied the one-year period in quo
warranto contest between two justices of the peace.5
SEC. 16. Limitations. — Nothing contained in this rule shall be construed . . . to
authorize an action against an officer for his ouster from office unless the same
be commenced within one year after the cause; . . . (Rule 68, Rules of Court , Wherefore, the petition is dismissed, with costs, So ordered.
page 139.).

1
RECALL of the petitioner and a representative of the official sought to be
RA 7160 AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991 recalled and, and in a public place in the province, city, municipality,
or barangay, as the case may be, shall be filed with the COMELEC
through its office in the local government unit concerned. The
Section 69. By Whom Exercised. - The power of recall for loss of confidence shall be COMELEC or its duly authorized representative shall cause the
exercised by the registered voters of a local government unit to which the local elective publication of the petition in a public and conspicuous place for a
official subject to such recall belongs. period of not less than ten (10) days nor more than twenty (20) days,
for the purpose of verifying the authenticity and genuineness of the
petition and the required percentage of voters.
Section 70. Initiation of the Recall Process. -
(2) Upon the lapse of the aforesaid period, the COMELEC or its duly
(a) Recall may be initiated by a preparatory recall assembly or by the authorized representative shall announce the acceptance of
registered voters of the local government unit to which the local elective official candidates to the position and thereafter prepare the list of
subject to such recall belongs. candidates which shall include the name of the official sought to be
recalled.
(b) There shall be a preparatory recall assembly in every province, city, district,
and municipality which shall be composed of the following: Section 71. Election on Recall. - Upon the filing of a valid resolution or petition for recall
with the appropriate local office of the COMELEC, the Commission or its duly authorized
(1) Provincial level. - All mayors, vice-mayors, and sanggunian representative shall set the date of the election on recall, which shall not be later than
members of the municipalities and component cities; thirty (30) days after the filing of the resolution or petition for recall in the case of the
barangay, city, or municipal officials. and forty-five (45) days in the case of provincial
(2) City level. - All punong barangay and sanggunian barangay officials. The official or officials sought to be recalled shall automatically be considered as
members in the city; duly registered candidate or candidates to the pertinent positions and, like other
candidates, shall be entitled to be voted upon.
(3) Legislative District level. - In case where sangguniang
panlalawigan members are elected by district, all elective municipal Section 72. Effectivity of Recall. - The recall of an elective local official shall be effective
officials in the district; and in cases where sangguniang panlungsod only upon the election and proclamation of a successor in the person of the candidate
members are elected by district, all elective barangay officials in the receiving the highest number of votes cast during the election on recall. Should the
district; and official sought to be recalled receive the highest number of votes, confidence in him is
thereby affirmed, and he shall continue in office.
(4) Municipal level. - All punong barangay and sangguniang barangay
members in the municipality. Section 73. Prohibition from Resignation. - The elective local official sought to be recalled
shall not be allowed to resign while the recall process is in progress.
(c) A majority of all the preparatory recall assembly members may convene in
session in a public place and initiate a recall proceedings against any elective Section 74. Limitations on Recall. -
official in the local government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a resolution adopted by a (a) Any elective local official may be the subject of a recall election only once
majority of all the members of the preparatory recall assembly concerned during his term of office for loss of confidence.
during its session called for the purpose.
(b) No recall shall take place within one (1) year from the date of the official's
(d) Recall of any elective provincial, city, municipal, or barangay official may assumption to office or one (1) year immediately preceding a regular local
also be validly initiated upon petition of at least twenty-five percent (25%) of election.
the total number of registered voters in the local government unit concerned
during the election in which the local official sought to be recalled was elected. Section 75. Expenses Incident to Recall Elections. - All expenses incident to recall
elections shall be borne by the COMELEC. For this purpose, there shall be included in the
(1) A written petition for recall duly signed before the election annual General Appropriations Act a contingency fund at the disposal of the COMELEC
registrar or his representative, and in the presence of a representative for the conduct of recall elections.
2
[G.R. No. 126576. March 5, 1997] In at least three (3) urgent motions, private respondent has sought the lifting of the
Temporary Retraining Order issued last October 25, 1996 on the twin grounds (1) that
the issue of the one-year bar on recall elections has been resolved in the case of Paras v.
COMELEC[5] promulgated on November 4, 1996; and (2) that the procedure prescribed
MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON ELECTIONS EN by Resolution No. 96-2951 involving petition signing upon initiation of even just one
BANC, and ATTY. AURORA S. DE ALBAN, respondents. person, is no different from that provided for in COMELEC Resolution No. 2272 which
was upheld as constitutional in the 1991 cases of Sanches, et al. v.
COMELEC[6] and Evardone v. COMELEC[7]
DECISION
Private respondent is correct in saying that in the light of our pronouncement
HERMOSISIMA, JR., J.: in Paras v. COMELEC[8], the recall election scheduled on December 2, 1996 in the instant
case cannot be said to be barred by the May 12, 1997 Barangay Elections. In construing
Before us on certiorari is a petition seeking to annul and set aside Resolution No. the meaning of the term, regular local election in Section 74 of the Local Government
96-2951[1] dated October 15, 1996 issued by public respondent Commission on Elections Code of 1991 which provides that no recall shall take place within one (1) year x x x
(COMELEC) which (1) approved the Petition for Recall filed and signed by only one immediately preceding a regular local election, we ruled that for the time bar to apply,
registered voter - herein private respondent Ma. Aurora Siccuan de Alban, against the approaching regular local election must be one where the position of the official to be
petitioner - incumbent Mayor Ricardo Angobung; (2) set the further signing of said recalled, is to be actually contested and filled by the electorate. Thus, in the instant case
petition by the rest of the registered voters of Tumauini, Isabela on November 9, 1996; where the time bar is being invoked by petitioner mayor in view of the approaching
and (3) in case the said petition is signed by at least 25% of the total number of Barangay Elections in May 1997, there can be no application of the one year bar, hence
registered votes in Tumauni, Isabela, scheduled the recall election on December 2, 1996. no invalidity may be ascribed to Resolution No. 96-2951 on this ground.

On October 25, 1996, this court issued a Temporary Restraining Order[2] enjoining We, however, find petitioners second ground to be impressed with merit.
public respondent COMELEC from implementing and enforcing Resolution No. 96-2951.
Before the enactment of the 1991 Local Government Code, the recall of public
The facts of this case are not disputed. officials voted for in popular elections, was governed by Sections 54 to 59 of Batas
Pambansa Blg. 337, otherwise known as the Local Government Code of 1983. Pursuant to
Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela Section 59 thereof, which states that the Commission on Elections shall conduct and
in the local elections of 1995. He garnered 55% of all the votes cast. Private respondent supervise the process of and election on recall x x x and, in pursuance thereof,
de Alban was also a candidate in said elections. promulgate the necessary rules and regulations, the COMELEC promulgated Resolution
No. 2272 Sections 4 and 5 of which provide as follows:
Sometime in early September, 1996, private respondent filed with the Local
Election Registrar in Tumauni, Isabela, a Petition for Recall[3] against petitioner. On
September 12, 1996, petitioner received a copy of this petition. Subsequently said Sec. 4. How instituted. - The recall of an elective provincial, city or municipal
petition was forwarded to the Regional Office in Tuguegarao, Cagayan and then to the official shall be commenced by the filing of a duly verified notice of recall
main office of COMELEC in Manila, for approval. containing the address and precinct number of the voter filing the notice, and the
name of the official sought to be recalled, his position, and the ground(s) for the
Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson recall. Each notice shall refer to only one official.lex
submitted to the COMELEC En Banc, a Memorandum[4] dated October 8, 1996
recommending approval of the petition for recall filed by private respondent and its
The notice shall be filed in triplicate with the local Election Registrar if the
signing by other qualified voters in order to garner at least 25% of the total number of
recall involves a city or municipal official, or with the Provincial Election
registered voters as required by Section 69(d) of the Local Government code of 1991.
Supervisor if it involves a provincial official, one copy of which shall be posted
In turn acting on the abovementioned Memorandum of Deputy Executive Director upon receipt thereof on the bulletin board in the city/municipal hall.
Joson, the COMELEC en banc issued the herein assailed Resolution No. 96-2951.
If the recall involves a provincial official, two additional copies of the notice
Petitioner now attacks the aforementioned resolution as being unconstitutional shall also be furnished by the voter filing the notice to the Election Registrar of
and therefore invalid, on two main grounds: (1) that the resolution approved the Petition each city and municipality in the province, one copy of which shall be posted upon
for Recall albeit same was signed by just one person in violation of the statutory 25% receipt thereof on the bulletin board in the city/municipal hall.
minimum requirement as to the number of signatures supporting and petition for recall;
and (2) that the resolution scheduled the recall election within one (1) year from the
May 12, 1997 Barangay Elections.

3
In every case, the voter filing the notice of recall shall furnish a copy thereof specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But
to the official sought to be recalled, the Commission on Elections in Manila and the the Local Government Code of 1991 will take effect only on 1 January 1992 and
Election Records and Statistics Department of the Commission. therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable
to the present case.
Section 5. Schedule and place of signing of the petition. - The Election Registrar shall
submit to the Commission on Elections, not later than ten days from filing of the notice of xxx
recall, the schedule of the signing of the petition to recall for approval and funding x x
x.[9] Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall
of local elective officials. Section 59 expressly authorizes the respondent
In the case of Sanchez v. COMELEC[10], petitioners therein contended that the COMELEC to conduct and supervise the process of and election on recall and in the
aforegoing Resolution No. 2272 is unconstitutional there being no legislative enactment exercise of such powers, promulgate the necessary rules and regulations. x x x
yet on [the] mechanism of recall as mandated under Sec. 3, Art. X of the Constitution [11] It Thus, pursuant to the rule-making power vested in respondent COMELEC, it
is true, as private respondent asseverates, that we upheld the constitutionality promulgated Resolution No. 2272 on 23 May 1990.
of Resolution No. 2272, but not because we found nothing constitutionally infirm about
the procedure of allowing the initiatory recall petition to be filed by only one person. The We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC
issue in Sanchez was not this questioned procedure but the legal basis for the exercise by is valid and constitutional. Consequently, the respondent COMELEC had the
the COMELEC of its rule-making power in the alleged absence of a grant of such power authority to approve the petition for recall and set the date for the signing of said
by an enabling statute on recall. Thus we ruled: petition.[14]

lexWhile it is true that Sec. 3, Art. X of the Constitution mandates the Congress to In Sanchez and Evardone, the COMELEC prescribed procedure of (1) allowing the
enact a local government code providing among others for an effective mechanism recall petition to be filed by at least one person or by less than 25% of the total number
of recall, nothing in said provision could be inferred the repeal of BP 337, the local of registered voters and then (2) inviting voters to sign said petition on a date set for that
government code existing prior to the adoption of the 1987 Constitution. Sec. 3, purpose, was never put to issue. As this is the crux of the present constitutional
Art. X of the Constitution merely provides that the local government code to be challenge, the proper time has come for this court to issue a definitive ruling on the
enacted by Congress shall be more responsive than the one existing at matter.
present. Until such time that a more responsive and effective local government
code is enacted, the present code shall remain in full force and effect. Thus, under Apropos for starters is the following chronicle of the evolution of the mechanism of
Sec. 3, Art. XVIII, (a)ll existing laws, decrees, executive orders, proclamations, recall as a mode of removing a public officer by direction action of the people, essayed in
letters of instructions and other executive issuances not inconsistent with this the case of Garcia v. COMELEC:[15]
Constitution shall remain operative until amended, repealed, or revoked.
Recall is a mode of removal of a public officer by the people before the end
Considering that the present local government code (BP 337) is still in of his term of office. The peoples prerogative to remove a public officer is an
effect, respondent COMELECs promulgation of Resolution No. 2272 is therefore incident of their sovereign power and in the absence of constitutional restraint, the
valid and constitutional, the same having been issued pursuant to Sec. 59 of BP power is implied in all governmental operations. Such power has been held to be
337. It reads: indispensable for the proper administration of public affairs. Not undeservedly, it
is frequently described as a fundamental right of the people in a representative
Sec. 59. Supervision by the Commission on Elections. - democracy.
The Commission on Elections shall conduct and supervise the
process of and election on recall x x x and, in pursuance thereof, Recall as a mode of removal of elective local officials made its maiden
promulgate the necessary rules and regulations.[12] appearance in section 2 of Article XI entitled Local Government, viz:
We reiterated the foregoing ruling in the case of Evardone v. COMELEC[13] in this SEC. 2. The Batasang Pambansa shall enact a local
wise: government code which may not thereafter be amended
except by a majority vote of all its Members, defining a more
Article XVIII, Section 3 of the 1987 Constitution expressly provides that all responsive and accountable local government structure with
existing laws not inconsistent with the 1987 Constitution shall remain operative, an effective system of recall x x x
until amended, repealed or revoked.Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991,
4
The Batasang Pambansa then enacted BP 337 entitled, The Local Government Code recall statutes in various American states to the same extent that they were aware of the
of 1983 Section 54 of its Chapter 3 provided only one mode of initiating the recall rationale therefor. While recall was intended to be an effective and speedy remedy to
elections of local election officials, i.e., by petition of at least twenty-five percent remove an official who is not giving satisfaction to the electorate regardless of whether
(25%) of the total number of registered voters in the local government unit or not he is discharging his full duty to the best of his ability and as his conscience
concerned x x x. dictates,[18] it is a power granted to the people who, in concert, desire to change their
leaders for reasons only they, as a collective, can justify. In other words, recall must be
Our legal history does not reveal any instance when this power of recall as pursued by the people, not just by one disgruntled loser in the elections or a small
provided by BP 337 was exercised by our people. percentage of disenchanted electors. Otherwise, its purposes as a direct remedy of the
people shall be defeated by the ill motives of a few among them whose selfish resort to
recall would destabilize the community and seriously disrupt the running of government.
In February , 1986, however, our people more than exercised their right of
recall for they resorted to revolution and they booted out of office the highest A scrutiny of the rationale underlying the time bar provisions and the percentage of
elective officials of the land. The successful use of people power to remove public minimum voter requirement in American recall statutes, unmistakably reveals the
officials who have forfeited the trust of the electorate led to its firm vigilance of lawmakers against the abuse of the power of recall. For instance, the
institutionalization of the 1987 Constitution. Its Articles XIII expressly recognized Supreme Court of Illinois held in the case of In Re Bower[19] that:
the Role and Rights of Peoples Organizations x x x.
[t]the only logical reasons which we can ascribe for requiring the
electors to wait one year before petitioning for a recall election is to
Section 3 of its Article X also reiterated the mandate for Congress to enact a prevent premature action on their parting voting to remove a newly elected
local government code which shall provide for a more responsive and accountable official before having had sufficient time to evaluate the soundness of his
local government structure instituted through a system of decentralization with political policies and decisions. We view the statutory provision requiring
effective mechanisms of recall, initiative and referendum x x x. In response to this the number of petition signers to equal at least 45% of the total votes case
constitutional call, Congress enacted R.A. 7160, otherwise known as the Local in the last general election for mayor as a further attempt to insure that an
Government Code of 1991, which took effect on January 1, 1992.[16] official will not have to defend his policies against frivolous attacks
launched by a small percentage of disenchanted electors.[20]
Section 69(d) of the Local Government Code of 1991 expressly provides that recall
of any elective x x x municipal x x x official may also be validly initiated upon petition of Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v.
at least twenty-five percent (25%) of the total number of registered voters in the local City of Boulder[21] that:
government unit concerned during the election in which the local official sought to be
recalled was elected. The law is plain and unequivocal as to what initiates recall [t]he framers, by requiring that a recall petition contain the signatures of
proceedings: only a petition of at least 25% of the total number of registered voters, may at least 25% of all votes cast in the last election for all candidates for the position
validly initiate recall proceedings. We take careful note of the phrase, petition of at least which the person sought to be recalled occupies, assured that a recall election will
twenty-five percent (25%) and point out that the law does not state that the petition not be held in response to the wishes of a small and unrepresentative
must be signed by at least 25% of the registered voters; rather, the petition must be of or minority. However, once at least 25% of the electorate have expressed their
by, at least 25% of the registered voters, i.e., the petition must be filed, not by one person dissatisfaction, the constitution reserves the recall power to the will of the
only, but by at least 25% of the total number of registered voters.This is understandable, electorate.[22]
since the signing of the petition is statutorily required to be undertaken before the
election registrar or his representative, and in the presence of a represetantive of the And in the case of Wallace v. Tripp[23], the Supreme Court of Michigan, echoed the
official sought to be recalled, and in public place in the x x x municipality x x x.[17] Hence, foregoing posturings in this wise:
while the initiatory recall petition may not yet contain the signatures of at least 25% of
the total number of registered voters, the petition must contain the names of at least
25% of the total number of registered voters in whose behalf only one person may sign Much of what has been said to justify a limit upon recall clearly not provided or
the petition in the meantime. contemplated by the Constitution has revealed fears about an irresponsible electorate
xxx. A much cited Nebraska case pertaining to
We cannot sanction the procedure of the filing of the recall petition by a number of a Nebraska recall statute provides some answers which are equally applicable to the
people less than the foregoing 25% statutory requirement, much less, the filing thereof Michigan constitutional right of recall:
by just one person, as in the instant case, since this is indubitably violative of clear and
categorical provisions of subsisting law. xxx Doubtless the provision requiring 30 per cent of the electors to sign the petition
Our legislators did not peg the voter requirement at 25% out of caprice or in a before the council [is] compelled to act was designed to avoid such a contingency. The
vacuum. They knew that this is the requirement under a majority of the constitution and legislature apparently assumed that nearly one-third of the electorate would not entail

5
upon the taxpayers the cost of an election unless the charges made approved themselves
to their understanding and they were seriously dissatisfied with the services of the
incumbent of the office.[24]

In the instant case, this Court is confronted with a procedure that is unabashedly
repugnant to the applicable law and no less such to the spirit underlying that law. Private
respondent who is a lawyer, knows that Section 69(d) of the Local Government Code
plainly provides that recall is validly initiated by a petition of 25% of the total number of
registered voters.Notwithstanding such awareness, private respondent proceeded to file
the petition for recall with only herself as the filer and initiator. She claims in her petition
that she has, together with many others in Tumauini, Isabela, lost confidence in the
leadership of petitioner. But the petition does not bear the names of all these other
citizens of Tumauini who have reportedly also become anxious to oust petitioner from
the post of mayor. There is no doubt that private respondent is truly earnest in her cause,
and the very fact that she affixed her name in the petition shows that she claims
responsibility for the seeming affront to petitioners continuance in office. But the same
cannot be said of all the other people whom private respondent claims to have
sentiments similar to hers. While the people are vested with the power to recall their
elected officials, the same power is accompanied by the concomitant responsibility to see
through all the consequences of the exercise of such power, including rising above
anonymity, confronting the official sought to be recalled, his family, his friends, and his
supporters, and seeing the recall election to its ultimate end. The procedure of allowing
just one person to file the initiatory recall petition and then setting a date for the signing
of the petition, which amounts to inviting and courting the public which may have not, in
the first place, even entertained any displeasure in the performance of the official sought
to be recalled, is not only violative of statutory law but also tainted with an attempt to go
around the law. We can not and must not, under any and all circumstances, countenance
a circumvention of the explicit 25% minimum voter requirement in the initiation of the
recall process.
WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby
GRANTED. COMELEC Resolution No. 96-2951 is hereby DECLARED NULL and VOID and
accordingly SET ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made permanent.
Costs against private respondent.
SO ORDERED.

6
CRIMINAL CONVICTION Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per
Resolution No. O.P. 1800, granted executive clemency to petitioner.

G.R. No. 75025 September 14, 1993 Petitioner thereafter filed with respondent COA a claim for payment of back salaries
effective 1 April 1975, the date of his dismissal from the service. This was denied by the
VICENTE GARCIA, petitioner, COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive
vs. clemency granted to him did not provide for the payment of back salaries and that he has
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE not been reinstated in the service.
MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL
DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents. It appears that petitioner was recalled to the service on 12 March 1984 but the records
do not show whether petitioner's reinstatement was to the same position of Supervising
Eulogio B. Alzaga for petitioner. Lineman.1

The Solicitor General for respondents. Petitioner again filed a claim to recover his back salaries for the period from 1 April
1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision
No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the
claim stating that the executive clemency was silent on the payment of back wages and
that he had not rendered service during the period of his claim.
BELLOSILLO, J.:
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the
Petitioner comes to us on a petition for review on certiorari of the decision of 23 July President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by
1985 of respondent Commission on Audit (COA) denying his claim for payment of back authority of the President, denied the appeal "due to legal and constitutional
wages, after he was reinstated to the service pursuant to an executive clemency. He constraint,"2 holding that this Court is the proper forum to take cognizance of the appeal
prays for the extraordinary remedy of mandamus against public respondents to enforce on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973
his claim. Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution).

Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Hence, petitioner filed the instant petition on the issue of whether he is entitled to the
Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily payment of back wages after having been reinstated pursuant to the grant of executive
dismissed from the service on the ground of dishonesty in accordance with the decision clemency.
of the then Ministry of Public Works, Transportation and Communications in Adm. Case
No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena In his comment to the petition, the Solicitor General recommends that the petition be
City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the given due course and the petitioner be awarded back wages to be determined in the light
decision. of existing laws and jurisprudence. The Solicitor General submits that the award is
implicit in the grant of executive clemency, the ultimate objective of which is to accord
Based on the same facts obtaining in the administrative action, a criminal case for full justice to petitioner.
qualified theft was filed against petitioner with the then Court of First Instance (now
Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision On the other hand, the COA asks this Court to deny the petition for the following reasons:
acquitting petitioner of the offense charged. (a) petitioner's acquittal in the criminal case did not necessarily free him from
administrative liability; (b) petitioners unexplained failure to appeal the decision in the
Consequently, petitioner sought reinstatement to his former position administrative case was tantamount to a waiver or renunciation of his right to back
in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, wages; (c) the executive clemency was granted to petitioner for the purpose of
petitioner's request to be reinstated was denied by the Bureau of Telecommunications. reinstatement only since it was silent on the matter of back wages; (d) the award of back
Hence, petitioner pleaded to the President of the Philippines for executive clemency. wages is allowed only if the respondent is exonerated from the administrative charge
that his suspension or dismissal is declared illegal or unjustified by the court; and, (e)
On 26 August 1981, acting on the favorable indorsements of the then Ministry of petitioner did not render any service during the period before his reinstatement, hence,
Transportation and Communications and the Civil Service Commission, Deputy he is not entitled to back wages based on the "no service, no pay" rule.

7
The petition is meritorious. alone in defending himself against the accusation of
the very government he tried to protect.
Every civilized country recognizes, and has therefore provided for, the pardoning power
to be exercised as an act of grace and humanity, in proper cases. Without such a power of After a careful study, this Office is inclined to grant executive
clemency, to be exercised by some department or functionary of a government, a country clemency to petitioner in the light of this decision of the court
would be most imperfect and deficient in its political morality and in that attribute of acquitting him of the crime of qualified theft which was based on the
Deity whose judgments are always tempered with money.3 same acts obtaining in Administrative Case No. 975 against him,
coupled with the favorable recommendation of the Minister of
Our Constitution reposes in the President the power and the exclusive prerogative to Transportation and Communications and the Civil Service
extend executive clemency under the following circumstances: Commission.

Except in cases of impeachment or as otherwise provided in this In view of the foregoing, petitioner Vicente Garcia is hereby granted
Constitution, the President may grant reprieves, commutations, and executive clemency.5
pardons, and remit fines and forfeitures, after conviction by final
judgment. Time and again this Court has unfolded the effects of a pardon upon the individual to
whom it is granted. In Monsanto v. Factoran,6 we have firmly established the general rule
He shall also have the power to grant amnesty with the concurrence that while a pardon has generally been regarded as blotting out the existence of guilt so
of a majority of all the Members of the Congress.4 that in the eyes of the law the offender is as innocent as though he never committed the
offense, it does not operate for all purposes. The very essence of a pardon is forgiveness
or remission of guilt and not forgetfulness . It does not erase the fact of the commission
From among the different acts of executive clemency spelled out above, the clemency of the crime and the conviction thereof. Pardon frees the individual from all the penalties
granted to petitioner in the instant case partakes of the nature of an executive pardon. A and legal disabilities and restores to him all his civil rights. Unless expressly grounded on
reading of Resolution No. 1800 partly quoted hereunder is enlightening: the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair
dealing. The pardoned offender regains his eligibility for appointment to public office
In a 3rd Indorsement dated September 5, 1980, the Director of which was forfeited by reason of the conviction of the offense. But since pardon does not
Telecommunications interposed no objection to the petition, while the generally result in automatic reinstatement because the offender has to apply for
Minister of Transportation and Communications, in his 4th reappointment, he is not entitled to back wages.
Indorsement dated November 17, 1980, favorably recommended the
grant of executive clemency to petitioner for the reason that "while it But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms
is a rule that an administrative case is separate and distinct from a this innocence and makes him a new man and as innocent; as if he had not been found
criminal case and an acquittal in the latter case dos not ipso guilty of the offense charged.7 When a person is given pardon because he did not truly
facto result in the exoneration in the former case, yet an exception commit the offense, the pardon relieves the party from all punitive consequences of his
could arise if the basis for the acquittal was the innocence of the criminal act, thereby restoring to him his clean name, good reputation and unstained
accused as in the case of petitioner Garcia. character prior to the finding of guilt.

Asked for comment pursuant to Section 43 of Presidential Decree No. In the case at bar, petitioner was found administratively liable for dishonesty and
807, the Civil service Commission recommends the grant of executive consequently dismissed from the service. However, he was later acquitted by the trial
clemency to petitioner in view of the findings of the court that — court of the charge of qualified theft based on the very same acts for which he was
dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof
instead of coming forward to the defense of the beyond reasonable doubt but on the fact that petitioner did not commit the offense
accused who actually was authorized to uproot or imputed to him. Aside from finding him innocent of the charge, the trial court
recover the poles in question and of commending commended petitioner for his concern and dedication as a public servant. Verily,
the latter for his high sense of responsibility in petitioner's innocence is the primary reason behind the grant of executive clemency to
preventing losses to the government, said high him, bolstered by the favorable recommendations for his reinstatement by the Ministry
officials had even the temerity to disown and deny of Transportation and Communications and the Civil Service Commission.
the authority they gave to the accused resulting in
his separation from the service and having him all

8
The bestowal of executive clemency on petitioner in effect completely obliterated the offense charged. Verily, law, equity and justice dictate that petitioner be afforded
adverse effects of the administrative decision which found him guilty of dishonesty and compassion for the embarrassment, humiliation and, above all, injustice caused to him
ordered his separation from the service. This can be inferred from the executive and his family by his unfounded dismissal. This Court cannot help surmising the painful
clemency itself exculpating petitioner from the administrative charge and thereby stigma that must have caused petitioner, the incursion on his dignity and reputation, for
directing his reinstatement, which is rendered automatic by the grant of the pardon. This having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief.
signifies that petitioner need no longer apply to be reinstated to his former employment; Consequently, this Court finds it fair and just to award petitioner full back wages from 1
he is restored to his office ipso facto upon the issuance of the clemency. April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated.
The payment shall be without deduction or qualification.
Petitioner's automatic reinstatement to the government service entitles him to back
wages.8 This is meant to afford relief to petitioner who is innocent from the start and to WHEREFORE, the petition is GRANTED. The decision of respondent Commission on
make reparation for what he has suffered as a result of his unjust dismissal from the Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering
service. To rule otherwise would defeat the very intention of the executive clemency, i.e., public respondents, the Chairman of the Commission on Audit, the Minister (now
to give justice to petitioner. Moreover, the right to back wages is afforded to those with Secretary) of Land Transportation and Communications, the Regional Director of
have been illegally dismissed and were thus ordered reinstated or to those otherwise Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay
acquitted of the charges against them.9 There is no doubt that petitioner's case falls the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based
within the situations aforementioned to entitle him to back wages. on his latest salary scale.

Further, it is worthy to note that the dismissal of petitioner was not the result of any SO ORDERED.
criminal conviction that carried with it forfeiture of the right to hold public office, but is
the direct consequence of an administrative decision of a branch of the Executive
Department over which the President, as its head, has the power of control. The
President's control has been defined to mean "the power of an officer to alter or modify
or nullify or set aside what a subordinate officer had done in the performance of his
duties and to the judgment of the former for the latter." 10 In pardoning petitioner and
ordering his reinstatement, the Chief Executive exercised his power of control and set
aside the decision of the Ministry of Transportation and Communications. The clemency
nullified the dismissal of petitioner and relieved him from administrative liability. The
separation of the petitioner from the service being null and void, he is thus entitled to
back wages.

After having been declared innocent of the crime of qualified theft, which also served as
basis for the administrative charge, petitioner should not be considered to have left his
office for all legal purposes, so that he is entitled to all the rights and privileges that
accrued to him by virtue of the office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be
paid an illegally dismissed government employee who has been ordered
reinstated. 12 The cases heretofore decided by this Court show that petitioners therein
were employees of local governments who were removed from office by their local
officials. The reasons given for their removal were abolition of office or position,
reduction of work force, or lack of funds on the part of the local governments concerned,
which reasons were found by this Court to be either devoid of factual basis or not
sufficiently proven, otherwise, their dismissal would have been valid and justified. In
contrast, the case before us is different, involving as it does circumstances that impel us
to deviate from the general rule previously laid down on the recovery of back wages for
five (15) years. Petitioner's reinstatement in the instant case which was ordered
pursuant to a grant of executive clemency was effected not because of lack of sufficient
proof of his commission of the offense but that, more importantly, he did not commit the

9
IMPEACHMENT ARTICLE 11 SEC 2-3 OF 1987 CONSTITUTION DISCIPLINARY ACTIONS ON PUBLIC OFFICERS (INCLUDING REMOVAL)
ACCOUNTABLITY OF PUBLIC OFFICERS
Sec. 2(3) Art. XI-B, 1987 CONSTITUTION

Section 2. The President, the Vice-President, the Members of the Supreme Court, the No officer or employee of the civil service shall be removed or suspended except for
Members of the Constitutional Commissions, and the Ombudsman may be removed from cause provided by law.
office on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All Secs. 46(b), 50-52, Book V, EO 292
other public officers and employees may be removed from office as provided by law, but
not by impeachment.
SECTION 46. Discipline: General Provisions.—(a) No officer or employee in the Civil
Section 3. Service shall be suspended or dismissed except for cause as provided by law and after
due process.
1. The House of Representatives shall have the exclusive power to initiate all
cases of impeachment. (b) The following shall be grounds for disciplinary action:
2. A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution or endorsement
by any Member thereof, which shall be included in the Order of Business within (1) Dishonesty;
ten session days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority vote of all its (2) Oppression;
Members, shall submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The resolution shall (3) Neglect of duty;
be calendared for consideration by the House within ten session days from
receipt thereof.
3. A vote of at least one-third of all the Members of the House shall be necessary (4) Misconduct;
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall (5) Disgraceful and immoral conduct;
be recorded.
4. In case the verified complaint or resolution of impeachment is filed by at least (6) Being notoriously undesirable;
one-third of all the Members of the House, the same shall constitute the Articles
of Impeachment, and trial by the Senate shall forthwith proceed.
5. No impeachment proceedings shall be initiated against the same official more (7) Discourtesy in the course of official duties;
than once within a period of one year.
6. The Senate shall have the sole power to try and decide all cases of (8) Inefficiency and incompetence in the performance of official duties;
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of (9) Receiving for personal use of a fee, gift or other valuable thing in the course of official
the Supreme Court shall preside, but shall not vote. No person shall be duties or in connection therewith when such fee, gift, or other valuable thing is given by
convicted without the concurrence of two-thirds of all the Members of the any person in the hope or expectation of receiving a favor or better treatment than that
Senate. accorded other persons, or committing acts punishable under the anti-graft laws;
7. Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the
Philippines, but the party convicted shall nevertheless be liable and subject to (10) Conviction of a crime involving moral turpitude;
prosecution, trial, and punishment, according to law.
8. The Congress shall promulgate its rules on impeachment to effectively carry (11) Improper or unauthorized solicitation of contributions from subordinate employees
out the purpose of this section. and by teachers or school officials from school children;

(12) Violation of existing Civil Service Law and rules or reasonable office regulations;

10
(13) Falsification of official document; SECTION 50. Summary Proceedings.—No formal investigation is necessary and the
respondent may be immediately removed or dismissed if any of the following
(14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or circumstances is present:
frequent unauthorized absences from duty during regular office hours;
(1) When the charge is serious and the evidence of guilt is strong;
(15) Habitual drunkenness;
(2) When the respondent is a recidivist or has been repeatedly charged and there is
(16) Gambling prohibited by law; reasonable ground to believe that he is guilty of the present charge; and

(17) Refusal to perform official duty or render overtime service; (3) When the respondent is notoriously undesirable.

(18) Disgraceful, immoral or dishonest conduct prior to entering the service; Resort to summary proceedings by the disciplining authority shall be done with utmost
objectivity and impartiality to the end that no injustice is committed: Provided, That
removal or dismissal except those by the President, himself or upon his order, may be
(19) Physical or mental incapacity or disability due to immoral or vicious habits; appealed to the Commission.

(20) Borrowing money by superior officers from subordinates or lending by SECTION 51. Preventive Suspension.—The proper disciplining authority may
subordinates to superior officers; preventively suspend any subordinate officer or employee under his authority pending
an investigation, if the charge against such officer or employee involves dishonesty,
(21) Lending money at usurious rates of interest; oppression or grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would warrant his
(22) Willful failure to pay just debts or willful failure to pay taxes due to the government; removal from the service.

(23) Contracting loans of money or other property from persons with whom the office of SECTION 52. Lifting of Preventive Suspension Pending Administrative Investigation.—
the employee concerned has business relations; When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period of ninety
(90) days after the date of suspension of the respondent who is not a presidential
(24) Pursuit of private business, vocation or profession without the permission required appointee, the respondent shall be automatically reinstated in the service: Provided,
by Civil Service rules and regulations; That when the delay in the disposition of the case is due to the fault, negligence or
petition of the respondent, the period of delay shall not be counted in computing the
(25) Insubordination; period of suspension herein provided.

(26) Engaging directly or indirectly in partisan political activities by one holding a non-
political office;

(27) Conduct prejudicial to the best interest of the service;

(28) Lobbying for personal interest or gain in legislative halls or offices without
authority;

(29) Promoting the sale of tickets in behalf of private enterprises that are not intended
for charitable or public welfare purposes and even in the latter cases if there is no prior
authority;

(30) Nepotism as defined in Section 60 of this Title.

11
[G.R. No. 131012. April 21, 1999] which, on September 3, 1996, rendered a decision (1) affirming the decision of the CSC
with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2)
reversing it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate
court found him guilty of violation of reasonable office rules and regulations only and
HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of imposed on him the penalty of reprimand.[5]
Education, Culture, and Sports, petitioner, vs. COURT OF APPEALS, Private respondents moved for a reconsideration, contending that they should be
AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and exonerated of all charges against them and that they be paid salaries during their
NICANOR MARGALLO, respondents. suspension. In its resolution, dated July 15, 1997, the Court of Appeals, while maintaining
its finding that private respondents were guilty of violation of reasonable office rules and
DECISION regulations for which they should be reprimanded, ruled that private respondents were
entitled to the payment of salaries during their suspension beyond ninety (90) days.
MENDOZA, J.: Accordingly, the appellate court amended the dispositive portion of its decision to read
as follows:
This case arose out of the unfortunate strikes and walk-outs staged by public
school teachers on different dates in September and October 1990. The illegality of the WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution
strikes was declared in our 1991 decision in Manila Public School Teachers Association v. Nos. 93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo
Laguio, Jr.,[1] but many incidents of those strikes are still to be resolved. At issue in this Abad), CSC Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17,
case is the right to back salaries of teachers who were either dismissed or suspended 1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125
because they did not report for work but who were eventually ordered reinstated dated August 10, 1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while CSC
because they had not been shown to have taken part in the strike, although reprimanded Resolution Nos. 93-2211 dated June 21, 1993 are hereby MODIFIED finding petitioner
for being absent without leave. Nicanor Margallo guilty of a lesser offense of violation of reasonable office rules and
regulations and meting upon him the penalty of reprimand. Respondent DECS is ordered
The facts are as follows:
to pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and Nicanor
Private respondents are public school teachers. On various dates in September and Margallo their salaries, allowances and other benefits during the period of their
October 1990, during the teachers strikes, they did not report for work. For this reason, suspension/dismissal beyond the ninety (90) day preventive suspension. No
they were administratively charged with (1) grave misconduct, (2) gross neglect of duty, pronouncement as to costs.[6]
(3) gross violation of Civil Service Law Rules and Regulations and reasonable office
regulations, (4) refusal to perform official duty, (5) gross insubordination, (6) conduct Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports,
prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and moved for a reconsideration insofar as the resolution of the Court of Appeals ordered the
placed under preventive suspension. The investigation was concluded before the lapse of payment of private respondents salaries during the period of their appeal. [7] His motion
their 90-day suspension and private respondents were found guilty as was, however, denied by the appellate court in its resolution of October 6, 1997.[8] Hence,
charged. Respondent Nicanor Margallo was ordered dismissed from the service effective this petition for review on certiorari.
October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth
Somebang were ordered suspended for six months effective December 4, 1990.[2] Petitioner contends that the administrative investigation of respondents was
concluded within the 90-day period of preventive suspension, implying that the
Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) continued suspension of private respondents is due to their appeal, hence, the
which found him guilty of conduct prejudicial to the best interest of the service and government should not be held answerable for payment of their salaries. Moreover,
imposed on him a six-month suspension.[3] The other respondents also appealed to the petitioner lays so much store by the fact that, under the law, private respondents are
MSPB, but their appeal was dismissed because of their failure to file their appeal considered under preventive suspension during the period of their appeal and, for this
memorandum on time.[4] reason, are not entitled to the payment of their salaries during their suspension.[9]
On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB Petitioners contentions have no merit.
with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang)
guilty only of violation of reasonable office rules and regulations by failing to file
applications for leave of absence and, therefore, reduced the penalty imposed on them to
I. Preventive Suspension and the Right to Compensation in Case of Exoneration
reprimand and ordered them reinstated to their former positions.
Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to
Revised Administrative Circular No. 1-95, the case was referred to the Court of Appeals

12
The present Civil Service Law is found in Book V, Title I, Subtitle A of the Preventive suspension pending investigation is not a penalty.[10] It is a measure
Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions in this case, intended to enable the disciplining authority to investigate charges against respondent
the law provides: by preventing the latter from intimidating or in any way influencing witnesses against
him. If the investigation is not finished and a decision is not rendered within that period,
SEC. 47. Disciplinary Jurisdiction. - the suspension will be lifted and the respondent will automatically be reinstated. If after
investigation respondent is found innocent of the charges and is exonerated, he should
be reinstated.
....

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and
A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than thirty
days or fine in an amount not exceeding thirty days salary. In case the decision rendered Is he entitled to the payment of salaries during the period of suspension? As
by a bureau or office head is appealable to the Commission, the same may be initially already stated, the Court of Appeals ordered the DECS to pay private respondents their
appealed to the department and finally to the Commission and pending appeal, the same salaries, allowances, and other benefits beyond the ninety (90) day preventive
shall be executory except when the penalty is removal, in which case the same shall be suspension. In other words, no compensation was due for the period of the preventive
executory only after confirmation by the Secretary concerned. suspension pending investigation but only for the period of preventive
suspension pending appeal in the event the employee is exonerated.
.... The separate opinion of Justice Panganiban argues that the employee concerned
should be paid his salaries after his suspension.
(4) An appeal shall not stop the decision from being executory, and in case the penalty is
The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such
suspension or removal, the respondent shall be considered as having been under
salaries in case of exoneration. Sec. 35 read:
preventive suspension during the pendency of the appeal in the event he wins an appeal.

Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. - When the
SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively
administrative case against the officer or employee under preventive suspension is not
suspend any subordinate officer or employee under his authority pending an
finally decided by the Commissioner of Civil Service within the period of sixty (60) days
investigation, if the charge against such officer or employee involves dishonesty,
after the date of suspension of the respondent, the respondent shall be reinstated in the
oppression or grave misconduct, or neglect in the performance of duty, or if there are
service. If the respondent officer or employee is exonerated, he shall be restored to his
reasons to believe that the respondent is guilty of charges which would warrant his
position with full pay for the period of suspension.[11]
removal from the service.

However, the law was revised in 1975 and the provision on the payment of salaries
SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - When the
during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read:
administrative case against the officer or employee under preventive suspension is not
finally decided by the disciplining authority within the period of ninety (90) days after
the date of suspension of the respondent who is not a presidential appointee, the Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. - When the
respondent shall be automatically reinstated in the service: Provided, That when the administrative case against the officer or employee under preventive suspension is not
delay in the disposition of the case is due to the fault, negligence or petition of the finally decided by the disciplining authority within the period of ninety (90) days after
respondent, the period of delay shall not be counted in computing the period of the date of suspension of the respondent who is not a presidential appointee, the
suspension herein provided. respondent shall be automatically reinstated in the service; Provided, That when the
delay in the disposition of the case is due to the fault, negligence or petition of the
respondent, the period of delay shall not be counted in computing the period of
There are thus two kinds of preventive suspension of civil service employees who
suspension herein provided.
are charged with offenses punishable by removal or suspension: (1) preventive
suspension pending investigation (51) and (2) preventive suspension pending appeal if
the penalty imposed by the disciplining authority is suspension or dismissal and, after This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy
review, the respondent is exonerated (47(4)). that the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive
suspension shall be without pay. Sec. 24 reads:

13
Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend Thus, it is not enough that an employee is exonerated of the charges against him. In
any officer or employee under his authority pending an investigation, if in his judgment addition, his suspension must be unjustified. The case of Bangalisan v. Court of
the evidence of guilt is strong, and (a) the charge against such officer or employee Appeals itself similarly states that payment of salaries corresponding to the period [1]
involves dishonesty, oppression or grave misconduct or neglect in the performance of when an employee is not allowed to work may be decreed if he is found innocent of the
duty; (b) the charges would warrant removal from the service; or (c) the respondents charges which caused his suspension and [2] when the suspension is unjustified.[17]
continued stay in office may prejudice the case filed against him.
The preventive suspension of civil service employees charged with dishonesty,
oppression or grave misconduct, or neglect of duty is authorized by the Civil Service
The preventive suspension shall continue until the case is terminated by the Office of the Law. It cannot, therefore, be considered unjustified, even if later the charges are
Ombudsman but not more than six months, without pay, except when the delay in the dismissed so as to justify the payment of salaries to the employee concerned. It is one of
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or those sacrifices which holding a public office requires for the public good. For this
petition of the respondent, in which case the period of such delay shall not be counted in reason, it is limited to ninety (90) days unless the delay in the conclusion of the
computing the period of suspension herein provided. investigation is due to the employee concerned. After that period, even if the
investigation is not finished, the law provides that the employee shall be automatically
It is clear that the purpose of the amendment is to disallow the payment of salaries reinstated.
for the period of suspension. This conclusion is in accord with the rule of statutory
construction that - Third, it is argued in the separate opinion that to deny employees salaries on the
frivolous ground that the law does not provide for their payment would be to provide a
tool for the oppression of civil servants who, though innocent, may be falsely charged of
As a rule, the amendment by deletion of certain words or phrases in a statute indicates grave or less grave administrative offenses. Indeed, the possibility of abuse is not an
that the legislature intended to change the meaning of the statute, for the presumption is argument against the recognition of the existence of power. As Justice Story aptly put it,
that the legislature would not have made the deletion had the intention been not in effect It is always a doubtful course, to argue against the use or existence of a power, from the
a change in its meaning. The amended statute should accordingly be given a construction possibility of its abuse. . . . [For] from the very nature of things, the absolute right of
different from that previous to its amendment.[12] decision, in the last resort, must rest somewhere - wherever it may be vested it is
susceptible of abuse.[18] It may be added that if and when such abuse occurs, that would
The separate opinion of Justice Panganiban pays no heed to the evident legislative be the time for the courts to exercise their nay-saying function. Until then, however, the
intent to deny payment of salaries for the preventive suspension pending investigation. public interest in an upright civil service must be upheld.
First, it says that to deny compensation for the period of preventive suspension Finally, it is argued that even in the private sector, the law provides that employees
would be to reverse the course of decisions ordering the payment of salaries for such who are unjustly dismissed are entitled to reinstatement with full pay. But that is
period. However, the cases[13] cited are based either on the former rule which expressly because R.A. No. 6715 expressly provides for the payment to such employees of full
provided that if the respondent officer or employee is exonerated, he shall be restored to backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent
his position with full pay for the period of suspension[14] or that upon subsequent computed from the time his compensation was withheld from him up to the time of his
reinstatement of the suspended person or upon his exoneration, if death should render actual reinstatement.[19] In the case of the public sector, as has been noted, the provision
reinstatement impossible, any salary so withheld shall be paid,[15] or on cases which do for payment of salaries during the preventive suspension pending investigation has been
not really support the proposition advanced. deleted.
Second, it is contended that the exoneration of employees who have been
preventively suspended is proof that there was no reason at all to suspend them and
thus makes their preventive suspension a penalty. B. Right to Compensation for Preventive Suspension Pending Appeal if Employee is Exonerated

The principle governing entitlement to salary during suspension is cogently stated


in Floyd R. Mechems A Treatise on the Law of Public Offices and Officers as follows:
But although we hold that employees who are preventively suspended pending
investigation are not entitled to the payment of their salaries even if they are exonerated,
864. Officer not entitled to Salary during Suspension from Office. - An officer who we do not agree with the government that they are not entitled to compensation for the
has been lawfully suspended from his office is not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent.
period during which he was so suspended, even though it be subsequently determined
that the cause for which he was suspended was insufficient. The reason given is that Preventive suspension pending investigation, as already discussed, is not a penalty
salary and perquisites are the reward of express or implied services, and therefore but only a means of enabling the disciplining authority to conduct an unhampered
cannot belong to one who could not lawfully perform such services.[16] investigation. On the other hand, preventive suspension pending appeal is actually
punitive although it is in effect subsequently considered illegal if respondent is
14
exonerated and the administrative decision finding him guilty is reversed. Hence, he II. Private Respondents Entitled to Back Salaries Although Found Guilty of Violation of Office Rules and Regulations and

should be reinstated with full pay for the period of the suspension. Thus, 47(4) states Reprimanded

that respondent shall be considered as under preventive suspension during the


pendency of the appeal in the event he wins. On the other hand, if his conviction is
affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the Private respondents were exonerated of all charges against them for acts
final penalty of suspension or dismissal. connected with the teachers strike of September and October 1990. Although they were
absent from work, it was not because of the strike. For being absent without leave, they
It is precisely because respondent is penalized before his sentence is confirmed were held liable for violation of reasonable office rules and regulations for which the
that he should be paid his salaries in the event he is exonerated. It would be unjust to penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which
deprive him of his pay as a result of the immediate execution of the decision against him likewise involved a teacher found guilty of having violated reasonable office rules and
and continue to do so even after it is shown that he is innocent of the charges for which regulations. Explaining the grant of salaries during their suspension despite the fact that
he was suspended. Indeed, to sustain the governments theory would be to make the they were meted out reprimand, this Court stated:
administrative decision not only executory but final and executory. The fact is that 47(2)
and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the
Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed, With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A
there shall be restitution or reparation of damages as equity and justice may require. reading of the resolution of the Civil Service Commission will show that he was
exonerated of the charges which formed the basis for his suspension. The Secretary of
Sec. 47 of the present law providing that an administrative decision meting out the the DECS charged him with and he was later found guilty of grave misconduct, gross
penalty of suspension or dismissal shall be immediately executory and that if the neglect of duty, gross violation of the Civil Service Law, rules and regulations and
respondent appeals he shall be considered as being merely under preventive suspension reasonable office regulations, refusal to perform official duty, gross insubordination,
if eventually he prevails is taken from 37 of the Civil Service Decree of 1975 (P.D. No. conduct prejudicial to the best interest of the service, and absence without official
807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was
although under it the Commissioner of Civil Service could order the immediate execution his alleged participation in the mass actions that was the basis of his preventive
of an administrative decision in the interest of the public service.[20] Nor was there suspension and, later, his dismissal from the service.
provision for immediate execution of administrative decisions ordering dismissal or
suspension in 695 of the Administrative Code of 1917, as amended by C.A. No. 598, However, the Civil Service Commission, in the questioned resolution, made a finding that
1.[21] Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in cases in Mariano was not involved in the mass actions but was absent because he was in Ilocos
which employees were found to be innocent of the charges[22] or their suspension was Sur to attend the wake and interment of his grandmother. Although the CSC imposed
held to be unjustified, because the penalty of suspension or dismissal was executed upon him the penalty of reprimand, the same was for his violation of reasonable office
without a finding by the Civil Service Commissioner that it was necessary in the interest rules and regulations because he failed to inform the school of his intended absence and
of the public service.[23] On the other hand, payment of back salaries was denied where it neither did he file an application for leave covering such absences.
was shown that the employee concerned was guilty as charged and the immediate
execution of the decision was ordered by the Civil Service Commissioner in the interest
of the public service.[24] Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and
other pertinent civil service laws, in violations of reasonable office rules and regulations,
Nothing in what has thus far been said is inconsistent with the reason for denying the first offense is punishable by reprimand. To deny petitioner Mariano his back wages
salaries for the period of preventive suspension. We have said that an employee who is during his suspension would be tantamount to punishing him after his exoneration from
exonerated is not entitled to the payment of his salaries because his suspension, being the charges which caused his dismissal from the service.[26]
authorized by law, cannot be unjustified. To be entitled to such compensation, the
employee must not only be found innocent of the charges but his suspension must In Jacinto v. Court of Appeals,[27] a public school teacher who was found guilty of
likewise be unjustified. But though an employee is considered under preventive violation of reasonable office rules and regulations for having been absent without leave
suspension during the pendency of his appeal in the event he wins, his suspension is and reprimanded was given back salaries after she was exonerated of the charge of
unjustified because what the law authorizes is preventive suspension for a period not having taken part in the strikes.
exceeding 90 days. Beyond that period the suspension is illegal.Hence, the employee
concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such Petitioner Secretary of Education contends, however, that respondents Abad,
award should not exceed the equivalent of five years pay at the rate last received before Bandigas, and Somebang signed a letter in which they admitted having taken part in the
the suspension was imposed.[25] mass action. This question cannot be raised now. The Civil Service Commission gave no
weight to this letter in view of individual letters written by the three citing reasons for
their absences, to wit: Abad, because she decided to stay home to correct student papers;
Bandigas, because she had to accompany her brother to the Commission on Immigration,

15
and Somebang because of economic reasons. Petitioner did not appeal from this
ruling. Hence, he is bound by the factual findings of the CSC and the appellate court.
WHEREFORE, the decision, dated September 3, 1996, as amended by the
resolutions, dated July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby
AFFIRMED with the MODIFICATION that the award of salaries to private respondents
shall be computed from the time of their dismissal/suspension by the Department of
Education, Culture, and Sports until their actual reinstatement, for a period not
exceeding five years.
SO ORDERED.

16
Service Commission Regional Office No. IV (CSCRO-IV) and ordered the reinstatement of
respondent Gregorio Magnaye, Jr. (Magnaye) with payment of backwages and other
CIVIL SERVICE G.R. NO. 183337
monetary benefits.
COMMISSION,
Petitioner, Present:

PUNO, CJ.,
CARPIO,
CORONA, THE FACTS
CARPIO MORALES,
VELASCO, JR.,
NACHURA, In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed
LEONARDO-DE CASTRO,
BRION, Magnaye as Utility Worker I at the Office of Economic Enterprise [Operation of Market]
- versus - PERALTA,
(OEE). After a few days, Mayor Rosales detailed him to the Municipal Planning and
BERSAMIN,
DEL CASTILLO, Development Office.
ABAD,
VILLARAMA, JR.,
PEREZ, and In the May elections of that year, Mayor Rosales was defeated by Raul L.
MENDOZA, JJ.
Bendaa, who assumed office on June 30, 2001. Thereafter, Magnaye was returned to his
GREGORIO MAGNAYE, JR., Promulgated:
original assignment at the OEE. On July 11, 2001, Bendaa also placed him on detail at the
Respondent.
April 23, 2010 Municipal Planning and Development Office to assist in the implementation of a Survey
on the Integrated Rural Accessibility Planning Project.

X ------------------------------------------------------------------------------------- X On August 13, 2001, the new mayor served him a notice of termination from
employment effective the following day for unsatisfactory conduct and want of capacity.

Magnaye questioned his termination before the CSC head office on the ground
that Mayor Bendaa was not in a position to effectively evaluate his performance because
it was made less than one and one-half months after his (Mayor Bendaas) assumption to
office. He added that his termination was without basis and was politically motivated.
DECISION

MENDOZA, J.: The CSC head office dismissed, without prejudice, Magnayes complaint because
he failed to attach a certificate of non-forum shopping. Thereafter, Magnaye filed a
The Civil Service Commission (CSC) assails in this petition for review on certiorari,[1] the
February 20, 2008 Decision[2] and the June 11, 2008 resolution of the Court of Appeals complaint with the regional office of the Civil Service (CSCRO-IV).
(CA) in CA-G.R. SP No. 85508. The CA reversed the July 20, 2004 Decision of the Civil
17
Mayor Bendaa to determine his fitness or unfitness for the
The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld his
position.[3] [Emphasis supplied]
dismissal from the service on the ground that Mayor Bendaas own assessment, together
with the evaluation made by his supervisors, constituted sufficient and reasonable
grounds for his termination.

Thus, the fallo of the CA Decision[4] reads:


Magnaye sought recourse through a petition for review with the Court of
Appeals, citing CSCRO-IVs alleged errors of fact and of law, non-observance of due WHEREFORE, the petition is Granted. The Civil Service
Commission Regional Office No. 4s Decision, dated July 20, 2004 is
process, and grave abuse of discretion amounting to lack or excess of jurisdiction. hereby Set Aside. Accordingly, Petitioner is ORDERED REINSTATED
with full payment of backwages and other monetary benefits. This case
Adopting the stance of the Office of the Solicitor General, the CA ruled in Magnayes favor,
is hereby REMANDED to the Civil Service Commission for reception of
mainly on the ground that he was denied due process since he was not informed of what such evidence necessary for purposes of determining the amount of
backwages and other monetary benefits to which Petitioner is entitled.
constituted the alleged unsatisfactory conduct and want of capacity that led to his
termination. It summarized the positions of the OSG as follows:
SO ORDERED.

On January 18, 2005, the Office of the Solicitor General


(OSG) filed its manifestation and motion, in lieu of comment, praying
that the assailed decision be set aside.The OSG argued that
Petitioners termination was illegal. The notice of termination did
not cite the specific instances indicating Petitioners alleged THE ISSUES
unsatisfactory conduct or want of capacity. It was only on July 29,
2003, or almost two years after Petitioners dismissal on August 13,
2001 that his former Department Heads, Engr. Magsino and Engr. In this petition, the Civil Service Commission submits the following for our
Masongsong, submitted an assessment and evaluation report to
Mayor Bendaa, which the latter belatedly solicited when the consideration:
Petitioner appealed to the CSC Regional Office.Hence, the
circumstances behind Petitioners dismissal became questionable. I. The dropping of respondent from the rolls of the local
government unit of Lemery, Batangas was in accord with Civil Service
The OSG also found no evidence at the CSC Regional Office Law, rules and jurisprudence.
level that Petitioner was informed of his alleged poor
performance. There was no evidence that Petitioner was furnished II. The respondent resorted to a wrong mode of appeal and
copies of 1) Mayor Bendaas letter, dated July 29, 2003, addressed to violated the rule on exhaustion of administrative remedies and the
CSC Regional Office praying that Petitioners termination be corollary doctrine of primary jurisdiction.
sustained; and 2) the performance evaluation report, dated July 29,
2003, prepared by Engr. Magsino and Engr. Masongsong. The OSG
claimed that Petitioner was denied due process because his
The principal issue, therefore, is whether or not the termination of Magnaye
dismissal took effect a day after he received the notice of
termination. No hearing was conducted to give Petitioner the was in accordance with the pertinent laws and the rules.
opportunity to refute the alleged causes of his dismissal.The OSG
agreed with Petitioners claim that there was insufficient time for

18
The eligibility of respondent Magnaye has not been put in issue. Under Civil Service rules, the first six months of service following a permanent
appointment shall be probationary in nature, and the probationer may be dropped from

THE COURTS RULING the service for unsatisfactory conduct or want of capacity anytime before the expiration
of the probationary period. [5]

The Court upholds the decision of the Court of Appeals.


The CSC is of the position that a civil service employee does not enjoy security

The CSC, in arguing that Magnayes termination was in accord with the Civil of tenure during his 6-month probationary period. It submits that an employees security

Service law, cited Section 4(a), Rule II of the 1998 CSC Omnibus Rules on Appointments of tenure starts only after the probationary period. Specifically, it argued that an

and Other Personnel Actions which provides that: appointee under an original appointment cannot lawfully invoke right to security of
tenure until after the expiration of such period and provided that the appointee has not
Sec. 4. Nature of appointment. The nature of appointment been notified of the termination of service or found unsatisfactory conduct before the
shall be as follows:
expiration of the same.[6]

a. Original refers to the initial entry into the career service of


persons who meet all the requirements of the position. xxx

The CSC position is contrary to the Constitution and the Civil Service Law
It is understood that the first six months of the service
following an original appointment will be probationary in nature and itself. Section 3 (2) Article 13 of the Constitution guarantees the rights of all workers not
the appointee shall undergo a thorough character investigation. A just in terms of self-organization, collective bargaining, peaceful concerted activities, the
probationer may be dropped from the service for unsatisfactory
conduct or want of capacity anytime before the expiration of the right to strike with qualifications, humane conditions of work and a living wage but also
probationary period.Provided that such action is appealable to the
to security of tenure, and Section 2(3), Article IX-B is emphatic in saying that, "no officer
Commission.
or employee of the civil service shall be removed or suspended except for cause as
However, if no notice of termination for unsatisfactory provided by law."
conduct is given by the appointing authority to the employee before
the expiration of the six-month probationary period, the appointment
automatically becomes permanent. Consistently, Section 46 (a) of the Civil Service Law provides that no officer or
employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law after due process.

19
Thus, the services of respondent as a
Our Constitution, in using the expressions all workers and no officer or
probationary employee may only
employee, puts no distinction between a probationary and a permanent or regular be terminated for a just cause, that is,
unsatisfactory conduct or want of capacity.
employee which means that both probationary and permanent employees enjoy security [Emphasis supplied]
of tenure. Probationary employees enjoy security of tenure in the sense that during their
probationary employment, they cannot be dismissed except for cause or for failure to x x x.
qualify as regular employees. This was clearly stressed in the case of Land Bank of the
X x x the only difference between regular and probationary
Philippines v. Rowena Paden,[7] where it was written:
employees from the perspective of due process is that the latter's
termination can be based on the wider ground of failure to comply
To put the case in its proper perspective, we begin with a with standards made known to them when they became probationary
discussion on the respondent's right to security of tenure. Article IX employees.
(B), Section 2(3) of the 1987 Constitution expressly provides that

"[n]o officer or employee of the civil service shall be removed or The constitutional and statutory guarantee of security of tenure is extended to
suspended except for cause provided by law." At the outset, we
emphasize that the aforementioned constitutional provision does not both those in the career and non-career service positions, and the cause under which an
distinguish between a regular employee and a probationary employee may be removed or suspended must naturally have some relation to the
employee. In the recent case of Daza v. Lugo[8] we ruled that:
character or fitness of the officer or employee, for the discharge of the functions of his

The Constitution provides that "[N]o officer office, or expiration of the project for which the employment was
or employee of the civil service shall be removed or extended. [9] Further, well-entrenched is the rule on security of tenure that such an
suspended except for cause provided by law." Sec.
26, par. 1, Chapter 5, Book V, Title I-A of the appointment is issued and the moment the appointee assumes a position in the civil
Revised Administrative Code of 1987 states:
service under a completed appointment, he acquires a legal, not merely equitable right
(to the position), which is protected not only by statute, but also by the Constitution
All such persons (appointees who meet all
the requirements of the position) must serve a [Article IX-B, Section 2, paragraph (3)] and cannot be taken away from him either by
probationary period of six months following their
revocation of the appointment, or by removal, except for cause, and with previous notice
original appointment and shall undergo a thorough
character investigation in order to acquire and hearing.[10]
permanent civil service status. A probationer may
be dropped from the service for unsatisfactory
conduct or want of capacity any time before the While the CSC contends that a probationary employee does not enjoy security
expiration of the probationary period; Provided,
That such action is appealable to the Commission. of tenure, its Omnibus Rules recognizes that such an employee cannot be terminated

20
except for cause. Note that in the Omnibus Rules it cited,[11] a decision or order dropping applicable because it refers to a private entity where the rules of employment are not

a probationer from the service for unsatisfactory conduct or want of capacity anytime exactly similar to those in the government service.

before the expiration of the probationary period is appealable to the Commission. This
can only mean that a probationary employee cannot be fired at will.

Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory


conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-A of the Revised
Administrative Code of 1987 states:

(1) Appointment through certification.An appointment


through certification to a position in the civil service, except as
herein otherwise provided, shall be issued to a person who has been
selected from a list of qualified persons certified by the Commission
Notably, jurisprudence has it that the right to security of tenure is unavailing in
from an appropriate register of eligibles, and who meets all the other
certain instances. In Orcullo Jr. v. Civil Service Commission,[12] it was ruled that the right is requirements of the position.

not available to those employees whose appointments are contractual and co-terminous
All such persons must serve a probationary period of six
in nature. Such employment is characterized by a tenure which is limited to a period months following their original appointment and shall undergo a
thorough character investigation in order to acquire permanent civil
specified by law, or that which is coterminous with the appointing authority or subject to service status. A probationer may be dropped from the service for
his pleasure, or which is limited to the duration of a particular project for which purpose unsatisfactory conduct or want of capacity any time before the
expiration of the probationary period: Provided, That such action is
employment was made.[13] In Amores M.D. v. Civil Service Commission,[14] it was held that appealable to the Commission.
a civil executive service appointee who meets all the requirements for the position,

except only the appropriate civil service eligibility, holds the office in a temporary

capacity and is, thus, not entitled to a security of tenure enjoyed by permanent
While unsatisfactory conduct and want of capacity are valid causes that may be
appointees.
invoked for dismissal from the service,[16] the CA observed that the Memorandum issued
by Mayor Bendaa terminating Magnayes employment did not specify the acts
Clearly, Magnayes appointment is entirely different from those situations. From
constituting his want of capacity and unsatisfactory conduct. It merely stated that the
the records, his appointment was never classified as co-terminous or contractual.
character investigation conducted during his probationary period showed that his
Neither was his eligibility as a Utility Worker I challenged by anyone.
employment need not be necessary to be permanent in status.[17] Specifically, the notice
of termination partly reads:
In support of its position that an appointee cannot lawfully invoke the right to a
security of tenure during the probationary period, petitioner CSC banked on the case
of Lucero v. Court of Appeals and Philippine National Bank.[15] This case is, however, not

21
This has not been rebutted. It being not disputed, it was an error on the part of
the CSCRO-IV to rely on such belated performance appraisal. Common sense dictates that
You are hereby notified that your service as Utility Worker I,
this municipality under six (6) month probationary period, is the evaluation report, submitted only in 2003, could not have been the basis for
considered terminated for unsatisfactory conduct or want of capacity,
Magnayes termination.
effective August 14, 2001.

You are further notified that after a thorough character Besides, Mayor Bendaas own assessment of Magnayes performance could not
investigation made during your such probationary period under my
administration, your appointment for employment need not be have served as a sufficient basis to dismiss him because said mayor was not his
necessary to be automatically permanent in status.[18] immediate superior and did not have daily contacts with him. Additionally, Mayor
Bendaa terminated his employment less than one and one-half months after his
assumption to office. This is clearly a short period within which to assess his
performance. In the case of Miranda v. Carreon,[21] it was stated:
This notice indisputably lacks the details of Magnayes unsatisfactory conduct or
want of capacity. Section VI, 2.2(b) of the Omnibus Guidelines on Appointments and The 1987 Constitution provides that no officer or employee
of the civil service shall be removed or suspended except for cause
other Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended
provided by law. Under the Revised Administrative Code of 1987, a
by CSC Memorandum Circular No. 12, Series of 1994), provides: government officer or employee may be removed from the service

2.2. Unsatisfactory or Poor Performance

xxx on two (2) grounds: (1) unsatisfactory conduct and (2) want of
capacity. While the Code does not define and delineate the concepts
of these two grounds, however, the Civil Service Law (Presidential
b. An official who, for one evaluation period, is rated poor in Decree No. 807, as amended) provides specific grounds for dismissing
performance, may be dropped from the rolls after due notice. Due a government officer or employee from the service. Among these
notice shall mean that the officer or employee is informed in writing grounds are inefficiency and incompetence in the performance of
of the status of his performance not later than the fourth month of official duties. In the case at bar, respondents were dismissed on the
that rating period with sufficient warning that failure to improve his ground of poor performance. Poor performance falls within the
performance within the remaining period of the semester shall concept of inefficiency and incompetence in the performance of
warrant his separation from the service. Such notice shall also official duties which, as earlier mentioned, are grounds for dismissing
contain sufficient information which shall enable the employee a government official or employee from the service.
to prepare an explanation. [Emphasis and underscoring supplied]

But inefficiency or incompetence can only be


Magnaye asserts that no performance evaluation was made determined after the passage of sufficient time, hence, the
between March 2001 when he was hired by Mayor Rosales probationary period of six (6) months for the respondents. Indeed, to
until August 14, 2001 when his services were terminated by Mayor be able to gauge whether a subordinate is inefficient or
Bendaa.[19] It was only on July 29, 2003, at Mayor Bendaas behest, incompetent requires enough time on the part of his immediate
that his two supervisors prepared and submitted the evaluation superior within which to observe his performance. This condition,
report after the CSCRO-IV directed him to file an answer to Magnayes however, was not observed in this case. x x x. [Emphasis and
appeal.[20] underscoring supplied]

22
The CSC is the central personnel agency of the government exercising quasi-
judicial functions.[22] In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion.[23] The standard of substantial evidence is satisfied when, on the basis of the
Service [27] provide for the remedy of an appeal from decisions of its regional offices to
evidence on record, there is reasonable ground to believe that the person terminated
the Commission proper, Magnayes petition to the CA comes under the exceptions to the
was evidently wanting in capacity and had unsatisfactory conduct. In this case, the
doctrine of exhaustion of administrative remedies. The CA correctly cited Republic v.
evidence against Magnaye was woefully inadequate.
Lacap,[28] where a violation of due process is listed to be among the noted exceptions to
the rule. As discussed above, Magnayes dismissal was tainted with irregularity because
Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman
the notice given to him comes short of the notice contemplated by law and
Patricia Sto. Tomas[24] that the prohibition in Article IX (B) (2) (3) of the Constitution
jurisprudence. The CA correctly exercised jurisdiction over this case where standards of
against dismissal of a civil service officer or employee "except for cause provided by law"
due process had been patently breached.
is a guaranty of both procedural and substantive due process. Procedural due process
requires that the dismissal comes only after notice and hearing,[25] while substantive due
Having been illegally dismissed, Magnaye should be reinstated to his former
process requires that the dismissal be for cause.[26]
position without loss of seniority and paid backwages and other monetary benefits from
the time of his dismissal up to the time of his reinstatement. In our decision in Civil
Magnaye was denied procedural due process when he received his notice of
Service Commission v. Gentallan,[29] we ruled that for reasons of justice and fairness, an
termination only a day before he was dismissed from the service. Evidently, he was
illegally dismissed government employee who is later ordered reinstated is entitled to
effectively deprived of the opportunity to defend himself from the charge that he lacked
backwages and other monetary benefits from the time of his illegal dismissal until his
the capacity to do his work and that his conduct was unsatisfactory. As well, during his
reinstatement because he is considered as not having left his office.
appeal to the CSCRO-IV, he was not furnished with the submissions of Mayor Bendaa that
he could have opposed. He was also denied substantive due process because he was
dismissed from the service without a valid cause for lack of any factual or legal basis for
his want of capacity and unsatisfactory conduct.
WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the
Court of Appeals and its June 11, 2008 Resolution denying the motion for
Thus, we reject petitioners argument that the CA erred when it acted upon the
reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.
erroneous remedy availed of by respondent when he filed a petition for review
SO ORDERED.
considering that the assailed decision is not in the nature of awards, judgments, final
orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its
quasi-judicial functions as prescribed under Rule 43 of the Rules of Court. While Sections
71 and 72 of Rule V (B) of the Uniform Rules on Administrative Cases in the Civil

23
A.M. No. P-12-3089 November 13, 2013 Per Memorandum dated May 19, 2009 of [Legal Officer (LO)] Cleufe S. Eder as noted by
(Formerly OCA I.P.I. No. 11-3591-P) Atty. Raul I. Bautista, the [DAR Provincial Office (DARPO)] Legal Division conducted an
investigation/inspection on the subject lots on May 18, 2009 and the following facts
HEIRS OF CELESTINO TEVES REPRESENTED BY PAUL JOHN TEVES ABAD ELSA C. were established to wit:
AQUINO and FELIMON E. FERNAN, Complainants,
vs. xxxx
AUGUSTO J. FELICIDARIO, SHERIFF IV, OFFICE OF THE CLERK OF COURT, REGIONAL
TRIAL COURT OF MANILA, Respondent. 6. That based on that new survey in 2003, [Certificate of Land Ownership
Award (CLOA)] with No. 00222161/OCT No. M-01182 with an area of 941
DECISION square meters was awarded to Augusto Felicidario on October 2, 2005. Augusto
Felicidario conducted his own survey to determine the boundaries based on the
LEONARDO-DE CASTRO, J.: issued CLOA. It appears that there was an area of 117 square meters from his
original area of 838 square meters, however, the excess area of 117 square
meters belong to Elsa Aquino, Felimon Fernan and Heirs of Celestino Teves.
Before the Court is the Complaint-Affidavit1 of complainants Heirs of Celestino Teves Augusto Felicidario tainted with bad faith instead proceed[ed] to get the excess
represented by Paul John Teves Abad), Elsa C. Aquino, and Felimon E. Fernan, accusing area of 117 square meters and placed another mujon, other than the old mujon
respondent Augusto Felicidario, Sheriff IV of the Office of the Clerk of Court OCC), previously placed during the 1965 survey of 838 square meters;
Regional Trial Court RTC), Manila, of Grave Misconduct, Dishonesty and Conduct
Unbecoming an Officer of the Court.
7. That CLOA/s for Elsa Aquino, Felimon Fernan and [Heirs] of Celestino Teves
have not yet been issued to them. They were not aware of the changes in their
Complainants alleged that they are the successors-in-interest of the late Celestino Teves respective area of possession until in March 2009 when Augusto Felicidario
to two parcels of land, initially identified as Lots 263 and 264 of the Sampaloc Townsite destroyed the riprap and the old cyclone wires which serves as the boundary of
in Tanay, Rizal, distributed under the Department o Agrarian Reform DAR) Resettlement Elsa Aquino et al. with motive to forcibly get the 117 square meters covering
Project. Lots 263 and 264 measured 965 square meters and 648 square meters, the portions of 54 square meters, 51 square meters, and 12 square meters from
respectively, or 1,613 square meters combined. The late Celestino Teves and Elsa Aquino et al.;
complainants have been in possession of Lots 263 and 264 since 1960. Lots 263 and 264
are adjacent and contiguous to Lot 268, which has been occupied by respondent and
with an area of 838 square meters. In May 2003, upon the approval of a new subdivision xxxx
plan, Lots 263 and 264 were clustered into one lot, designated as Lot 190; while Lot 268
was designated as Lot 189.2 Under the same plan, the area of Lot 189 was erroneously In the same Memorandum, LO Cleufe S. Eder stated that the only basis of the claim of
increased from 838 square meters to 941 square meters. Respondent knew of this error Augusto Felicidario over the portions of the areas of Elsa Aquino and Felimon Fernan is
but being dishonest, he concealed it from the DAR. Respondent was eventually issued that said portions appeared to be included in his CLOA, where in truth and in fact, was
Original Certificate of Title (OCT) No. M-01182, pursuant to Certificate of Land not included in his actual area of possession and occupation. Evidently, Lot 189
Ownership Award (CLOA) No. 00222161, for Lot 189, with a total area of 941 square (formerly Lot 268) is bounded by old boundaries (muhon), riprap and cyclone wires
meters. On the basis of OCT No. M-01182 (CLOA No. 00222161), respondent started to erected since 1960’s or more that forty-five (45) years by complainants which is only
unlawfully and forcibly acquire 117 square meters of complainants’ Lot 190 (disputed adjacent/adjoining to Lot 189 (Lot [268]) of Augusto Felicidario who incidentally been in
area) by (a) altering and installing concrete boundaries; (b) destroying the riprap and the said premises for a long period of time and fully aware that he possessed only 838
cyclone wires which served as boundary between respondent’s Lot 189 and square meters as evidenced by the Lot Description Survey conducted in December 1966.
complainants’ Lot 190; (c) destroying the comfort room, dirty kitchen, warehouse, and Complainants and Augusto Felicidario have been good neighbors, until the latter on
trees in the disputed area; and (d) constructing a concrete fence with steel gate around March 29, 2009 received a copy of TCT-CLOA in October 2005 awarding him 941 square
Lot 189 and the disputed area. Complainants were helpless in preventing respondent meters per new subdivision survey in 2003. Thereafter, Augusto Felicidario threatened
from performing the aforementioned acts as respondent bragged that he is a Sheriff of to eject Elsa Aquino et al. purposely to acquire the portions of 51 square meters and 12
the RTC of Manila and threatened complainants with bodily harm. square meters without a lawful order.

Complainants had filed with the DAR Region IV-A a letter-complaint against respondent, [Provincial Agrarian Reform Officer (PARO)] Samuel S. Solomero concurred with the
docketed as Case No. A-0400-0168-09. Complainants pointed out that Regional Director recommendation of DARPO-Legal Division that the CLOA issued to Augusto Felicidario
Antonio G. Evangelista (Evangelista) of DAR Region IV-A issued an Order dated October be cancelled/corrected to only 838 square meters as his actual area of possession and
20, 2009, ruling in their favor. Pertinent portions of said Order read: further recommended that individual CLOAs be generated/issued in favor of Elsa

24
Aquino, Felimon Fernan and Heirs of Celestino Teves in accordance with their actual Respondent argued that the acts imputed by complainants against him were not related
area of possession. to the performance of his official duties and were not in any manner related to a case in
which complainants are parties or have legal interests. Besides, a cursory reading of the
DAR Administrative Order No. 1 Series of 1992, specifically paragraph IV, regarding the allegations in the complaint will clearly show the absence of the requisites of corruption
Modes of Disposition of Homelots, provides that: or a clear intent to violate the law or a flagrant disregard of established rule; as well as
the lack of evidence that respondent’s conduct in the exercise of his rights as a private
individual debased the public’s confidence in the courts. Respondent reiterated that he
"Homelots in barangay sites and residential, commercial and industrial lots in townsites had no hand in the increase of his total lot area after the new survey. Lastly, respondent
shall be disposed of by direct sale to actual occupants occupying said homelots". averred that complainants, in filing the present complaint, was forum shopping with the
intention of purposely vexing, harassing, and intimidating respondent and thereby gain
WHEREFORE, premises considered, an Order is hereby issued: upper ground. Complainants mean to escalate a private matter to the institution
respondent is serving.
1. DIRECTING the PARO to undertake the necessary steps to cause the
correction of [the] area inscribed in OCT No. M-01182 (CLOA No. 00222161) Complainants filed a Reply6 but raised no new matters.
issued in the name of Augusto Felicidario from 941 square meters to 838
square meters; and On July 26, 2012, the Office of the Court Administrator (OCA) submitted its report 7 with
the following recommendations:
2. DIRECTING the PARO and the [Municipal Agrarian Reform Officer (MARO)]
to make the necessary steps for the issuance of individual titles in the names of In view of the foregoing, this Office respectfully submits for the consideration of the
Elsa Aquino, Felimon Fernan and Heirs of Celestino Teves based on their actual Honorable Court the following recommendations:
area of possession.3
1. the instant administrative complaint against Augusto J. Felicidario, Sheriff IV,
The DAR Region IV-A Order dated October 20, 2009 in Case No. A-0400-0168-09 became Office of the Clerk of Court, Regional Trial Court, Manila, be RE-DOCKETED as a
final and executory as no motion for reconsideration and/or appeal was filed. 4 regular administrative matter; and

Respondent, in his Comment,5 denied complainants’ allegations. He prayed for the 2. respondent be found GUILTY of Conduct Prejudicial to the Best Interest of
outright dismissal of the instant complaint against him since the acts subject thereof are the Service and be SUSPENDED for three (3) months without pay.8
not related to his official functions as Deputy Sheriff and are not grounds for
administrative action. In addition, respondent explained that as a result of the re-survey
conducted by the DAR Geodetic Engineer in May 2003, the area of complainants’ Lot 190 In a Resolution9 dated September 24, 2012, the Court re-docketed the administrative
was decreased to 210 square meters, while that of respondent’s Lot 189 was increased complaint against respondent as a regular administrative matter and required the
to 941 square meters. Based on the 2003 re-survey, respondent was issued OCT No. M- parties to manifest within 10 days from notice if they were willing to submit the matter
01182 (CLOA No. 00222161) for Lot 189. Respondent has been in continuous actual and for resolution based on the pleadings filed. Respondent10 and complainants11 submitted
physical possession of Lot 189 and religiously paying the real estate tax thereon as they their respective Manifestations informing the Court that they were already submitting
fall due. In 2009, respondent applied for and was granted a Fencing Permit by the Office the case for decision based on the pleadings on record.
of the Building Official of Tanay. On the strength of the Fencing Permit and with the
assistance of barangay officials, respondent proceeded to place new fences or The Court partly diverges from the findings of the OCA. Respondent is guilty of simple
mujon/markers along the perimeter of Lot 189. Although respondent acknowledged the dishonesty and conduct prejudicial to the best interest of the service, but not of grave
existence of the final and executory Order dated October 20, 2009 of the DAR Region IV- misconduct.
A in Case No. A-0400-0168-09, adverse to his interest, respondent maintained that he
had been deprived of due process of law because he never received summons or notice In Villordon v. Avila,12 the Court defined dishonesty as "intentionally making a false
relative to said case, thus, he had already requested the Office of the President for a statement on any material fact[;]" and "a disposition to lie, cheat, deceive or defraud;
reinvestigation of the same. Respondent also mentioned in his Comment that the PARO untrustworthiness; lack of integrity, lack of honesty, probity or integrity in principle; lack
had already instituted a Petition for Correction of LOA No. 00222161/OCT No. M-01182 of fairness and straightforwardness; disposition to defraud, deceive or betray."
before the DAR Adjudication Board (DARAB) Region IV-A, docketed as PARAD Case No.
R-0409-0009 to 0010-10.
It is true that respondent did not have a hand in the re-survey conducted by the DAR in
2003 which resulted in the increased land area of his Lot 189. Nonetheless, respondent’s

25
actuations thereafter displayed his lack of honesty, fairness, and straightforwardness, The Civil Service law and rules do not give a concrete description of what specific acts
not only with his neighbors, but also with the concerned government agencies/officials. constitute conduct prejudicial to the best interest of the service, but the Court defined
such an offense in
Complainants and respondent had been awarded and occupying their respective
properties under the DAR Resettlement Program since 1966, yet, respondent did not Ito v. De Vera13 as acts or omissions that violate the norm of public accountability and
express surprise and/or bafflement that the land area of his Lot 189 was significantly diminish or tend to diminish the faith of the people in the Judiciary, thereby prejudicing
increased from 838 square meters to 941 square meters after the 2003 re-survey. the best interest of the administration of justice. In Government Service Insurance
Honesty, fairness, and straightforwardness, as well as good faith and prudence, would System v. Mayordomo,14 the Court further declared that the administrative offense of
have impelled respondent to bring the matter to the attention of complainants and the conduct prejudicial to the best interest of the service need not be related to or connected
DAR, and inquire and verify with the DAR his entitlement to the increased land area, with the public officer’s official functions. As long as the questioned conduct tarnishes
especially when he was well-aware that complainants had been in possession of the the image and integrity of his public office, the corresponding penalty may be meted on
disputed area, and had, in fact, introduced substantial improvements thereon, for almost the erring public officer or employee.
four decades. Instead, respondent, undeniably benefitting from the increased land area
of Lot 189, held his peace and already proceeded to secure a certificate of title in his Respondent’s transgressions may not be related to his official duties and functions, but
name for Lot 189, with a land area of 941 square meters. When respondent was finally certainly reflect badly upon the entire Judiciary. Respondent failed to live up to the high
issued OCT No. M-01182 (CLOA No. 00222161), he invoked the same as justification for ethical standards demanded by the office he occupies. As the Court explained in Marquez
occupying the 117-square meter disputed area, destroying complainants’ improvements v. Clores-Ramos15:
thereon, and enclosing Lot 189 (inclusive of the disputed area) within a concrete fence
and steel gate. Whether or not an error was indeed committed by the DAR officials
during the 2003 re-survey, resulting in the increased land area of Lot 189, respondent It can not be overemphasized that every employee of the judiciary should be an example
evidently took advantage of complainants’ ignorance of the situation in order to acquire of integrity, uprightness and honesty. Like any public servant, he must exhibit the
OCT No. M-01182 (CLOA No. 00222161) with nary an opposition. It bears to stress that highest sense of honesty and integrity not only in the performance of his official duties
the final and executory Order dated October 20, 2009 of the DAR Region IV-A in Case No. but in his personal and private dealings with other people, to preserve the Court’s good
A-0400-0168-09 declared erroneous the increase in land area of respondent’s Lot 189 name and standing. This is because the image of a court of justice is necessarily mirrored
after the 2003 re-survey and the PARO had already instituted proceedings before the in the conduct, official or otherwise, of the men and women who work thereat, from the
DARAB for the correction of respondent’s OCT No. M-01182 (CLOA No. 00222161). judge to the least and lowest of its personnel. Thus, it becomes the imperative sacred
While respondent is seeking to have the final and executory DAR Region IV-A Order set duty of each and every one in the court to maintain its good name and standing as a true
aside by the Office of the President, as things stand at present, the basis for respondent’s temple of justice. (Citations omitted.)
legal title to the disputed area is doubtful, at best. Considering that the increase in land
area of Lot 189 was due to the (erroneous) result of the 2003 re-survey of the Sampaloc However, precisely because respondent was not acting in the performance of his official
Townsite by the DAR; that respondent’s dishonesty was committed through his silence duties, he cannot be administratively liable for misconduct, whether grave or simple. The
and/or inaction, when the circumstances demanded otherwise, rather than his active survey of cases presented in Largo v. Court of Appeals16 is particularly instructive:
and/or express misrepresentation to the complainants and concerned public officials;
and that respondent committed the dishonesty in his private life and not in the course of [T]he administrative offense committed by petitioner is not "misconduct." To constitute
performance of his official functions, the Court holds him guilty of only simple misconduct, the act or acts must have a direct relation to and be connected with the
dishonesty. performance of his official duties.1âwphi1 In Manuel v. Calimag, Jr., it was held that:

Respondent’s deportment under the circumstances likewise constitute conduct Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v.
prejudicial to the best interest of the service. In addition to being dishonest, respondent Lopez in these words: "Misconduct in office has a definite and well- understood legal
appears to have illegally forced his way into the disputed area. As a Sheriff, he is meaning. By uniform legal definition, it is a misconduct such as affects his performance
expected to be familiar with court procedure and processes, especially those concerning of his duties as an officer and not such only as affects his character as a private
the execution of orders and decisions of the courts. It is difficult for the Court to believe individual. In such cases, it has been said at all times, it is necessary to separate the
that respondent is completely unaware that even as the registered owner of the real character of the man from the character of the officer x x x. It is settled that misconduct,
property and with the barangay officials’ assistance, he cannot simply enter and take misfeasance, or malfeasance warranting removal from office of an officer must have
possession of the disputed area and destroy complainants’ improvements thereon. He direct relation to and be connected with the performance of official duties amounting
must first initiate an ejectment case against complainants before the appropriate court either to maladministration or willful, intentional neglect and failure to discharge the
and secure a court order and writ of possession. duties of the office x x x More specifically, in Buenaventura v. Benedicto, an
administrative proceeding against a judge of the court of first instance, the present Chief

26
Justice defines misconduct as referring ‘to a transgression of some established and dishonesty as an aggravating circumstance; while respondent s 43 years in government
definite rule of action, more particularly, unlawful behavior or gross negligence by the service, 32 of which had been in the judiciary, as mitigating circumstance. The Court
public officer." likewise takes into account, for humanitarian reasons, that respondent is almost of
retirement age at 64 years. Consequently, the penalty of suspension without pay for six
xxxx (6) months and one (1) day is appropriate under the circumstances.

In Salcedo v. Inting we also ruled – It is to be noted that the acts of the respondent judge WHEREFORE, the Court finds respondent Augusto Felicidario, Sheriff IV of the Office of
complained of have no direct relation with his official duties as City Judge. The the Clerk of Court, Regional Trial Court, Manila, GUILTY of simple dishonesty and
misfeasance or malfeasance of a judge, to warrant disciplinary action must have direct conduct grossly prejudicial to the best interest of the service and is suspended for a
relation to and be connected with the performance of official duties amounting either to period of six ( 6) months and one (1) day without pay, with a stem warning that a
maladministration or willful, intentional neglect and failure to discharge the duties of repetition of the same or similar act in the future shall be dealt with more severely.
said judge.
SO ORDERED.
In Milanes v. De Guzman, a mayor collared a person, shook him violently, and threatened
to kill him in the course of a political rally of the Nacionalista Party where said mayor
was acting as the toastmaster. The Court held that the acts of the mayor cannot come
under the class of the administrative offense of misconduct, considering that as the
toastmaster in a non-governmental rally, he acted in his private capacity, for said
function was not part of his duties as mayor. In Amosco v. Magro, the respondent Judge
was charged with grave misconduct for his alleged failure to pay the amount of ₱215.80
for the purchase of empty Burma sacks. In dismissing the case, the Court sustained,
among others, the argument of respondent Judge that the charge did not constitute
misconduct because it did not involve the discharge of his official duties. It was further
held that misconduct in office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his performance of his duties
as an officer and not such only as affects his character as a private individual. So also, a
Judge’s abandonment of, and failure to give support to his family; and alleged sale of
carnapped motor vehicles, do not fall within the species of misconduct, not being related
to the discharge of official functions. (Citations omitted.)

Now the Court considers the appropriate penalty to be imposed upon respondent.

On November 18, 2011, the Civil Service Commission (CSC) promulgated the Revised
Rules on Administrative Cases in the Civil Service (RRACCS). Under Rule 10, Section
46(E) of RRACCS, simple dishonesty is a less grave offense punishable by suspension of
one (1) month and one (1) day to six (6) months for the first offense; six (6) months and
one (1) day to one (10 year for the second offense; and dismissal for the third offense.
Rule 10, Section 46(B)(8) classifies conduct prejudicial to the best interest of the service
as a grave offense penalized by suspension of six (6) months and one (1) day to one (1)
year for the first offense, and dismissal from the service for the second offense. Rule 10,
Section 50 additionally provides that if the civil servant is found guilty of two or more
charges or counts, the penalty to be imposed should be that corresponding to the most
serious charge and the rest shall be considered as aggravating circumstances.

Based on the foregoing rules, the Court shall apply the penalty for conduct prejudicial to
the best interest of the service, it being the more serious offense. The Court then
considers for purposes of determining the proper penalty, respondent s simple

27
G.R. No. 190524, February 17, 2014 opinion of the CSC-CAR. She claimed that the actions of respondent violated the civil
service laws and amounted to grave misconduct and immorality,
MICHAELINA RAMOS BALASBAS, Petitioner, v. PATRICIA B. MONAYAO, Respondent. thus:chanRoblesVirtualawlibrary
The question is this - is it only acts related to the duties and responsibilities of a
government officer that can be the subject of an administrative case? Stated otherwise,
DECISION would you have as a member of the Civil Service a person who has engaged in
misrepresentation, fraud, dishonesty and has contemptuously refused to implement
DEL CASTILLO, J.: an Order of the DENR dated 6 October 1998?

While the law and justice abhor all forms of abuse committed by public officers and I believe that nowhere in the Civil Service Law is there such a qualification. The acts
employees whose sworn duty is to discharge their duties with utmost responsibility, complained of also amount to grave misconduct and immorality - unless one only thinks
integrity, competence, accountability, and loyalty, the Court must protect them against of immoral as only referring to sex.
unsubstantiated charges that tend to adversely affect, rather than encourage, the
effective performance of their duties and functions. On the other hand - granting arguendo that there is such a limited interpretation, how
can having mistresses (which currently the government is relentlessly pursuing to rid of)
Assailed in this Petition for Review on Certiorari1 are the November 28, 2008 fall within the ambit of a government official’s duties and
Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 102407 and its November 27, responsibilities?11crallawlibrary
2009 Resolution3 denying reconsideration thereof. In an October 6, 2004 letter-opinion,12 the CSC’s Office for Legal Affairs (CSC-OLA)
denied petitioner’s appeal and affirmed the August 19, 2003 opinion of the CSC-CAR. The
Factual Antecedents CSC-OLA held that the CSC had no jurisdiction over petitioner’s complaint as it stemmed
from a private transaction between the protagonists; petitioner’s remedy was instead to
In a May 19, 2003 letter-complaint4 filed with the Department of Social Welfare and seek execution of the DENR’s Decision in H.A. NRD, 11-15-004 (E-11-16-004).
Development (DSWD), petitioner Atty. Michaelina Ramos Balasbas accused respondent
Patricia B. Monayao - then employed by the DSWD - of misrepresentation, fraud, Petitioner, in a November 11, 2004 letter,13 sought a reconsideration of the above
dishonesty and refusal to implement an October 6, 1998 Order 5 issued by the October 6, 2004 opinion. Petitioner argued that under Section 4 of the Revised Uniform
Department of Environment and Natural Resources (DENR) in a land dispute - docketed Rules on Administrative Cases in the Civil Service,14 the jurisdiction of the CSC over
with the DENR as H.A. NRD, 11-15-004 (E-11-16-004) - filed sometime in 1987 by public officers or employees is not limited to their acts or omissions that are work-
petitioner’s brother against respondent’s father. It appears that in said case, respondent related; disciplinary action may be taken for their acts of dishonesty, immorality,
appeared in lieu of her father, who she claimed passed away. Petitioner claimed further oppression, notorious undesirability, conviction of a crime involving moral turpitude,
that despite judgment rendered in the said dispute awarding one-half of the disputed habitual drunkenness, or gambling. Petitioner adds that even the lending of money at
land to her brother, and respondent’s subsequent notarized waiver of her rights to her usurious rates, conducting illicit relations, and willful failure to pay just debts are
half, the latter illegally sold the portion, over which she had waived her rights, to her grounds for disciplinary action.15 Petitioner concluded that respondent’s
children via a 1992 deed of sale purportedly executed by her father, which was misrepresentation, fraud, dishonesty and refusal to implement the DENR’s October 6,
simulated considering that as early as 1987, respondent’s father was already deceased. 1998 Order relative to the 1987 DENR land dispute constitute acts unbecoming a public
official and fall within the jurisdiction of the CSC. Petitioner thus prayed that the CSC
In a June 24, 2003 letter-reply,6 the DSWD informed petitioner that respondent was no reconsider its October 6, 2004 letter; declare respondent guilty of misrepresentation,
longer an employee thereof, but was devolved in 1992 to the local government of the fraud, dishonesty and refusal to implement the DENR’s October 6, 1998 Order; and
municipality of Alfonso Lista in Ifugao Province. Petitioner was thus advised to address impose upon her disciplinary action and penalties in accordance with civil service laws
her complaint to the Office of the Mayor of Alfonso Lista. and regulations.

Petitioner thus filed with the Mayor of Alfonso Lista a July 30, 2003 sworn letter- On January 14, 2008, the CSC issued Resolution No. 080059,16 which decreed as
complaint7 against respondent. In a September 18, 2003 reply8 to petitioner, however, follows:chanRoblesVirtualawlibrary
Alfonso Lista Mayor Glenn D. Prudenciano refused to take action on the complaint, citing WHEREFORE, foregoing premises considered, the instant appeal is hereby DISMISSED
an August 19, 2003 opinion9 of Victor P. Sibal, Director II of the Cordillera Administrative for want of merit. Accordingly, the opinion of the Office for Legal Affairs dated October 6,
Region office of the Civil Service Commission (CSC-CAR), which stated that petitioner’s 2004 is AFFIRMED.
complaint against respondent may not be acted upon as the acts complained of were not In dismissing petitioner’s appeal, the CSC held firm to the view that Monayao’s purported
in relation to the latter’s duties and responsibilities as Municipal Population Officer. misrepresentation, fraud, dishonesty and refusal to implement the DENR Order in H.A.
NRD, 11-15-004 (E-11-16-004) had no bearing on her official duties as a local
Petitioner wrote an October 16, 2003 letter10 to the CSC, appealing the August 19, 2003 government employee, and that petitioner’s relief was to move for the execution of the

28
unsatisfied DENR judgment and thus compel respondent to honor her notarized waiver The CA held that none of the circumstances mentioned in Section 46,20 Chapter 7, Book V,
of her rights to one-half portion of the land in dispute, or proceed to court for judicial of Executive Order No. 292 (EO 292), or the Administrative Code of 1987, is present in
intervention. It held, thus:chanRoblesVirtualawlibrary petitioner’s case, and that her main complaint against respondent pertains to the latter’s
After due consideration, the Commission is inclined to dismiss the present appeal. refusal to abide by the DENR judgment relative to the one-half portion of the property in
dispute, which is not connected with or related to her position or performance of her
It is unavailing for the private complainant to insist that there are disciplinary grounds functions as a public official. The appellate court added that while it is true that
that are not work-related such that her complaint, rooted as it was on a private disciplinary action may be imposed for acts or omissions not connected with a public
transaction, should not have been perfunctorily dismissed. True it is that some of the officer or employee’s official functions or responsibilities, such as dishonesty or
recognized grounds for administrative disciplinary actions against government officials immorality, the act complained of - even if true - does not reflect on the moral fitness and
and employees contemplate of private deeds. Two such examples are disgraceful and integrity of the respondent which may affect her right to continue in office. Finally, the
immoral conduct, and non-payment of just debt. However, it may be noted that these CA acknowledged that petitioner’s accusations against respondent were
personal actions give rise to administrative culpability because they indubitably reflect unsubstantiated. On this point, however, the appellate court did not elaborate.
on the moral fitness and integrity of the respondent public official or employee. This
means that the commission of any of the said acts betrays the moral unfitness of the Petitioner filed a Motion for Reconsideration,21 but the CA denied the same via its
respondent public officer, which would make them amenable to disciplinary sanctions. November 27, 2009 Resolution. Hence, petitioner instituted the present Petition.

In the herein case, the complaint is based on Monayao’s supposed misrepresentation, Issue
fraud, dishonesty and refusal to implement an order of the Department of Environment
and Natural Resources (DENR) relating to a land dispute. Yet, such actuation of Monayao Petitioner contends that the CA committed the following
relates to her private dealings with the private complainant, and has no bearing at all on error:chanRoblesVirtualawlibrary
the performance of her official duties as a local government employee. Instead of filing THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED WHEN IT SUSTAINED THE
an administrative complaint, it would have been more appropriate for the private DECISION OF THE CIVIL SERVICE COMMISSION IN FINDING THAT THE ACTS AND
complainant to seek relief through the proper remedial action, which is, as noted in the OMISSIONS OF RESPONDENT, ARISING OUT OF HER PRIVATE TRANSACTIONS, DO NOT
impugned opinion, to move for execution of the unsatisfied DENR order or to proceed to CONSTITUTE ADMINISTRATIVE OFFENSES WHICH THE SAID COMMISSION COULD
court for possible judicial enforcement. TAKE COGNIZANCE OF AND DO NOT REFLECT ON HER MORAL FITNESS AND
INTEGRITY AS A PUBLIC SERVANT.22crallawlibrary
In CSC Resolution No. 96-5593, dated September 4, 1996, the Commission pertinently Petitioner’s Arguments
ruled in this wise:chanRoblesVirtualawlibrary
“x x x True, the respondents are government employees, but there is no showing that the Praying that the assailed CA dispositions be set aside and that the CSC be directed to take
non-remittance of said amount was committed while in the performance of their official cognizance of her complaint against respondent, petitioner maintains in her Petition and
duties x x x Thus, said failure or omissions on the part of the respondents were done in Reply23 that while respondent’s dishonest acts and misrepresentations were committed
their personal or private capacity arising out of private transactions. It is therefore clear in relation to a land dispute arising from her private dealings, they cast serious doubt as
that the acts complained of do not constitute an administrative offense or offenses within to her fitness to continue in the public service. Specifically, petitioner insists that while
the jurisdiction of the Commission. At any rate, the dispute between the herein respondent claims that her father died in 1987, the latter was able to transfer - in 1992 -
complainants and the officers of said association, subject of this complaint, should be the land in dispute to respondent’s children, which thus renders respondent guilty of
better resolved before a competent court.” dishonesty and misrepresentation. Moreover, respondent’s defiance of the DENR
More importantly, the Commission observes that the complaint is fatally defective. It decision by orchestrating the 1992 simulated sale demonstrates her disregard for rules
contains mere conclusion of law, not concrete allegations of facts.17crallawlibrary and orders of duly constituted government authority, which is anathema to her position
Ruling of the Court of Appeals as a public servant.

In a Petition for Review18 filed with the CA, petitioner questioned CSC Resolution No. Petitioner adds that dishonesty is a serious offense, indeed so grave that it is punishable
080059 and prayed that the CSC be ordered to assume jurisdiction over her complaint by dismissal for the first offense under Section 23, Rule XIV of the Rules Implementing
against respondent. Book V of EO 292. And, contrary to the pronouncements of the CSC and CA, dishonesty
which justifies dismissal from the service need not be committed in the course of the
On November 28, 2008, the CA issued the assailed Decision which contained the performance of duty by the public officer or employee.24crallawlibrary
following decretal portion:chanRoblesVirtualawlibrary
WHEREFORE, premises considered, the present petition is DISMISSED for lack of merit. Petitioner further asserts that, contrary to the pronouncements of the CA, her charges
against respondent are fully substantiated and covered by sufficient attachments. She
SO ORDERED.19crallawlibrary cites her July 30, 2003 sworn letter-complaint filed with the office of the Mayor of

29
Alfonso Lista, which she claims was “complete with enclosures and attachments, (Republic Act No. 6713) enunciates, inter alia, the State policy of promoting a high
evidencing the allegations”25 against respondent. standard of ethics and utmost responsibility in the public service. Section 4(c) of the
Code commands that “[public officials and employees] shall at all times respect the rights
Finally, petitioner points out that public office is a public trust; a person aspiring for of others, and shall refrain from doing acts contrary to law, good morals, good customs,
public office must observe honesty, “candor, and faithful compliance with the public policy, public order, public safety and public interest. x x x”31crallawlibrary
law.”26 Dishonesty remains the same whether it is committed in relation to the public However, petitioner’s accusations do not appear to hold water. From an examination of
official’s duties or in the course of his private dealings: it reflects on his “character and all her letters, pleadings, and other submissions - from her letter-complaint with the
exposes the moral decay which virtually destroys his honor, virtue and DSWD, to her sworn letter-complaint with the office of the Alfonso Lista Mayor, to her
integrity.”27crallawlibrary appeal letter to the CSC, to her letter-Motion for Reconsideration with the CSC, and
finally her CA Petition for Review - it is evident that she offered nothing more than bare
Respondent’s Arguments imputations against the respondent. Though she claims that respondent falsified a 1992
deed of sale whereby the disputed portion was transferred to her children, the deed of
In seeking the denial of the instant Petition, respondent in her Comment 28 tersely sale was never shown; a copy thereof was never attached to petitioner’s complaints and
counters with a reiteration and citation of the CSC and CA pronouncements that her other papers or pleadings. And if it is true that respondent’s children were able to secure
complained actuations relate to her private dealings and have no bearing on her official title to the disputed portion in their name through such falsified deed of sale, then
duties and functions; that petitioner’s remedy is to move for the execution of the petitioner could have simply attached a copy of the new title issued in their name. But
unsatisfied DENR decision or proceed to court for judicial enforcement; that the alleged she did not.
acts do not reflect on her moral fitness and integrity, nor do they affect her right to
continue in office; and finally, that petitioner’s accusations remain unsubstantiated. Petitioner is a lawyer; she should know that as the complainant in the administrative
case, upon her lies the burden of proof to establish her cause of action against the
Our Ruling respondent. All that is required is substantial evidence, yet she could produce none; the
allegations in her complaint are not duly supported by necessary documents that would
The Court denies the Petition. demonstrate the justness of her claims. While technicalities may be dispensed with in
Dishonesty is defined as the concealment or distortion of truth in a matter of fact administrative proceedings, “this does not mean that the rules on proving allegations are
relevant to one’s office or connected with the performance of his duty. It implies a entirely dispensed with. Bare allegations are not enough; these must be supported by
disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of substantial evidence at the very least.”32crallawlibrary
honesty, probity, or integrity in principle; and lack of fairness and straightforwardness.
Thus, in the eyes of the law, respondent committed as yet no visible wrong. The CSC and
On the other hand, misconduct is a transgression of some established or definite rule of the CA may not be faulted for deciding the way they did. From her numerous complaints
action, is a forbidden act, is a dereliction of duty, is willful in character, and implies alone, it can be seen that she had no cause of action against the respondent, for her
wrongful intent and not mere error in judgment. More particularly, it is an unlawful accusations were not supported by the required documentary evidence that should have
behavior by the public officer. x x x29crallawlibrary been readily available to her, given that it consists of public documents which may be
Without a doubt, respondent’s supposed dishonest acts and misrepresentations inspected and reproduced by permission from the government offices having custody
committed in relation to a land dispute arising from her private dealings cast doubt on thereof.
her fitness to discharge her responsibilities as a public official. If it is true that
respondent caused the execution of a forged or falsified deed of sale in 1992 in order to The Court therefore sees no reason to disturb the findings of the CSC and the CA. Their
transfer the disputed portion of the property to her children, then she committed a findings of fact bind the Court unless there is a showing of grave abuse of discretion, or
dishonest act even as she is enjoined to adhere at all times to law, morality, and decency that they were arrived at arbitrarily or in disregard of the evidence on record. Moreover,
in her private and professional life. “[D]ishonesty, in order to warrant dismissal, need not their conclusion - to the effect that what remains to be done is to cause the execution of
be committed in the course of the performance of duty” by the public officer, for it the DENR Order in H.A. NRD, 11-15-004 (E-11-16-004) - is correct, and this may be
“inevitably reflects on the fitness of the officer or employee to continue in office and the achieved in the same administrative case or by filing a proper case in court.
discipline and morale of the service.”30crallawlibrary
While the law and justice abhor all forms of abuse committed by public officers and
Indeed, at the very least, the acts complained of constitute conduct prejudicial to the best employees whose sworn duty is to discharge their duties with utmost responsibility,
interest of the service, an administrative offense which need not be related to integrity, competence, accountability, and loyalty, the Court must protect them against
respondent’s official functions. unsubstantiated charges that tend to adversely affect, rather than encourage, the
x x x As long as the questioned conduct tarnished the image and integrity of his/ her effective performance of their duties and functions. While -
public office, the corresponding penalty may be meted on the erring public officer or x x x We do not deny the citizen’s right to denounce recreant public officials if their
employee. The Code of Conduct and Ethical Standards for Public Officials and Employees incompetence or lack of integrity or qualification may adversely affect the public service,

30
but We certainly frown upon the practice of some misguided citizens to subvert the
noble ends for which administrative discipline is designed which is to purge the public
service of undesirable officials.33crallawlibrary
WHEREFORE, the Petition is DENIED. The assailed November 28, 2008 Decision and the
November 27, 2009 Resolution of the Court of Appeals in CA-G.R. SP No. 102407
are AFFIRMED.

SO ORDERED.

31
SO ORDERED.[5]
ROBERTO M. VILLANUEVA, G.R. No. 167726
Petitioner,
Present: The antecedents are as follows:
PANGANIBAN, C.J.,
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO, On 24 November 1997, Villanueva, married man and the Legislative Assistant II of the
SANDOVAL-GUTIERREZ,
Cashiering and Administrative Records Division of the House of Representatives (the
CARPIO,
AUSTRIA-MARTINEZ, House), was charged with Grave Misconduct, Disgraceful and Immoral Conduct Prejudicial
CORONA,
COURT OF APPEALS and CARPIO-MORALES, to the Best Interest of the Service before the House Disciplinary Board. The charges were
HOUSE OF REPRESENTATIVES, CALLEJO, SR.,
Represented by ROBERTO P. AZCUNA, based on an entry in the Official Log Book as well as a Spot Inspection Report
NAZARENO, in his capacity TINGA, accomplished, respectively, by Frederick Maramba (Maramba) and Orencio Castillo
as Secretary General, CHICO-NAZARIO,
Respondents. GARCIA, and (Castillo), both security officers of the House who were on regular roving patrol duty on
VELASCO, JR., JJ.
the night of 16 October 1997. Their routine inspection tour included Room
Promulgated:
305, Northwing Building, Office of Representative Constantino H. Navarro, Jr., of the First
July 20, 2006 District of Surigao Del Norte.[6]

x-------------------------------------------------------------------------- x
Maramba and Castillo narrated that when they came upon said office at around 9:30 of
DECISION
that night, they saw Villanueva, a married man[7] and a female asleep on the couch, both
TINGA, J.:
naked, with the womans arm resting on Villanuevas body. The female was later

Assailed in this Rule 45 Petition for Review[1] is the Decision[2] dated 27 August 2003 of identified as Elizabeth Navarro-Arguelles (Navarro-Arguelles), Representative Navarros

the Court of Appeals in C.A.-G.R. SP No. 75002, and its Resolution[3] dated 29 March 2005 daughter and confidential assistant, herself a married woman.[8]

denying herein petitioner Roberto M. Villanuevas (Villanueva) Motion for

Reconsideration.[4] The dispositive portion of the challenged Decision reads as follows: Villanuevas immediate supervisor, Jose Ma. Antonio B. Tuano, Chief of the Cashiering and

Administrative Records Division, lodged the complaint against the former.[9]Incidentally,


WHEREFORE, the writ of certiorari is GRANTED. The questioned
resolutions of the Civil Service Commission is (sic) no charges were filed against Navarro-Arguelles as the House Disciplinary Board has no
hereby REVERSED and SET ASIDE, and the said jurisdiction over confidential assistants of Representatives.[10]
respondent ORDERED to CEASE AND DESIST from implementing the
same. The Decision of the House of Representatives Disciplinary
Board dated 07 June 2000 is hereby REINSTATED, and respondent
Villanueva is ORDERED DISMISSED from the service with forfeiture The House Disciplinary Board, after hearing, found Villanueva guilty as charged and
of all benefits.
suspended him for one (1) year without pay with a stern warning that any infraction in
No Costs. the future will be dealt with more severely.[11] However, acting on Villanuevas motion for

32
reconsideration, the House Disciplinary Board increased the penalty to dismissal with at this conclusion, the Court of Appeals emphasized the similarity of the factual

forfeiture of all benefits.[12] circumstances of the case at bar with Dicdican v. Fernan, Jr.,[20] wherein the Court

dismissed the court personnel found guilty of disgraceful and immoral conduct.[21] The

Speaker Manuel B. Villar, Jr. affirmed the latter Decision of the House Disciplinary Board appellate court stated that adherence to case law dictates the imposition of a similar

in a Resolution[13] dated 5 October 2000. Villanueva moved for a reconsideration of the penalty for the similar offense in the case at bar. Otherwise, the Court would be imposing

Decision but this was denied by Speaker Feliciano Belmonte, Jr., in a on judicial employees more stringent standards than employees of the Legislature or the

Resolution[14] dated 28 May 2001.[15] Executive.[22]

Villanueva then interposed an appeal before the Civil Service Commission (the

Commission) which, on 12 April 2002, modified the penalty to suspension. The The appellate court likewise pointed out that the Commission gravely erred in failing to

dispositive portion of the Commissions Resolution No. 020536[16] reads as follows: recognize the gravity of Villanuevas misconduct, stressing that Villanueva not only

WHEREFORE, the appeal of Robert[o] M. Villanueva is hereby disregarded his marriage vows but also exhibited total disrespect of the marital status of
partly GRANTED. The Commission holds that Villanueva is guilty of Elizabeth Navarro-Arguelles.[23]
Disgraceful and Immoral Conduct for which he is meted the penalty of
one (1) year suspension. In all other respects, the decisions appealed
from are affirmed.
Moreover, the Court of Appeals held that Villanuevas offense relates to his official

Considering that Villanueva has been out of the service for more than functions as it was made possible precisely by his official functions. By virtue of his
the imposed suspension, he should now be reinstated to his former
position, Villanueva had free rein inside the building even after office hours. Clearly,
position. It is understood that this reinstatement shall not carry with
it the payment of back salaries and other entitlements, for he is not therefore, Villanueva used his office to commit the misconduct for which he was
totally exonerated.[17]
charged,[24] it concluded.

In its motion for reconsideration, the House prayed for the re-imposition of the penalty

of dismissal on Villanueva. For his part, Villanueva moved for partial reconsideration, Finally, the appellate court disclosed its desire to improve the public regard of the

seeking that he be awarded his benefits for the period of January 1999 to February 2001. government sector by safeguarding morality in the ranks.[25]

The Commission denied both motions in Resolution No. 021492[18] dated 18 November

2002, a copy of which the House received on 21 November 2002.[19] The Court of Appeals likewise denied Villanuevas Motion for Reconsideration. [26] Thus,

In a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure filed on 20 Villanueva filed the instant petition.

January 2003 before the Court of Appeals, the House ascribed grave abuse of discretion In the instant petition, Villanueva insists that the appellate court did not have

to the Commission for reducing the penalty to a mere suspension. jurisdiction over the Houses petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure as it was a substitute for lost appeal.[27] Villanueva also maintains that

In its challenged Decision, the Court of Appeals granted the petition for certiorari and the Commission acted well within the confines of its jurisdiction when it imposed the

sustained the Decision of the House Disciplinary Board dismissing Villanueva. In arriving penalty prescribed by law for disgraceful and immoral conduct.[28] Villanueva likewise
33
Commission unless the Court issues a restraining order or an
contends that the Dicdican adjudication finds no application in the instant case as it was injunction.
arrived at in the Courts exercise of its administrative jurisdiction over its Moreover, Villanueva points out that the House could have easily availed of the
personnel.[29] Further, Villanueva points out that his misconduct is in no way connected remedy of appeal under Rule 43 of the 1997 Rules of Civil Procedure. The House
with his official functions and it cannot thus be equated with grave misconduct as received a copy of the assailed
defined by law.[30]

resolution of the Commission on 21 November 2002. According to the Rules, the House
In its Comment,[31] the House contends that an appeal from the decision of the had fifteen (15) days, or until 6 December 2002, to perfect an appeal which apparently, it
Commission would not constitute a speedy and adequate remedy thus necessitating the did not do. Instead, it filed a petition for certiorari under Rule 65 to make up for the lost
resort to the remedy of certiorari under Rule 65. The House reasons that the decision of remedy of appeal.[38]
the Commission was immediately executory and its execution would not have been

stayed by an ordinary appeal.[32] The House also maintains that the ruling of the The Court finds merit in the petition.
appellate court is in accordance with law and jurisprudence, particularly

the Dicdican case. The House argues that employees of the legislature, just like At the outset, we find that the Court of Appeals erred in giving due course to the Houses
employees of the judiciary, should be subject to the same exacting standards of morality petition for certiorari as it was filed in lieu of an appeal which is the prescribed remedy.
and decency in their professional and private conduct.[33] Section 5, Rule 43 of the 1997 Rules of Civil Procedure states that final orders or

resolutions of the Commission are appealable to the Court of Appeals through a petition
Lastly, the House posits that since Villanueva was found guilty of Grave Misconduct, for review. However, instead of availing of the remedy of appeal, the House resorted to
Disgraceful and Immoral Conduct and Conduct Prejudicial to the Best Interest of the the wrong remedy of certiorari.
Service, dismissal indeed is the appropriate penalty.[34]

Notably, the House received the assailed resolution of the Commission on 21 November
In his Reply,[35] Villanueva maintains, among other things, that even if an appeal before 2002, and thus it had until 6 December 2002 or fifteen (15) days after, to file an appeal.
the Court of Appeals does not stop the execution of the Commissions Decision the House Despite the sufficient time, the House allowed the period to elapse and instead filed a
could have applied for a restraining order or injunction to stay it,[36] noting that Section petition for certiorari under Rule 65 on 20 January 2003, close to two (2) months after
82, Rule VI of the Uniform Rules on Administrative Cases in the Civil Service[37] provides, its receipt of the resolution. Failing to undertake an appeal, the House interposed a
thus: special civil action of certiorari. Evidently, the House intended to make up for the lost

remedy of appeal and substituted it with a petition for certiorari under Rule 65.
Section 82. Effect of Pendency of Petition for
Review/Certiorari with the Court.The filing and pendency of a
petition for review with the Court of Appeals or certiorari with the
Supreme Court shall not stop the execution of the final decision of the Settled is the rule that a special civil action of certiorari is not a substitute for a lost or

lapsed remedy of appeal.[39] As the Court aptly held in David v. Cordova,[40] to wit:
34
performance of official duties amounting either to maladministration
or willful, intentional neglect and failure to discharge the duties of the
x x x x Where appeal is available to the aggrieved party, the action for office.[44]
certiorari will not be entertained. The remedies of appeal (including
petitions for review) and certiorari are mutually exclusive, not
alternative or successive. Hence, certiorari is not and cannot be a
substitute for an appeal, especially if ones own negligence or error in
ones choice of remedy occasioned such loss or lapse. One of the Misconduct means intentional wrongdoing or deliberate violation of a rule of law or
requisites of certiorari is that there be no available appeal or any standard of behavior, especially by a government official. To constitute an administrative
plain, speedy and adequate remedy. Where an appeal is available,
certiorari will not prosper, even if the ground therefor[e] is grave offense, misconduct should relate to or be connected with the performance of the official
abuse of discretion.[41]
functions and duties of a public officer. In grave misconduct as distinguished from simple

That appeals to the Court of Appeals do not stop the execution of decisions of the misconduct, the elements of corruption, clear intent to violate the law or flagrant

Commission is not sufficient justification for resorting to the remedy of certiorari. As disregard of established rule, must be manifest. Corruption as an element of grave

correctly pointed out by Villanueva, the execution of the decision of the Commission may misconduct consists in the act of an official or fiduciary person who unlawfully and

be stayed if the House applies for and the appellate court so issues a restraining order or wrongfully uses his station or character to procure some benefit for himself or for

an injunction.[42] This thus enunciates the reality that, under the circumstances, an another person, contrary to duty and the rights of others. [45]

appeal from the decision of the Commission was an adequate and speedy remedy In the present case, Villanuevas offense was in no way connected with the performance

foreclosing the need for a Rule 65 petition for certiorari. of his functions and duties as a public officer. Sure, his office was used as a venue for the

commission of the offense and definitely, his offense speaks despicably of his character

as a man but it in no way evinced any failure on his part to discharge his duties as a

public officer. Yes, Villanuevas offense is gravely immoral and reprehensible but it falls

As the House failed to file a timely appeal, the Court of Appeals should have denied short of grave misconduct as defined by law.

outright its petition for certiorari. Moreover, even if such petition was not procedurally

flawed, still and all, it was bereft of merit and the appellate court erred in granting it. To determine whether a public officer committed misconduct, it is necessary to separate

the character of the man from the character of the officer.[46] Here, Villanuevas

First, the appellate court erred when it concurred with the Houses contention that transgression laid bare the values of his inner being but did not expose any of his

Villanuevas offense should be classified as grave misconduct. shortcoming as a public officer. Who Villanueva is and what he believes in are

inconsequential in concluding whether his misdemeanor amounts to misconduct. Rather,

Following a string of precedents, Amosco v. Magro[43] defines misconduct in this wise: what is material is whether Villanueva properly discharged his public functions which
Misconduct in office has a definite and well understood legal meaning.
we believe in no way was compromised or affected by the commission of his offense.
By uniform legal definition, it is a misconduct such as affects his
performance of his duties as an officer and not such only as affects his
character as a private individual. It is settled that misconduct,
misfeasance, or malfeasance warranting removal from office of an
officer, must have direct relation to and be connected with the

35
However, as correctly found by the Commission, we believe that Villanueva is guilty of In Dicdican, the Court sanctioned its errant personnel according to what it believed to be

Disgraceful and Immoral Conduct for having engaged in an illicit affair. In a catena of the commensurate punishment. We deemed it wise to impose more stringent standards

cases, the Court has ruled that government employees engaged in illicit relations are primarily to show that we are serious in policing our ranks. We imposed punishment

guilty of disgraceful and immoral conduct for which he/she may be held administratively in Dicdican as we deemed it proper, according to our own policies, but not without the

liable.[47] guidance of the rules in the civil service. In this case, however, we are not acting as a

personnel administrator but rather as the adjudicative appellate tribunal of last resort

According to Section 22 (o), Rule XVI of the Omnibus Rules Implementing Book V of the reviewing the decisions of lower courts. It is our responsibility to confirm whether the

Administrative Code of 1987 and Section 52 A (15) of the Uniform Rules on lower courts upheld the law. The law in this case clearly states that the proper penalty is

Administrative Cases in the Civil Service,[48] the first offense of Disgraceful and Immoral suspension and not dismissal as held by the appellate court, hence, suspension it must

Conduct is punishable by suspension of six (6) months and one (1) day to one (1) year. A be.

second offense is punishable by dismissal.

WHEREFORE, the petition is GRANTED. The Decision dated 27 August 2003 of the Court

As Villanueva is a first-time offender, the proper penalty is suspension. The Commission of Appeals in C.A.- G.R. SP No. 75002 and its Resolution dated 29 March 2005 denying

therefore correctly meted out said penalty. It clearly acted in accordance with law and no petitioners motion for reconsideration are REVERSED and SET ASIDE. Resolution No.

grave abuse of discretion can be ascribed to it contrary to the appellate courts finding.

Moreover, we do not agree with the appellate courts ruling that Dicdican should be the 020536 dated 12 April 2002 and Resolution No. 021492 dated 18 November 2002 of the
controlling precedent such that the penalty of dismissal should be imposed in the instant Civil Service Commission are AFFIRMED and REINSTATED.
case.

SO ORDERED.

As correctly pointed out by Villanueva, when the Supreme Court acts on complaints

against judges or any of the personnel under its supervision and control, it acts as

personnel administrator imposing discipline and not as a court judging justiciable


controversies.[49]

36
G.R. No. 197307, February 26, 2014 and Fixture
Total
FLOR GUPILAN–AGUILAR AND HONORE R. HERNANDEZ, Petitioners, v. OFFICE OF P2,530,000.00 P2,820,000.00 P2,930,000.00 P3,515,000.00
Assets
THE OMBUDSMAN, REPRESENTED BY HON. SIMEON V. MARCELO; AND PNP–CIDG,
REPRESENTED BY DIR. EDUARDO MATILLANO, Respondents. Liabilities
GSIS – P450,000.00 P400,000.00 P300,000.00
DECISION Car Loan – – – P500,000.00
Total
VELASCO JR., J.: – P450,000.00 P400,000.00 P800,000.00
Liabilities
Net Worth P2,530,000.00 P2,370,000.00 P2,530,000.00 P2,715,000.00
The Case

This Petition for Review on Certiorari under Rule 45 seeks to reverse and set aside the Her SALNs for the years aforementioned do not reflect any income source other than her
July 22, 20091Decision of the Court of Appeals and its June 13, 2011 Resolution in CA– employment. The spaces for her spouse’s name and business interest were left in blank.
G.R. SP No.88954, affirming the decision of the Ombudsman in OMB–C–A–03–0327–I
that found petitioners guilty of grave misconduct and dishonesty and dismissed them Following weeks of surveillance and lifestyle probe, the PNP–CIDG investigating team,
from the service. headed by Atty. Virgilio Pablico, executed on July 28, 2003 a Joint–Affidavit, depicting
Aguilar, who, in her Personal Data Sheet, indicated “Blk 21 Lot 8 Percentage St. BIR Vill,
The Facts Fairview, QC” as her home address, as owning properties not declared or properly
identified in her SALNs, specifically the following:
In June 2003, the Philippine National Police Criminal Investigation and Detection Group
(PNP–CIDG) conducted an investigation on the lavish lifestyle and alleged nefarious Real Properties
activities of certain personnel of the Bureau of Customs, among them petitioners Flor
Gupilan–Aguilar (Aguilar), then Chief of the Miscellaneous Division, and Honore 1. Lot 6, Blk 21, BIR Village, Fairview, Quezon City worth
Hernandez (Hernandez), Customs Officer III. Aguilar was then receiving a basic annual approximately Php1,000,000.00;
salary of PhP 249,876. Her year–to–year assets, liabilities and net worth for CYs 1999 to 2. A 4–bedroom Unit 1007–A Antel Seaview Towers, 2626
2002, taken from her Statement of Assets, Liabilities and Net Worth (SALNs) for the Roxas Blvd., Pasay City worth Php12,000,000.00, with rights
corresponding years, are shown below: to 4 parking slots; and
3. Residential lot in Naga City worth Php148,200.00
Real
19993 20004 20015 20026
Properties2 Personal
House and Properties
Lot in P880,000.00 P980,000.00 P1,030,000.00 P1,030,000.00
Quezon City Make/Model Plate No. Registered Owner
Apartment Honda CRV BIM–888 Flor G. Aguilar
in Caloocan P500,000.00 P550,000.00 P550,000.00 P550,000.00 Isuzu Trooper HRH–659 Honore R. Hernandez
City
BMW (red) XCR–500 Asia Int’l Auctioneer, Inc.
Personal
BMW (silver) XFD–441 Southwing Heavy Industries, Inc.8
Properties7
Car P450,000.00 P450,000.00 P450,000.00 P900,000.00
It was also unearthed that, during a four–year stretch, from July 1999 to June 2003,
Jewelry P500,000.00 P600,000.00 P650,000.00 P750,000.00 Aguilar, per the Bureau of Immigration (BI) records, took 13 unofficial trips abroad, eight
Appliances P100,000.00 P120,000.00 P125,000.00 P135,000.00 to Los Angeles, California, accompanied most of the time by daughter Josephine. During
the same period, her two other daughters also collectively made nine travels abroad. Per
Furniture P100,000.00 P120,000.00 P125,000.00 P150,000.00

37
the PNP–CIDG’s estimate, Aguilar would have spent around PhP 3,400,000 for her and Hernandez, for his defense, alleged that the complaint adverted only to his being the
her daughters’ foreign travels. registered owner of an Isuzu Trooper. There is no specification, he added, as to his
acquisition of, and not declaring, unexplained wealth.15
In view of what it deemed to be a wide variance between Aguilar’s acquired assets and
what she spent for her four–year overseas travels, on one hand, and her income, on the Ruling of the Ombudsman
other, the PNP–CIDG, through P/Director Eduardo Matillano––in a letter–complaint of
July 28, 2003, with enclosures, on a finding that she has violated Republic Act No. (RA) Based on the evidence on record and the parties’ position papers, the investigating panel
13799 in relation to RA 301910 and 671311 –charged her with grave misconduct and issued for approval a draft Decision16 dated June 3, 2004, which found Aguilar guilty of
dishonesty. Hernandez was charged too with the same offenses. Upon evaluation of the the offenses charged. And while Hernandez was also charged and investigated,
complaint and of the evidence presented, which included the aforementioned joint– the fallo and even the body of the proposed decision was silent as to him, save for the
affidavit, the Ombudsman created an investigating panel which then conducted following line:
administrative proceedings on the complaint, docketed as OMB–C–A–03–0327–I.
x x x the fact that the motor vehicle, Isuzu Trooper with Plate No. HRH 659 is registered
By Order of September 3, 2003, then Overall Deputy Ombudsman Margarito Gervacio, Jr. in his [Hernandez’s] name, does not make him administratively liable.17
placed Aguilar under preventive suspension for six (6) months without pay. Another
Order,12 however, was issued, effectively lifting the order of preventive suspension on
the stated ground that Aguilar’s untraversed controverting evidence “considerably Evidently not totally satisfied with the panel’s recommended action, the Ombudsman
demonstrated the weakness of the evidence in support of the complaint.” directed that a joint clarificatory hearing be conducted, and one was held on September
23, 2004. The proceedings resulted in the issuance of what the investigating panel styled
as Supplemental Decision18 dated January 6, 2005 further detailing the bases for the
In the meantime, Aguilar filed her Counter–Affidavit,13 primarily addressing the earlier finding on Aguilar’s liability. Like the earlier draft, no reference was made in
allegations in the aforementioned joint–affidavit. In it, she belied allegations about not the fallo of the Supplemental Decision to Hernandez’s guilt or innocence.
declaring Lot 6, Blk 21, BIR Village, Fairview. As explained, what she considers her
dwelling in that area consists of a duplex–type structure that sits on the Lot 8 she
originally owned and the contiguous Lot 6, which she subsequently acquired from one Following a review of the two issuances thus submitted, then Ombudsman Simeon
Norma Jurado. Anent Unit 1007–A of Antel Seaview Towers, Aguilar pointed to her US– Marcelo issued on January 18, 2005 a decision denominated Supplement,19 approving,
based brother Carlo as owner of this condo unit, the latter having purchased it from Mina with modification, the adverted Decision and Supplemental Decision. The modification
Gabor on July 14, 2003. Carlo, as she averred, has allowed her to stay in the unit. relates to the liability of Hernandez whom the Ombudsman found to be Aguilar’s dummy
Appended to Aguilar’s counter–affidavit is a Deed of Sale14 purportedly executed in Los and equally guilty of grave misconduct and dishonesty deserving too of the penalty of
Angeles in favor of Carlo. dismissal from the service. Dispositively, the Supplement reads:

Aguilar also denied owning the so–called third real property, the Panicuason, Naga City WHEREFORE, the Decision dated 03 June 2004 and Supplemental Decision dated 06
lot, since she had already sold it in 1992. January 2005 are approved insofar as it finds respondent Flor Aguilar guilty of the
administrative offenses of Grave Misconduct and Dishonesty and is hereby meted the
penalty of DISMISSAL from the service, with the accessory penalty of cancellation of
As to allegations that she owns but failed to declare the four above–listed vehicles, eligibility, forfeiture of retirement benefits and perpetual disqualification for re–
Aguilar admitted to owning only the subject Honda CRV van, but denied the charge of employment in the government service.
failing to declare it in her SALN. She ascribed ownership of the Isuzu Trooper to
Hernandez. As for the red and silver BMW cars registered in the name of the entities
mentioned in the complaint, Aguilar alleged that they were merely lent to her by her Further, the undersigned hereby disapproves the ruling contained in the Decision dated
brother’s friend. 03 June 2004 with regard to Honore Hernandez, the latter being likewise found guilty of
the administrative offenses of Grave Misconduct and Dishonesty and is hereby meted the
penalty of Dismissal from the service, with the accessory penalty of cancellation of
Not being the owner of the properties aforementioned, Aguilar wondered how she can eligibility, forfeiture of retirement benefits and perpetual disqualification for re–
be expected to include them in her SALN. employment in the government service.

Finally, she claimed having seven brothers and two sisters in the US who had sponsored SO ORDERED.
her US trips and who at times even sent airline tickets for her and her daughters’ use.

38
Aguilar and Hernandez moved for but were denied reconsideration 20 via an Order21 of The Court’s Ruling
February 28, 2005. The two then went to the Court of Appeals (CA) on a petition for
review under Rule 43, docketed as CA–G.R. SP No. 88954. Even as they decried what they The petition, on its procedural and substantial aspects, is partly meritorious. The Court
tag as a case disposition in installments, petitioners asserted the absence of substantial shall first address procedural issues and concerns raised in this recourse.
evidence to support the allegations in the complaint, and that the judgment of dismissal
is recommendatory and not immediately executory.
Petitioners properly appealed to the CA
Ruling of the Court of Appeals
Petitioners first contend that the CA erred in its holding that, in line with Sec. 1423 and
Sec. 27 of RA 6770, they should have appealed the Ombudsman’s Decision to this Court
The CA, in its assailed Decision of July 22, 2009, affirmed that of the Ombudsman, on questions of law instead of filing a Rule 43 petition before the CA.
disposing as follows:
Petitioners stand on solid ground on this issue.
WHEREFORE, the instant petition is DENIED and the assailed Decision of the
Ombudsman finding petitioners guilty of Grave Misconduct and Dishonesty, and meted
them the penalty of DISMISSAL from the government service, with the accessory penalty The Ombudsman has defined prosecutorial powers and possesses adjudicative
of cancellation of elibility, forfeiture of retirement benefits and perpetual disqualification competence over administrative disciplinary cases filed against public officers. What
for reemployment in the government service in OMB–C–A–03–0327–I is AFFIRMED. presently concerns the Court relates to the grievance mechanism available to challenge
the OMB’s decisions in the exercise of that disciplinary jurisdiction.
SO ORDERED.[22
The nature of the case before the Office of the Ombudsman (OMB) determines the proper
remedy available to the aggrieved party and with which court it should be filed. In
Even as it junked petitioners’ contention on the sufficiency of the complainant’s administrative disciplinary cases, an appeal from the OMB’s decision should be taken to
inculpating evidence and on the nature of the Ombudsman’s judgment, the CA declared the CA under Rule 43, unless the decision is not appealable owing to the penalty
that petitioners’ remedy under the premises is an appeal to this Court by force of Section imposed.
14 in relation to Sec. 27 of RA 6770 or the Ombudsman Act of 1989. Sec. 14 provides
that “[n]o court shall hear any appeal or application for remedy against the
decisions or findings of the Ombudsman, except the Supreme Court on pure In the case at bar, the Ombudsman, in the exercise of his administrative disciplinary
questions of law,” while Sec. 27 states that “[f]indings of fact by the [OMB] when jurisdiction had, after due investigation, adjudged petitioners guilty of grave misconduct
supported by substantial evidence are conclusive.” and dishonesty and meted the corresponding penalty. Recourse to the CA via a Rule 43
petition is the proper mode of appeal. Rule 43 governs appeals to the CA from decisions
or final orders of quasi–judicial agencies.24
On June 13, 2011, the CA denied petitioners’ motion for reconsideration.
Reliance by the CA on Sec. 14 in relation to Sec. 27 of RA 6770 to support its position as
Hence, the present petition raising the following issues: to which court a party may repair to to assail the OMB’s decision in disciplinary cases is
misinformed. As has been held, those portions of said Sec. 27 and any other provisions
1. Whether or not a Rule 43 petition to assail the findings or decisions of the implementing RA 6770, insofar as they expanded the appellate jurisdiction of this Court
Ombudsman in an administrative case is proper; without its concurrence, violate Article VI, Sec. 30 of the 1987 Constitution.25 We said so
2. Whether or not the acts complained of constitute grave misconduct, dishonesty in the landmark Fabian v. Desierto:26
or both;
3. Whether or not there is substantial evidence to support the assailed findings of WHEREFORE, Section 27 of [RA] 6770 (Ombudsman Act of 1989), together with Section
the Ombudsman and the CA; and 7, Rule III of [A.O.]. 07 (Rules of Procedure of the [OMB]), and any other provision of law
4. Whether or not the decision of the Ombudsman is but recommendatory or or issuance implementing the aforesaid Act and insofar as they provide for appeals in
immediately executory. administrative disciplinary cases from the Office of the Ombudsman to the
Supreme Court, are hereby declared INVALID and of no further force and
Petitioners also invite attention to the June 4, 2012 decision of the Regional Trial Court effect.(Emphasis added.)
(RTC) of Manila in Criminal Case No. 08–263022, acquitting Aguilar for falsification
allegedly involving the same disputed transactions in OMB–C–A–03–0327–I. As a consequence and in line with the regulatory philosophy adopted in appeals from
quasi–judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from

39
decisions of the Ombudsman in administrative disciplinary cases should be taken to the In all administrative disciplinary cases, orders, directives, or decisions of the
CA under the provisions of Rule 43.27Barata v. Abalos, Jr.,28Coronel v. Desierto,29 and Office of the Ombudsman may be appealed to the Supreme Court by filing a
recently Dimagiba v. Espartero30 have reiterated the pertinent holding in Fabian. petition for certiorari within ten (10) days from receipt of the written notice of the
order, directive or decision or denial of the motion for reconsideration in
The Decision of the Ombudsman is mandatory and immediately executory accordance with Rule 45 of the Rules of Court.

This brings us to the issue on the nature of the Ombudsman’s decisions in administrative The above rules may be amended or modified by the Office of the Ombudsman x x
disciplinary suits, it being petitioners’ posture that such decisions, as here, are only x. (Emphasis supplied.)
recommendatory and, at any event, not immediately executory for the reason that the
PNP–CIDG filed the basic complaint on August 20, 200331 when the ruling in Tapiador v. The then Sec. 7, Rule III of Administrative Order No. 07 (AO 07) or the Rules of
Office of the Ombudsman32 had still controlling sway. To petitioners, Tapiador enunciated Procedure of the OMB, in turn, stated:
the dictum that the Ombudsman’s disciplinary power is only to recommend, the power
to suspend and dismiss erring personnel being vested in the head of the office concerned. Sec. 7. Finality of decision. – Where the respondent is absolved of the charge, and in case
As a corollary point, petitioners also advance the argument that the legal situation of conviction where the penalty imposed is public censure or reprimand, suspension of
changed only when Office of the Ombudsman v. Court of Appeals33 and Ombudsman v. not more than one month, or a fine equivalent to one month salary, the decision shall be
Samaniego34 were decided in June 2006 and September 2008, respectively. final and unappealable. In all other cases, the decision shall become final after the
expiration of ten (10) days from receipt thereof by the respondent, unless a motion for
We are not impressed. reconsideration or petition for certiorari, shall have been filed by him as
prescribed in Section 27 of RA 6770. (Emphasis supplied.)
Petitioners’ witting or unwitting invocation of Tapiador is specious. Administrative
disciplinary authority of the OMB does not end with a recommendation to punish. The The Court, in Lapid v. Court of Appeals,38 has interpreted the above–quoted provision to
statement in Tapiador that the Ombudsman is without authority to directly dismiss an mean that the sanctions imposed by the Ombudsman other than public censure,
erring public official as its mandate is only to recommend was mere obiter dictum, and reprimand, suspension of not more than one month or a fine equivalent to one month
cannot, in the words of Ledesma v. Court of Appeals,35 “be cited as a doctrinal declaration salary are not immediately executory and can be stayed by an appeal timely filed. The
of the Supreme Court.” In fact, the pronouncement in Tapiador on the Ombudsman’s pertinent ruling in Lapid has, however, been superseded.39 On August 17, 2000, AO 14–A
disciplinary authority was only limited to two sentences, to wit: was issued amending Sec. 7, Rule III of the Rules of Procedure of the OMB. The rule, as
thus amended, pertinently reads:
x x x Besides, assuming arguendo, that petitioner were administratively liable, the
Ombudsman has no authority to directly dismiss the petitioner from the government Section 7. Finality and execution of decision. – Where x x x the penalty imposed is public
service x x x. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, censure or reprimand, suspension of not more than one month, or a fine equivalent to
the Ombudsman can only “recommend” the removal of the public official or employee one month salary, the decision shall be final and unappealable. In all other cases, the
found to be at fault, to the public official concerned.36 decision may be appealed x x x.

The terse obiter in Tapiador should be compared with the holding in Ombudsman v. De An appeal shall not stop the decision from being executory. In case the penalty is
Leon37 which even chronicled the pertinent internal rules of procedure in the Office of suspension or removal and the respondent wins such appeal, he shall be considered as
the Ombudsman (OMB) and illustrated that, as early as 2000, rules were already having been under preventive suspension and shall be paid the salary and such other
enforced by the OMB that provide for the immediate execution of judgments pending emoluments that he did not receive by reason of the suspension or removal. (Emphasis
appeal. As pointed out in De Leon, Sec. 27 of the Ombudsman Act of 1989 prescribes the supplied.)
rules on the effectivity and finality of the OMB’s decisions:
Then came AO 17 dated September 15, 2003 further amending Sec. 7 of Rule III. Thus,
SEC. 27. Effectivity and Finality of Decisions. – (1) All provisionary orders at the Office of the section now provides:
the Ombudsman are immediately effective and executory.
Section 7. Finality and execution of decision. – Where the respondent is absolved of the
xxxx charge, and in case of conviction where the penalty imposed is public censure or
reprimand, suspension of not more than one month, or a fine equivalent to one month
salary, the decision shall be final, executory, and unappealable. In all other cases, the
decision may be appealed to the Court of Appeals x x x.
40
An appeal shall not stop the decision from being executory. In case the penalty is relation or connection between the two. Without a nexus between the act complained of
suspension or removal and the respondent wins such appeal, he shall be and the discharge of duty, the charge of grave misconduct shall necessarily fail.
considered as having been under preventive suspension and shall be paid the
salary and such other emoluments that he did not receive by reason of the b. Dishonesty
suspension or removal. (Emphasis supplied.)
Dishonesty, as juridically understood, implies the disposition to lie, cheat, deceive, or
Clearly then, as early as August 17, 2000, when AO 14–A was issued, the OMB–imposed defraud; untrustworthiness; lack of integrity; lack of honesty or probity in principle; lack
penalties in administrative disciplinary cases were already immediately executory of fairness and straightforwardness; disposition to defraud, deceive or betray.42 It is a
notwithstanding an appeal timely filed. In this case, it must be noted that the complaint malevolent act that puts serious doubt upon one’s ability to perform duties with the
dated July 28, 2003 was filed on August 20, 2003 or after the AO 14–A has come into integrity and uprightness demanded of a public officer or employee.43
effect. Thus, no error can be attributed to the CA when it ruled that the penalties imposed
by the Ombudsman against petitioners are immediately executory. Immediate execution
argues against the outlandish notion that the Ombudsman can only recommend The inculpatory allegations in the controversy, if proved, qualify as acts of dishonesty
disciplinary sanctions. that would merit dismissal from service. The requirement of filing a SALN is enshrined,
as it were, in the Constitution44 to promote transparency in the civil service and operates
as a deterrent against government officials bent on enriching themselves through
The acts complained of constitute Dishonesty but not Grave Misconduct unlawful means. By mandate of law, it behooves every government official or employee
to make a complete disclosure of his or her assets, liabilities and net worth in order to
a. Grave Misconduct suppress any questionable accumulation of wealth because the latter usually results
from non–disclosure of such matters.45
The charges against petitioners for grave misconduct and dishonesty basically stemmed
from their alleged act of amassing unexplained wealth or acquiring properties The significance of requiring the filing of a complete, truthful, and sworn SALN as a
disproportionate to their income, petitioner Aguilar’s alleged failure to declare them in measure to curb corruption in the bureaucracy cannot be gainsaid. Secs. 7 and 8 of
her SALNs, and for petitioner Hernandez’s alleged acquiescence to be her dummy. To our the Anti–Graft and Corrupt Practices Act (RA 3019) are emphatic on this point:
the mind, however, we find that even if petitioners, for argument, failed to include
several properties in their SALNs, the omission, by itself, does not amount to grave Sec. 7. Statement of Assets and Liabilities. — Every public officer, within thirty days after
misconduct. assuming office, and thereafter, on or before the fifteenth day of April following the close
of every calendar year, x x x shall prepare and file x x x a true, detailed and sworn
Largo v. Court of Appeals40 is instructional as to the nature of the offense. To constitute statement of the amounts and sources of his income, the amounts of his personal and
misconduct, the complained act/s or omission must have a direct relation and be linked family expenses and the amount of income taxes paid for the next preceding calendar
to the performance of official duties. The Court wrote in Amosco v. Magro: year x x x.

x x x By uniform legal definition, it is a misconduct such as affects his performance of Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. — If in
his duties as an officer and not such only as affects his character as a private accordance with the provisions of [RA 1379], a public official has been found to have
individual. In such cases, it has been said at all times, it is necessary to separate the acquired during his incumbency, whether in his name or in the name of other persons, an
character of the man from the character of the officer x x x. It is settled that misconduct, amount of property and/or money manifestly out of proportion to his salary and to his
misfeasance, or malfeasance warranting removal from office of an officer must have other lawful income, that fact shall be ground for dismissal or removal. Properties in the
direct relation to and be connected with the performance of official duties amounting name of the spouse and dependents of such public official may be taken into
either to maladministration or willful, intentional neglect and failure to discharge the consideration, when their acquisition through legitimate means cannot be satisfactorily
duties of the office x x x.41 shown. x x x [M]anifestly excessive expenditures incurred by the public official, his
spouse or any of their dependents including x x x frequent travel abroad of a non–official
Owning properties disproportionate to one’s salary and not declaring them in the character by any public official when such activities entail expenses evidently out of
corresponding SALNs cannot, without more, be classified as grave misconduct. Even if proportion to legitimate income, shall likewise be taken into consideration in the
these allegations were true, we cannot see our way clear how the fact of non– enforcement of this Section x x x. The circumstances hereinabove mentioned shall
declarations would have a bearing on the performance of functions by petitioner Aguilar, constitute valid ground for the administrative suspension of the public official concerned
as Customs Chief of the Miscellaneous Division, and by petitioner Hernandez, as Customs for an indefinite period until the investigation of the unexplained wealth is completed.
Operations Officer. It is non–sequitur to assume that the omission to declare has served,
in some way, to hinder the rendition of sound public service for there is no direct

41
The aforequoted Section 8 speaks of unlawful acquisition of wealth and excessive merely as “House & Lot, Q.C.” This is as opposed to the allegations of the PNP–CIDG that
expenditure, the evil sought to be suppressed and avoided, and Section 7, which directs what she has been declaring is Lot 8 of Block 21, and not Lot 6.
full disclosure of wealth in the SALN, is a means of preventing said evil and is aimed
particularly at minimizing if not altogether curtailing the opportunities for official We sustain the findings of the Ombudsman contained in the Supplemental Decision as to
corruption and maintaining a standard of honesty in the public service. By the SALN, the the validity of petitioner Aguilar’s account on this point. As observed by the Ombudsman,
public is able to monitor movement in the fortune of a public official; it serves as a valid the house and lot she declared as residence is actually a duplex–type structure, with a
check and balance mechanism to verify undisclosed properties and wealth.46 party wall in the middle, erected on two lots, Lots 6 and 8. When petitioner Aguilar
purchased Lot 8 from one Norma Jurado, she dismantled the dividing wall to make a
The failure to file a truthful SALN puts in doubts the integrity of the officer and would solitary unit.
normally amount to dishonesty. It should be emphasized, however, that mere
misdeclaration in the SALN does not automatically amount to such an offense. This explanation finds support from a perusal of her travel documents wherein she
Dishonesty requires malicious intent to conceal the truth or to make false statements; interchanges her address between said Lot 6 and Lot 8.
otherwise, the government employee may only liable for negligence, not for
dishonesty.47 In addition, only when the accumulated wealth becomes manifestly
disproportionate to the income of the public officer/employee and income from other ii. Antel Towers
sources, and the public officer/employee fails to properly account or explain these
sources of income and acquisitions, does he or she become susceptible to dishonesty.48 Petitioner Aguilar argues next that the four–bedroom condominium apartment with two
parking slots along Pasay City is actually owned by her US–based brother Carlo who
Substantial evidence allegedly purchased it from Mina Gabor, as evidenced by the Deed of Sale dated July 14,
2003.
The core of the controversy in this case lies in whether or not the complainant’s pieces of
evidence extant in and deducible from the records meet the quantum of evidence The Court, as were the CA and the OMB, is unconvinced. A cursory reading of the deed
required to justify the dismissal action taken against petitioners. Petitioner Aguilar shows July 14, 2003, or a month after the PNP–CIDG initiated an investigation over
argues that the initial evidentiary assessment by the OMB when it lifted the order of Aguilar’s lifestyle, as its date of execution. On the other hand, petitioner Aguilar admitted
preventive suspension was correct. To recall, the OMB declared at that time that the during the clarificatory hearing conducted on September 23, 2004 that, as early as 2000,
evidence PNP–CIDG presented was not strong enough to support the basic complaint. she and her daughter have already been occupying the apartment, thus:

In essence, petitioners, Aguilar in particular, urge us to gauge whether or not the Q: You said in your direct clarificatory questioning that you don’t know when Carlo
complainant has hurdled the quantum of evidence requirement in administrative cases Gupilan bought this property? A: Yes, sir.
so as to shift the burden of evidence on them. Respondents, on the other hand, are
correct in pointing out that a review of the evidence would necessarily entail a Q: But when did you reside in that property for the first time? A: Mga 2000 pa yun.
corresponding evaluation of facts ascertained by the Ombudsman and the CA, and that as
a general rule, the Court should refrain from delving into factual questions. However, we Q: When for the first time did you know that Carlo Gupilan acquired that Antel Towers
have already held in a catena of cases that the general rule admits of exceptions, property? A: Noon pong sinabi niya: “Ate, napakalayo sa opisina mo ang bahay mo. Gusto
including when the judgment is based on misappreciation of facts or when the findings of mo gamitin mo yung bahay ko sa Pasay?”
facts are conflicting.49 In light of the series of seemingly confusing orders and rulings
promulgated by the Ombudsman, it is beyond cavil that a review of the facts in this case
is warranted. Q: Mga kailan yun? A: Mga 2000.50

a. Evidence against petitioner Aguilar Evidently, a serious disparity exists between the document presented and the statements
petitioner Aguilar herself made. As the CA observed, citing the Ombudsman’s findings,
petitioner insists that the property is owned by her brother Carlo who invited her to stay
i. Lot 6, Block 21, BIR Village, Fairview, Quezon City in his condo unit in 2000. However, per the document she presented, the alleged Deed of
Sale between him and Gabor, was only executed on July 14, 2003.
Petitioner Aguilar admits owning this parcel of land, but insists at every turn that she
had consistently declared it in her SALNs. A perusal of her SALNs from 1999–2002 would On what authority then she has been staying on the apartment unit before the alleged
indeed show that she had declared ownership of the Fairview property, entering it Carlo–Gabor sales transaction was executed remained unexplained. This aberration
coupled by her beneficial ownership of the property, as demonstrated by her possession
42
and occupancy of the unit, casts serious doubts as to her brother’s alleged ownership of things of monetary value from anyone in connection with any operation being regulated
the unit since 2000 and renders dubious the alleged deed of sale. To recall, graft by, or any transaction which may be affected by the functions of their office. The Anti–
investigators will not only look into properties in a public servant’s name, but also those Graft and Corrupt Practices Act declares and penalizes similar acts.54
claimed by their relatives or dummies. The SALN requirement will be a useless ritual if
public officers can easily evade the obligation to disclose if they register the asset under The act complained of as regards the BMW cars for sure is indicative of corruption,
someone else’s name. tending to suggest that petitioner Aguilar had used her position in the customs bureau to
advance her brother’s business interests as well as that of the two corporations which
iii. Naga City property facilitate the vehicle exportation and importation business. Thus, even in the absence of
compelling evidence to prove that petitioner Aguilar is the actual owner of the subject
As petitioner Aguilar alleged, she purchased the property from her parents who, in June high–priced BMW vehicles, she can still be held amenable under the premises for
1990, executed the corresponding deed of sale in her favor. This sale may be conduct prejudicial to the best interest of the service.
documented, but her claim that she subsequently sold the Naga property to one Rosendo
Gonzales sometime in 1992 is not supported by evidence. She has not adduced any v. Foreign Travels
document or deed proving that she no longer owns the property. On the other hand, the
PNP–CIDG was able to secure from the City Assessor’s office a copy of the tax declaration Petitioner Aguilar’s exculpating allegations, as earlier narrated, as to her foreign travels
of the property in 2002 which, on its face, clearly yields this fact: the property is still during the period material fail to convince.
registered under Aguilar’s name; the alleged sale between her and Rosendo Gonzales
was not annotated.
While indeed some of her siblings executed affidavits tending to prove they have
sufficient income to shoulder her travels, they stopped short of saying that they did in
iv. Vehicles fact contribute or entirely pay, as Aguilar urges the Court to believe, for her and her
daughters’ trip to Los Angeles. Nowhere in the documents was it mentioned that they
There is no quibbling as to the ownership of the Honda CRV and the Isuzu Trooper. The defrayed petitioner Aguilar’s expenses for her visits. The general affidavits merely
question pivots only as to the two (2) BMWs that petitioner Aguilar had acknowledged indicated their jobs and how much salary they receive monthly. As held in Office of the
using. Ombudsman v. Racho,55 an unexplained wealth case, the documents that Racho
presented, purportedly showing his brothers’ financial capability to send or contribute
Per petitioner Aguilar’s account, a friend of another brother, Salvador, has allowed her large sum of money for their business, do not prove that they did, in fact, contribute or
the use of the BMWs. As claimed, US–based Salvador is in the business of exporting used remit money for their supposed joint business venture.
cars from the US to the Philippines and has local contacts which include the two
corporations under whose names the BMWs are registered. The PNP–CIDG, on the other As a final note on the matter, petitioner Aguilar had submitted affidavits 56 wherein she
hand, submitted pictures51 taken during its surveillance of Aguilar showing the red and averred that all expenses for her and her daughter’s travel shall be borne or defrayed by
silver BMWs leaving the parking space of Antel Towers, if not parked at slots reserved her alone.57 So what happens to her claim that her siblings shouldered most of her travel
for the use of the unit Aguilar has been occupying. expenses?

We rule, as the CA and the Ombudsman earlier did, against petitioner Aguilar on this vi. Summary
point. As found by the Ombudsman and confirmed by the CA, petitioner Aguilar had
control and possession––both attributes of ownership––of the two BMW vehicles. While Administrative proceedings are governed by the “substantial evidence rule,” meaning a
she alleged having only borrowed them, her statement during the clarificatory hearings finding of guilt in an administrative case may and would issue if supported by substantial
that she does not know who the real owners are over stretches credulity. Her allegation evidence that the respondent has committed the acts stated in the complaint. Substantial
was that the vehicles were only lent her by her brother’s friend. But when pressed on evidence is more than a mere scintilla. It means such relevant evidence as a reasonable
how she came into contact with the friend, who was unnamed, since her brother is in the mind might accept as adequate to support a conclusion, even if other minds equally
US, she was unable to give a direct answer.52 reasonable might conceivably opine otherwise.58 Its absence is not shown by stressing
that there is contrary evidence, direct or circumstantial, on record.59
In another perspective, it bears to stress that petitioner Aguilar, a ranking customs
official, had veritably admitted to receiving benefits from the above named corporations In the case at bar, the required evidence sufficient to justify holding petitioner Aguilar
which had been facilitating her brother’s used car export business. As correctly observed administratively liable has been, to us, as to the CA, satisfied. Not only did she fail to
by the Ombudsman, Sec. 7 of RA 6713 or theCode of Ethical Standards53 prohibits public declare in her SALN the residential lot located at Panicuason, Naga City, she likewise
officials and employees from directly or indirectly soliciting or accepting gifts, favor or failed to satisfactorily explain her beneficial ownership of the Antel Seaview Towers
43
four–bedroom condominium unit and her use of the two BMWs registered in the name of In ruling for petitioner Hernandez, we do so taking stock of the pronouncement in the
different corporations, which, as the records show, are both based in Olongapo City. first–issued Decision of the Ombudsman. There was indeed no specific allegation in the
complaint against him other than his owning an Isuzu Trooper vehicle, which he
Relevant to this determination is Sec. 2 of RA 1379,60 in relation to Sec. 8 of RA 3019, declared in his SALN. But mere ownership is not an actionable administrative offense.
which states that whenever any public officer or employee has acquired during his The PNP–CIDG also did not present any additional evidence as against petitioner
incumbency an amount of property which is manifestly out of proportion to his salary as Hernandez. We are, thus, at a loss to understand how the Ombudsman, after saying in not
such officer or employee and to his other lawful income and the income from so many words that Hernandez was not guilty, would completely reverse itself in
legitimately acquired property, said property shall be presumed prima facieto have been the Supplement. Having already disposed of the issue as regards petitioner Hernandez in
unlawfully acquired. When the presumption holds, the burden of evidence then shifts to the Decision, it was then quite improper for the Ombudsman to reverse its findings six
the respondent, in this instance petitioner Aguilar, to show that the financial resources months after, albeit no evidence had been adduced in the interim to support the new
used to acquire the undeclared assets and her expenditures came from lawful income. To finding.
be sure, petitioner Aguilar has failed to discharge this burden, as the CA, and the OMB
before it, have determined. The explanation she offered when confronted with her While the Ombudsman’s reasoning––as adopted by the CA, regarding petitioner
undeclared acquisitions and travel splurge is too flimsy compared to her own admissions Hernandez’s purchasing capability, or lack of it––may be plausible at first blush, the
as to her beneficial ownership over the properties. Her SALNs during the years in latter was able to justify his ownership of the Isuzu Trooper. Evidence on record would
question clearly indicated she was a pure compensation income earner. With an annual show that aside from his employment, he and his wife have other sources of income. As
salary of PhP 249,876, it is incomprehensible how she could have acquired her he alleged in his pleadings, his wife, Ruth, is a practicing physician who, besides
undeclared assets on top of paying for her annual travels and living expenses. The maintaining a clinic in both the Seamen’s Hospital in Manila and at the Medical Center
discrepancy in the total valuation of her declared and undeclared assets is also too Muntinlupa, engages in OB–GYN consultancy. And as seen in his SALN for 2002, the
glaring for petitioner Aguilar’s omission to be written off as mere negligence or couple run Sarah Katrina’s Drugstore in Las Piñas City and even own shares of stocks in
carelessness. As a result, no error can be attributed to the CA and the Ombudsman Medical Center Muntinlupa. A car loan worth PhP 1,600,000 was also reported in his
adjudging her guilty of dishonesty. 2002 SALN.62 In fine, there is valid reason to conclude that the Hernandez couple, with
their combined income, could very well afford a medium–priced motor van.
Petitioner Aguilar’s acquittal in Crim. Case No. 08–263022 of the Manila RTC on the
ground of insufficiency of evidence would not carry the day for her. The dismissal of the Given these circumstances, the innocence claim of petitioner Hernandez becomes all the
criminal aspect of the complaint filed against Aguilar has hardly any bearing on the more credible and the justifications offered sufficient to absolve him of administrative
administrative case mainly because the quantum of evidence required to support a liability. It should be understood that the laws on SALN aim to curtail the acquisition of
finding of guilt in a criminal case is proof beyond reasonable doubt. Administrative cases unexplained wealth. Where the source of the undisclosed wealth can be properly
are, as a rule, separate and independent from criminal suits and are governed by accounted for, as in the case of petitioner Hernandez, then it is “explained wealth” which
differing evidentiary criteria. The acquittal of an accused who is also a respondent in an the law does not penalize.63
administrative case does not conclude the administrative proceedings, nor carry with it
relief from administrative liability. This is because unlike in criminal cases where the Under OMB AO 17, if the respondent, meted by OMB the penalty of suspension or
threshold quantum of evidence required is proof beyond reasonable doubt, only removal, is exonerated on appeal, he shall be considered as having been under
substantial evidence is necessary in administrative cases.61 preventive suspension and shall be paid the salary and such other emoluments that he
failed to receive by reason of that suspension or removal. So it must be in the case of
b. Evidence against petitioner Hernandez petitioner Hernandez.

Unlike in the case of his co–petitioner, this Court is unable to make out a case of WHEREFORE, the petition is PARTIALLY GRANTED. The appealed July 22, 2009
dishonesty, let alone grave misconduct against petitioner Hernandez. To be sure, the Decision and June 13, 2011 Resolution in CA–G.R. SP No.88954 are MODIFIED. The
OMB investigating panel, in the Decision dated June 3, 2004, recommended petitioner charge for Grave Misconduct against Flor Gupilan–Aguilar is DISMISSED, while the
Hernandez’s exoneration. However, in a bizarre twist, the Ombudsman, in appellate court’s finding of her liability for Dishonesty and the corresponding penalty
its Supplement dated January 18, 2005, disapproved the panel’s own assessment of the imposed are AFFIRMED.
sufficiency of evidence as regards petitioner Hernandez and ruled that, while the Isuzu
Trooper with Plate No. HRH–659 was registered under his name, it is actually owned by The CA Decision, however, insofar as it finds Honore Hernandez guilty of the offenses
Aguilar. Accordingly, the Ombudsman decreed Hernandez’s dismissal for supposedly charged against him, is hereby REVERSED and SET ASIDE. The complaint against him
consenting to act as Aguilar’s dummy. The Ombudsman, in net effect, used petitioner for Grave Misconduct and Dishonesty is accordingly DISMISSED. He is accordingly
Hernandez’s own admission of vehicle ownership against him and ruled that he could ordered REINSTATED immediately to his former or equivalent position in the Bureau of
not afford to acquire the car on his salary of PhP 14,098 a month. Customs without loss or diminution in his salaries and benefits. In addition, he shall be
44
paid his salary and such other emoluments corresponding to the period he was out of the
service by reason of the judgment of dismissal decreed by the Office of the Ombudsman,
as affirmed by the Court of Appeals.

SO ORDERED.

45
G.R. No. 194645 March 6, 2012 Clave countered that she was not aware of Tornea’s loan because it was processed by
Estoque on 9 December 2003 and she was absent on that day. Clave further alleged that
CIVIL SERVICE COMMISSION, Petitioner, the authority given to her on loan applications was limited only to granting salary loan
vs. applications and cancelling voided checks or checks that were physically defective due to
AURORA M. CLAVE, Respondent. computer malfunction. Clave alleged that she was not authorized to use Function "D"
which was the deletion function used in cancelling the header of Tornea’s loan.
According to Clave, only the section and division chiefs of the loans administrative
x-----------------------x division and the Information Technology Services Group (ITSG) can access Function "D."
Finally, Clave alleged that, at that time, she had been with the GSIS for 28 years with
G.R. No. 194665 unblemished service and dedicated loyalty.

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), Petitioner, The Decision of the GSIS
vs.
AURORA M. CLAVE, Respondent. In its 23 May 2007 Decision,3 the GSIS found Clave guilty of simple neglect of duty. The
GSIS ruled that while Clave was not authorized to use transaction code "LSMH.D" to
DECISION delete loan headers, she was given authority to cancel loans that were previously
granted by using transaction code "LSLC," which was used in this case. The GSIS ruled
PER CURIAM: that each employee tasked to grant or cancel loans is assigned a corresponding user ID
and password known only to the specified user. The ID is the tracking device used to
establish the identity of the person responsible for any modification or alteration in the
The Cases MSLS database. All the transactions of a particular user are recorded and logged in the
MSLS database. In this case, it was shown that Clave was responsible for the cancellation
Before the Court are two petitions for certiorari assailing the 27 July 2010 Decision1 and of the header of Tornea’s loan.
24 November 2010 Resolution2 of the Court of Appeals in CA-G.R. SP No. 106229.
The dispositive portion of the GSIS Decision reads:
In G.R. No. 194645, petitioner Civil Service Commission (CSC) asks this Court to set aside
the decision of the Court of Appeals and to impose on respondent Aurora M. Clave WHEREFORE, Aurora M. Clave is found GUILTY of Simple Neglect of Duty. This being the
(Clave) the penalty of dismissal from service. second time she was found guilty of the same offense, she is hereby meted the penalty of
DISMISSAL FROM THE SERVICE, which shall carry with it cancellation of eligibility;
In G.R. No. 194665, petitioner Government Service Insurance System (GSIS) likewise forfeiture of retirement benefits, and the perpetual disqualification for reemployment in
prays this Court to set aside the Court of Appeals’ decision and to impose on Clave the the government service.
penalty of dismissal from service.
It is so ordered.4
The Antecedent Facts
Clave filed a motion for reconsideration. In its 7 July 2008 Resolution,5 the GSIS denied
These cases originated from Administrative Case No. 05-055 filed by GSIS against Clave. Clave’s motion for reconsideration for lack of merit.
GSIS alleged that Clave was a Senior Computer Operator I of the Social Insurance Group
(SIG) at the Manila District Office of the GSIS. On 9 December 2003, Diosdado V. Estoque Clave filed an appeal from the GSIS Decision to the Civil Service Commission (CSC).
(Estoque), through the Mainframe Salary Loan System (MSLS), granted Marie Ann F.
Tornea (Tornea) an enhanced salary loan with net proceeds of ₱73,123.87 for which
GSIS Check No. IC2123810 was issued. The check was later released and negotiated. The Decision of the Civil Service Commission

On 16 December 2003, Clave, without proper authority or valid reason and in gross In its Resolution No. 0819516 dated 13 October 2008, the CSC dismissed the appeal and
violation of pertinent rules and procedure, cancelled the header of Tornea’s loan as affirmed the GSIS Decision dismissing Clave from service. The CSC ruled that the GSIS did
appearing in the MSLS. Clave used her operator ID (AMCO) and the computer terminal not err in finding Clave guilty of simple neglect of duty. The CSC found that there was
assigned to her (SI42). By cancelling the loan, Clave made it appear that the loan had not substantial evidence that proved Clave’s guilt. The CSC noted that the data extracted by
been granted to Tornea.

46
the ITSG showed that the user ID used was AMCO in the transaction "LSLC" to cancel the Hence, the petitions separately filed by the CSC and the GSIS before this Court.
header of Tornea’s loan. It was established that AMCO was Clave’s user ID.
The Issue
The dispositive portion of the CSC Resolution reads:
Petitioners CSC and GSIS raised a common issue in these cases, that is, whether the Court
WHEREFORE, the appeal of Aurora M. Clave, Senior Computer Operator I, Social of Appeals committed a reversible error in reducing the penalty imposed on Clave from
Insurance Group, Government Service Insurance System (GSIS), is hereby DISMISSED. dismissal from service to suspension for one year.
Accordingly, the Decision dated May 23, 2007 of the same Office, dismissing her from the
service for having been found guilty for the second time, of the offense of Simple Neglect The Ruling of this Court
of Duty, is AFFIRMED. She is likewise imposed the accessory penalties of perpetual
disqualification to hold public office, forfeiture of retirement benefits, cancellation of
Civil Service eligibility and bar from taking Civil Service examinations.7 The petitions are meritorious.

Clave filed a petition for review before the Court of Appeals, assailing the CSC Resolution. Simple neglect of duty is the failure to give attention to a task, or the disregard of a duty
due to carelessness or indifference.9 The Court of Appeals sustained the findings of the
GSIS and the CSC, and found that there was substantial evidence to hold Clave liable for
The Decision of the Court of Appeals simple neglect of duty. We agree with the Court of Appeals on this issue.

In its 27 July 2010 Decision, the Court of Appeals partly granted Clave’s petition. The In these cases, the Court of Appeals found that while Clave was not specifically
Court of Appeals affirmed the CSC insofar as it found Clave guilty of simple neglect of authorized to delete headers, she had authority to cancel granted loans through the
duty. However, the Court of Appeals modified the CSC Resolution by reducing the penalty transaction code "LSLC." Further, Clave was one of the users of the computer terminal
imposed on Clave from dismissal from service to suspension from office without salary SI42 that was used to cancel the header of Tornea’s loan. The Court of Appeals found that
and other benefits for one year, with a stern warning that a transgression of a similar the computer terminal SI42 that was used to cancel the header of Tornea’s loan was also
nature will warrant her dismissal from service. used by two persons, including Estoque who was previously found guilty of dishonesty
and grave misconduct for cancelling the loans and headers of some GSIS members. Thus,
The Court of Appeals ruled that there was nothing in the records that showed that Clave it might be possible that Estoque used Clave’s operator ID and password in cancelling the
acted in bad faith when she gave her operator ID and password to other persons. The header of Tornea’s loan. However, granting that this might be true, Clave still failed to
Court of Appeals ruled that Clave’s carelessness should not equate to dismissal since it explain why other persons knew her operator ID and password that were used in the
was not coupled with bad faith. cancellation of the header. The Court of Appeals correctly ruled that Clave was neglectful
in safeguarding information that should have been known only to herself.
The Court of Appeals found that while Clave’s guilt was supported by substantial
evidence, the imposition of the penalty of dismissal from service was too harsh. The However, we do not agree with the penalty imposed by the Court of Appeals.
dispositive portion of the Decision of the Court of Appeals reads:
Simple neglect of duty is a less grave offense punishable by suspension of one month and
WHEREFORE, IN VIEW of THE FOREGOING, the petition is partly GRANTED. The one day to six months for the first offense and dismissal for the second
Resolution of the Civil Service Commission dated 13 October 2008 is AFFIRMED insofar offense.10 1âwphi1
as it found petitioner Aurora M. Clave guilty of Simple Neglect of Duty, but in lieu of
dismissal from the service, petitioner is hereby SUSPENDED from office without salary In reducing the penalty imposed on Clave, the Court of Appeals considered Section 53 of
and other benefits for one (1) year, with a STERN WARNING that another transgression the Uniform Rules on Administrative Cases in the Civil Service, which states:
of a similar nature will merit dismissal from the service.
Sec. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. - In the
SO ORDERED.8 determination of the penalties to be imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered:
Both the CSC and the GSIS moved for the reconsideration of the Decision of the Court of
Appeals. The following circumstances shall be appreciated:

In its 24 November 2010 Resolution, the Court of Appeals denied the motions.
47
xxx

j. Length of service in the government.

xxx

The Court of Appeals ruled that length of service in the government can mitigate or
aggravate the penalty, depending on the circumstances of the case. The Court of Appeals
considered Clave’s 30 years of service in the government, as well as her lack of bad faith,
in reducing the penalty imposed by the GSIS and the CSC. While acknowledging that this
was not Clave’s first offense for simple neglect of duty, the Court of Appeals invoked the
court’s discretion to temper the harshness of its judgment with mercy and cited
humanitarian reasons for the modification of the decisions of the GSIS and the
CSC.1âwphi1

Again, we do not agree with the Court of Appeals.

Section 53 of the Uniform Rules on Administrative Cases in the Civil Service is clear that
length of service may be considered either as mitigating or aggravating depending on the
circumstances of the case. Here, it was shown that Clave was previously found guilty by
the GSIS of simple neglect of duty in Adm. Case No. 05-02711 in its Decision dated 12
February 2007 for unauthorized cancellation of the loan and header of one Basilio C.
Benitez. In that case, the GSIS suspended Clave for three months. Earlier, in another
Decision12 dated 10 November 2005, the GSIS found Clave guilty of conduct prejudicial to
the interest of the service for her participation in a mass action that resulted in the
disruption of GSIS operations, for which she was meted the penalty of suspension for six
months and one day. Hence, Clave’s length of service in the government could not
mitigate her liability considering that the present offense is not her first offense but her
third offense. Applying Section 52(B) of the Revised Rules on Administrative Cases in the
Civil Service, the penalty of dismissal imposed by the GSIS and affirmed by the CSC
should instead be imposed on Clave.

WHEREFORE, we SET ASIDE the 27 July 2010 Decision and 24 November 2010
Resolution of the Court of Appeals in CA-G.R. SP No. 106229 insofar as it modified the
penalty imposed on Aurora M. Clave and REINSTATEResolution No. 081951 dated 13
October 2008 of the Civil Service Commission dismissing Clave from service with
perpetual disqualification to hold public office, forfeiture of retirement benefits except
accrued leave credits, cancellation of Civil Service eligibility, and prohibition from taking
Civil Service examinations.

SO ORDERED.

48
Construction, (2) Geovan Marketing, and (3) Interior Construction. After the submission
[G.R. No. 193983 : March 14, 2012] and evaluation of the bids, the Pre-Qualification Bids and Awards Committee (PBAC)
awarded the construction of the Four Projects to Jireh Construction, as the best qualified
VICTORY M. FERNANDEZ, PETITIONER, VS. OFFICE OF THE OMBUDSMAN, FORMER bidder with the bid most advantageous to the government. The details of the public
GOVERNOR OF THE PROVINCE OF AKLAN FLORENCIO T. MIRAFLORES, INCUMBENT bidding are as follows:
GOVERNOR CARLITO MARQUEZ, AND SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT RONALDO V. PUNO, RESPONDENTS. Name of Project Date of bidding Date of award Contract Cost (P)
Alibagon-Baybay Bridge 24 February 1995 24 February 1995 975,151.38
DECISION (Phase III)
Buruanga Fishing Port 28 February 1995 1 March 1995 965,420.49
CARPIO, J.:
Irrigation Canal Access 7 March 1995 8 March 1995 956,733.92
The Case Road, Buruanga
Navitas Barangay Health 15 March 1995 16 March 1995 294,469.45
Before the Court is a petition[1] for review on certiorari with application for the issuance Center
of a temporary restraining order and writ of preliminary injunction assailing the
Decision[2] dated 9 July 2010 and Resolution[3] dated 30 September 2010 of the Court of
Appeals (CA) in CA-G.R. SP No. 112515.cralaw After the 1995 local elections, respondent Governor Florencio T. Miraflores (Gov.
Miraflores) replaced Gov. Cabagnot. Gov. Miraflores issued Memorandum No.
The Facts 004[7] dated 5 July 1995 addressed to Fernandez:

On 25 November 1994, the Province of Aklan, represented by then provincial governor Having just assumed office as chief executive of the Province, it is imperative that the
Corazon L. Cabagnot (Gov. Cabagnot), entered into a contract with Jireh Construction and undersigned should take an inventory of the financial condition of the provincial
Supply (Jireh Construction), represented by Delia Legaspi. The contract pertained to the government. This includes, among others, being oriented and apprised of the status of all
construction of the Alibagon-Baybay Bridge (Phase II) situated in Makato, Aklan for a infrastructure projects being implemented by the province through that department.
total contract price of P933,335.90 (AB Bridge Project). The contract also provided for
the completion of the AB Bridge Project within 90 calendar days or on 25 February 1995. In view hereof, you are hereby directed to temporarily suspend the implementation of all
On 28 November 1994, Jireh Construction started the AB Bridge Project. infrastructure projects under your department’s supervision and control, until such time
when their status shall have been appropriately assessed by the undersigned, and an
On 15 February 1995, petitioner Victory M. Fernandez (Fernandez), in his capacity as order to resume work to such projects shall have been issued by this office.
Provincial Engineer of the Province of Aklan, endorsed [4] to Gov. Cabagnot for her
approval, a letter[5] dated 14 February 1995 from Jireh Construction. Jireh Construction For strict compliance.
requested for a contract time extension of 30 calendar days to complete the AB Bridge
Project since the original contract period did not take into account the work stoppage The implementation of the AB Bridge Project and the Four Projects awarded to Jireh
caused by tide variations of the river. Basically, work on the substructure of the bridge Construction was suspended as a result of the Memorandum issued by Gov. Miraflores.
stops temporarily when high tide comes and operations only resume after the water
recedes. On 8 and 10 November 1995, the Commission on Audit (COA) conducted an audit and
ocular inspection of Aklan’s pending government projects. The COA auditors found that
On 16 February 1995, Gov. Cabagnot approved[6] the requested 30-day extension and Jireh Construction had abandoned the construction of the AB Bridge Project and the Four
directed Jireh Construction to exert utmost effort to complete the AB Bridge Project not Projects. All five projects were incomplete and could not be used for their designated
later than the revised expiry date. purpose at their current state of completion. The details[8] are as follows:

Meanwhile, the provincial government of Aklan launched four government Name of Project Number of Date Expected Date Accomplish- Percentage of
infrastructure projects: (1) Alibagon-Baybay Bridge (Phase III); (2) Buruanga Fishing Days Started of Completion ment as of Completion
Port; (3) Irrigation Canal Access Road, Buruanga; and (4) Navitas Barangay Health to be
Center, collectively known as the Four Projects. Completed
Alibagon-Baybay 90 11/28/94 02/25/95 12/19/94 22.89
Public bidding for the Four Projects was conducted sometime in the months of February
Bridge (Phase II)
and March 1995. Three contractors participated in the public bidding: (1) Jireh

49
Alibagon-Baybay 90 05/12/95 06/13/95 11/08/95 0 No. 3019 or the Anti-Graft and Corrupt and Practices Act.[13]
Bridge (Phase
III) Aside from Timtiman, the Office of the Ombudsman impleaded in the criminal case[14] six
Buruanga 75 03/02/95 05/15/95 03/14/95 58.09 other persons working under the provincial government: (1) Liberato R. Ibadlit, PBAC
Fishing Port member and former Vice-Governor; (2) Aniceto A. Fernandez, PBAC member and
Irrigation Canal 90 03/10/95 06/07/95 04/25/95 81.70 former Sangguniang Panlalawigan member; (3) Victory M. Fernandez, Provincial
Access Road, Engineer; (4) Felicisimo Y. Tanumtanum, Jr., Engineer IV; (5) Reynaldo B. Dionisio,
Engineer II and Project Engineer handling the construction of the Buruanga Fishing Port
Buruanga
and Irrigation Canal Access Road; and (6) Jose Amboboyong, Project Engineer handling
Navitas 45 03/17/95 04/30/95 03/23/95 45.27
the construction of the Alibagon-Baybay Bridge (Phases II and III).
Barangay Health
Center
The PBAC members as well as the other government officers were impleaded as
respondents for (1) awarding the Four Projects to Jireh Construction despite their
knowledge that Jireh Construction poorly performed and had abandoned the AB Bridge
The Summary of Actual Accomplishment and Costing[9] as of 30 June 1995 submitted and Project, and (2) not taking any action against Jireh Construction and not compelling it to
certified by Fernandez showed that the AB Bridge Project was already almost halfway continue and complete the projects.
completed with an accomplishment rating of 48.57%. However, the COA auditors found
the AB Bridge Project to be only 22.89%[10] completed based on the Statement of Time The COA submitted the following documentary evidence: (1) certified true copy of SAO
Elapsed and Percentage Accomplishment dated 20 December 1994. The auditors stated Report No. 95-45 dated 23 June 1997, the complete report on the results of the audit of
that about nine months after the AB Bridge Project was supposed to have been the Province of Aklan; (2) copy of the Joint Affidavit of the COA Auditors who conducted
completed on 25 February 1995, the project: (1) had an unaccomplished portion of the audit attesting to the audit findings embodied in SAO Report No. 95-45; and (3)
77.11%, and (2) no further work was made after 19 December 1994. The auditors added certified true copies of disbursement vouchers for all five projects.
that despite the unsatisfactory performance of Jireh Construction on the AB Bridge
Project, the PBAC still recommended the awarding of the Four Projects to the same In a Decision dated 31 March 2006, the Office of the Ombudsman (Visayas) found
contractor. Fernandez and his co-respondents administratively liable. The Ombudsman stated that
the complaint was premised on the respondents’ act of awarding government projects to
Moreover, the COA auditors found that the provincial government did not take any an incompetent contractor, who at the time of the bidding had an unsatisfactory
action against Jireh Construction. The COA stated that the officers in charge of the AB performance on another project with the same local government and had abandoned
Bridge Project and the Four Projects failed to: (1) make an inventory of the project such project. This act amounted to manifest partiality or gross inexcusable negligence, or
accomplishments; (2) take over the construction and complete the unfinished portion to both.
preserve the accomplishments already made; (3) forfeit the performance bonds; and (4)
serve notices of rescission or termination of the contracts awarded to Jireh Construction. The Ombudsman also found that Fernandez was the one who presented documents to
the PBAC showing that Jireh Construction did not have any abandoned project at the
At the time of the COA audit, the Province of Aklan had already paid P1,624,255.61 [11] to time of the bidding for the Four Projects. Thus, the Ombudsman held Fernandez equally
Jireh Construction for the five projects. The COA auditors recommended the filing of a liable with the members of the PBAC for gross neglect of duty. Further, the Ombudsman
case for neglect of duty against: (1) the PBAC officers who awarded the Four Projects to stated that Fernandez and his fellow engineers did not bring to the attention of the
Jireh Construction despite their knowledge that Jireh Construction had already provincial governor that Jireh Construction had already abandoned the construction of
abandoned the construction of the AB Bridge Project; and (2) other responsible the five projects. The Ombudsman added that they were duty-bound not only to
government officers who were remiss in their duties to report the matter of implement the projects assigned to them but also to protect the interest of the
abandonment of all five projects and to take any action against Jireh Construction. government. The dispositive portion of the decision states:

On 10 November 2003, Gov. Miraflores, in his capacity as then provincial governor of WHEREFORE, premises considered, respondents ANICETO A. FERNANDEZ, LIBERATO R.
Aklan and relying on the findings of the COA auditors, filed with the Office of the IBADLIT and EVAN L. TIMTIMAN, PBAC members, VICTORY M. FERNANDEZ, Provincial
Ombusman (Visayas) an administrative complaint[12] for gross neglect of duty against
Engineer, and JOSE AMBOBOYONG, Project Engineer (Construction of Alibagon-Baybay
Evan L. Timtiman (Timtiman), as Provincial Treasurer and regular member of the PBAC.
Bridge Phases II & III), all of the Provincial Government, Province of Aklan, are hereby
In the Complaint, Gov. Miraflores stated that Timtiman’s acts: (1) of awarding the Four
found guilty of GROSS NEGLECT OF DUTY and meted the penalty of DISMISSAL FROM
Projects to a contractor who had abandoned the AB Bridge Project; and (2) of
SERVICE with all the accessory penalties attached thereto.
participating in the payment of government funds amounting to P1,624,255.61 to the
same contractor for the five projects, caused undue injury to the provincial government.
Respondents FELICISIMO Y. TANUMTANUM, Engineer IV and REYNALDO B. DIONISIO,
Gov. Miraflores stated that such acts are punishable under Section 3(e) of Republic Act
50
Project Engineer (Construction of Irrigation Canal Access Road and Construction of The Court’s Ruling
Buruanga Fishing Port), of the same office, are found guilty of SIMPLE NEGLECT OF
DUTY and meted the penalty of ONE (1) MONTH SUSPENSION WITHOUT PAY. The petition lacks merit.

Considering, however, that respondents LIBERATO R. IBADLIT, FELICISIMO Y. Petitioner Fernandez insists that he was administratively charged for stating in the
TANUMTANUM and JOSE AMBOBOYONG (deceased), as records reveal, are no longer report he submitted to the PBAC that “Jireh Construction had no abandoned project” at
connected with the government service, the penalty of Dismissal from Service shall be the time of the bidding for the Four Projects. Petitioner states that he cannot be faulted
considered as already implemented. Respondent Ibadlit’s term as Vice-Governor of the for issuing such a statement since the bidding for the Four Projects occurred in the
Province of Aklan ended in the year 1995. Respondent Tanumtanum retired from the months of February and March 1995. At the time, the construction of the AB Bridge
government service on September 30, 1995. While the orders/notices addressed to Project was still ongoing based on the request for extension by Jireh Construction and
respondent Amboboyong were returned to this Office with a notation “Addressee later approved by the provincial governor. Petitioner asserts that he was not in a
Deceased.” This notation was verified by Mr. Federico C. Peare, Jr., Postmaster, Kalibo, position to say that Jireh Construction was not eligible to bid and to be awarded the Four
Aklan. Projects. Further, petitioner maintains that the COA auditors failed to consider that the
provincial governor, in issuing Memorandum Order No. 004, ordered the temporary
Let a copy of this Decision form part of the service record of the said respondents. suspension of all infrastructure projects handled by the provincial government. As a
result, the implementation of all projects including the AB Bridge Project and the Four
SO DECIDED.[15] Projects had to stop.

Fernandez, Timtiman and Dionisio filed a Motion for Reconsideration[16] dated 4 October In the present case, Jireh Construction started work on the AB Bridge Project on 28
2007 with the Office of the Ombudsman (Visayas). In an Order dated 11 August 2008, the November 1994. The contract provided that the bridge should be completed within 90
Office of the Ombudsman denied the motion. calendar days or specifically on 25 February 1995. However, due to some unforeseen
circumstances, Jireh Construction requested for an extension of 30 calendar days to
Fernandez filed a petition[17] for review under Rule 43 with the Court of Appeals (CA). complete the project. The provincial governor promptly approved the 30-day extension.
At the time of the bidding for the Four Projects, held on 24 February, 28 February, 7
In a Decision dated 9 July 2010, the CA found no reversible error by the Office of the March and 15 March 1995, the completion period for the AB Bridge Project had not yet
Ombudsman in finding Fernandez guilty of gross neglect of duty. The dispositive portion expired due to the 30-day extension. The 30-day extension meant that the construction
states: of the bridge was supposed to have been completed on 27 March 1995, twelve days after
the completion of all the bidding for the Four Projects.
WHEREFORE, premises considered, the instant petition for review is hereby DENIED and
ordered DISMISSED. However, petitioner based his premise that the construction of AB Bridge Project was
ongoing during the bidding of the Four Projects on two grounds: (1) the request for 30-
SO ORDERED.[18] day extension by Jireh Construction, and (2) the approval of the extension by the
governor. Petitioner did not submit any other evidence to show that the construction of
Fernandez filed a motion for reconsideration which the CA denied in a Resolution dated the AB Bridge Project took place continuously and without interruption. It must be
30 September 2010. remembered that when the COA auditors inspected and audited the AB Bridge Project in
November 1995, they found that only 22.89% of the bridge had been constructed based
Fernandez then filed a petition for review with this Court. In a Resolution [19] dated 13 on the Statement of Time Elapsed and Percentage Accomplishment dated 20 December
December 2010, we issued a temporary restraining order, effective immediately and 1994. From 20 December 1994, the COA auditors found that no further work was
continuing until further orders from this Court, enjoining respondents, their made. Thus, regardless of the 30-day extension to complete the AB Bridge Project, it is
representatives or other persons acting on their behalf from proceeding with the clear that Jireh Construction abandoned the construction of the AB Bridge Project since
execution of the Decision dated 31 March 2006 and Order dated 11 August 2008 of the 20 December 1994.
Office of the Ombudsman (Visayas).
Petitioner, as the provincial engineer who oversees all the infrastructure projects of the
The Issue province, has direct knowledge of the status of each project’s progress. Clearly, he was in
a position to inform the PBAC that Jireh Construction not only had not met the required
The main issue is whether the CA committed a reversible error in affirming the decision deadline of the completion of the AB Bridge Project but also had abandoned the project,
of the Office of the Ombudsman in finding petitioner guilty of gross neglect of duty and with only 22.89% completion and not the 48.57% completion that petitioner had
dismissing him from service. certified. Petitioner gave a false report to the PBAC when he attested that Jireh

51
Construction had no abandoned project at the time of the bidding of the Four Projects. As
correctly observed by the CA in its 9 July 2010 decision: Gov. Miraflores issued Memorandum No. 004 on 5 July 1995 or more than 3 months after
the AB Bridge Project was supposed to have been completed on 27 March 1995, the
As provincial engineer, petitioner Fernandez could not have been unaware of the fact extended completion date. The report submitted by the COA indicated the following
that no further work had been conducted at the Alibagon-Baybay Bridge Project (Phase expected dates of completion for the five projects:
II) after December 19, 1994. That no further work was conducted thereon after that date
could only mean that the project was already deemed abandoned. Considering petitioner Project Expected Date of Completion
Fernandez’s claim that he had been regularly performing his assigned tasks by Alibagon-Baybay Bridge (Phase II) 25 February 1995
supervising the implementation of the project, he cannot feign ignorance about the fact
Alibagon-Baybay Bridge (Phase III) 13 June 1995
that Jireh Construction had an ongoing abandoned project at the time of the conduct of
Buruanga Fishing Port 15 May 1995
the bidding of the four projects.
Irrigation Canal Access Road, Buruanga 7 June 1995
Even with the approved extension, petitioner’s unusual silence in not informing the Navitas Barangay Health Center 30 April 1995
PBAC about the fact that only 22.89% of the ongoing project of Jireh Construction was
completed and that no further work was conducted therein after December 19, 1994
could amount to no other but gross negligence. With only 22.89% of the project The AB Bridge Project and the Four Projects were supposed to be completed before July
completed as of March 1995, petitioner Fernandez, as provincial engineer, could not 1995. Thus, even before the issuance of Memorandum Order No. 004, all five projects of
have been ignorant about the necessity of such information to the PBAC in evaluating the Jireh Construction were still unfinished and in various stages of completion to the
qualifications of Jireh Construction. Indeed, as found by respondent Office of the detriment of the Province of Aklan.cralaw
Ombudsman, petitioner Fernandez supplied documents to the PBAC which were relied
upon by its members in evaluating the qualifications of Jireh Construction. In giving Jireh In sum, the decision of the Office of the Ombudsman, as affirmed by the CA, finding
Construction a “clean bill,” so to speak, petitioner Fernandez committed a flagrant and petitioner equally responsible with the members of PBAC for gross neglect of duty, is
palpable omission which caused undue injury to the government.[20] correct. Pursuant to Section 23, Rule XIV of the Omnibus Rules Implementing Book V of
Executive Order No. 292 or the Administrative Code of 1987, gross negligence in the
It is sufficiently evident that petitioner was grossly negligent in failing to give a complete performance of duty is classified as a grave offense for which the penalty of dismissal is
and truthful report to the PBAC of Jireh Construction’s actual progress and abandonment imposed. Section 9 of the said Rule likewise provides that the penalty of dismissal shall
of the AB Bridge Project, which could have been a crucial element in awarding the Four carry with it the cancellation of eligibility, forfeiture of leave credits and retirement
Projects to a qualified and capable contractor. Also, petitioner had been remiss in his benefits and disqualification from re-employment in government service.24
duties to monitor slippages of Jireh Construction’s performance and to take the
necessary steps to ensure minimal loss to the provincial government. Given the short WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 9 July 2010 and
time frame of 45 to 90 days for the completion of the projects, petitioner should have Resolution dated 30 September 2010 of the Court of Appeals in CA-G.R. SP No. 112515.
immediately reported the poor performance of Jireh Construction to the governor. The temporary restraining order issued on 13 December 2010 is hereby lifted.
Moreover, petitioner could have recommended the take over of the construction of the
projects and the termination of the contracts to prevent further loss of funds to the SO ORDERED.
province.

In Brucal v. Desierto,[21] we held that gross negligence refers to negligence characterized


by the want of even slight care, acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences in so far as other persons may be affected. It is the
omission of that care which even inattentive and thoughtless men never fail to take on
their own property.[22] In cases involving public officials, there is gross negligence when
a breach of duty is flagrant and palpable.[23]

Petitioner further asserts that Memorandum No. 004 was the reason for the non-
completion of the projects and not because of the abandonment of the projects by Jireh
Construction.

Petitioner’s contention must fail.

52
A.M. No. P-13-3132 June 4, 2014 release her salaries and allowances. However, in view of Judge Infante’s letter notifying
(Formerly A.M. No. 12-3-54-RTC) the OCA of such situation, the FMO issued a Memorandum7 dated September 7, 2011
informing the OCA that starting June 2011, it had started to withhold Ampong’s salaries
OFFICE OF THE COURT ADMINISTRATOR, Complainant, and allowances.8
vs.
SARAH P. AMPONG, COURT INTERPRETER III, REGIONAL TRIAL COURT OF ALABEL, In her Comment9 dated September 25, 2012, Ampong prayed that the Court revisit its
SARAN GANI PROVINCE, BRANCH 38, Respondent. ruling in G.R. No. 167916 despite its finality because it might lead to unwarranted
complications in its enforcement.10 Moreover, Ampong reiterated her argument that the
RESOLUTION CSC did not have any jurisdiction over the case against her.11

PERLAS-BERNABE, J.: The Action and Recommendation of the OCA

This administrative case arose from the letter1 dated March 15, 2011 of Executive Judge In a Memorandum12 dated March 27, 2013,the OCA recommended that Ampong be found
Jaime L. Infante (Judge Infante) of the Regional Trial Court of Alabel, Sarangani Province, guilty of Dishonesty for impersonating and taking the November 1991 Civil Service
"Branch 38. (RTC), addressed to complainant the Office of the Court Administrator Eligibility Examination for Teachers in behalf of Decir and, thus, be dismissed from the
(OCA),2 inquiring about the employment status of respondent Sarah P. Ampong service on the ground that she no longer possesses the appropriate eligibility required
(Ampong), a Court Interpreter III of the said RTC since August 3, 1993. In the for her position, with forfeiture of retirement and other benefits except accrued leave
aforementioned letter, Judge Infante informed the OCA that despite Ampong's dismissal credits and with perpetual disqualification from re-employment in any government
from service by the Civil Service Commission (CSC), which dismissal was affirmed by the agency or instrumentality, including any government-owned and controlled corporation
Court, the RTC never received any official information or directive from the OCA on the or government financial institution.13
matter. As such, Ampong remains employed in the RTC and has been continuously
receiving all her monthly salary, benefits, allowances, and the like. The OCA found that Ampong’s act of impersonating and taking the November 1991 Civil
Service Eligibility Examination for Teachers for and on behalf of another person indeed
The Facts constitutes dishonesty, a grave offense which carries the corresponding penalty of
dismissal from service. It added that the fact that the offense was not connected with her
office or was committed prior to her appointment in the judiciary does not in any way
Sometime in August 1994, the CSC instituted an administrative case against Ampong for exonerate her from administrative liability as an employee of the court.14
Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service
for having impersonated or taken the November 1991 Civil Service Eligibility
Examination for Teachers on behalf of one Evelyn B. Junio-Decir (Decir). On March 21, Further, the OCA found that Ampong’s appointment as Court Interpreter III did not
1996, after Ampong herself admitted to having committed the charges against her, the divest the CSC of its inherent power to discipline employees from all branches and
CSC rendered a resolution3 dismissing her from service, imposing all accessory penalties agencies of the government in order to protect the integrity of the civil service.
attendant to such dismissal, and revoking her Professional Board Examination for Consequently, the CSC could validly impose the administrative penalty of dismissal
Teachers (PBET) rating. Ampong moved for reconsideration on the ground that when the against her, which carries with it that of cancellation of civil service eligibility, forfeiture
said administrative case was filed, she was already appointed to the judiciary; as such, of retirement benefits, and perpetual disqualification for re-employment in the
she posited that the CSC no longer had any jurisdiction over her. Ampong’s motion was government service, unless otherwise provided. In this relation, the OCA emphasized
later denied, thus, prompting her to file a petition for review before the Court of Appeals that the CSC ruling effectively stripped Ampong of her civil service eligibility and, hence,
(CA).4 could no longer hold the position of Court Interpreter III.15

On November 30, 2004, the CA denied Ampong’s petition and affirmed her dismissal The Issue Before the Court
from service on the ground that she never raised the issue of jurisdiction until after the
CSC ruled against her and, thus, she is estopped from assailing the same. 5 Similarly, on The issue raised for the Court’s resolution is whether or not Ampong had been dismissed
August 26, 2008, the Court En Banc denied her petition for review on certiorari and, from her employment as Court Interpreter III of the RTC.
thus, affirmed her dismissal from service in G.R. No. 167916, entitled "Sarah P. Ampong
v. Civil Service Commission, CSC-Regional Office No. 11"6 (August 26, 2008 Decision). The Court’s Ruling

Notwithstanding said Decision, the Financial Management Office (FMO) of the OCA, The Court resolves the issue in the affirmative.
which did not receive any official directive regarding Ampong’s dismissal, continued to
53
As the records show, in the August 26, 2008 Decision, the Court had already held filed the necessary charges before the Office of the Court Administrator (OCA), a
Ampong administratively liable for dishonesty in impersonating and taking the procedure which this Court validated.
November 1991 Civil Service Eligibility Examination for Teachers on behalf of Decir, viz.:
A similar fate befell judicial personnel in Bartolata v. Julaton, involving judicial
The CSC found [Ampong] guilty of dishonesty. It is categorized as "an act which includes employees who also impersonated civil service examinees.1âwphi1 As in Sta. Ana, the
the procurement and/or use of fake/spurious civil service eligibility, the giving of CSC likewise filed the necessary charges before the OCA because respondents were
assistance to ensure the commission or procurement of the same, cheating, collusion, judicial employees. Finding respondents guilty of dishonesty and meting the penalty of
impersonation, or any other anomalous act which amounts to any violation of the Civil dismissal, this Court held that "respondents’ machinations reflect their dishonesty and
Service examination." [Ampong] impersonated Decir in the PBET exam, to ensure that lack of integrity, rendering them unfit to maintain their positions as public servants and
the latter would obtain a passing mark. By intentionally practicing a deception to secure employees of the judiciary."
a passing mark, their acts undeniably involve dishonesty.
Compared to Sta. Anaand Bartolata, the present case involves a similar violation of the
This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud; Civil Service Law by a judicial employee. But this case is slightly different in that
untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; petitioner committed the offense before her appointment to the judicial branch. At the
lack of fairness and straightforwardness; disposition to defraud, deceive or betray." time of commission, petitioner was a public school teacher under the administrative
[Ampong’s] dishonest act as a civil servant renders her unfit to be a judicial employee. supervision of the DECS and, in taking the civil service examinations, under the CSC.
Indeed, We take note that [Ampong] should not have been appointed as a judicial Petitioner surreptitiously took the CSC-supervised PBET exam in place of another
employee had this Court been made aware of the cheating that she committed in the civil person. When she did that, she became a party to cheating or dishonesty in a civil
service examinations. Be that as it may, [Ampong’s] present status as a judicial employee service-supervised examination.
is not a hindrance to her getting the penalty she deserves.16 (Emphases and underscoring
supplied). That she committed the dishonest act before she joined the RTC does not take her case
out of the administrative reach of the Supreme Court.
Notably, the Court also addressed Ampong’s misgivings on the issue of jurisdiction in the
same case, viz.: The bottom line is administrative jurisdiction over a court employee belongs to the
Supreme Court, regardless of whether the offense was committed before or after
It is true that the CSC has administrative jurisdiction over the civil service. As defined employment in the judiciary.17 (Emphases in the original; citations omitted)
under the Constitution and the Administrative Code, the civil service embraces every
branch, agency, subdivision, and instrumentality of the government, and government- Pursuant to the doctrine of immutability of judgment, which states that "a decision that
owned or controlled corporations. Pursuant to its administrative authority, the CSC is has acquired finality becomes immutable and unalterable, and may no longer be
granted the power to "control, supervise, and coordinate the Civil Service examinations." modified in any respect, even if the modification is meant to correct erroneous
This authority grants to the CSC the right to take cognizance of any irregularity or conclusions of fact and law,"18 Ampong could no longer seek the August 26, 2008
anomaly connected with the examinations. Decision’s modification and reversal. Consequently, the penalty of dismissal from service
on account of Ampong’s Dishonesty should be enforced in its full course. In line with
However, the Constitution provides that the Supreme Court is given exclusive Section 58(a)19 of the Uniform Rules on Administrative Cases in the Civil Service
administrative supervision over all courts and judicial personnel. By virtue of this power, (URACCS), the penalty of dismissal carries with it the following administrative
it is only the Supreme Court that can oversee the judges’ and court personnel’s disabilities: (a) cancellation of civil service eligibility; (b) forfeiture of retirement
compliance with all laws, rules and regulations. It may take the proper administrative benefits; and (c) perpetual disqualification from reemployment in any government
action against them if they commit any violation. No other branch of government may agency or instrumentality, including any government-owned and controlled corporation
intrude into this power, without running afoul of the doctrine of separation of powers. or government financial institution. Ampong should be made to similarly suffer the same.
Thus, this Court ruled that the Ombudsman cannot justify its investigation of a judge on
the powers granted to it by the Constitution. It violates the specific mandate of the To clarify, however, despite Ampong’s dismissal on the ground of dishonesty, she should
Constitution granting to the Supreme Court supervisory powers over all courts and their nevertheless been titled to receive her accrued leave credits, if any, pursuant to the
personnel; it undermines the independence of the judiciary. aforementioned provision of the URACCS, which does not include the forfeiture of the
same. It is a standing rule that despite their dismissal from the service, government
In Civil Service Commission v. Sta. Ana, this Court held that impersonating an examinee employees are entitled to the leave credits that they have earned during the period of
of a civil service examination is an act of dishonesty. But because the offender involved a their employment. As a matter of fairness and law, they may not be deprived of such
judicial employee under the administrative supervision of the Supreme Court, the CSC remuneration, which they have earned prior to their dismissal.20

54
It must be stressed that every employee of the Judiciary should be an example of
integrity, uprightness, and honesty. Like any public servant, she must exhibit the highest
sense of honesty and integrity not only in the performance of her official duties but also
in her personal and private dealings with other people, to preserve the court’s good
name and standing. The image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest of its
personnel. Court personnel have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve the
good name and integrity of the courts of justice. Here, Ampong failed to meet these
stringent standards set for a judicial employee and does not, therefore, deserve to
remain with the Judiciary.21

WHEREFORE, the Court SUSTAINS the dismissal of respondent Sarah P. Ampong, Court
Interpreter III of the Regional Trial Court of Alabel, Sarangani Province, Branch 38, on
the ground of Dishonesty. Accordingly, her retirement and other benefits are forfeited
except accrued leave credits, and she is perpetually disqualified from re-employment in
any government agency or instrumentality, including any government-owned and
controlled corporation or government financial institution, effective immediately.

SO ORDERED.

55
G.R. No. L-8606 March 29, 1913 returns from the various voting precincts. On that date they completed the canvass of the
returns in so far as the offices of delegates to the Assembly and the provincial governor
RAMON HONTIVEROS, petitioner-appellee, were concerned, and stated that owing to the lateness of the hour they would adjourn
vs. until the following day, the 13th, without having canvassed the returns for third member.
JOSE ALTAVAS, respondent-appellant. On the 27th of that month the appellee presented what he called an "amended protest"
and asked permission of the court to substitute this "amended protest" for the one filed
on June 18. This permission was granted. The "amended protest" is complete in every
Monico Mercado and Jose Altavas, for appellant. particular, and it is not necessary to take into consideration for any purpose the protest
Bruce, Lawrence, Ross and Block, for appellee. filed on the 18th of June. In fact, this latter protest was never drawn in question
thereafter, or referred to for any material purpose during the trial of the cause in the
TRENT, J.: court below or in this court, except for the purpose of determining from what date the
two weeks within which the protest might be filed, as provided in section 27 of Act No.
At the general election held in the Province of Capiz on June 4, 1912, Jose Altavas, 1582 as amended, should begin to run. Copies of the "amended protest" were served
according to the proclamation of the provincial board of canvassers, received 3,542 upon all the candidates voted for on June 4. The word "candidates" as here used is
votes, and Ramon Hontiveros received 3,371 votes, for the office of provincial governor. restricted to those persons who had filed certificates of candidacy with the authorities
Hontiveros protested. The Court of First Instance, after trial, found that the protestant and who had not on June 4 withdrawn their candidacy.
received 3,317 legal votes and the protestee 2,842. Judgment was entered directing the
provincial board of canvassers to correct its canvass accordingly. The protestee Upon the foregoing facts, the question to be decided is (a) whether the time within which
appealed. the motion which introduces an election contest for a provincial governorship expires
two weeks after the day upon which the ballots are cast or two weeks after the day upon
The appellant now insists that the court erred: (1) In not declaring the appellee ineligible which the provincial board of canvassers determines who has been elected; and (b) in
to be elected to the office of provincial governor because his certificate of candidacy was computing the time, should the first or the last day be excluded from the computation?
not in accordance with the law; (2) in not dismissing the protest upon the ground that
the same premature; (3) in not dismissing the protest because it was not presented This is not the first time that this question has been under consideration by this court. It
within the time required by law; (4) in not finding that the provincial board of was directly involved and after a thorough investigation and extended discussions, it was
canvassers issued its proclamation on July 12, 1912; (5) in holding that the document answered in two cases. (Navarro vs. Veloso, 23 Phil. Rep., 625;
filed by the appellee on July 27 was sufficient to constitute a protest; (6) in not requiring Manalo vs. Sevilla, ante, 609.) In these cases we held that the two weeks begin to
the appellee to make a prima facie showing of fraud or irregularity in the manner of run from the date of the proclamation of the provincial board of canvassers and not from
casting or counting the ballots before the ballot boxes were opened on the hearing; (7) in the day the ballots were cast. This question is no longer an open one in this jurisdiction,
denying his (appellant's) request to intervene and select one of the commissioners and if our attention had not been called to a number of adjudicated cases in the United
appointed by the court to examine and recount the ballots; (8) in refusing to allow him or States which it is claimed hold differently, we would say no more upon the question. But
his counsel to be present at the opening of the ballots boxes and the examination and in view of these citations, we deem it advisable to somewhat further discuss the matter.
counting of the ballots by the commissioners; and (9) in not permitting him to examine Our further remarks, however, will be confined to an attempt to distinguish between the
in court the ballots rejected by the commissioners and present additional testimony with cases relied upon and the law and the conditions in our own jurisdiction.
reference to the validity of such rejected ballots.
It is believed that no one will disagree with the statement that the Legislature is
1. Questions relating to the eligibility of candidates to be elected to or hold office cannot presumed to have used words in their natural and commonly accepted meaning unless
be drawn in question in these proceedings. (Topacio vs. Paredes, 23 Phil. Rep., 238.) But that meaning would contravene the manifest intent of the enactment. In State vs. McCoy
if we were now called upon to determine the validity of the appellee's certificate, we (2 Marv., 576; 43 Atl., 270, 273) it is said:
would hold it sufficient for all purposes.
An election, under the Constitution, involves every element necessary to the
2. The second, third, and fourth alleged errors may be considered together. The facts are complete ascertainment of the expression of the popular will, embracing the
these: The ballots were deposited on June 4, and the counting of the same commenced on entire range, from the deposit of the ballot by the elector up to the final
the night of the 4th and continued until terminated. The first protest was filed on June ascertainment and certification of the result. An election by the people means
18. In this protest it was alleged that up to the time the provincial board of canvassers and includes the perfect ascertainment of such result.
had not determined who had been elected provincial governor. No proceedings pertinent
to the questions here involved were taken in the Court of Instance until August 10. The In Norman vs. Thompson (73 S.W., 62-64; 96 Tex., 250) and in Ex parte Conley (Tex.) (75
provincial board of canvassers met on July 12 and proceeded with a canvass of the S.W., 301, 302) it was held that the word "election," as used in Revised Statutes, section
56
3397, providing that, after the result of an election under the local option law has been At first blush it would appear that the word "election" as used in these excerpts is
declared, the election may be tested, and that if it appear that it was illegal or confined to the day upon which those enjoying the right of suffrage are called to the polls
fraudulently conducted, or such a number of voters were denied the privilege of voting to express their choice of candidates; or, in other words, that it is equivalent to the
as might have changed the result, or the true result of the election cannot be ascertained, expression "election day" as used in section 10. But although the statute requires that it
"another election shall be ordered," means the act of casting and receiving the ballots be concluded upon that day. Subsequent sections of the act show this most clearly.
from the voters, counting the ballots, and making the returns thereon. (State vs.Tucker, Section 21 is the section which, as a matter of fact, provides for the actual operation of
54 Ala., 205, 210.) That is the meaning of the word "election" in the ordinary usage, and depositing the votes. It is there provided that the duly qualified electors shall have access
it must be so construed, there being nothing in the law to suggest that the Legislature to the polls "from seven o'clock in the morning until five in the afternoon." It also
intended to use it in a different sense. (3 Words and Phrase, p. 2334.) provides the method by which the ballots shall be deposited. If this is the only meaning
of the word "election" as used throughout the act, what relation to an election must be
The treatise on the subject of "Elections" in 15 Cyc., 279 et seq., defines the word as attributed to the operation described in a subsequent section (No. 25) entitled "counting
follows: the votes; announcement of the results?" We started with a definition which contained
the statement:
An election is the embodiment of the popular will, the expression of the
sovereign power of the people. In common parlance an election is the act of An election is the embodiment of the popular will, the expression of the
casting and receiving the ballots, counting them, and making the return. sovereign power of the people.

If this be the only meaning of the word, there is little room for doubt as to the meaning of In 3 Words and Phrases (p. 2329 et seq.), under the title Elect-Elected-Election, a large
the term "after the election" as used in section 27. But it is insisted that the word is used number of definitions, pivoting upon the words "a choosing or selection of one from
in numerous places throughout the Act to designate only the day and the operation of among others" may also be found. It is difficult to conceive any of the essential
casting the ballots by the duly qualified voters. From this source is derived the chief if not subdivisions of this act of choosing being excluded from the operation of the term which
the sole reliance of the advocates of the contrary construction. In view of the concretely expresses this act of the people, i.e., "election." We apprehend that no one
speciousness of this arguments and the tenacity with which it is maintained, we are not would have the temerity to say that the counting of the votes is unnecessary to an
disposed to set it aside upon the mere strength of the lexicographer's definition of the election. Yet that it is not indispensable to a valid election to conclude this operation
word "election." We shall endeavor to show that it is also inappropriate to the manifest during the day upon which the election is "held" is evident by section 24 itself, wherein it
intention of the Legislature. states that "if, by reason of the length of time required for the count ... it shall be
impracticable to return the same before midnight ... ." Again, who will say that the formal
announcement by the board of canvassers is not essential to an expression of the popular
Section 3 probably gives more color to the argument in question than any other. In it we will? If the count may be concluded upon a subsequent day, a fortiori may the
find (quoting from the original act) such expressions as the following: announcement of the result.

An election to elect such delegates shall be held upon the thirtieth day of July, Section 25 provides that the provincial board shall sit as a board of canvassers to
1907. tabulate the statements prepared by the municipalities in accordance with section 24.
Yet, that this canvass is indispensable to the election of a delegate to the Assembly or a
Subsequent elections for such delegates shall be held on the first Tuesday after provincial officer cannot be denied. The counting of the votes and the announcement of
the first Monday in November of 1909, and of each old-numbered year the results by the municipal officers, and the canvass by the provincial board are integral
thereafter. parts of the election, and the word cannot, therefore, be confined to the day upon which
the ballots were cast. We think it too clear for argument that the Legislature in saying
An election for provincial governor and third member of the provincial that an election should be held on a specified date intended only to convey the idea that
board shall be held on the first Tuesday after the first Monday in November of the initial operation of selecting the candidate should start upon that day. The expression
1907, and upon the first Tuesday after the first Monday in November of each is thus used so frequently and with this certain meaning in all election statutes as to
odd-numbered year thereafter. practically amount to an idiom of language, "the meaning of which as a whole cannot be
derived from the conjoined meanings of its elements."
An election shall be held on the first Tuesday after the first Monday of
November of 1907, to elect municipal presidents and vice-presidents. Keeping in mind the meaning of the word "election" as above set forth, let us examine
some of the authorities called to our attention. At the outset it is well to quote the
following from Topacio vs. Paredes (23 Phil. Rep., 238):

57
The utmost care must be exercised in the citation of authorities in support to of the result of the said election," thereby indicating that the legislature arrived at the
any particular contention in the interpretation of election laws. They are conclusion that it was not advisable to date the period from the day the ballots cast.
universally statutory and seldom similar in the matter of election controversies. (Revised Laws of La., § 1419.) Nor does the case appear to have been thoroughly
A single statutory or constitutional provision may render worthless as an considered by the court.
authority the best considered case coming from some other jurisdiction on the
point under discussion. An investigation of the statutes of the various States shows that in most of them where a
statutory proceeding for contesting elections is provided, the time within which such a
The period within which a statutory contest by a defeated candidate may be instituted proceeding may be instituted commences to run "after the result of the election has been
differs in the various States, not only as to the length of time allowed, but also as to the determined;" "after the person whose election is contested is declared elected;" within
designated date that it shall start to run. The latter is the only point with which we are thirty days after the official promulgation of the result of said selection;" "within twenty
herein concerned. It is submitted that a provision of law requiring that the period shall days after the day the incumbent was declared elected," etc. In those few States where
commence to run "after the official counting of the votes" (Montgomery vs. Dormer, 181 the wording is "after the election" it is most probable that the question has seldom if ever
Mo., 5; 79 S.W., 913), "after return day" (Carbis vs. Dale, 23 Utah, 463; 65 P., 204), and arisen under the conditions of the case at bar, i. e., where the official returns were not
other similar expressions which clearly designate a time included within the term public property within the time allowed. The facilities for communication in all parts of
"election" and precede the final steps necessary to the election of a candidate are not the United States are such that the result of an election is known most often by daylight
equivalent to the phrase "after the election" as used in our own statute; for, as we have of the day following the election day, and the candidate, therefore, has at least unofficial
seen, the scope of the term "election" includes every step necessary to the choice of a knowledge as to whether he has been elected or not. Furthermore, the time allowed for
representative by the people, from the casting of the ballots to the certificate of election. the filing of a protest is generally sufficient to extend far beyond the time the official
However correctly these phrases were construed in the cases, and there are a number of returns are made known. For these reasons, the proposition that a candidate may be
them in the books, it is submitted that the tribunals which prepared them were not deprived of his right to institute a contest from lack of information, either official or
considering the phrase "after the election." These cases are not, therefore, in point. unofficial, of the result of the election, has probably never been actually presented to the
courts of the United States. Probably no better illustration of this fact can be found than
It is claimed that the case of Carlson vs. Burt (111 Cal., 129, 131) is in the conflict with the following from the California case of Carlson vs. Burt (111 Cal., 129, 133), which we
our holding. The law under discussion in that case reads as follows: have discussed above:

When an elector contests the right of any person declared elected to such office, To the suggestion that the board may take more than forty days to canvass the
he must, within forty daysafter the return day of such election, file with the vote, it may be said that it may be possible, but it is quite improbable. If it
county clerk a written statement, etc. should take much more than forty days the vote would not be canvassed until
the term for which officers are to be elected will begin. Such a contingency was
not anticipated, and can rarely happen, except through a criminal intent. The
In the course of the decision it was expressly decided that "return day" was prior to the presumption is that in fixing the election at a certain period before the
determination by the board of canvassers of who was elected. It is therefore not commencement of the terms of office, and in limiting the period for the
understood how the requirement that a protest be filed "after return day" can be commencement of a contest, the legislature has taken all these things into
equivalent to the requirement that it be filed "after the election." If it can, then any consideration, and has concluded that the period fixed will always prove
intermediate step necessary to a valid election, such as the casting of the ballots, the sufficient, and I believe that in practice it always has.
counting of the ballots, or the official declaration by the local authorities of the number of
votes cast in a precinct may be deemed equivalent to the election of a person to office; in
other words, a part is equal to the whole. We conclude that this case is not in point. In this jurisdiction the contingency which the California court terms as possible but quite
improbable is a reality.
The case of Belden vs. Sherburne (27 La. Ann., 305), also cited, is, however, exactly in
point. The phrase used in the law which the court construed in that case was totidem It is well-known fact that all the returns from the various municipalities in some of the
verdis the one found in our own statute. The court in that case dismissed a protest filed provinces of this Archipelago could not reach the capital within two weeks time, with the
more than ten days subsequent to the day the ballots were deposited, but within ten consequence that no one can know, either officially or unofficially, which candidate was
days of the announcement of the results. But it must be remembered that this was a successful in those provinces within two weeks after the day upon which the ballots are
contest for a municipal office, and that the returns were doubtless known within a day or cast. Nor was it ever the expectation of the legislature that such a result could be
two at the most after the ballots were cast. The positive injustice of not allowing the accomplished.
candidate time to ascertain the result of the election before filing his contest was not,
therefore, before the court. It is also a fact that this case is some forty years old, and Even the authorities in the United States agree with our holding that there cannot be a
further that the law in that State has now been changed to read "after the promulgation contest until it is known who has been elected. (Bowler vs. Eisnhood (S.D.), 12 L.R.A.,
58
705; Hill vs. Holdam. 120 Ky., 660.) If this be true, it is simply depriving a candidate of his insisted that in computing the two weeks the first day must be included and that the last
right to a hearing to hold that the two weeks commence to run immediately after the day day excluded. Under this theory it is claimed that the protest came too late, having been
upon which the ballots are cast. Did the Legislature intend any such consequences? The made on July 27 instead of July 26 as required by law. The word "after" as here used
term "after the election," as we have shown, may be construed in a manner which will must be understood to mean subsequent to the time of the announcement of the official
best conform to the literal and common meaning of the words used and at the same time returns; that is, none of the two weeks period precedes or is coetaneous with the
really allow the candidate two weeks within which to file his protest. The construction announcement of the results.
we have rejected not only assigns to the word "election" a significance not warranted by
any available definition of the term, but makes of the two weeks period within which a In computing time from or after a certain day, or a given date, or the day on
protest may be filed a mere catch word; an illusion which disappears before the which an act done, the general rule is to exclude the day of the date, unless a
candidate can use it, and which deprives him of a hearing. Which of the two different method of computation is clearly intended, ... . (38 Cyc., 318.)
constructions should a court adopt? The one is practical, just, and adequate for the
purpose in view. The other has nothing to recommend it. We are of the opinion that the
phrase "after the election" can only mean after the last step necessary to a valid election, Judicial proceedings generally. — It has been stated generally that when any
which is the proclamation of certificate of the provincial board of canvassers. matter of practice or procedure is required by statute or order of court to be
done within a certain number of days, the first day is excluded. ... (Id., 321.)
The extract of the minutes of the provincial board appearing in the record gives a
tabulated statement of the votes cast for the offices of delegate to the Assembly for the In view of these quotations and the long array of authorities cited in their support, and
first, second, and third Assembly districts, respectively, and for the office of provincial holding, as we do, that there are no facts in the present case to justify excluding it from
governor, and then concludes with a resolution to the effect that the candidates receiving the operation of well-established maxim of law that there is no fraction of a day, we are
the highest number of votes for each office (naming the candidate and office in each of the opinion that the second protest of the appellee was filed within the two weeks
case) are declared elected. In other words, the board did not, on July 12, as provided by allowed by law.
law, (1) make a canvass of all the votes cast in the province, (2) make one statement of all
votes cast for each candidate for the Assembly in each Assembly district, (3) make one 3. The fifth assignment of error raises question as to whether the motion of protest filed
statement of all the votes cast for provincial officer, and (4) upon the completion of this on July 27 should date back to June 18, the date of the first motion, as being an
work determine who was elected to each office. What the board actually did do on July 12 amendment of the latter. It is urged that it does, and that the original protest being
was (1) make a canvas of all the votes for members of the Assembly and for provincial premature and conferring no jurisdiction on the court to consider the issues sought to be
governor, (2) make one statement of all the votes cast for each candidate for the thereby raised, neither does the one filed on July 27. The proposition that a pleading
Assembly in each Assembly district, (3) make a statement of all the votes cast performing the office of an amendment dates back to the date of the filing of the original
for provincial governor, and (4) upon the completion of this work determine who was plea is concede. But that the name given to a pleading by counsel must govern its effect
elected as delegate to the Assembly from each Assembly district, and who was elected upon the cause before the court has not been demonstrated and, we think, is not capable
provincial governor. It had not terminated its duty as a board of canvassers. The task of of proof.
compiling the votes cast for the office of third member of the provincial board and
announcing the result was still to be undertaken. In announcing the returns for some of The name given to a pleading is not controlling, but its character is always to be
the offices before the two statements required of it were made, the board departed from determined by its allegations. (31 Cyc., 46, and a long array of authorities.)
the letter of section 25 that the two statements in question must be prepared prior to the
announcement of the results, it would seem unnecessary for this court to discuss the
intention of the legislature in requiring this particular procedure. All the information The facts, as we said, concerning the two motions in question are these: The election was
necessary for a canvass of the votes for each of the offices being shown on the statements held on June 4. The first motion of protest was filed on June 18, nearby a month before
furnished by the different municipalities, the most logical procedure would seem to be the announcement of the official returns by the provincial board of canvassers. It was
that indicated by section 25, i. e., a tabulation at the one time of all the returns for each admitted in paragraph 3 of this motion that the results of the election were not known;
office each municipality. However, it is evident that the provincial board of canvassers and in paragraph 4 it was stated that notwithstanding the lack of this information, if the
had not completed its canvass on July 12. The extract from the minutes of the board official returns showed that the protestant had secured a less number of votes than his
indicates that it was the intention of the board to take up the work of completing the opponent Altavas, he desired to contest the election by means of his motion (of June 18).
canvass the following day, July 13. Whether this was the day upon which the election On July 27, after the board of canvassers had announced the results of the election,
duties of the board were actually completed, the record does not show; but for the another motion was filed by the appellee which he termed an amendment to the motion
purposes of this case we shall assume that it was. This date, then, July 13, was the date filed on June 18. This second motion was accompanied by a formal request that it be
upon which the election terminated. The law provides that a protest must be filed within admitted in substitution of the motion of June 18. An examination of the second motion
two weeks after the election. (Sec. 27.) The two weeks period in this case, therefore, shows that it is as a matter of fact a complete motion in itself. It alleges all the necessary
dates from July 13. The second protest that in the present case was filed on July 27. It is jurisdictional facts for the institution of the contest in accordance with section 27; and, in

59
much greater detail than the former motion, indicates the irregularities the contestant 5. The seventh, eight, and ninth alleged errors may also be considered together. The facts
relies upon. It has not been contended that the pleading filed on July 27 is not complete here pertinent are as follows: The trial of the contest began in the court below on August
in itself. Now, what was the reason of the appellee for filing the two motions? Simply this: 10, when the court appointed W.M. Gracey, Sinforoso Salgado, and Jose M. Albar to
He was uncertain whether the court would construe the requirement of section 27 that a examine and recount and ballots. These gentlemen were designated "commissioners."
protest must be filed within two weeks after the election would be construed by the Such designation, of course, added nothing to their powers, but there can be no serious
court to mean two weeks after election day, or two weeks after the official weeks after objection to calling them by his name. Some time after the commissioners were
election day, or two weeks after the official announcement of the returns. As he did not appointed, the appellant asked the court to relieve Salgado and appoint one of his own
wish to incur the risk of being deprived of his right to protest the election by attempting selection. This the court declined to do. On this same day, August 10, the ballot boxes of
to determine which way the court would decide this question, he very wisely decided to Dumarao were brought into court and identified, but not opened. There appears to have
be prepared. To this end he filed two motions, one of which would be within the two been no session of the court of the 11th. On the 12th, during the examination of
weeks period provided by law for the filling of a protest, no matter which way the court witnesses in reference to the identification of the ballot boxes from another town,
decided the question. We have said that this Supreme Court has definitely settled counsel for the appellant asked the court if the boxes from Dumarao had been opened
question in the cases of Navarro vs. Veloso (23 Phil. Rep., 625) and Manalo vs. and the ballots examined and recounted. The court replied that he had ordered the ballot
Sevilla (ante, 609). But neither of these cases had been decided when the case at bar boxes opened and their contents examined and counted. The same counsel requested the
arose; and prior to Navarro vs. Veloso the question had not been raised in this court. The court to permit him or an associate or the appellant and a representative from the
dilemma in which the appellee found himself was, therefore, certainly not of his own associate or the appellant and a representative from the other side to be present when
making. The lower court evidently reached the conclusion that the two weeks period the boxes were opened and the ballots examined and recounted by the commissioners.
commenced to run from the day the ballots were cast, since it took cognizance filing of The court denied this request. Counsel insisted upon being granted this privilege and
the motion of July 27. The court was clearly in error in so doing. The court should have stated his reasons therefor, but the court would not change its ruling. Again, on
considered the motion of June 18 as premature and as conferring no jurisdiction September 7, the appellant asked the court that, in view of the fact that the appellee had
whatever upon the court to try the issues sought to be raised. By so doing the appellee concluded the taking of his testimony, the case be held open for the purpose of allowing
would have been advised of the steps necessary to be taken if he desired to contest the him to introduce additional evidence in reference to the rejected ballots, claiming that
election, and would not have been led into the inadvertence of terming his motion of July the court had granted him authority to examine such ballots. The court then stated that it
27 an "amendment" of his motion of June 18. Under these circumstances, and the motion had not authorized the appellee to examine the ballots, saying that the authority to
of protest filed on July 27 being complete in itself and wholly sufficient without reference examine the ballots was granted to the commissioners, but that the attorneys in
to the one filed on June 18, we are clearly of the opinion that it should be considered not presenting their arguments might examine the ballots for the purpose of aiding them in
as an amendment to the one of June 18, but as an original protest. such arguments. If the parties or either of them ever at any time saw and examined the
rejected ballots or any other ballots, the record fails to disclose this fact. The
4. In support of the sixth alleged error, it is insisted that the court committed a reversible commissioners performed theirs duties behind close doors and permitted neither party
error by directing the commissioners to open the ballot boxes and examine and recount to be present when the boxes were opened and the ballots recounted.
the ballots without first requiring the protestant to make a prima facie showing of fraud
or gross irregularities. This contention is based upon the proposition that there exists a The correctness of this procedure is vigorously attacked by the appellant.
presumption in favor of the legality of the election and the correctness of the returns.
Section 27 provides in part as follows:
The law provides that upon the institution of the contest the court "shall forthwith cause
the registry lists and all ballots used at such election to be brought before it and Such court shall have exclusive and final jurisdiction, except as hereinafter
examined ... ." (Sec. 27). The filing of the protest and the service of the same upon all provided, and shall forthwith cause the registry lists and all ballots used at such
candidates voted for gives the court jurisdiction to proceed to a final determination of election to be brought before it and examined, and to appoint the necessary
the case, and having once acquired such jurisdiction the court is expressly empowered to officers therefor and to fix their compensation ... and to issue
examine all the ballots. The ballots cannot be examined without opening the boxes. The its mandamus directed to the board of canvassers to correct its canvass in
law does not required a prima facie showing other than the allegations in the protest of accordance with the facts as found.
fraud or irregularities in order to authorize the opening of the boxes. If the parties by
agreement accept the returns from any precinct or precincts, however, the necessity for
the opening of the boxes would cease to exist as to them. In view of the plain provisions It seems that to refuse to permit the parties to witness the examination and recount of
of section 27, it is not difficult to reach the conclusion that this alleged error is not well the ballots is purely arbitrary. It is directly opposed to the fundamental principles which
founded. govern the introduction of evidence in the courts, and denies pro tanto the right of the
parties to a hearing before judgment. However unimpeachable the integrity of the
commissioners in this case, we cannot sanction such a practice.

60
It also seem necessary to disapprove of the scope of the power delegated to the Arellano, C.J., Torres and Moreland, JJ., concur.
commissioners in this case. Section 27 plainly requires that the court "shall forthwith
cause the registration lists and all ballots used at such election to be brought before it
and examined." We apprehend that this must be done in open court in the presence of
the presiding judge and the interested parties. We do not conceive that there is any grant
of judicial discretion here to the officers appointed by the court to determine whether or
not a ballot is invalid because improperly executed or because it is marked. These
officers have none of the powers of a referee (sec. 138 of the Code of Civil Procedure) or
of commissioners in eminent domain proceedings. (Sec. 244, id.) As a matter of fact,
there is no reason for terming the persons charged with the duty of opening and
counting the ballots "commissioners." The word used in the law is "officers," and the
extent of their duties as set forth therein appears to be confined to the mechanical
operation of opening the ballots and tabulating the count under the direct supervision of
the court. In other words, their duties are merely clerical. If it be urged that an
examination and recount of the ballots in the presence of the court would unduly
prolong and hearing, especially in a contest over a provincial office where a large
number of votes must be counted, we answer that is an argument to be addressed to the
Legislature and not to the courts. It would seem, however, that this objection might
easily be overcome by an agreement between the parties to dispense with the
attendance of the presiding judge at the actual counting of the ballots. The count could
then proceed before the officers appointed by the court and all ballots the validity of
which was not disputed by either party could be properly tabulated and disposed of by
the officers of the court without the intervention of the court. This would reduce the
actual labor of the court to an examination of the relatively small number of the ballots
which were objected to by the parties.

The ruling made by the court denying the parties the right to witness the examination
and recount of the ballots and to present evidence with reference to the legality of the
questioned ballots continues reversible error. The record will therefore be returned for a
reexamination and recount of the ballots by the court in the presence of the interested
parties, or by an officer or officers appointed by the court, also in the presence of the
interested parties. If this latter method is pursued, all ballots questioned by either party
must be submitted to the court, who will determine the validity of such ballots after the
evidence has all been presented. In any case the questioned ballots should be segregated
from the valid ballots by precincts and marked exhibits of the respective parties
objecting thereto. The evidence presented on the rehearing will be strictly confined to
the subject of the legality or validity of the questioned ballots. On the termination of the
recount and the presentation of such evidence and the arguments of counsel, the court
will, after an examination of the whole record — the old as well as the new testimony —
render such judgment as in its opinion the law and the merits of the case warrant. Upon
this new hearing, however, the court will not take into consideration the election held in
the first precinct of the town of Libacao for the reason that part of the judgment appealed
from rejecting or annulling the election in this precinct is hereby affirmed upon the
reasons stated in said judgment.

Judgment will be entered forthwith and the record returned to the court below for the
purposes set forth in this decision. No costs will be allowed in this instance. So ordered.

61
G.R. No. L-46863 November 18, 1939 bearing the same number corresponding to precinct No. 1, and this latter ballot clearly
appears admissible for the respondent because the name written on the space for mayor
IRINEO MOYA, petitioner, is "Primo del Fierro" or "Pimo de Fierro", the error is technical and deserves but scanty
vs. consideration. (2) Ballot Exhibit F-26 in precinct No. 3 was erroneously admitted for the
AGRIPINO GA. DEL FIERO, respondent. respondent by the Court of Appeals, the name written on the space for mayor being "G.T.
Krandes." It is true that on the fourth line for the councilor "Alcalde Pinong del Fierro":
appears; but the intention of the elector is rendered vague and incapable of ascertaining
Elpidio Quirino for petitioner. and the ballot was improperly counted for the respondent. As to this ballot, the
Claro M. Recto for respondent. contention of the petitioner is sustained (3) Ballot Exhibit F-77 in precinct No. 2 should
also have been rejected by the Court of Appeals. The ballot bears the distinguishing mark
"O. K." placed after the name "M. Lopis" written on space for vice-mayor. The contention
of the petitioner in this respect is likewise sustained. (4) Ballot Exhibit F-9 in precinct No.
2 was properly admitted for respondent. On this ballot the elector wrote within the
LAUREL, J.: space for mayor the name of Regino Guinto, a candidate for the provincial board and
wrote the respondent's name immediately below the line for mayor but immediately
above the name "M. Lopez" voted by him for vice-mayor. The intention of the elector to
This is a petition for review by certiorari of the judgment of the Court of Appeals in the vote for the respondent for the office of the mayor is clear under the circumstances. (5)
above entitled case declaring the respondent, Agripino Ga. del Fierro, the candidate-elect Ballot F-131 in precinct No. 1 was also properly counted for the respondent. On this
for the office of mayor of the municipality of Paracale, Province of Camarines Norte, with ballot the elector wrote the respondent's name on the space for vice-mayor, but,
a majority of three votes over his rival, Irineo Moya. In the general elections held on apparently realizing his mistake, he placed an arrow connecting the name of the
December 14, 1937, the parties herein were contending candidates for the aforesaid respondent to the word "Mayor" (Alcalde) printed on the left side of the ballot. The
office. After canvass of the returns the municipal council of Paracale, acting as board of intention of the elector to vote for the respondent for the office of mayor is thus evident,
canvassers, proclaimed the petitioner as the elected mayor of said municipality with a in the absence of proof showing that the ballot had been tampered with. (6) Ballot F-7 in
majority of 102 votes. On December 27, 1937, the respondent field a motion of protest in precinct No. 5 is admissible for the respondent and the Court of Appeals committed no
the Court of First Instance of Camarines Norte, the Court of Appeals, on July 13, 1939 error in so adjudicating. Although the name of the respondent is written on the first
rendered the judgment hereinbefore mentioned which is sought by the petitioner to be space for member of the provincial board, said name is followed in the next line by "Bice"
reviewed and reversed upon the errors alleged to have been committed by the Court of Culastico Palma, which latter name is followed in the next line by word "consehal" and
Appeals: the name of a candidate for this position. The intention of the elector to vote for the
respondent for the office of mayor being manifest, the objection of the petitioner to the
1. In admitting and counting in favor of the respondent, 8 ballots either admission of this ballot is overruled. (7) Ballot F-1 in precinct No. 2 is valid for the
inadvertently or contrary to the controlling decisions of this Honorable Court. respondent. On this ballot the Christian name of the respondent was written on the
second space for member of the provincial board, but his surname was written on the
2. In admitting and counting in favor of the respondent, 3 ballots marked "R. del proper space for mayor with no other accompanying name or names. The intention of
Fierro." the elector being manifest, the same should be given effect in favor of the respondent. (8)
Ballot F-44 in precinct No. 2 wherein "Agripino F. Garcia" appears written on the proper
space, is valid for the respondent. In his certificate of candidacy the respondent gave his
3. In admitting and counting in favor of the respondent, 7 ballots marked name as "Agripino Ga. del Fierro." The conclusion of the trial court, upheld by the Court
"Rufino del Firro." of Appeals, that the letter "F" stands for "Fierro" and "Garcia" for the contraction "Ga." is
not without justification and, by liberal construction, the ballot in question was properly
4. In admitting and counting in favor of the respondent, 72 ballots marked "P. admitted for the respondent.
del Fierro."
The second error assigned by the petitioner refers to three ballots, namely, Exhibit F-119
Taking up seriatim the alleged errors, we come to the first assignment involving the eight in precinct No. 1 Exhibit F-24 in precinct No. 2, and Exhibit F-6 in precinct No. 4. These
(8) ballots now to be mentioned. (1) With reference to ballot Exhibit F-175 in precinct three ballots appear to be among the 75 ballots found by the Court of Appeals as
No. 2, alleged to have been inadvertently admitted in favor of the respondent, such acceptable for the respondent on the ground that the initial letter "P" stands for "Pino" in
inadvertence raises a question of fact which could have been corrected by the Court of "Pino del Fierro" which is a name mentioned in the certificate of candidacy of the
Appeals and which could we are not in a position to determine in this proceeding for respondent. The petitioner contends that the initial "R" and not "P". Even if we could
review by certiorari. Upon the other hand, if the error attributed to the Court of Appeals reverse this finding, we do not feel justified in doing so after examining the photostatic
consisted in having admitted ballot Exhibit F-175 in precinct No. 2 instead of the ballot

62
copies of these ballots attached to the herein petition for certiorari. The second one vote. In view whereof it becomes unnecessary to consider the counter-assignment of
assignment of error is accordingly overruled. errors of the respondent.

Upon the third assignment of error, the petitioner questions the correctness of the With the modification of the decision of the Court of Appeals, the petition for the writ
judgment of the Court of Appeals in adjudicating to the respondent the seven ballots of certiorari is hereby dismissed, without pronouncement regarding costs.
wherein "Rufino del Fierro" was voted for the office of mayor. We are of the opinion that
the position taken by the Court of Appeals is correct. There was no other candidate for Avanceña, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.
the office of mayor with the name of "Rufino" or similar name and, as the respondent
was districtly identified by his surname on these ballots, the intention of the voters in
preparing the same was undoubtedly to vote for the respondent of the office for which
he was a candidate.lawphi1.net

The fourth assignment of error deals with the 72 ballots wherein "P. del Fierro" was
voted for the office of mayor, and it is the contention of the petitioner that said ballots
should not have been counted by the Court of Appeals in favor of the respondent. For the
identical reason indicated under the discussion of petitioner's second assignment of
error, namely, that "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned
in the certificate of candidacy of the respondent, we hold that there was no error in the
action of the Court of Appeals in awarding the said ballots to the respondent.

With the exception of ballot marked as Exhibit F-26 in precinct No. 3 and ballot marked
as Exhibit F-77 in precinct No. 2, we are inclined to accept the rest of the disputed ballots
for the respondent not only for the specific reasons already given but also and principally
for the more fundamental reason now to be stated. As long as popular government is an
end to be achieved and safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the manes by which the great reservoir of power must be
emptied into the receptacular agencies wrought by the people through their Constitution
in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the
established authority. He has a voice in his Government and whenever called upon to act
in justifiable cases, to give it efficacy and not to stifle it. This, fundamentally, is the reason
for the rule that ballots should be read and appreciated, if not with utmost, with
reasonable, liberality. Counsel for both parties have called our attention to the different
and divergent rules laid down by this Court on the appreciation of ballots. It will serve no
good and useful purpose for us to engage in the task of reconciliation or harmonization
of these rules, although this may perhaps be undertaken, as no two cases will be found to
be exactly the same in factual or legal environment. It is sufficient to observe, however, in
this connection that whatever might have been said in cases heretofore decided, no
technical rule or rules should be permitted to defeat the intention of the voter, if that
intention is discoverable from the ballot itself, not from evidence aliunde. This rule of
interpretation goes to the very root of the system. Rationally, also, this must be the
justification for the suggested liberalization of the rules on appreciation of ballots which
are now incorporated in section 144 of the Election Code (Commonwealth Act No. 357).

It results that, crediting the petitioner with the two ballots herein held to have been
erroneously admitted by the Court of Appeals for the respondent, the latter still wins by

63
LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO G.R. No. 162759
A. ESCLAMADO, ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, Petitioners are successful applicants for recognition of Philippine citizenship under R.A.
ERIC LACHICA FURBEYRE, TERESITA A. CRUZ, JOSEFINA OPENA Present:
DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, 9225 which accords to such applicants the right of suffrage, among others. Long before
EVELYN D. NATIVIDAD, PANGANIBAN, C.J.,
the May 2004 national and local elections, petitioners sought registration and
Petitioners, PUNO,
QUISUMBING, certification as "overseas absentee voter" only to be advised by the Philippine Embassy
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ, in the United States that, per a COMELEC letter to the Department of Foreign Affairs
CARPIO,
AUSTRIA-MARTINEZ, dated September 23, 2003[2], they have yet no right to vote in such elections owing to
- versus - CORONA,
CARPIO-MORALES, their lack of the one-year residence requirement prescribed by the Constitution. The
CALLEJO, SR.,
AZCUNA, same letter, however, urged the different Philippine posts abroad not to discontinue
TINGA,
CHICO-NAZARIO, their campaign for voters registration, as the residence restriction adverted to would
COMMISSION ON ELECTIONS, GARCIA, and
contextually affect merely certain individuals who would likely be eligible to vote in
Respondent. VELASCO, JR., JJ.
future elections.
Promulgated:

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling
August 4, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x in Macalintal vs. COMELEC [3] on the residency requirement, the COMELEC wrote in

DECISION response:

Although R.A. 9225 enjoys the presumption of constitutionality , it is


GARCIA, J.: the Commission's position that those who have availed of the law
cannot exercise the right of suffrage given under the OAVL for the
reason that the OAVL was not enacted for them. Hence, as Filipinos
who have merely re-acquired their citizenship on 18 September
In this petition for certiorari and mandamus, petitioners, referring to themselves 2003 at the earliest, and as law and jurisprudence now stand, they are
considered regular voters who have to meet the requirements of
as "duals" or dual citizens, pray that they and others who retained or reacquired residency, among others under Section 1, Article 5 of the
Constitution. [4]
Philippine citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and

Re-Acquisition Act of 2003, be allowed to avail themselves of the mechanism provided Faced with the prospect of not being able to vote in the May 2004 elections owing to
under the Overseas Absentee Voting Act of 2003[1] (R.A. 9189) and that the Commission the COMELEC's refusal to include them in the National Registry of Absentee Voters,
on Elections (COMELEC) accordingly be ordered to allow them to vote and register as petitioner Nicolas-Lewis et al., [5] filed on April 1, 2004 this petition for certiorari and
absentee voters under the aegis of R.A. 9189. mandamus.

The facts:

64
SEC 2. The Congress shall provide a system for absentee voting by
A little over a week before the May 10, 2004 elections, or on April 30, 2004, the qualified Filipinos abroad.

COMELEC filed a Comment,[6] therein praying for the denial of the petition. As may be

expected, petitioners were not able to register let alone vote in said elections. In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general
eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to
On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of devise a system wherein an absentee may vote, implying that a non-resident may, as an
exception to the residency prescription in the preceding section, be allowed to vote.
Comment), therein stating that all qualified overseas Filipinos, including dual citizens

who care to exercise the right of suffrage, may do so , observing, however, that the In response to its above mandate, Congress enacted R.A. 9189 - the OAVL[8] - identifying

conclusion of the 2004 elections had rendered the petition moot and academic. [7] in its Section 4 who can vote under it and in the following section who cannot, as follows:

Section 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on
The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the the day of elections, may vote for president, vice-president, senators
and party-list representatives.
petition moot and academic, but insofar only as petitioners participation in such political
Section 5. Disqualifications. The following shall be disqualified from
exercise is concerned. The broader and transcendental issue tendered or subsumed in voting under this Act:

the petition, i.e., the propriety of allowing duals to participate and vote as absentee voter (a) Those who have lost their Filipino citizenship in accordance with
Philippine laws;
in future elections, however, remains unresolved.
(b) Those who have expressly renounced their Philippine citizenship
and who have pledged allegiance to a foreign country;
Observing the petitioners and the COMELECs respective formulations of the issues, the
(c) Those who have [been] convicted in a final judgment by a court or
same may be reduced into the question of whether or not petitioners and others who tribunal of an offense punishable by imprisonment of not less than
might have meanwhile retained and/or reacquired Philippine citizenship pursuant to one (1) year, including those who have been found guilty of Disloyalty
as defined under Article 137 of the Revised Penal Code, .;
R.A. 9225 may vote as absentee voter under R.A. 9189.
(d) An immigrant or a permanent resident who is recognized as such
The Court resolves the poser in the affirmative, and thereby accords merit to the petition.
in the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
In esse, this case is all about suffrage. A quick look at the governing provisions on the he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
right of suffrage is, therefore, indicated. registration under this Act. Such affidavit shall also state that he/she
has not applied for citizenship in another country. Failure to return
We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as shall be the cause for the removal of the name of the immigrant or
permanent resident from the National Registry of Absentee Voters
follows: and his/her permanent disqualification to vote in absentia.

SECTION 1. Suffrage may be exercised by all citizens of (e) Any citizen of the Philippines abroad previously
the Philippines not otherwise disqualified by law, who are at least declared insane or incompetent by competent authority . (Words in
eighteen years of age, and who shall have resided in the Philippinesfor bracket added.)
at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. xxx.

65
required, there is no sense for the framers of the Constitution to
Notably, Section 5 lists those who cannot avail themselves of the absentee voting mandate Congress to establish a system for absentee voting.

mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants Contrary to the claim of [the challenger], the execution of the affidavit
itself is not the enabling or enfranchising act. The affidavit required in
and permanent residents in another country opens an exception and qualifies the
Section 5(d) is not only proof of the intention of the immigrant or
disqualification rule. Section 5(d) would, however, face a constitutional challenge on the permanent resident to go back and resume residency in the
Philippines, but more significantly, it serves as an explicit expression
ground that, as narrated in Macalintal, it - that he had not in fact abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit under Section 5(d)
violates Section 1, Article V of the 1987 Constitution which requires violates the Constitution that proscribes provisional registration or a
that the voter must be a resident in the Philippines for at least one promise by a voter to perform a condition to be qualified to vote in a
year and in the place where he proposes to vote for at least six months political exercise. [11]
immediately preceding an election. [The challenger] cites Caasi vs.
Court of Appeals [9] to support his claim [where] the Court held that a
green card holder immigrant to the [US] is deemed to have abandoned
his domicile and residence in the Philippines. Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress

enacted R.A. 9225 the relevant portion of which reads:


[The challenger] further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a promise by a
SEC. 2. Declaration of Policy. It is hereby declared the policy of the
voter to perform a condition to be qualified to vote in a political
State that all Philippine citizens who become citizens of another
exercise; that the legislature should not be allowed to circumvent the
country shall be deemed not to have lost their Philippine citizenship
requirement of the Constitution on the right of suffrage by providing a
under the conditions of this Act.
condition thereon which in effect amends or alters the aforesaid
residence requirement to qualify a Filipino abroad to vote. He claims
SEC. 3. Retention of Philippine Citizenship. Any provision of law to the
that the right of suffrage should not be granted to anyone who, on the
contrary notwithstanding, natural-born citizens of the Philippines
date of the election, does not possess the qualifications provided for
who have lost their Philippine citizenship by reason of their
by Section 1, Article V of the Constitution.[10] (Words in bracket
naturalization as citizens of a foreign country are hereby deemed to
added.)
have re-acquired Philippine citizenship upon taking the following oath
of allegiance to the Republic:

As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 xxx xxx xxx

mainly on the strength of the following premises: Natural-born citizens of the Philippines who, after the effectivity of
this Act, become citizens of a foreign country shall retain their
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically Philippine citizenship upon taking the aforesaid oath.
disqualifies an immigrant or permanent resident who is recognized as
such in the host country because immigration or permanent residence SEC. 4. Derivative Citizenship. The unmarried child, whether
in another country implies renunciation of one's residence in his legitimate, illegitimate or adopted, below eighteen (18) years of age,
country of origin. However, same Section allows an immigrant and of those who re-acquire Philippine citizenship upon effectivity of this
permanent resident abroad to register as voter for as long as he/she Act shall be deemed citizens of the Philippines.
executes an affidavit to show that he/she has not abandoned his
domicile in pursuance of the constitutional intent expressed in SEC. 5. Civil and Political Rights and Liabilities. Those who retain or re-
Sections 1 and 2 of Article V that allcitizens of the Philippines not acquire Philippine citizenship under this Act shall enjoy full civil and
otherwise disqualified by law must be entitled to exercise the right of political rights and be subject to all attendant liabilities and
suffrage and, that Congress must establish a system for absentee responsibilities under existing laws of the Philippines and the
voting; for otherwise, if actual, physical residence in the Philippines is following conditions:

66
(1) Those intending to exercise their right of suffrage must
meet the requirements under Section 1, Article V of the 4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN
Constitution, Republic Act No. 9189, otherwise known as THE PHILIPPINES
The Overseas Absentee Voting Act of 2003 and other existing
laws; 4.01. The inclusion of such additional and specific
requirements in RA 9225 is logical. The duals, upon
(2) Those seeking elective public office in the Philippines renouncement of their Filipino citizenship and
shall meet the qualifications for holding such public office as acquisition of foreign citizenship, have practically
required by the Constitution and existing laws and, at the and legally abandoned their domicile and severed
time of the filing of the certificate of candidacy, make a their legal ties to the homeland as a
personal and sworn renunciation of any and all foreign consequence. Having subsequently acquired a
citizenship ; second citizenship (i.e., Filipino) then, duals must,
for purposes of voting, first of all, decisively and
3) xxx xxx xxx. definitely establish their domicile through positive
acts; [13]
(4) xxx xxx xxx;

(5) That right to vote or be elected or appointed to any


public office in the Philippines cannot be exercised by, or The Court disagrees.
extended to, those who:

(a) are candidates for or are occupying any public As may be noted, there is no provision in the dual citizenship law - R.A. 9225 -
office in the country of which they are naturalized
requiring "duals" to actually establish residence and physically stay in
citizens; and/or
the Philippines first before they can exercise their right to vote. On the contrary, R.A.
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the 9225, in implicit acknowledgment that duals are most likely non-residents, grants under
country which they are naturalized citizens.
its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A.

9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as


After what appears to be a successful application for recognition of Philippine citizenship
much as possible all overseas Filipinos who, save for the residency requirements exacted
under R.A. 9189, petitioners now invoke their right to enjoy political rights, specifically
of an ordinary voter under ordinary conditions, are qualified to vote. Thus, wrote the
the right of suffrage, pursuant to Section 5 thereof.
Court in Macalintal:

Opposing the petitioners bid, however, respondent COMELEC invites attention to the It is clear from these discussions of the Constitutional Commission
that [it] intended to enfranchise as much as possible all Filipino
same Section 5 (1) providing that duals can enjoy their right to vote, as an adjunct to citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach
political rights, only if they meet the requirements of Section 1, Article V of the voting age abroad whose parents domicile of origin is in
the Philippines, and consider them qualified as voters for the first
Constitution, R.A. 9189 and other existing laws. Capitalizing on what at first blush is the
time.
clashing provisions of the aforecited provision of the Constitution, which, to repeat,
It is in pursuance of that intention that the Commission provided for
requires residency in the Philippines for a certain period, and R.A. 9189 which grants a Section 2 [Article V] immediately after the residency requirement of
Section 1. By the doctrine of necessary implication in statutory
Filipino non-resident absentee voting rights,[12] COMELEC argues: construction, , the strategic location of Section 2 indicates that the
67
Constitutional Commission provided for an exception to the actual This is consistent, Mr. President, with the
residency requirement of Section 1 with respect to qualified Filipinos constitutional mandate that we that Congress must
abroad. The same Commission has in effect declared that qualified provide a franchise to overseas Filipinos.
Filipinos who are not in the Philippines may be allowed to vote even
though they do not satisfy the residency requirement in Section 1, If we read the Constitution and the suffrage
Article V of the Constitution. principle literally as demanding physical
presence, then there is no way we can provide for
That Section 2 of Article V of the Constitution is an exception to the offshore voting to our offshore kababayan, Mr.
residency requirement found in Section 1 of the same Article was in President.
fact the subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor, thus: Senator Arroyo. Mr. President, when the
Constitution says, in Section 2 of Article V, it
Senator Arroyo. Mr. President, this bill should be reads: The Congress shall provide a system for
looked into in relation to the constitutional securing the secrecy and sanctity of the ballot as
provisions. I think the sponsor and I would agree well as a system for absentee voting by qualified
that the Constitution is supreme in any statute that Filipinos abroad.
we may enact.
The key to this whole exercise, Mr. President, is
Let me read Section 1, Article V, of the Constitution qualified. In other words, anything that we may
. do or say in granting our compatriots abroad
must be anchored on the proposition that they
xxx xxx xxx are qualified. Absent the qualification, they
cannot vote. And residents (sic) is a qualification.
Now, Mr. President, the Constitution says, who
shall have resided in the Philippines. They are xxx xxx xxx
permanent immigrants. They have changed
residence so they are barred under the Look at what the Constitution says In the place
Constitution. This is why I asked whether this wherein they propose to vote for at least six
committee amendment which in fact does not alter months immediately preceding the election.
the original text of the bill will have any effect on
this? Mr. President, all of us here have run (sic) for
office.
Senator Angara. Good question, Mr. President. And
this has been asked in various fora. This is in I live in Makati. My neighbor is Pateros . We are
compliance with the Constitution. One, the separated only by a creek. But one who votes
interpretation here of residence is synonymous in Makati cannot vote in Pateros unless he resides
with domicile. in Pateros for six months. That is how restrictive
our Constitution is. .
As the gentleman and I know, Mr. President,
domicile is the intent to return to one's home. And As I have said, if a voter in Makati would want to
the fact that a Filipino may have been physically vote in Pateros, yes, he may do so. But he must do
absent from the Philippines and may be so, make the transfer six months before the
physically a resident of the United States, for election, otherwise, he is not qualified to vote.
example, but has a clear intent to return to the
Philippines, will make him qualified as a xxx xxx xxx
resident of the Philippines under this law.
Senator Angara. It is a good point to raise, Mr.
President. But it is a point already well-debated
even in the constitutional commission of 1986. And

68
the reason Section 2 of Article V was placed Overseas Absentee Voter refers to a citizen of the Philippines who is
immediately after the six-month/one-year qualified to register and vote under this Act, not otherwise
residency requirement is to demonstrate disqualified by law, who is abroad on the day of elections;
unmistakably that Section 2 which authorizes
absentee voting is an exception to the six-
month/one-year residency requirement. That is
the first principle, Mr. President, that one must While perhaps not determinative of the issue tendered herein, we note that the
remember.
expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of
The second reason, Mr. President, is that under our
"duals". This may be deduced from the inclusion of the provision on derivative
jurisprudence residency has been interpreted as
synonymous with domicile. citizenship in R.A. 9225 which reads:
But the third more practical reason, is, if SEC. 4. Derivative Citizenship. The unmarried child, whether
we follow the interpretation of the gentleman, t legitimate, illegitimate or adopted, below eighteen (18) years of age,
hen it is legally and constitutionally impossible of those who re-acquire Philippine citizenship upon effectivity of this
to give a franchise to vote to overseas Filipinos Act shall be deemed citizens of the Philippines.
who do not physically live in the country, which
is quite ridiculous
because that is exactly the whole point of this
exercise to enfranchise them and empower It is very likely that a considerable number of those unmarried children below eighteen (1
them to vote. [14] (Emphasis and words in bracket
added; citations omitted) 8) years of age had never set foot in the Philippines. Now then, if the next generation

of "duals" may nonetheless avail themselves the right to enjoy full civil and political

Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship rights under Section 5 of the Act, then there is neither no rhyme nor reason why the

Retention and Re-Acquisition Act expanded the coverage of overseas absentee petitioners and other present day "duals," provided they meet the requirements under

voting.According to the poll body: Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of

1.05 With the passage of RA 9225 the scope of overseas absentee suffrage as an overseas absentee voter. Congress could not have plausibly intended such
voting has been consequently expanded so as to include Filipinos who
are also citizens of other countries, subject, however, to the strict absurd situation.
prerequisites indicated in the pertinent provisions of RA 9225; [15]
WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so
holds that those who retain or re-acquire Philippine citizenship under Republic Act No.
Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the
9225, the Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to
scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" vote under the system of absentee voting in Republic Act No. 9189, the Overseas

may now exercise the right of suffrage thru the absentee voting scheme and as overseas Absentee Voting Act of 2003.
SO ORDERED.
absentee voters. R.A. 9189 defines the terms adverted to in the following wise:

Absentee Voting refers to the process by which qualified citizens of


the Philippines abroad exercise their right to vote;

69
G.R. No. 100113 September 3, 1991 The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is
RENATO CAYETANO, petitioner, not limited to appearing in court, or advising and assisting in the conduct of
vs. litigation, but embraces the preparation of pleadings, and other papers incident
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, to actions and special proceedings, conveyancing, the preparation of legal
and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and instruments of all kinds, and the giving of all legal advice to clients. It embraces
Management, respondents. all advice to clients and all actions taken for them in matters connected with the
law. An attorney engages in the practice of law by maintaining an office where
he is held out to be-an attorney, using a letterhead describing himself as an
Renato L. Cayetano for and in his own behalf. attorney, counseling clients in legal matters, negotiating with opposing counsel
about pending litigation, and fixing and collecting fees for services rendered by
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner. his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and
Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in
the practice of law when he:
PARAS, J.:
... for valuable consideration engages in the business of advising person, firms,
We are faced here with a controversy of far-reaching proportions. While ostensibly only associations or corporations as to their rights under the law, or appears in a
legal issues are involved, the Court's decision in this case would indubitably have a representative capacity as an advocate in proceedings pending or prospective,
profound effect on the political aspect of our national existence. before any court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle controversies and there,
in such representative capacity performs any act or acts for the purpose of
The 1987 Constitution provides in Section 1 (1), Article IX-C: obtaining or defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the business of
There shall be a Commission on Elections composed of a Chairman and six advising clients as to their rights under the law, or while so engaged performs
Commissioners who shall be natural-born citizens of the Philippines and, at the any act or acts either in court or outside of court for that purpose, is engaged in
time of their appointment, at least thirty-five years of age, holders of a college the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d
degree, and must not have been candidates for any elective position in the 895, 340 Mo. 852)
immediately preceding -elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177)
the practice of law for at least ten years. (Emphasis supplied) stated:

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 The practice of law is not limited to the conduct of cases or litigation in court; it
Constitution which similarly provides: embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf
There shall be an independent Commission on Elections composed of a Chairman and of clients before judges and courts, and in addition, conveying. In general,
eight Commissioners who shall be natural-born citizens of the Philippines and, at the all advice to clients, and all action taken for them in matters connected with the
time of their appointment, at least thirty-five years of age and holders of a college degree. law incorporation services, assessment and condemnation services
However, a majority thereof, including the Chairman, shall be members of the Philippine contemplating an appearance before a judicial body, the foreclosure of a
Bar who have been engaged in the practice of law for at least ten years.' (Emphasis mortgage, enforcement of a creditor's claim in bankruptcy and insolvency
supplied) proceedings, and conducting proceedings in attachment, and in matters of
estate and guardianship have been held to constitute law practice, as do the
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice preparation and drafting of legal instruments, where the work done involves the
of law as a legal qualification to an appointive office. determination by the trained legal mind of the legal effect of facts and conditions.
(5 Am. Jr. p. 262, 263). (Emphasis supplied)
Black defines "practice of law" as:

70
Practice of law under modem conditions consists in no small part of work The Commissioner will please proceed.
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice on a MR. FOZ. This has to do with the qualifications of the members of the Commission
large variety of subjects, and the preparation and execution of legal on Audit. Among others, the qualifications provided for by Section I is that "They
instruments covering an extensive field of business and trust relations and must be Members of the Philippine Bar" — I am quoting from the provision —
other affairs. Although these transactions may have no direct connection with "who have been engaged in the practice of law for at least ten years".
court proceedings, they are always subject to become involved in litigation. They
require in many aspects a high degree of legal skill, a wide experience with men
and affairs, and great capacity for adaptation to difficult and complex situations. To avoid any misunderstanding which would result in excluding members of the Bar
These customary functions of an attorney or counselor at law bear an intimate who are now employed in the COA or Commission on Audit, we would like to make the
relation to the administration of justice by the courts. No valid distinction, so clarification that this provision on qualifications regarding members of the Bar does not
far as concerns the question set forth in the order, can be drawn between that necessarily refer or involve actual practice of law outside the COA We have to interpret this
part of the work of the lawyer which involves appearance in court and that part to mean that as long as the lawyers who are employed in the COA are using their legal
which involves advice and drafting of instruments in his office. It is of knowledge or legal talent in their respective work within COA, then they are qualified to be
importance to the welfare of the public that these manifold customary considered for appointment as members or commissioners, even chairman, of the
functions be performed by persons possessed of adequate learning and skill, of Commission on Audit.
sound moral character, and acting at all times under the heavy trust obligations
to clients which rests upon all attorneys. (Moran, Comments on the Rules of This has been discussed by the Committee on Constitutional Commissions and Agencies
Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], and we deem it important to take it up on the floor so that this interpretation may be
194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] made available whenever this provision on the qualifications as regards members of the
179 A. 139,144). (Emphasis ours) Philippine Bar engaging in the practice of law for at least ten years is taken up.

The University of the Philippines Law Center in conducting orientation briefing for new MR. OPLE. Will Commissioner Foz yield to just one question.
lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms
as advocacy, counselling and public service. MR. FOZ. Yes, Mr. Presiding Officer.

One may be a practicing attorney in following any line of employment in the MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent
profession. If what he does exacts knowledge of the law and is of a kind usual to the requirement of a law practice that is set forth in the Article on the
for attorneys engaging in the active practice of their profession, and he follows Commission on Audit?
some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
MR. FOZ. We must consider the fact that the work of COA, although it is auditing,
will necessarily involve legal work; it will involve legal work. And, therefore,
Practice of law means any activity, in or out of court, which requires the application of lawyers who are employed in COA now would have the necessary qualifications in
law, legal procedure, knowledge, training and experience. "To engage in the practice of accordance with the Provision on qualifications under our provisions on the
law is to perform those acts which are characteristics of the profession. Generally, to Commission on Audit. And, therefore, the answer is yes.
practice law is to give notice or render any kind of service, which device or service
requires the use in any degree of legal knowledge or skill." (111 ALR 23)
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to
the practice of law.
The following records of the 1986 Constitutional Commission show that it has adopted a
liberal interpretation of the term "practice of law."
MR. FOZ. Yes, Mr. Presiding Officer.
MR. FOZ. Before we suspend the session, may I make a manifestation which I
forgot to do during our review of the provisions on the Commission on Audit. MR. OPLE. Thank you.
May I be allowed to make a very brief statement?
... ( Emphasis supplied)
THE PRESIDING OFFICER (Mr. Jamir).

71
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
Chairman and two Commissioners of the Commission on Audit (COA) should either be stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine
certified public accountants with not less than ten years of auditing practice, or members can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
of the Philippine Bar who have been engaged in the practice of law for at least ten years.
(emphasis supplied) In the course of a working day the average general practitioner wig engage in a number
of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
Corollary to this is the term "private practitioner" and which is in many ways institutions, clients, and other interested parties. Even the increasing numbers of lawyers
synonymous with the word "lawyer." Today, although many lawyers do not engage in in specialized practice wig usually perform at least some legal services outside their
private practice, it is still a fact that the majority of lawyers are private practitioners. specialty. And even within a narrow specialty such as tax practice, a lawyer will shift
(Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. from one legal task or role such as advice-giving to an importantly different one such as
15). representing a client before an administrative agency. (Wolfram, supra, p. 687).

At this point, it might be helpful to define private practice. The term, as commonly By no means will most of this work involve litigation, unless the lawyer is one of the
understood, means "an individual or organization engaged in the business of delivering relatively rare types — a litigator who specializes in this work to the exclusion of much
legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." else. Instead, the work will require the lawyer to have mastered the full range of
Groups of lawyers are called "firms." The firm is usually a partnership and members of traditional lawyer skills of client counselling, advice-giving, document drafting, and
the firm are the partners. Some firms may be organized as professional corporations and negotiation. And increasingly lawyers find that the new skills of evaluation and
the members called shareholders. In either case, the members of the firm are the mediation are both effective for many clients and a source of employment. (Ibid.).
experienced attorneys. In most firms, there are younger or more inexperienced salaried
attorneyscalled "associates." (Ibid.). Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it some
The test that defines law practice by looking to traditional areas of law practice is of the salient features of adversarial litigation. Of these special roles, the most prominent
essentially tautologous, unhelpful defining the practice of law as that which lawyers do. is that of prosecutor. In some lawyers' work the constraints are imposed both by the
(Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. nature of the client and by the way in which the lawyer is organized into a social unit to
593). The practice of law is defined as the performance of any acts . . . in or out of court, perform that work. The most common of these roles are those of corporate practice and
commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & government legal service. (Ibid.).
Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne,
128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every In several issues of the Business Star, a business daily, herein below quoted are emerging
function known in the commercial and governmental realm, such a definition would trends in corporate law practice, a departure from the traditional concept of practice of
obviously be too global to be workable.(Wolfram, op. cit.). law.

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly We are experiencing today what truly may be called a revolutionary
familiar role for lawyers as well as an uncommon role for the average lawyer. Most transformation in corporate law practice. Lawyers and other professional
lawyers spend little time in courtrooms, and a large percentage spend their entire groups, in particular those members participating in various legal-policy
practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue decisional contexts, are finding that understanding the major emerging trends
to litigate and the litigating lawyer's role colors much of both the public image and the in corporation law is indispensable to intelligent decision-making.
self perception of the legal profession. (Ibid.).
Constructive adjustment to major corporate problems of today requires an
In this regard thus, the dominance of litigation in the public mind reflects history, not accurate understanding of the nature and implications of the corporate law
reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, research function accompanied by an accelerating rate of information
once articulated on the importance of a lawyer as a business counselor in this wise: accumulation. The recognition of the need for such improved corporate legal
"Even today, there are still uninformed laymen whose concept of an attorney is one who policy formulation, particularly "model-making" and "contingency planning,"
principally tries cases before the courts. The members of the bench and bar and the has impressed upon us the inadequacy of traditional procedures in many
informed laymen such as businessmen, know that in most developed societies today, decisional contexts.
substantially more legal work is transacted in law offices than in the courtrooms. General
practitioners of law who do both litigation and non-litigation work also know that in
most cases they find themselves spending more time doing what [is] loosely desccribe[d] In a complex legal problem the mass of information to be processed, the sorting
as business counseling than in trying cases. The business lawyer has been described as and weighing of significant conditional factors, the appraisal of major trends,

72
the necessity of estimating the consequences of given courses of action, and the adjudicatory agencies (including the Securities and Exchange Commission), and
need for fast decision and response in situations of acute danger have in other capacities which require an ability to deal with the law.
prompted the use of sophisticated concepts of information flow theory,
operational analysis, automatic data processing, and electronic computing At any rate, a corporate lawyer may assume responsibilities other than the
equipment. Understandably, an improved decisional structure must stress the legal affairs of the business of the corporation he is representing. These include
predictive component of the policy-making process, wherein a "model", of the such matters as determining policy and becoming involved in management. (
decisional context or a segment thereof is developed to test projected Emphasis supplied.)
alternative courses of action in terms of futuristic effects flowing therefrom.
In a big company, for example, one may have a feeling of being isolated from
Although members of the legal profession are regularly engaged in predicting the action, or not understanding how one's work actually fits into the work of
and projecting the trends of the law, the subject of corporate finance law has the orgarnization. This can be frustrating to someone who needs to see the
received relatively little organized and formalized attention in the philosophy results of his work first hand. In short, a corporate lawyer is sometimes offered
of advancing corporate legal education. Nonetheless, a cross-disciplinary this fortune to be more closely involved in the running of the business.
approach to legal research has become a vital necessity.
Moreover, a corporate lawyer's services may sometimes be engaged by a
Certainly, the general orientation for productive contributions by those trained multinational corporation (MNC). Some large MNCs provide one of the few
primarily in the law can be improved through an early introduction to multi- opportunities available to corporate lawyers to enter the international law
variable decisional context and the various approaches for handling such field. After all, international law is practiced in a relatively small number of
problems. Lawyers, particularly with either a master's or doctorate degree in companies and law firms. Because working in a foreign country is perceived by
business administration or management, functioning at the legal policy level of many as glamorous, tills is an area coveted by corporate lawyers. In most cases,
decision-making now have some appreciation for the concepts and analytical however, the overseas jobs go to experienced attorneys while the younger
techniques of other professions which are currently engaged in similar types of attorneys do their "international practice" in law libraries. (Business Star,
complex decision-making. "Corporate Law Practice," May 25,1990, p. 4).

Truth to tell, many situations involving corporate finance problems would This brings us to the inevitable, i.e., the role of the lawyer in the realm of
require the services of an astute attorney because of the complex legal finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to
implications that arise from each and every necessary step in securing and wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
maintaining the business issue raised. (Business Star, "Corporate Finance Law," perceives the difficulties, and the excellent lawyer is one who surmounts them."
Jan. 11, 1989, p. 4). (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as Today, the study of corporate law practice direly needs a "shot in the arm," so
the "abogado de campanilla." He is the "big-time" lawyer, earning big money to speak. No longer are we talking of the traditional law teaching method of
and with a clientele composed of the tycoons and magnates of business and confining the subject study to the Corporation Code and the Securities Code but
industry. an incursion as well into the intertwining modern management issues.

Despite the growing number of corporate lawyers, many people could not Such corporate legal management issues deal primarily with three (3) types of
explain what it is that a corporate lawyer does. For one, the number of learning: (1) acquisition of insights into current advances which are of
attorneys employed by a single corporation will vary with the size and type of particular significance to the corporate counsel; (2) an introduction to usable
the corporation. Many smaller and some large corporations farm out all their disciplinary skins applicable to a corporate counsel's management
legal problems to private law firms. Many others have in-house counsel only for responsibilities; and (3) a devotion to the organization and management of the
certain matters. Other corporation have a staff large enough to handle most legal function itself.
legal problems in-house.
These three subject areas may be thought of as intersecting circles, with a
A corporate lawyer, for all intents and purposes, is a lawyer who handles the shared area linking them. Otherwise known as "intersecting managerial
legal affairs of a corporation. His areas of concern or jurisdiction may jurisprudence," it forms a unifying theme for the corporate counsel's total
include, inter alia: corporate legal research, tax laws research, acting out as learning.
corporate secretary (in board meetings), appearances in both courts and other

73
Some current advances in behavior and policy sciences affect the counsel's role. First System Dynamics. The field of systems dynamics has been found an
For that matter, the corporate lawyer reviews the globalization process, effective tool for new managerial thinking regarding both planning and
including the resulting strategic repositioning that the firms he provides pressing immediate problems. An understanding of the role of feedback loops,
counsel for are required to make, and the need to think about a corporation's; inventory levels, and rates of flow, enable users to simulate all sorts of
strategy at multiple levels. The salience of the nation-state is being reduced as systematic problems — physical, economic, managerial, social, and
firms deal both with global multinational entities and simultaneously with sub- psychological. New programming techniques now make the system dynamics
national governmental units. Firms increasingly collaborate not only with principles more accessible to managers — including corporate counsels.
public entities but with each other — often with those who are competitors in (Emphasis supplied)
other arenas.
Second Decision Analysis. This enables users to make better decisions involving
Also, the nature of the lawyer's participation in decision-making within the complexity and uncertainty. In the context of a law department, it can be used to
corporation is rapidly changing. The modem corporate lawyer has gained a new appraise the settlement value of litigation, aid in negotiation settlement, and
role as a stakeholder — in some cases participating in the organization and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis
operations of governance through participation on boards and other decision- supplied)
making roles. Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends are complicated as Third Modeling for Negotiation Management. Computer-based models can be
corporations organize for global operations. ( Emphasis supplied) used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation support,
The practising lawyer of today is familiar as well with governmental policies including hands-on on instruction in these techniques. A simulation case of an
toward the promotion and management of technology. New collaborative international joint venture may be used to illustrate the point.
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more [Be this as it may,] the organization and management of the legal function,
adversarial relationships and traditional forms of seeking to influence concern three pointed areas of consideration, thus:
governmental policies. And there are lessons to be learned from other countries.
In Europe, Esprit, Eureka and Race are examples of collaborative efforts
between governmental and business Japan's MITI is world famous. (Emphasis Preventive Lawyering. Planning by lawyers requires special skills that comprise
supplied) a major part of the general counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of
legal trouble and maximizing legal rights for such legal entities at that time
Following the concept of boundary spanning, the office of the Corporate when transactional or similar facts are being considered and made.
Counsel comprises a distinct group within the managerial structure of all kinds
of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group- Managerial Jurisprudence. This is the framework within which are undertaken
context interaction such as the groups actively revising their knowledge of the those activities of the firm to which legal consequences attach. It needs to be
environment coordinating work with outsiders, promoting team achievements directly supportive of this nation's evolving economic and organizational fabric
within the organization. In general, such external activities are better as firms change to stay competitive in a global, interdependent environment.
predictors of team performance than internal group processes. The practice and theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy work.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-
a-vis the managerial mettle of corporations are challenged. Current research is Organization and Functioning of the Corporate Counsel's Office. The general
seeking ways both to anticipate effective managerial procedures and to counsel has emerged in the last decade as one of the most vibrant subsets of the
understand relationships of financial liability and insurance considerations. legal profession. The corporate counsel hear responsibility for key aspects of
(Emphasis supplied) the firm's strategic issues, including structuring its global operations, managing
improved relationships with an increasingly diversified body of employees,
managing expanded liability exposure, creating new and varied interactions
Regarding the skills to apply by the corporate counsel, three factors with public decision-makers, coping internally with more complex make or by
are apropos: decisions.

74
This whole exercise drives home the thesis that knowing corporate law is not NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
enough to make one a good general corporate counsel nor to give him a full Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's
sense of how the legal system shapes corporate activities. And even if the Conference for Human Development, has worked with the under privileged sectors, such as
corporate lawyer's aim is not the understand all of the law's effects on the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative
corporate activities, he must, at the very least, also gain a working knowledge of action for the agrarian reform law and lately the urban land reform bill. Monsod also made
the management issues if only to be able to grasp not only the basic legal use of his legal knowledge as a member of the Davide Commission, a quast judicial body,
"constitution' or makeup of the modem corporation. "Business Star", "The which conducted numerous hearings (1990) and as a member of the Constitutional
Corporate Counsel," April 10, 1991, p. 4). Commission (1986-1987), and Chairman of its Committee on Accountability of Public
Officers, for which he was cited by the President of the Commission, Justice Cecilia Muñoz-
The challenge for lawyers (both of the bar and the bench) is to have more than Palma for "innumerable amendments to reconcile government functions with individual
a passing knowledge of financial law affecting each aspect of their work. Yet, freedoms and public accountability and the party-list system for the House of
many would admit to ignorance of vast tracts of the financial law territory. Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
What transpires next is a dilemma of professional security: Will the lawyer
admit ignorance and risk opprobrium?; or will he feign understanding and risk Just a word about the work of a negotiating team of which Atty. Monsod used to be a
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4). member.

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the In a loan agreement, for instance, a negotiating panel acts as a team, and which
position of Chairman of the COMELEC in a letter received by the Secretariat of the is adequately constituted to meet the various contingencies that arise during a
Commission on Appointments on April 25, 1991. Petitioner opposed the nomination negotiation. Besides top officials of the Borrower concerned, there are the legal
because allegedly Monsod does not possess the required qualification of having been officer (such as the legal counsel), the finance manager, and an operations
engaged in the practice of law for at least ten years. officer (such as an official involved in negotiating the contracts) who comprise
the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same Philippines, Manila, 1982, p. 11). (Emphasis supplied)
day, he assumed office as Chairman of the COMELEC.
After a fashion, the loan agreement is like a country's Constitution; it lays down
Challenging the validity of the confirmation by the Commission on Appointments of the law as far as the loan transaction is concerned. Thus, the meat of any Loan
Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for Agreement can be compartmentalized into five (5) fundamental parts: (1)
certiorari and Prohibition praying that said confirmation and the consequent business terms; (2) borrower's representation; (3) conditions of closing; (4)
appointment of Monsod as Chairman of the Commission on Elections be declared null covenants; and (5) events of default. (Ibid., p. 13).
and void.
In the same vein, lawyers play an important role in any debt restructuring
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar program. For aside from performing the tasks of legislative drafting and legal
examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the advising, they score national development policies as key factors in maintaining
Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying their countries' sovereignty. (Condensed from the work paper, entitled
his professional license fees as lawyer for more than ten years. (p. 124, Rollo) "Wanted: Development Lawyers for Developing Nations," submitted by L.
Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
worked in the law office of his father. During his stint in the World Bank Group (1963- World Peace Through Law Center on August 26-31, 1973). ( Emphasis
1970), Monsod worked as an operations officer for about two years in Costa Rica and supplied)
Panama, which involved getting acquainted with the laws of member-countries negotiating
loans and coordinating legal, economic, and project work of the Bank. Upon returning to
the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer Loan concessions and compromises, perhaps even more so than purely
of an investment bank and subsequently of a business conglomerate, and since 1986, has renegotiation policies, demand expertise in the law of contracts, in legislation and
rendered services to various companies as a legal and economic consultant or chief agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may
executive officer. As former Secretary-General (1986) and National Chairman (1987) of work with an international business specialist or an economist in the
NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be
75
carefully drafted and signed only with the advise of competent counsel in authority to direct the appointment of a substitute of its choice. To do so would
conjunction with the guidance of adequate technical support personnel. (See be an encroachment on the discretion vested upon the appointing authority. An
International Law Aspects of the Philippine External Debts, an unpublished appointment is essentially within the discretionary power of whomsoever it is
dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied) vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set
of terms and conditions which determines the contractual remedies for a The appointing process in a regular appointment as in the case at bar, consists of four (4)
failure to perform one or more elements of the contract. A good agreement stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3)
must not only define the responsibilities of both parties, but must also state the issuance of a commission (in the Philippines, upon submission by the Commission on
recourse open to either party when the other fails to discharge an obligation. Appointments of its certificate of confirmation, the President issues the permanent
For a compleat debt restructuring represents a devotion to that principle which appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
in the ultimate analysis is sine qua non for foreign loan agreements-an Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)
adherence to the rule of law in domestic and international affairs of whose kind
U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no The power of the Commission on Appointments to give its consent to the nomination of
banners, they beat no drums; but where they are, men learn that bustle and Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-
bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Article C, Article IX of the Constitution which provides:
Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the
Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p.
265). The Chairman and the Commisioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold
Interpreted in the light of the various definitions of the term Practice of law". particularly office for seven years, two Members for five years, and the last Members for
the modern concept of law practice, and taking into consideration the liberal construction three years, without reappointment. Appointment to any vacancy shall be only
intended by the framers of the Constitution, Atty. Monsod's past work experiences as a for the unexpired term of the predecessor. In no case shall any Member be
lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer- appointed or designated in a temporary or acting capacity.
negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more
than satisfy the constitutional requirement — that he has been engaged in the practice of
law for at least ten years. Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law, which
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court modern connotation is exactly what was intended by the eminent framers of the
said: 1987 Constitution. Moreover, Justice Padilla's definition would require
generally a habitual law practice, perhaps practised two or three times a week
Appointment is an essentially discretionary power and must be performed by the and would outlaw say, law practice once or twice a year for ten consecutive
officer in which it is vested according to his best lights, the only condition being years. Clearly, this is far from the constitutional intent.
that the appointee should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that there are others Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my
better qualified who should have been preferred. This is a political question written opinion, I made use of a definition of law practice which really means nothing
involving considerations of wisdom which only the appointing authority can because the definition says that law practice " . . . is what people ordinarily mean by the
decide. (emphasis supplied) practice of law." True I cited the definition but only by way of sarcasm as evident from
my statement that the definition of law practice by "traditional areas of law practice is
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, essentially tautologous" or defining a phrase by means of the phrase itself that is being
171 SCRA 744) where it stated: defined.

It is well-settled that when the appointee is qualified, as in this case, and all the Justice Cruz goes on to say in substance that since the law covers almost all situations,
other legal requirements are satisfied, the Commission has no alternative but to most individuals, in making use of the law, or in advising others on what the law means,
attest to the appointment in accordance with the Civil Service Law. The are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact
Commission has no authority to revoke an appointment on the ground that that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law
another person is more qualified for a particular position. It also has no

76
for over ten years. This is different from the acts of persons practising law, without first No blood shall flow from his veins.
becoming lawyers.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron
Justice Cruz also says that the Supreme Court can even disqualify an elected President of rod burning white-hot two or three inches away from in front of Samson's eyes. This
the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside
greatly doubt. For one thing, how can an action or petition be brought against the herself with anger, and fuming with righteous fury, accused the procurator of reneging
President? And even assuming that he is indeed disqualified, how can the action be on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood
entertained since he is the incumbent President? flow from his veins?" The procurator was clearly relying on the letter, not the spirit of
the agreement.
We now proceed:
In view of the foregoing, this petition is hereby DISMISSED.
The Commission on the basis of evidence submitted doling the public hearings on
Monsod's confirmation, implicitly determined that he possessed the necessary SO ORDERED.
qualifications as required by law. The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission's judgment. In
the instant case, there is no occasion for the exercise of the Court's corrective power,
since no abuse, much less a grave abuse of discretion, that would amount to lack or
excess of jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may


the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked
Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on
condition that —

No blade shall touch his skin;

77
[G.R. No. 93867 : December 18, 1990.] we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor
General maintains.
192 SCRA 358
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as
Commissions as "independent." Although essentially executive in nature, they are not
ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent.
under the control of the President of the Philippines in the discharge of their respective
functions. Each of these Commissions conducts its own proceedings under the applicable
laws and its own rules and in the exercise of its own discretion. Its decisions, orders and
DECISION rulings are subject only to review on Certiorari by this Court as provided by the
Constitution in Article IX-A, Section 7.

CRUZ, J.: The choice of a temporary chairman in the absence of the regular chairman comes under
that discretion. That discretion cannot be exercised for it, even with its consent, by the
President of the Philippines.
The petitioner is challenging the designation by the President of the Philippines of A designation as Acting Chairman is by its very terms essentially temporary and
Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on therefore revocable at will. No cause need be established to justify its revocation.
Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the Assuming its validity, the designation of the respondent as Acting Chairman of the
fact-finding commission to investigate the December 1989 coup d' etat attempt. Commission on Elections may be withdrawn by the President of the Philippines at any
The qualifications of the respondent are conceded by the petitioner and are not in issue time and for whatever reason she sees fit. It is doubtful if the respondent, having
in this case. What is the power of the President of the Philippines to make the challenged accepted such designation, will not be estopped from challenging its
designation in view of the status of the Commission on Elections as an independent withdrawal.chanrobles virtual law library
constitutional body and the specific provision of Article IX-C, Section 1(2) of the It is true, as the Solicitor General points out, that the respondent cannot be removed at
Constitution that "(I)n no case shall any Member (of the Commission on Elections) be will from her permanent position as Associate Commissioner. It is no less true, however,
appointed or designated in a temporary or acting capacity." that she can be replaced as Acting Chairman, with or without cause, and thus deprived of
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where the powers and perquisites of that temporary position.
President Elpidio Quirino designated the Solicitor General as acting member of the The lack of a statutory rule covering the situation at bar is no justification for the
Commission on Elections and the Court revoked the designation as contrary to the President of the Philippines to fill the void by extending the temporary designation in
Constitution. It is also alleged that the respondent is not even the senior member of the favor of the respondent. This is still a government of laws and not of men. The problem
Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg, allegedly sought to be corrected, if it existed at all, did not call for presidential action. The
Jr.:-cralaw situation could have been handled by the members of the Commission on Elections
The petitioner contends that the choice of the Acting Chairman of the Commission on themselves without the participation of the President, however well-meaning.
Elections is an internal matter that should be resolved by the members themselves and In the choice of the Acting Chairman, the members of the Commission on Elections would
that the intrusion of the President of the Philippines violates their independence. He most likely have been guided by the seniority rule as they themselves would have
cites the practice in this Court, where the senior Associate Justice serves as Acting Chief appreciated it. In any event, that choice and the basis thereof were for them and not the
Justice in the absence of the Chief Justice. No designation from the President of the President to make.
Philippines is necessary.
The Court has not the slightest doubt that the President of the Philippines was moved
In his Comment, the Solicitor General argues that no such designation is necessary in the only by the best of motives when she issued the challenged designation. But while
case of the Supreme Court because the temporary succession cited is provided for in conceding her goodwill, we cannot sustain her act because it conflicts with the
Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for Constitution. Hence, even as this Court revoked the designation in the Bautista case, so
the Court of Appeals. There is no such arrangement, however, in the case of the too must it annul the designation in the case at bar.
Commission on Elections. The designation made by the President of the Philippines
should therefore be sustained for reasons of "administrative expediency," to prevent The Constitution provides for many safeguards to the independence of the Commission
disruption of the functions of the COMELEC. on Elections, foremost among which is the security of tenure of its members. That
guaranty is not available to the respondent as Acting Chairman of the Commission on
Expediency is a dubious justification. It may also be an overstatement to suggest that the Elections by designation of the President of the Philippines.
operations of the Commission on Elections would have been disturbed or stalemated if
the President of the Philippines had not stepped in and designated an Acting Chairman. WHEREFORE, the designation by the President of the Philippines of respondent Haydee
There did not seem to be any such problem. In any event, even assuming that difficulty, B. Yorac as Acting Chairman of the Commission on Elections is declared

78
UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as
such. This is without prejudice to the incumbent Associate Commissioners of the
Commission on Elections restoring her to the same position if they so desire, or choosing
another member in her place, pending the appointment of a permanent Chairman by the
President of the Philippines with the consent of the Commission on Appointments.: rd
SO ORDERED.

79
G. R. No. 105628 August 6, 1992 NATIVIDAD, NUEVA ECIJA; THE ELECTION REGISTRAR and APOLONIO
PASCUAL, respondents.
RODULFO SARMIENTO, petitioner,
vs. G.R. No. 105797 August 6, 1992
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF VIRAC and
JOSE "CITO" ALBERTO II, respondents. FRANCISCO G. RABAT, petitioner,
vs.
G.R. No. 105725 August 6, 1992 COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF DAVAO
ORIENTAL and ROSALIND YBASCO LOPEZ, respondents.
EMMANUEL R. ALFELOR, petitioner,
vs. G-R. No. 105919 August 6, 1992
COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS OF IRIGA CITY and
JOSE C. VILLANUEVA, respondents. DATU MOHAMMAD A. SINSUAT, petitioner,
vs.
G.R. No. 105727 August 6, 1992 COMMISSION ON ELECTIONS, DATU MICHAEL SINSUAT and ATTY. RUBEN
PLATON, respondents.
LEANDRO I. VERCELES, SR., petitioner,
vs. G.R. No. 105977 August 6, 1992
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF
CATANDUANES and ROSALIE ALBERTO-ESTACIO, respondents. ROSARIO A. VELASCO, petitioner,
vs.
G.R. No. 105730 August 6, 1992 COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF TERNATE,
CAVITE, and CONDRADO LINDO, respondents.
JESUS TYPOCO, JR., petitioner,
vs. RESOLUTION
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF CAMARINES
NORTE, and MUNICIPAL BOARD OF CANVASSERS OF JOSE PANGANIBAN,
CAMARINES NORTE, respondents.
DAVIDE, JR., J.:
G.R. No. 105771 August 6, 1992
The special civil actions for certiorari hereby jointly resolved, filed under Rule 65 of the
ALBERTO U. GENOVA, JR., petitioner, Rules of Court, seek to set aside the Resolutions of respondent Commission on Elections
vs. (COMELEC) in the following Special Cases (SPC):
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CABUSAO,
NEBRIDO F. SANTIAGO, and EUGENIO AGUILAR, respondents.
1) G.R. No. 105628 — SPC No. 92-266 granting the appeal from the
ruling of the Municipal Board of Canvassers of Virac, Catanduanes
G.R. No. 105778 August 6, 1992 which ordered the exclusion from the canvass of one (1) election
return;
MARIO S. MANLICLIC, petitioner,
vs. 2) G.R. No. 105725 — SPC No. 92-323 reversing the ruling of the City
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GEN. Board of Canvassers of Iriga City which ordered the exclusion from
NATIVIDAD, NUEVA ECIJA, BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. the canvass of six (6) election returns and in UND No. 92-243 ordering
12-A AND 13, BARANGAY MATAAS NA KAHOY, GEN. NATIVIDAD, NUEVA ECIJA; the said Board of Canvassers to include in the canvass the election
BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. 15-A, BARANGAY PICALEON, returns involved therein;
GEN. NATIVIDAD, NUEVA ECIJA; PRECINCT NO. 25-A OF SAPANG BATO, GEN.

80
3) G.R. No. 105727 — SPC No. 92-288 dismissing the appeal of division, provided that motions for reconsideration of decisions shall be
petitioner from the ruling of the Provincial Board of Canvassers of decided by the Commission en banc. (Emphasis supplied).
Catanduanes which ordered the inclusion in the canvass the
certificate of canvass for the municipality of Virac, excluding the The 1973 Constitution prescribed another rule. Its Section 3, subdivision C of Article XII
returns from 48 precincts; provided as follows:

4) G.R. No. 105730 — SPC No. 92-315 affirming the ruling of the Sec. 3. The Commission on Elections may sit en banc or in three
Municipal Board of Canvassers of Jose Panganiban, Camarines Norte divisions. All election cases may be heard and decided by divisions,
which dismissed petitioner's opposition to the composition of the said except contests involving Members of the Batasang Pambansa, which
Municipal Board of Canvassers; shall be heard and decided en banc. . . .

5) G.R. No. 105771 — SPC No. 92-271 affirming the ruling of the It is clear from the abovequoted provision of the 1987 Constitution that election cases
Municipal Board of Canvassers of Cabusao, Camarines Sur which, include pre-proclamation controversies, and all such cases must first be heard and
among others, rejected petitioner's objection to certain election decided by a Division of the Commission. The Commission, sitting en banc, does not have
returns; the authority to hear and decide the same at the first instance. In the COMELEC RULES
OF PROCEDURE, pre-proclamation cases are classified as Special Cases 1 and, in
6) G.R. No. 105778 — SPC No. 92-039 dismissing said case for non- compliance with the above provision of the Constitution, the two (2) Divisions of the
compliance with Section 20 of R.A. No. 7166; Commission are vested with the authority to hear and decide these Special Cases. 2 Rule
27 thereof governs Special Cases; specifically, Section 9 of the said Rule provides that
7) G.R. No. 105797 — SPC No. 92-153 affirming the rulings of the appeals from rulings of the Board of Canvassers are cognizable by any of the Divisions to
Provincial Board of Canvassers of Davao Oriental which rejected which they are assigned and not by the Commission en banc. Said Section reads:
petitioner's objections to the canvass of some certificates of canvass;
Sec. 9. Appeals from rulings of Board of Canvassers. — (a) A party
8) G.R. No. 105919 — SPC No. 92-293 dismissing petitioner's appeal aggrieved by an oral ruling of the board of canvassers who had stated
from the ruling of the Municipal Board of Canvassers of Upi Nuro, orally his intent to appeal said ruling shall, within five days following
Maguindanao; receipt of a copy of the written ruling of the board of canvassers, file
with the Commission a verified appeal, furnishing a copy thereof to
the board of canvassers and the adverse party.
9) G.R. No. 105977 — SPC No. 92-087 denying the amended pre-
proclamation petition, which is an appeal from the rulings of the
Municipal Board of Canvassers of Ternate, Cavite, and denying a (b) The appeal filed with the Commission shall be docketed by the
subsequent motion to resolve the issues raised in said amended Clerk of Court concerned.
petition.
(c) The answer/opposition shall be verified.
Comments had been filed only in G.R. No. 105727 and G.R. No. 105797. This Court
dispenses with the Comments in the other cases. (d) The Division to which the case is assigned shall immediately set the
case for hearing. (Emphasis supplied)
Petitioners impugn the challenged resolutions above specified as having been issued
with grave abuse of discretion in that, inter alia, the Commission, sitting en banc, took xxx xxx xxx
cognizance of and decided the appeals without first referring them to any of its Divisions.
A motion to reconsider the decision or resolution of the Division concerned may be filed
Section 3, subdivision C, Article IX of the 1987 Constitution expressly provides: within five (5) days from its promulgation. 3 The Clerk of Court of the Division shall,
within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner
Sec. 3. The Commission on Elections may sit en banc or in two of such fact; in turn, the latter shall certify the case to the Commission en
divisions, and shall promulgate its rules of procedure in order to banc. 4Thereafter, the Clerk of Court of the Commission shall calendar the motion for
expedite disposition of election cases, including pre-proclamation reconsideration for the resolution of the Commission en banc within ten (10) days from
controversies. All such election cases shall be heard and decided in the certification. 5

81
Indisputably then, the COMELEC en banc acted without jurisdiction, or with grave abuse
of discretion, when it resolved the appeals of petitioners in the abovementioned Special
Cases without first referring them to any of its Divisions. Said resolutions are, therefore,
null and void and must be set aside. Consequently, the appeals are deemed pending
before the Commission for proper referral to a Division.

A resolution directing the COMELEC to assign said Special Cases to the Divisions
pursuant to Section 8, Rule 3 of its Rules on assignment of cases would, logically, be in
order. However, Section 16 of R.A. No. 7166 6 provides that all pre-proclamation cases
pending before it shall be deemed terminated at the beginning of the term of the office
involved. The said section provides as follows:

xxx xxx xxx

All pre-proclamation cases pending before the Commission shall be


deemed terminated at the beginning of the term of the office involved
and the rulings of the boards of canvassers concerned shall be
deemed affirmed, without prejudice to the filing of a regular election
protest by the aggrieved party. However, proceedings may continue
when on the basis of the evidence thus far presented, the Commission
determines that the petition appears meritorious and accordingly
issues an order for the proceeding to continue or when an appropriate
order has been issued by the Supreme Court in a petition
for certiorari.

The terms of the offices involved in the Special Cases subject of these petitions
commenced at noon of 30 June 1992. 7 These cases have thus been rendered moot and
such a resolution would only be an exercise in futility.

Accordingly, the instant petitions are DISMISSED without prejudice to the filing by
petitioners of regular election protests. If the winning candidates for the positions
involved in the Special Cases subject of these petitions have already been proclaimed, the
running of the period to file the protests shall be deemed suspended by the pendency of
such cases before the COMELEC and of these petitions before this Court.

The Temporary Restraining Orders issued in G.R. No. 105727, G.R. No. 105730 and G.R.
No. 105797 are hereby LIFTED.

SO ORDERED.

82
G.R. No. 192289 January 8, 2013 1. to disqualify the foregoing candidates for not being registered voters of the
respective municipalities where they seek to be elected without prejudice to
KAMARUDIN K. IBRAHIM, Petitioner, their filing of an opposition within two (2) days from publication hereof; and
vs.
COMMISSION ON ELECTIONS and ROLAN G. BUAGAS, Respondents. 2. to file election offense cases against said candidates for violation of Sec. 74 in
relation to Sec. 262 of the Omnibus Election Code.7 (Italics ours)
DECISION
On January 8, 2010, Ibrahim and 50 other candidates filed a Petition/Opposition 8 to
REYES, J.: assail the Resolution dated December 22, 2009. In the Petition/Opposition, which was
docketed as SPA 10-002 (MP) LOCAL, it was stressed that some of those affected by the
Resolution dated December 22, 2009 had participated as candidates in the 2004 and
Before us is a Petition for Certiorari and Prohibition with Prayer for the Issuance of a 2007 elections. If indeed they were not registered voters, they should have been
Writ of Preliminary Injunction and/or Temporary Restraining Order1 filed under Rule 64 disqualified then. Further, it was emphasized that the candidates who filed the
of the Rules of Court assailing the following resolutions of the public respondent Petition/Opposition were permanent residents and were domiciled at the place where
Commission on Elections (COMELEC): they sought to be elected.

(a) Minute Resolution No. 09-09462 (December 22, 2009 Resolution), dated The COMELEC en banc denied the Petition/Opposition through the herein assailed
December 22, 2009, disqualifying the petitioner herein, Kamarudin K. Ibrahim Resolution dated May 6, 2010. The COMELEC declared that the Resolution dated
(Ibrahim), from the 2010 Vice-Mayoralty race in Datu Unsay, Maguindanao for December 22, 2009 was anchored on the certification, which was issued by Buagas and
supposedly not being a registered voter of the said municipality; and Acting Provincial Election Supervisor of Maguindanao, Estelita B. Orbase, stating that
Ibrahim, among other candidates, were not registered voters of Datu Unsay,
(b) Resolution3 (May 6, 2010 Resolution) issued on May 6, 2010, relative to SPA Maguindanao. The certification was issued in the performance of official duty, hence, the
Case No. 10-002 (MP) LOCAL, denying Ibrahim’s opposition4 to Resolution No. presumption of regularity attached to it in the absence of contrary evidence. Ibrahim and
09-0946. company failed to adduce evidence proving their allegations of registration and
residence.
Antecedent Facts
In the May 10, 2010 elections, during which time the Resolution dated May 6, 2010 had
On December 1, 2009, Ibrahim filed his certificate of candidacy to run as Vice-Mayor of not yet attained finality, Ibrahim obtained 446 votes, the highest number cast for the
Datu-Unsay in the May 10, 2010 elections. Thereafter, respondent Rolan G. Buagas Vice-Mayoralty race in Datu Unsay.9 However, the Municipal Board of Canvassers
(Buagas), then Acting Election Officer in the said municipality, forwarded to the (MBOC), which was then chaired by Buagas, suspended Ibrahim’s proclamation on the
COMELEC’s Law Department (Law Department) the names of 20 candidates who were basis of Section 5, Rule 2510 of the COMELEC Rules of Procedure.11
not registered voters therein. The list5 included Ibrahim’s name, along with those of two
candidates for mayor, one for vice-mayor and 16 for councilor. Issue

In a Memorandum6 dated December 10, 2009, the Law Department brought to the Whether or not the COMELEC en banc acted with grave abuse of discretion amounting to
attention of the COMELEC en banc the names of 56 candidates running for various posts lack or excess of jurisdiction when it issued the Resolutions dated December 22, 2009
in Maguindanao and Davao del Sur who were not registered voters of the municipalities and May 6, 2010.
where they sought to be elected. The Law Department recommended the retention of the
said names in the Certified List of Candidates, but for the COMELEC to motu propio Arguments in Support of the Instant Petition
institute actions against them for disqualification and for violation of election laws.
Thereafter, the COMELEC en banc issued the herein assailed December 22, 2009
Resolution approving, but with modification, the Law Ibrahim posits that the MBOC is a ministerial body created merely "to take the returns as
made from the different voting precincts, add them up and declare the result." 12 As long
as the returns are on their face genuine and are signed by the proper officers, sans
Department’s recommendation in the following wise: indications of being spurious and forged, they cannot be rejected on the ground of
alleged questions on the qualifications of voters and the existence of electoral frauds and
irregularities. Further, since Ibrahim received the highest number of votes for Vice-

83
Mayor, all possible doubts should be resolved in favor of his eligibility, lest the will of the use of the word "may" indicates that the suspension of a proclamation is merely
electorate, which should be the paramount consideration, be defeated.13 directory and permissive in nature and operates to confer discretion.27

In its Manifestation and Motion in Lieu of Comment,14 the Office of the Solicitor General The COMELEC’s Contentions
(OSG) proposes for the instant Petition to be granted. The OSG points out that in Cipriano
v. Commission on Elections,15 this court nullified, for lack of proper proceedings before In the Compliance28 filed with the court, the COMELEC assails as improper Ibrahim’s
their issuance, the resolutions issued by the COMELEC relative to the cancellation of a immediate resort to the instant Petition for Certiorari under Rule 64 of the Rules of
certificate of candidacy. The OSG emphasizes that similarly, Ibrahim was disqualified as a Court. Despite the issuance of the herein assailed resolutions, Ibrahim’s name was not
candidate without prior notice and hearing and he was given the chance to file an stricken off from the certified list of candidates during the May 10, 2010 elections and
opposition only after the issuance of the Resolution dated December 22, 2009. the votes cast for him were counted. Hence, no actual prejudice was caused upon him as
the COMELEC did not even direct the MBOC to suspend his proclamation. It was the
Further citing Bautista v. Comelec,16 the OSG argues that jurisdiction over petitions to MBOC’s ruling which resulted to the suspension of his proclamation. Such being the case,
cancel a certificate of candidacy pertains to the COMELEC sitting in division and not to Ibrahim should have instead filed a pre-proclamation controversy before the COMELEC
the COMELEC en banc. The COMELEC en banc can only take cognizance of petitions to anchored on the supposed illegality of the MBOC’s proceedings. Section 241 of Batas
cancel a certificate of candidacy when the required number of votes for a division to Pambansa Blg. 881 (BP 881), otherwise known as the Omnibus Election Code (OEC),
reach a decision, ruling, order or resolution is not obtained, or when motions for defines pre-proclamation controversies as referring to any questions "pertaining to or
reconsideration are filed to assail the said issuances of a division. affecting the proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties before the
The OSG likewise refers to Section 4(B)(3)17 of Resolution No. 869618 to stress that board or directly with the Commission, or any matter raised xxx in relation to the
generally, the COMELEC cannot motu propio file petitions for disqualification against preparation, transmission, receipt, custody and appreciation of the election returns." Had
candidates. Section 519 of the same resolution, however, provides the only exception to Ibrahim instituted instead a pre-proclamation controversy, the COMELEC could have
the foregoing, to wit, that certificates of candidacy of those running for the positions of corrected the MBOC’s ruling, if indeed, it was erroneous.
President, Vice-President, Senator and Party-List maybe denied due course and canceled
motu propio by the COMELEC based on grounds enumerated therein. While there was a The COMELEC further argues that Ibrahim was not denied due process as he and the
Petition for Disqualification20 filed by Bai Reshal S. Ampatuan against Ibrahim and other candidates referred to in the Resolutions dated December 22, 2009 and May 6,
company, it was not the basis for the COMELEC en banc’s issuance of the Resolutions 2010 were given the opportunity to file their opposition. Ibrahim did file his
dated December 22, 2009 and May 6, 2010. Instead, the certification issued by Buagas Petition/Opposition and sought reliefs from the COMELEC en banc. Now, he should not
was the basis for the subsequent actions of the Law Department and the COMELEC en be allowed to repudiate the proceedings merely because the result was adverse to him.
banc leading to the issuance of the herein assailed resolutions. Moreover, the OSG’s invocation of the doctrines enunciated in Bautista v. Comelec 29 is
misplaced because in the said case, there was a total absence of notice and hearing.
The OSG also invokes Section 1621 of COMELEC Resolution No. 867822 to assert that the
MBOC had no authority to order the suspension of Ibrahim’s proclamation. Upon motion, The COMELEC emphasizes that Ibrahim was undeniably not a registered voter in Datu
the suspension of a winning candidate’s proclamation can be ordered during the Unsay when he ran as Vice-Mayor in the May 10, 2010 elections. He cannot possess any
pendency of a disqualification case before the COMELEC. However, only the COMELEC, as mandate to serve as an elected official as by his act and willful misrepresentations, he
a tribunal, has the authority to issue orders relative to cases pending before it. The MBOC had deceived the electorate.
cannot substitute its own judgment for that of the COMELEC’s. The MBOC can suspend a
winning candidate’s proclamation only when an actual issue within the Board’s Our Ruling
jurisdiction arises in the course of conducting a canvass. The aforementioned issues
include the commission of violent and terrorist acts or the occurrence of a calamity at the
canvassing site. Absent any determination of irregularity in the election returns, as well We grant the instant Petition.
as an order enjoining the canvassing and proclamation of the winner, it is a mandatory
and ministerial duty of the MBOC concerned to count the votes based on such returns Before resolving the merits of the petition, the court shall first dispose of the procedural
and declare the result.23 issue raised by the COMELEC.

It is also the OSG’s position that Section 5, Rule 2524 of the COMELEC Rules of Procedure Ibrahim properly resorted to the instant Petition filed under Rule 64 of the Rules of
was irregularly worded for using the word "shall" when Section 625 of Republic Act (R.A.) Court to assail the Resolutions dated December 22, 2009 and May 6, 2010 of the
No. 6646,26 which the rules seek to implement, merely employed the word "may". The COMELEC en banc.

84
The COMELEC seeks the dismissal of the instant Petition on the basis of a technical Rules of Court, the said resolutions can be reviewed by way of filing before us a petition
ground, to wit, that Ibrahim’s resort to a petition for certiorari filed under Rule 64 of the for certiorari. Besides, the issues raised do not at all relate to alleged irregularities in the
Rules of Court to challenge the Resolutions dated December 22, 2009 and May 6, 2010 is preparation, transmission, receipt, custody and appreciation of the election returns or to
improper. Ibrahim should have instead filed before the COMELEC a pre-proclamation the composition and proceedings of the board of canvassers. What the instant Petition
controversy to allow the latter to correct the MBOC’s ruling if it was indeed erroneous. challenges is the authority of the MBOC to suspend Ibrahim’s proclamation and of the
COMELEC en banc to issue the assailed resolutions. The crux of the instant Petition does
The claim fails to persuade. not qualify as one which can be raised as a pre-proclamation controversy.

Section 7, Article IX of the 1987 Constitution in part substantially provides that any The COMELEC en banc is devoid of authority to disqualify Ibrahim as a candidate for the
decision, order or ruling of any of the Constitutional Commissions may be brought for position of Vice-Mayor of Datu Unsay.
review to the Supreme Court on certiorari within 30 days from receipt of a copy thereof.
The orders, ruling and decisions rendered or issued by the COMELEC en banc must be Section 3(C), Article IX of the 1987 Constitution explicitly provides:
final and made in the exercise of its adjudicatory or quasi-judicial power.30 Further,
Section 1, Rule 64 of the Rules of Court states that it shall govern the review of final Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
judgments and orders or resolutions of the COMELEC and the Commission on Audit. promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
A pre-proclamation controversy is defined in Section 241 of the OEC as referring to "any decided in division, provided that motions for reconsideration of decisions shall be
question pertaining to or affecting the proceedings of the board of canvassers which may decided by the Commission en banc. (Italics ours)
be raised by any candidate or by any registered political party or coalition of parties
before the board or directly with the Commission, or any matter raised under Sections Further, the circumstances obtaining in Bautista v. Comelec35 cited by the OSG in its
233,31 234,32 23533 and 23634 in relation to the preparation, transmission, receipt, Manifestation are similar to those attendant to the instant Petition. In Bautista, the
custody and appreciation of the election returns." Section 243 of the OEC restrictively election officer reported to the Law Department that Bautista was ineligible to run as a
enumerates as follows the issues which can be raised in a pre-proclamation controversy: candidate by reason of his being an unregistered voter. The Law Department
recommended to the COMELEC en banc to deny due course or cancel Bautista’s
(a) Illegal composition or proceedings of the board of canvassers; certificate of candidacy. The COMELEC en banc adopted the recommendation and
consequently issued a resolution. In the said case, this Court discussed the COMELEC en
(b) The canvassed election returns are incomplete, contain material defects, banc’s jurisdiction over petitions for disqualification, for denial of due course, or
appear to be tampered with or falsified, or contain discrepancies in the same cancellation of certificates of candidacy in the following wise:
returns or in other authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of this Code; In Garvida v. Sales, Jr., the Court held that it is the COMELEC sitting in division and not
the COMELEC en banc which has jurisdiction over petitions to cancel a certificate of
(c) The election returns were prepared under duress, threats, coercion, or candidacy. The Court held:
intimidation, or they are obviously manufactured or not authentic; and
The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due
(d) When substitute or fraudulent returns in controverted polling places were course to or cancel a certificate of candidacy, viz:
canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates. "Sec.78. Petition to deny due course to or cancel a certificate of candidacy.1âwphi1  A
verified petition seeking to deny due course or to cancel a certificate of candidacy may be
The illegality of the proceedings of the board of canvassers is the first issue which may filed by any person exclusively on the ground that any material representation contained
be raised in a pre-proclamation controversy. To illustrate, the proceedings are to be therein as required under Section 74 hereof is false. The petition may be filed at any time
considered as illegal when the board is constituted not in accordance with law, or is not later than twenty-five days from the time of filing of the certificate of candidacy and
composed of members not enumerated therein, or when business is transacted sans a shall be decided, after due notice and hearing, not later than fifteen days before election."
quorum.
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition
In the case at bar, the now assailed Resolutions dated December 22, 2009 and May 6, to deny due course to or cancel a certificate of candidacy for an elective office may be
2010 were issued with finality by the COMELEC en banc. Under the Constitution and the filed with the Law Department of the COMELEC on the ground that the candidate has
made a false material representation in his certificate. The petition may be heard and
85
evidence received by any official designated by the COMELEC after which the case shall questions, belatedly objecting to the court’s jurisdiction in the event that the judgment or
be decided by the COMELEC itself. order subsequently rendered is adverse to him" is based on the doctrine of estoppel by
laches. We are aware of that doctrine first enunciated by this Court in Tijam v.
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of Sibonghanoy. In Tijam, the party-litigant actively participated in the proceedings before
candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division the lower court and filed pleadings therein. Only 15 years thereafter, and after receiving
may only be entertained by the COMELEC en banc when the required number of votes to an adverse Decision on the merits from the appellate court, did the party-litigant
reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, question the lower court’s jurisdiction. Considering the unique facts in that case, we held
only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in that estoppel by laches had already precluded the party-litigant from raising the
Division are resolved by the COMELEC en banc. question of lack of jurisdiction on appeal. In Figueroa v. People, we cautioned that Tijam
must be construed as an exception to the general rule and applied only in the most
exceptional cases whose factual milieu is similar to that in the latter case. 38 (Citations
xxxx omitted and italics ours)

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the As enunciated above, estoppel by laches can only be invoked in exceptional cases with
denial or cancellation of a certificate of candidacy must be heard summarily after due factual circumstances similar to those in Tijam.39 In the case now before us, the assailed
notice. It is thus clear that cancellation proceedings involve the exercise of the quasi- resolutions were issued on December 22, 2009 and May 6, 2010. The instant Petition,
judicial functions of the COMELEC which the COMELEC in division should first decide. which now raises, among others, the issue of the COMELEC en banc’s jurisdiction, was
More so in this case where the cancellation proceedings originated not from a petition filed on June 3, 2010. With the prompt filing of the instant Petition, Ibrahim can hardly be
but from a report of the election officer regarding the lack of qualification of the considered as guilty of laches.
candidate in the barangay election. The COMELEC en banc cannot short cut the
proceedings by acting on the case without a prior action by a division because it denies
due process to the candidate.36 (Citation omitted and italics ours) Ibrahim was not denied due process.

In the case at bar, the COMELEC en banc, through the herein assailed resolutions, Interminably, we have declared that deprivation of due process cannot be successfully
ordered Ibrahim’s disqualification even when no complaint or petition was filed against invoked where a party was given the chance to be heard on his motion for
him yet. Let it be stressed that if filed before the conduct of the elections, a petition to reconsideration.40
deny due course or cancel a certificate of candidacy under Section 78 of the OEC is the
appropriate petition which should have been instituted against Ibrahim considering that In the case before us, Ibrahim was afforded the chance to file an opposition to the
his allegedly being an unregistered voter of Datu Unsay disqualified him from running as assailed resolutions. Nonetheless, even if due process was substantially observed, the
Vice-Mayor. His supposed misrepresentation as an eligible candidate was an act falling assailed resolutions remain null and void for want of authority on the part of the
within the purview of Section 78 of the OEC. Moreover, even if we were to assume that a COMELEC en banc to take cognizance of a matter which should have instead been
proper petition had been filed, the COMELEC en banc still acted with grave abuse of referred to one of its divisions.
discretion when it took cognizance of a matter, which by both constitutional prescription
and jurisprudential declaration, instead aptly pertains to one of its divisions. The MBOC has no authority to suspend Ibrahim’s proclamation especially since the
herein assailed resolutions, upon which the suspension was anchored, were issued by
Ibrahim is not estopped from challenging the COMELEC en banc’s jurisdiction to issue the COMELEC en banc outside the ambit of its jurisdiction.
the assailed resolutions.
Mastura v. COMELEC41 is emphatic that:
In Republic v. Bantigue Point Development Corporation,37 we stated:
(T)he board of canvassers is a ministerial body. It is enjoined by law to canvass all votes
The rule is settled that lack of jurisdiction over the subject matter may be raised at any on election returns submitted to it in due form. It has been said, and properly, that its
stage of the proceedings. Jurisdiction over the subject matter is conferred only by the powers are limited generally to the mechanical or mathematical function of ascertaining
Constitution or the law. It cannot be acquired through a waiver or enlarged by the and declaring the apparent result of the election by adding or compiling the votes cast
omission of the parties or conferred by the acquiescence of the court. Consequently, for each candidate as shown on the face of the returns before them, and then declaring or
questions of jurisdiction may be cognizable even if raised for the first time on appeal. certifying the result so ascertained. x x x.42 (Italics ours)

The ruling of the Court of Appeals that "a party may be estopped from raising such
jurisdictional question if he has actively taken part in the very proceeding which he
86
The simple purpose and duty of the canvassing board is to ascertain and declare the
apparent result of the voting while all other questions are to be tried before the court or
other tribunal for contesting elections or in quo warranto proceedings.43

In the case at bar, the MBOC motu propio suspended Ibrahim’s proclamation when the
issue of the latter’s eligibility is a matter which the board has no authority to resolve.
Further, under Section 644 of R.A. 6646, the COMELEC and not the MBOC has the
authority to order the suspension of a winning candidates’s proclamation. Such
suspension can only be ordered upon the motion of a complainant or intervenor relative
to a case for disqualification, or a petition to deny due course or cancel a certificate of
candidacy pending before the COMELEC, and only when the evidence of the winning
candidate’s guilt is strong. Besides, the COMELEC en banc itself could not have properly
ordered Ibrahim’s disqualification because in taking cognizance of the matter, it had
already exceeded its jurisdiction.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED. The


December 22, 2009 and May 6, 2010 Resolutions issued by the COMELEC en banc is
ANNULLED and SET ASIDE. Consequently, the suspension by the MBOC of Ibrahim’s
proclamation on the basis of the herein assailed resolutions is likewise ANNULLED and
SET ASIDE. In the absence of a judgment, order or resolution relative to another action or
petition finally disqualifying Ibrahim, denying due course or cancelling his certificate of
candidacy, the MBOC of Datu Unsay is directed to convene within ten (10) days from
receipt hereof and to proclaim Ibrahim as the duly-elected Vice-Mayor of the said
municipality.

SO ORDERED.

87
[G.R. No. 139853. September 5, 2000] petitioner has no appeal or any plain, speedy and adequate remedy in the ordinary
course of law. Accordingly, petitioner properly filed the instant petition
for certiorari with this Court.
On September 21, 1999, we required the parties to maintain the status quo
FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION ON ELECTIONS, ante prevailing as of September 17, 1999, the date of filing of this petition.
REGIONAL TRIAL COURT OF PINAMALAYAN, ORIENTAL MINDORO
(Branch 42) and ANGEL M. SAULONG, respondents. Before us, petitioner asserts that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction:
RESOLUTION [I]
QUISUMBING, J.:
... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE
RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic) LACK OF JURISDICTION
This special civil action for certiorari seeks to annul the resolution promulgated on
OVER THE SAME BY REASON OF THE FAILURE OF THE PRIVATE RESPONDENT
August 31, 1999, in COMELEC special relief case SPR No. 10-99. The resolution dismissed
TO PAY ALL THE REQUISITE FILING FEES.
petitioner's petition to set aside the orders of the Regional Trial Court of Pinamalayan,
Oriental Mindoro, dated October 1, 1998 and February 1, 1999, which denied
petitioner's motion to dismiss the election protest filed by private respondent against [II]
petitioner and the motion for reconsideration, respectively.
... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS PRIVATE
Petitioner and private respondent were both candidates for mayor of the
RESPONDENT'S ELECTION PROTEST DESPITE THE INSUFFICIENCY OF HIS
municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14,
PETITION IN FORM AND SUBSTANCE AND ITS FAILURE TO STATE A CAUSE OF
1998, the municipal board of canvassers proclaimed petitioner Ferdinand Thomas Soller
ACTION.
duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a [III]
"petition for annulment of the proclamation/exclusion of election return". [1] On May 25,
1998, private respondent filed with the Regional Trial Court of Pinamalayan, Oriental
...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE ELECTION
Mindoro, an election protest against petitioner docketed as EC-31-98.
PROTEST BELOW ON THE GROUNDS OF FORUM-SHOPPING AND FAILURE TO
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also COMPLY WITH THE SUPREME COURT CIRCULAR REQUIRING A TRUTHFUL
moved to dismiss private respondent's protest on the ground of lack of jurisdiction, CERTIFICATION OF NON-FORUM SHOPPING DESPITE INCONTROVERTIBLE
forum-shopping, and failure to state cause of action.[2] EVIDENCE THEREOF.[4]

On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private


In our view, notwithstanding petitioner's formulation of issues, the principal
respondent.
question presented for our resolution is whether or not public respondent COMELEC
On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner gravely abused its discretion amounting to lack or excess of jurisdiction in not ordering
moved for reconsideration but said motion was denied. Petitioner then filed with the the dismissal of private respondent's election protest.
COMELEC a petition for certiorari contending that respondent RTC acted without or in
At the outset, even if not squarely raised as an issue, this Court needs to resolve the
excess of jurisdiction or with grave abuse of discretion in not dismissing private
question concerning COMELEC's jurisdiction. Unless properly resolved, we cannot
respondent's election protest.
proceed further in this case.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The election
Section 3, Subdivision C of Article IX of the Constitution reads:
tribunal held that private respondent paid the required filing fee. It also declared that the
defect in the verification is a mere technical defect which should not bar the
determination of the merits of the case. The election tribunal stated that there was no "The Commission on Elections may sit en banc or in two divisions, and shall promulgate
forum shopping to speak of. its rules of procedure in order to expedite the disposition of election cases, including pre-
proclamation controversies.All such election cases shall be heard and decided in division,
Under the COMELEC Rules of Procedure, a motion for reconsideration of its en provided that motions for reconsideration of decision shall be decided by the
banc ruling is prohibited except in a case involving an election offense. [3] Since the Commission en banc."
present controversy involves no election offense, reconsideration is not possible and
88
Thus, in Sarmiento vs. COMELEC[5] and in subsequent cases,[6] we ruled that the Close scrutiny of the receipts will show that private respondent failed to pay the
COMELEC, sitting en banc, does not have the requisite authority to hear and decide filing fee of P300.00 for his protest as prescribed by the COMELEC rules. The amount of
election cases including pre-proclamation controversies in the first instance. This power P368.00 for which OR 7023752 was issued for the Judiciary Development Fund as shown
pertains to the divisions of the Commission. Any decision by the Commission en banc as by the entries in the cash book of the clerk of court.[11] Thus, only P32.00 with OR
regards election cases decided by it in the first instance is null and void. 7022478 credited to the general fund could be considered as filing fee paid by private
respondent for his protest. A court acquires jurisdiction over any case only upon the
As can be gleaned from the proceedings aforestated, petitioner's petition with the payment of the prescribed docket fee.[12]Patently, the trial court did not acquire
COMELEC was not referred to a division of that Commission but was, instead, submitted jurisdiction over private respondent's election protest. Therefore, COMELEC gravely
directly to the Commission en banc. The petition for certiorari assails the trial court's erred in not ordering the dismissal of private respondent's protest case.
order denying the motion to dismiss private respondent's election protest. The
questioned order of the trial court is interlocutory because it does not end the trial We have in a string of cases[13] had the occasion to rule on this matter. In Loyola
court's task of adjudicating the parties' contentions and determining their rights and vs. COMELEC, the clerk of court assessed private respondent therein the incorrect filing
liabilities as regards each other.[7] In our view, the authority to resolve petition fee of P32.00 at the time of filing of the election protest. Upon filing his counter-protest,
for certiorari involving incidental issues of election protest, like the questioned order of petitioner was assessed to pay the same amount. Subsequently, the trial court remedied
the trial court, falls within the division of the COMELEC and not on the COMELEC en the situation by directing the parties to pay the balance of P268.00. On review, we held
banc. Note that the order denying the motion to dismiss is but an incident of the election that the lapse was not at all attributable to private respondent and there was substantial
protest. If the principal case, once decided on the merits, is cognizable on appeal by a compliance with the filing fee requirement. The error lies in the Clerk's misapplication
division of the COMELEC, then, there is no reason why petitions for certiorari relating to and confusion regarding application of Section 9 of Rule 35 of the COMELEC Rules of
incidents of election protest should not be referred first to a division of the COMELEC for Procedure and this Court's resolution dated September 4, 1990 amending Rule 141 of
resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance the Rules of Court. An election protest falls within the exclusive original jurisdiction of
of petitioner's petition in the first instance. the Regional Trial Court, in which case the Rules of Court will apply, and that the
COMELEC Rules of Procedure is primarily intended to govern election cases before that
Since public respondent COMELEC had acted without jurisdiction in this case, the tribunal. But the Court declared that this decision must not provide relief to parties in
petition herein is without doubt meritorious and has to be granted. But in order to future cases involving inadequate payment of filing fees in election cases. Our decisions
write finis to the controversy at bar, we are constrained to also resolve the issues raised in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or mistake in
by petitioner, seriatim. any failure to pay the full amount of filing fees in election cases.
Petitioner contends that private respondent's protest should have been dismissed In Miranda vs. Castillo, private respondents each paid per assessment the amount of
outright as the latter failed to pay the amount of P300.00 filing fee required under the P465.00 as filing fees. Of this amount, P414.00 was allocated for the JDF, P 10.00 for legal
COMELEC rules.[8] Petitioner's contention is supported by Section 9, Rule 35 of the research fund, P5.00 for victim compensation fee, and only the amount of P32.00 was
COMELEC Rules of Procedure[9] and corresponding receipts[10] itemized as follows: regarded as filing fee. The Court considered the amount as partial payment of the
P300.00 filing fee under the COMELEC rules and required payment of the deficiency in
P368.00 - Filing fee in EC 31-98, O.R. 7023752; the amount of P268.00. But then again, the Court reiterated the caveat that in view
of Pahilan, Gatchalian, and Loyola cases we would no longer tolerate any mistake in the
P 32.00 - Filing fee in EC 31-98, O.R. 7022478; payment of the full amount of filing fees for election cases filed after the promulgation of
the Loyola decision on March 27, 1997.
P 46.00 - Summons fee in EC 31-98, O.R. 7023752; Clearly then, errors in the payment of filing fees in election cases is no longer
excusable. And the dismissal of the present case for that reason is, in our view, called for.
P 4.00 - Summons fee in EC 31-98, O.R. 4167602; Besides, there is another reason to dismiss private respondent's election
protest. We note that the verification of aforesaid protest is defective. In the verification,
P 10.00 -- Legal Research Fund fee, O.R. 2595144, and; private respondent merely stated that he caused the preparation of his petition and he
has read and understood all the allegations therein.[14] Certainly, this is insufficient as
P 5.00 -- Victim Compensation Fund, O.R. 4167979 private respondent failed to state that the contents of his election protest are true and
correct of his persoral knowledge.[15] Since the petition lacks proper verification,
it should be treated as an unsigned pleading and must be dismissed.[16]
-----------
Further, we find that private respondent did not comply with the required
P465.00 certification against forum shopping. Private respondent successively filed a "petition for
annulment of the proclamation/exclusion of election return" and an election protest. Yet,

89
he did not disclose in his election protest that he earlier filed a petition for annulment of
proclamation/exclusion of election returns.
It could be argued that private respondent's petition for annulment of
proclamation/exclusion of election returns was a pre-proclamation case. The issues
raised in that petition pertain to the preparation and appreciation of election returns and
the proceedings of the municipal board of canvassers. But note that such petition was
filed after the proclamation of petitioner as the winning candidate, thus, the petition was
no longer viable, for pre-proclamation controversies may no longer be entertained by the
COMELEC after the winning candidates have been proclaimed. It might even be claimed
with some reason that private respondent, by resorting to the wrong remedy, abandoned
his pre-proclamation case earlier filed.[17]
Nonetheless, private respondent's belief that he no longer had a pending case
before the COMELEC because he deemed it abandoned upon filing of his protest is not a
valid reason for non-disclosure of the pendency of said pre-proclamation case. Note that
the COMELEC dismissed private respondent's pre-proclamation case only on July 3,
1998. Before the dismissal, said case was legally still pending resolution. Similarly, the
fact that private respondent's protest was not based on the same cause of action as his
pre-proclamation case is not a valid excuse for not complying with the required
disclosure in the certification against forum shopping. The requirement to file a
certificate of non-forum shopping is mandatory. Failure to comply with this requirement
cannot be excused by the fact that a party is not guilty of forum shopping. The rule
applies to any complaint, petition, application or other initiatory pleading, regardless of
whether the party filing it has actually committed forum shopping. Every party filing any
initiatory pleading is required to swear under oath that he has not and will not commit
forum shopping. Otherwise we would have an absurd situation, as in this case, where the
parties themselves would be the judge of whether their actions constitute a violation of
the rule, and compliance therewith would depend on their belief that they might or
might not have violated the requirement. Such interpretation of the requirement would
defeat the very purpose of the rule.[18]
Taking into account all the foregoing circumstances in this case, we are persuaded
that respondent Regional Trial Court erred and committed grave abuse of discretion in
failing to dismiss private respondent's election protest against petitioner. And to
reiterate, respondent COMELEC en banc had no jurisdiction to affirm the refusal of
respondent trial court to dismiss private respondent's election protest.
WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of
public respondent COMELEC is hereby ANNULLED AND SET ASIDE. The temporary
restraining order issued by this Court on September 21, 1999, is made permanent. The
Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to
DISMISS election protest EC No. 31-98. Costs against private respondent.
SO ORDERED.

90
[G.R. No. 133486. January 28, 2000] Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with
grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON the issuance of a restraining order enjoining the petitioner or any [other group], its
ELECTIONS, respondent. agents or representatives from conducting exit polls during the x x x May 11 elections."[3]

DECISION In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to
seek a reconsideration of the assailed Comelec Resolution.
PANGANIBAN, J.:
The Court's Ruling
The holding of exit polls and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and The Petition[5] is meritorious.
credible elections. Quite the contrary, exit polls -- properly conducted and publicized --
can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored Procedural Issues: Mootness and Prematurity
countermeasures may be prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without transgressing in any manner the The solicitor general contends that the petition is moot and academic, because the May
fundamental rights of our people. 11, 1998 election has already been held and done with. Allegedly, there is no longer any
actual controversy before us.
The Case and the Facts
The issue is not totally moot. While the assailed Resolution referred specifically to the
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing May 11, 1998 election, its implications on the people's fundamental freedom of
Commission on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21, expression transcend the past election. The holding of periodic elections is a basic
1998. In the said Resolution, the poll body feature of our democratic government. By its very nature, exit polling is tied up with
elections. To set aside the resolution of the issue now will only postpone a task that could
"RESOLVED to approve the issuance of a restraining order to stop well crop up again in future elections.[6]
ABS-CBN or any other groups, its agents or representatives from
conducting such exit survey and to authorize the Honorable Chairman In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has
to issue the same." the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the extent
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable of protection given by constitutional guarantees."[7] Since the fundamental freedoms of
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct speech and of the press are being invoked here, we have resolved to settle, for the
radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote guidance of posterity, whether they likewise protect the holding of exit polls and the
during the elections for national officials particularly for President and Vice President, dissemination of data derived therefrom.
results of which shall be [broadcast] immediately."[2] The electoral body believed that
such project might conflict with the official Comelec count, as well as the unofficial quick The solicitor general further contends that the Petition should be dismissed for
count of the National Movement for Free Elections (Namfrel). It also noted that it had not petitioner's failure to exhaust available remedies before the issuing forum, specifically
authorized or deputized Petitioner ABS-CBN to undertake the exit survey. the filing of a motion for reconsideration.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by This Court, however, has ruled in the past that this procedural requirement may be
petitioner. We directed the Comelec to cease and desist, until further orders, from glossed over to prevent a miscarriage of justice,[8] when the issue involves the principle
implementing the assailed Resolution or the restraining order issued pursuant thereto, if of social justice or the protection of labor,[9] when the decision or resolution sought to be
any. In fact, the exit polls were actually conducted and reported by media without any set aside is a nullity,[10] or when the need for relief is extremely urgent and certiorari is
difficulty or problem. the only adequate and speedy remedy available.[11]

The Issues The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998,
only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy

91
thereof only on May 4, 1998. Under the circumstances, there was hardly enough the voters and would undermine the official tabulation of votes conducted by the
opportunity to move for a reconsideration and to obtain a swift resolution in time for the Commission, as well as the quick count undertaken by the Namfrel.
May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court through a special civil Admittedly, no law prohibits the holding and the reporting of exit polls. The question can
action for certiorari is therefore justified. thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally
ban exit polls? In answering this question, we need to review quickly our jurisprudence
Main Issue: Validity of Conducting Exit Polls on the freedoms of speech and of the press.

An exit poll is a species of electoral survey conducted by qualified individuals or groups Nature and Scope of Freedoms of Speech and of the Press
of individuals for the purpose of determining the probable result of an election by
confidentially asking randomly selected voters whom they have voted for, immediately The freedom of expression is a fundamental principle of our democratic government. It
after they have officially cast their ballots. The results of the survey are announced to the "is a 'preferred' right and, therefore, stands on a higher level than substantive economic
public, usually through the mass media, to give an advance overview of how, in the or other liberties. x x x [T]his must be so because the lessons of history, both political and
opinion of the polling individuals or organizations, the electorate voted. In our electoral legal, illustrate that freedom of thought and speech is the indispensable condition of
history, exit polls had not been resorted to until the recent May 11, 1998 elections. nearly every other form of freedom."[14]

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible Our Constitution clearly mandates that no law shall be passed abridging the freedom of
member of the mass media, committed to report balanced election-related data, speech or of the press.[15] In the landmark case Gonzales v. Comelec,[16] this Court
including "the exclusive results of Social Weather Station (SWS) surveys conducted in enunciated that at the very least, free speech and a free press consist of the liberty to
fifteen administrative regions." discuss publicly and truthfully any matter of public interest without prior restraint.

It argues that the holding of exit polls and the nationwide reporting of their results are The freedom of expression is a means of assuring individual self-fulfillment, of attaining
valid exercises of the freedoms of speech and of the press. It submits that, in precipitately the truth, of securing participation by the people in social and political decision-making,
and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec and of maintaining the balance between stability and change.[17] It represents a profound
gravely abused its discretion and grossly violated the petitioner's constitutional rights. commitment to the principle that debates on public issues should be uninhibited, robust,
and wide open.[18] It means more than the right to approve existing political beliefs or
Public respondent, on the other hand, vehemently denies that, in issuing the assailed economic arrangements, to lend support to official measures, or to take refuge in the
Resolution, it gravely abused its discretion. It insists that the issuance thereof was existing climate of opinion on any matter of public consequence. And paraphrasing the
"pursuant to its constitutional and statutory powers to promote a clean, honest, orderly eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the
and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy thought we hate, no less than the thought we agree with.
and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly
confuse and influence the voters," and that the surveys were designed "to condition the Limitations
minds of people and cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."
The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and
Public respondent further argues that "exit surveys indirectly violate the constitutional unrestrained at all times and under all circumstances.[20] They are not immune to
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the regulation by the State in the exercise of its police power.[21] While the liberty to think is
contents of ballots," in violation of Section 2, Article V of the Constitution; [12] and relevant absolute, the power to express such thought in words and deeds has limitations.
provisions of the Omnibus Election Code.[13] It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to regulation by the State in
the legitimate exercise of its police power," such as in the present case. In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests
in determining the validity of restrictions to such freedoms, as follows:
The solicitor general, in support of the public respondent, adds that the exit polls pose a
"clear and present danger of destroying the credibility and integrity of the electoral "These are the 'clear and present danger' rule and the 'dangerous
process," considering that they are not supervised by any government agency and can in tendency' rule. The first, as interpreted in a number of cases, means
general be manipulated easily. He insists that these polls would sow confusion among that the evil consequence of the comment or utterance must be
'extremely serious and the degree of imminence extremely high'

92
before the utterance can be punished. The danger to be guarded restriction on alleged First Amendment freedoms is no greater than is
against is the 'substantive evil' sought to be prevented. x x x"[23] essential to the furtherance of that interest."[38]

"The 'dangerous tendency' rule, on the other hand, x x x may be Hence, even though the government's purposes are legitimate and substantial, they
epitomized as follows: If the words uttered create a dangerous cannot be pursued by means that broadly, stifle fundamental personal liberties, when the
tendency which the state has a right to prevent, then such words are end can be more narrowly achieved.[39]
punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such The freedoms of speech and of the press should all the more be upheld when what is
acts be advocated in general terms. Nor is it necessary that the sought to be curtailed is the dissemination of information meant to add meaning to the
language used be reasonably calculated to incite persons to acts of equally vital right of suffrage.[40]We cannot support any ruling or order "the effect of
force, violence, or unlawfulness. It is sufficient if the natural tendency which would be to nullify so vital a constitutional right as free speech."[41] When faced
and probable effect of the utterance be to bring about the substantive with borderline situations in which the freedom of a candidate or a party to speak or the
evil which the legislative body seeks to prevent."[24] freedom of the electorate to know is invoked against actions allegedly made to assure
clean and free elections, this Court shall lean in favor of freedom. For in the ultimate
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly analysis, the freedom of the citizen and the State's power to regulate should not be
did in its earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of antagonistic. There can be no free and honest elections if, in the efforts to maintain them,
Manila;[26] as well as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v. the freedom to speak and the right to know are unduly curtailed.[42]
Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni Cristo v.
MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the True, the government has a stake in protecting the fundamental right to vote by
Court echoed the words of justice Holmes: "The question in every case is whether the providing voting places that are safe and accessible. It has the duty to secure the secrecy
words used are used in such circumstances and are of such a nature as to create a clear of the ballot and to preserve the sanctity and the integrity of the electoral process.
and present danger that they will bring about the substantive evils that Congress has a However, in order to justify a restriction of the people's freedoms of speech and of the
right to prevent. It is a question of proximity and degree."[32] press, the state's responsibility of ensuring orderly voting must far outweigh them.

A limitation on the freedom of expression may be justified only by a danger of These freedoms have additional importance, because exit polls generate important
such substantive character that the state has a right to prevent. Unlike in the "dangerous research data which may be used to study influencing factors and trends in voting
tendency" doctrine, the danger must not only be clear but also present. "Present" refers behavior. An absolute prohibition would thus be unreasonably restrictive, because it
to the time element; the danger must not only be probable but very likely to be effectively prevents the use of exit poll data not only for election-day projections, but
inevitable.[33] The evil sought to be avoided must be so substantive as to justify a clamp also for long-term research.[43]
over one's mouth or a restraint of a writing instrument.[34]
Comelec Ban on Exit Polling
Justification for a Restriction
In the case at bar, the Comelec justifies its assailed Resolution as having been issued
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and
restriction is treated an exemption. The power to exercise prior restraint is not to be peaceful election. While admitting that "the conduct of an exit poll and the broadcast of
presumed; rather the presumption is against its validity.[35] And it is respondent's the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress
burden to overthrow such presumption. Any act that restrains speech should be greeted freedom may be curtailed if the exercise thereof creates a clear and present danger to the
with furrowed brows,[36] so it has been said. community or it has a dangerous tendency." It then contends that "an exit poll has the
tendency to sow confusion considering the randomness of selecting interviewees, which
To justify a restriction, the promotion of a substantial government interest must be further make[s] the exit poll highly unreliable. The probability that the results of such
clearly shown.[37] Thus: exit poll may not be in harmony with the official count made by the Comelec x x x is ever
present. In other words, the exit poll has a clear and present danger of destroying the
"A government regulation is sufficiently justified if it is within the credibility and integrity of the electoral process."
constitutional power of the government, if it furthers an important or
substantial government interest; if the governmental interest is Such arguments are purely speculative and clearly untenable. First, by the very nature of
unrelated to the suppression of free expression; and if the incidental a survey, the interviewees or participants are selected at random, so that the results will
as much as possible be representative or reflective of the general sentiment or view of

93
the community or group polled. Second, the survey result is not meant to replace or be at results to be obtained therefrom. These measures, together with a general prohibition of
par with the official Comelec count. It consists merely of the opinion of the polling group disruptive behavior, could ensure a clean, safe and orderly election.
as to who the electorate in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here are the credibility and the For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1)
integrity of the elections, which are exercises that are separate and independent from the communities are randomly selected in each province; (2) residences to be polled in such
exit polls. The holding and the reporting of the results of exit polls cannot undermine communities are also chosen at random; (3) only individuals who have already voted, as
those of the elections, since the former is only part of the latter. If at all, the outcome of shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no
one can only be indicative of the other. cameras of any sort; (5) the poll results are released to the public only on the day after
the elections.[49] These precautions, together with the possible measures earlier stated,
The Comelec's concern with the possible noncommunicative effect of exit polls -- may be undertaken to abate the Comelec's fear, without consequently and unjustifiably
disorder and confusion in the voting centers -- does not justify a total ban on them. stilling the people's voice.
Undoubtedly, the assailed Comelec Resolution is too broad, since its application
is without qualification as to whether the polling is disruptive or not.[44] Concededly, the With the foregoing premises, we conclude that the interest of the state in reducing
Omnibus Election Code prohibits disruptive behavior around the voting disruption is outweighed by the drastic abridgment of the constitutionally guaranteed
centers.[45] There is no showing, however, that exit polls or the means to interview voters rights of the media and the electorate. Quite the contrary, instead of disrupting elections,
cause chaos in voting centers. Neither has any evidence been presented proving that the exit polls -- properly conducted and publicized -- can be vital tools for the holding of
presence of exit poll reporters near an election precinct tends to create disorder or honest, orderly, peaceful and credible elections; and for the elimination of election-fixing,
confuse the voters. fraud and other electoral ills.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their Violation of Ballot Secrecy
use for any purpose. The valuable information and ideas that could be derived from
them, based on the voters' answers to the survey questions will forever remain unknown
and unexplored. Unless the ban is restrained, candidates, researchers, social scientists The contention of public respondent that exit polls indirectly transgress the sanctity and
and the electorate in general would be deprived of studies on the impact of current the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to
events and of election-day and other factors on voters' choices. the ballots cast by the voters. The ballot system of voting is not at issue here.

In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the The reason behind the principle of ballot secrecy is to avoid vote buying through voter
purposes of which was to prevent the broadcasting of early returns, was identification. Thus, voters are prohibited from exhibiting the contents of their official
unconstitutional because such purpose was impermissible, and the statute was neither ballots to other persons, from making copies thereof, or from putting distinguishing
narrowly tailored to advance a state interest nor the least restrictive alternative. marks thereon so as to be identified. Also proscribed is finding out the contents of the
Furthermore, the general interest of the State in insulating voters from outside ballots cast by particular voters or disclosing those of disabled or illiterate voters who
influences is insufficient to justify speech regulation. Just as curtailing election-day have been assisted. Clearly, what is forbidden is the association of voters with their
broadcasts and newspaper editorials for the reason that they might indirectly affect the respective votes, for the purpose of assuring that the votes have been cast in accordance
voters' choices is impermissible, so is regulating speech via an exit poll restriction.[47] with the instructions of a third party. This result cannot, however, be achieved merely
through the voters' verbal and confidential disclosure to a pollster of whom they have
voted for.
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not
leave open any alternative channel of communication to gather the type of information
obtained through exit polling. On the other hand, there are other valid and reasonable In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
ways and means to achieve the Comelec end of avoiding or minimizing disorder and revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may
confusion that may be brought about by exit surveys. also choose not to reveal their identities. Indeed, narrowly tailored countermeasures
may be prescribed by the Comelec, so as to minimize or suppress incidental problems in
the conduct of exit polls, without transgressing the fundamental rights of our people.
For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at
a reasonable distance from the voting center. They may be required to explain to voters WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by
that the latter may refuse to be interviewed, and that the interview is not part of the the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419
official balloting process. The pollsters may further be required to wear distinctive issued by the Comelec en banc on April 21, 1998 is
clothing that would show they are not election officials.[48] Additionally, they may be hereby NULLIFIED and SET ASIDE. No costs.
required to undertake an information campaign on the nature of the exercise and the
94
G.R. No. 203833 March 19, 2013 In its May 14, 2012 Resolution, the Comelec Second Division granted So’s petition. The
Comelec Second Division held that certiorari can be granted despite the availability of
MAMERTO T. SEVILLA, JR. Petitioner, appeals when the questioned order amounts to an oppressive exercise of judicial
vs. authority, as in the case before it. It also ruled that the assailed Order was fraught with
COMMISSION ON ELECTIONS and RENATO R. SO, Respondents. infirmities and irregularities in the appreciation of the ballots, and was couched in
general terms: "these are not written by one person observing the different strokes,
slant, spacing, size and indentation of handwriting and the variance in writing."7
RESOLUTION
The Comelec En Banc Ruling
BRION, J.:
The Comelec en banc, by a vote of 3-3,8 affirmed the Comelec Second Division’s ruling in
Before this Court is the petition for certiorari, with prayer for the issuance of a Writ of its October 6, 2012 Resolution whose dispositive portion reads:
Preliminary Injunction and/or Status Quo Ante Order,1 filed by petitioner Mamerto T.
Sevilla, Jr., to nullify the May 14, 2012 Resolution2 of the Commission on Elections
(Comelec) Second Division and the October 6, 2012 Resolution3 of the Comelec en bancin WHEREFORE, premises considered, the Motion for Reconsideration is hereby DENIED
SPR (BRGY-SK) No. 70-2011. These assailed Resolutions reversed and set aside the May for lack of merit. Respondent judge is directed to conduct another revision of the
4, 2011 Order of the Muntinlupa City Metropolitan Trial Court, Branch 80 contested ballots in Election Protest Case No. SP-6719 with dispatch.9

(MeTC), dismissing respondent Renato R. So’s election protest against Sevilla. It ruled that where the dismissal was capricious, certiorari lies as the petition challenges
not the correctness but the validity of the order of dismissal. The Comelec en banc
emphasized that procedural technicalities should be disregarded for the immediate and
The Facts final resolution of election cases inasmuch as ballots should be read and appreciated
with utmost liberality so that the will of the electorate in the choice of public officials
Sevilla and So were candidates for the position of Punong Barangay of Barangay Sucat, may not be defeated by technical infirmities.
Muntinlupa City during the October 25, 2010 Barangay and Sangguniang Kabataan
Elections. On October 26, 2010, the Board of Election Tellers proclaimed Sevilla as the It found that the MeTC Judge committed grave abuse of discretion amounting to lack of
winner with a total of 7,354 votes or a winning margin of 628 votes over So’s 6,726 total jurisdiction when she did not comply with the mandatory requirements of Section 2(d),
votes. On November 4, 2010, So filed an election protest with the MeTC on the ground Rule 14 of A.M. No. 07-4-15-SC on the form of the decision in election protests involving
that Sevilla committed electoral fraud, anomalies and irregularities in all the protested pairs or groups of ballots written by two persons. It noted that based on the general and
precincts. So pinpointed twenty percent (20%) of the total number of the protested repetitive phraseology of the Order, the MeTC Judge’s findings were "copy-pasted" into
precincts. He also prayed for a manual revision of the ballots.4 the decision and ran counter to the mandate of the aforementioned rule. Also, the MeTC
Judge failed to mention in her appreciation of the ballots that she examined the Minutes
Following the recount of the ballots in the pilot protested precincts, the MeTC issued an of Voting and Counting to ascertain whether there were illiterate voters or assisted
Order dated May 4, 2011 dismissing the election protest. On May 9, 2011, So filed a voters in the protested precincts.10
motion for reconsideration from the dismissal order instead of a notice of appeal; he also
failed to pay the appeal fee within the reglementary period. On May 17, 2011, the MeTC Commissioner Lim’s Dissent 11
denied the motion for reconsideration on the ground that it was a prohibited pleading
pursuant to Section 1, Rule 6 of A.M. No. 07-04-15-SC.5
The dissent posited that So’s petition should be dismissed outright as it was mired in
procedural errors. First, So should have filed an appeal within five (5) days from receipt
In response, So filed a petition for certiorari on May 31, 2011 with the Comelec, alleging of the MeTC’s Order; a motion for reconsideration was improper as the Order amounted
grave abuse of discretion on the part of the MeTC Judge. So faults the MeTC for its non- to the final disposition of the protest. Second, So should not have filed the motion for
observance of the rule that in the appreciation of ballots, there should be a clear and reconsideration even if he believed that the Order was interlocutory since a motion for
distinct presentation of the specific details of how and why a certain group of ballots reconsideration is a prohibited pleading. Also, he could have simply filed the petition for
should be considered as having been written by one or two persons.6 certiorari without the necessity of filing the motion for reconsideration. Third, the
petition for certiorari cannot be a substitute for the lost appeal. The Comelec could not
The Comelec Second Division Ruling even treat the certiorari as an appeal since the petition was filed 25 days after So
received the assailed Order; thus, the Order already attained finality. Finally, procedural

95
rules should not be lightly shunned in favor of liberality when, as in this case, So did not We resolve to DISMISS the petition for having been prematurely filed with this Court,
give a valid excuse for his errors. and remand the case to the COMELEC for its appropriate action.

The Petition The October 6, 2012 Comelec en banc’s Resolution lacks legal effect as it is not a majority
decision required by the Constitution and by the Comelec Rules of Procedure
The Comelec gravely abused its discretion when it gave due course to the petition for
certiorari Section 7, Article IX-A of the Constitution requires that "each Commission shall decide by
a majority vote of all its members, any case or matter brought before it within sixty days
Sevilla argues that the Comelec gravely abused its discretion when it entertained So’s from the date of its submission for decision or resolution."17 Pursuant to this
petition despite its loss of jurisdiction to entertain the petition after the court a quo’s Constitutional mandate, the Comelec provided in Section 5(a), Rule 3 of the Comelec
dismissal order became final and executory due to So’s wrong choice of remedy. Instead Rules of Procedure the votes required for the pronouncement of a decision, resolution,
of filing an appeal within five (5) days from receipt of the Order and paying the required order or ruling when the Comelec sits en banc, viz.:
appeal fee, So filed a motion for reconsideration – a prohibited pleading that did not stop
the running of the prescriptive period to file an appeal. Sevilla also emphasizes that So’s Section 5. Quorum; Votes Required. - (a) When sitting en banc, four (4) Members of the
petition for certiorari should not have been given due course since it is not a substitute Commission shall constitute a quorum for the purpose of transacting business. The
for an appeal and may only be allowed if there is no appeal, nor any plain, speedy and concurrence of a majority of the Members of the Commission shall be necessary for the
adequate remedy in the ordinary course of law.12 pronouncement of a decision, resolution, order or ruling. [italics supplied; emphasis
ours]
The dismissal of the election protest was proper
We have previously ruled that a majority vote requires a vote of four members of the
Sevilla also contends that the dismissal was not tainted with grave abuse of discretion Comelec en banc. In Marcoleta v. Commission on Elections,18 we declared "that Section
since the MeTC Judge complied with the rules; she made clear, specific and detailed 5(a) of Rule 3 of the Comelec Rules of Procedure and Section 7 of Article IX-A of the
explanations pertaining to the specific strokes, figures or letters showing that the ballots Constitution require that a majority vote of all the members of the Comelec en banc, and
had been written by one person. Granting that the decision was tainted with errors, not only those who participated and took part in the deliberations, is necessary for the
certiorari would still not lie because a mere error of judgment is not synonymous with pronouncement of a decision, resolution, order or ruling."
grave abuse of discretion. Lastly, a liberal application of the rules cannot be made to a
petition which offers no explanation for the non-observance of the rules.13 In the present case, while the October 6, 2012 Resolution of the Comelec en banc appears
to have affirmed the Comelec Second Division’s Resolution and, in effect, denied Sevilla’s
On November 13, 2012,14 the Court resolved to require the Comelec and the respondent motion for reconsideration, the equally divided voting between three Commissioners
to comment on the petition and to observe the status quo prevailing before the issuance concurring and three Commissioners dissenting is not the majority vote that the
of the assailed Comelec Second Division’s Resolution of May 14, 2012 and the Comelec en Constitution and the Comelec Rules of Procedure require for a valid pronouncement of
banc’s Resolution of October 6, 2012.15 the assailed October 6, 2012 Resolution of the Comelec en banc.

In his Comment, the respondent contends that the petition was filed prematurely. He In essence, based on the 3-3 voting, the Comelec en banc did not sustain the Comelec
emphasizes that the October 6, 2012 Resolution of the Comelec en banc was not a Second Division’s findings on the basis of the three concurring votes by Commissioners
majority decision considering that three Commissioners voted for the denial of the Tagle, Velasco and Yusoph; conversely, it also did not overturn the Comelec Second
motion for reconsideration and the three others voted to grant the same. So notes that Division on the basis of the three dissenting votes by Chairman Brillantes, Commissioner
the assailed October 6, 2012 Resolution was deliberated upon only by six (6) Sarmiento and Commissioner Lim, as either side was short of one (1) vote to obtain a
Commissioners because the 7th majority decision. Recall that under Section 7, Article IX-A of the Constitution, a majority
vote of all the members of the Commission en banc is necessary to arrive at a ruling. In
other words, the vote of four (4) members must always be attained in order to decide,
Commissioner had not yet been appointed by the President at that time. Considering that irrespective of the number of Commissioners in attendance. Thus, for all intents and
the October 6, 2012 Resolution was not a majority decision by the Comelec en banc, So purposes, the assailed October 6, 2012 Resolution of the Comelec en banc had no legal
prays for the dismissal of the petition so that it can be remanded to the Comelec for a effect whatsoever except to convey that the Comelec failed to reach a decision and that
rehearing by a full and complete Commission.16 further action is required.

The Court’s Ruling

96
The October 6, 2012 Comelec en banc’s Resolution must be reheard pursuant to the their arguments; whereas, a re-consultation involves a re-evaluation of the issues and
Comelec Rules of Procedure arguments already on hand only by the members of the tribunal, without the
participation of the parties.
To break the legal stalemate in case the opinion is equally divided among the members of
the Comelec en banc, Section 6, Rule 18 of the Comelec Rules of Procedure mandates a In Belac v. Comelec, when the voting of the Comelec En Banc on therein petitioner’s
rehearing where parties are given the opportunity anew to strengthen their respective motion for reconsideration was equally divided, the Comelec En Banc first issued an
positions or arguments and convince the members of the Comelec en banc of the merit of order setting the case for hearing and allowed the parties to submit their respective
their case.19 Section 6, Rule 18 of the Comelec Rules of Procedure reads: memoranda before voting anew on therein petitioner’s motion for reconsideration. This
should have been the proper way for the Comelec En Banc to act on herein petitioner’s
Section 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is motion for reconsideration when the first voting was equally divided. Its own Rules of
equally divided in opinion, or the necessary majority cannot be had, the case shall be Procedure calls for a rehearing where the parties would have the opportunity to
reheard, and if on rehearing no decision is reached, the action or proceeding shall be strengthen their respective positions or arguments and convince the members of the
dismissed if originally commenced in the Commission; in appealed cases, the judgment Comelec En Banc of the merit of their case. Thus, when the Comelec En Banc failed to
or order appealed from shall stand affirmed; and in all incidental matters, the petition or give petitioner the rehearing required by the Comelec Rules of Procedure, said body
motion shall be denied. [emphasis ours; italics supplied] acted with grave abuse of discretion.21 (italics supplied; emphases ours)

In Juliano v. Commission on Elections,20 only three members of the Comelec en banc To the same effect, in Marcoleta v. Commission on Elections,22 the Court ruled that the
voted in favor of granting Estrelita Juliano’s motion for reconsideration (from the Comelec en banc did not gravely abuse its discretion when it ordered a rehearing of its
Decision of the Comelec Second Division dismissing her petition for annulment of November 6, 2007 Resolution for failing to muster the required majority voting. The
proclamation of Muslimin Sema as the duly elected Mayor of Cotabato City), three Court held:
members dissented, and one member took no part. In ruling that the Comelec acted with
grave abuse of discretion when it failed to order a rehearing required by the Comelec The Comelec, despite the obvious inclination of three commissioners to affirm the
Rules of Procedure, the Court ruled: Resolution of the First Division, cannot do away with a rehearing since its Rules clearly
provide for such a proceeding for the body to have a solicitous review of the controversy
Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that if the opinion before it. A rehearing clearly presupposes the participation of the opposing parties for
of the Comelec En Banc is equally divided, the case shall be reheard. The Court notes, the purpose of presenting additional evidence, if any, and further clarifying and
however, that the Order of the Comelec En Banc dated February 10, 2005 clearly stated amplifying their arguments.
that what was conducted was a mere "re-consultation."
To reiterate, neither the assenters nor dissenters can claim a majority in the En Banc
A "re-consultation" is definitely not the same as a "rehearing." Resolution of November 6, 2007. The Resolution served no more than a record of voters,
lacking in legal effect despite its pronouncement of reversal of the First Division
Resolution. According, the Comelec did not commit any grave abuse of discretion in
A consultation is a "deliberation of persons on some subject;" hence, a re-consultation ordering a rehearing.23 (italics supplied; citation omitted)
means a second deliberation of persons on some subject.
In the present case, it appears from the records that the Comelec en banc did not issue an
Rehearing is defined as a "second consideration of cause for purpose of calling to court’s Order for a rehearing of the case in view of the filing in the interim of the present petition
or administrative board’s attention any error, omission, or oversight in first for certiorari by Sevilla. In both the cases of Juliano and Marcoleta, cited above, we
consideration. A retrial of issues presumes notice to parties entitled thereto and remanded the cases to the Comelec en banc for the conduct of the required rehearing
opportunity for them to be heard." (italics supplied). But as held in Samalio v. Court of pursuant to the Comelec Rules of Procedure. Based on these considerations, we thus find
Appeals, that a remand of this case is necessary for the Comelec en banc to comply with the
rehearing requirement of Section 6, Rule 18 of the Comelec Rules of Procedure.
A formal or trial-type hearing is not at all times and in all instances
essential.1âwphi1 The requirements are satisfied where the parties are afforded fair and WHEREFORE, we hereby DISMISS the petition and REMAND SPR (BR GY-SK) No. 70-
reasonable opportunity to explain their side of the controversy at hand. 2011 to the Comelec en bane for the conduct of the required rehearing under the
Comelec Rules of Procedure. The Comelec en bane is hereby ORDERED to proceed with
Thus, a rehearing clearly presupposes the participation of the opposing parties for the the rehearing with utmost dispatch.
purpose of presenting additional evidence, if any, and further clarifying and amplifying

97
G.R. No. 216572, April 19, 2016 WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES
to:
FELICIANO LEGASPI, Petitioner, v. COMMISSION ON ELECTIONS, ALFREDO D.
GERMAR, AND ROGELIO P. SANTOS, JR., Respondent. (1) DISQUALIFY Respondents Alfredo M. Gesmar (sic) and Rogelio C. Santos, Jr. for the
positions of Mayor and Councilor of Norzagaray, Bulacan;
RESOLUTION (2) REFER the criminal aspect of this case against Germar (sic), Roberto Esquivel,
Rogelio Santos, Jr., Dale Soliba, Dominador Rayo, Marivic Nunez, Adelaida Auza, Amelia
VELASCO JR., J.: Cruz, and Leonardo Ignacio to the Law Department for preliminary investigation; and

The opportunities for the Court to revisit its ruling in Mendoza vs. (3) ORDER the Regional Election Director of COMELEC Region III to implement this
COMELEC1 (Mendoza) are sparse. It is a rarity for us to be presented a case assailing the Resolution, following the rules on succession as provided in R.A. 7160.
COMELEC en banc's reversal of its division's ruling notwithstanding the former's failure
to muster the four (4) votes required under our Constitution to do so. In fact, the SO ORDERED.
September 1, 2015 Decision in the case at bench is only second to the seminal case Thereafter, private respondents moved for reconsideration before the COMELEC en
of Mendoza to have resolved such an issue. The Court must, therefore, take advantage of banc but the latter, through its July 10, 2014 Resolution,7 resolved to deny private
this rare opportunity, on reconsideration, to modify the Mendoza doctrine before it respondents' motion thusly:
further takes root, deeply entrenched in our jurisprudence. chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the Commission RESOLVED, as it
The facts of this case are simple and undisputed. hereby RESOLVESto DENY this Motion for Reconsideration for LACK OF MERIT.
Consequently, the October 3, 2013 Resolution of the Special First Division (1)
To recapitulate, petitioner Feliciano Legaspi (Legaspi) and private respondent Alfredo D. disqualifying respondents Alfredo M. Germar and Rogelio C. Santos, Jr. for the positions
Germar (Germar) both ran as mayoralty candidates in Norzagaray, Bulacan while private of Mayor and Councilor of Norzagaray, Bulacan; (2) referring the criminal aspect of this
respondent Rogelio Santos (Santos) was a candidate for councilor in the May 13, 2013 case against Alfredo M. Germar, Roberto Esquivel, Rogelio Santos, Jr., Dale Soliba,
elections.2 On May 14, 2013 Legaspi filed a Petition for Disqualification against private Dominador Rayo, Marivic Nunez, Adelaida Auza, Amelia Cruz and Leonardo Ignacio to
respondents, docketed as SPA No. 13-353 (DC). There, petitioner averred that from May the Law Department for preliminary investigation and (3) ordering the Regional Election
11, 2013 until election day, private respondents engaged in massive vote-buying, using Director of COMELEC Region III to implement this Resolution, following the Rules on
their political leaders as conduits. As per witness accounts, said political leaders, while Succession as provided under R.A. 7160 is hereby AFFIRMED.
camped inside the North Hills Village Homeowners Association Office in Brgy. Bitungol, SO ORDERED.
Norzagaray, Bulacan, were distributing to voters envelopes containing Php 500.00 each
and a sample ballot bearing the names of private respondents. Through military efforts, The adverted Resolution had a vote of 3-2-1-1, as follows: three (3) commissioners,
the vote-buying was foiled and the office, which served as the venue for distribution, namely Chairman Sixto S. Brillantes, Jr. and commissioners Lucenito N. Tagle and Elias R.
padlocked. The newly-minted Chief of Police, P/Supt. Dale Soliba, and his subordinates Yusoph, voted for the denial of the motion, while two (2) commissioners, Christian
then attempted to force open the office and retrieve from inside four (4) boxes Robert S. Lim and Luie Tito F. Guia, dissented. Commissioner Al A. Parreno took no part
containing the remaining undistributed envelopes with an estimated aggregate amount in the deliberations and Commissioner Maria Grace Cielo M. Padaca did not vote as
of Php800,000.00, but a group of concerned citizens were able to thwart their plan her ad interim appointment had already expired, vacating a seat in the electoral
in flagrante delicto and intercept the said evidence of vote-buying.3 tribunal.8

In answer, private respondents denied the allegations and raised the alibi that from 3:00 Since the Resolution was not concurred in by four (4) votes or a majority of all the
o'clock to 11:00 o'clock in the evening of May 11, 2013, they attended the Liberal Party's members of the COMELEC, a re-deliberation of the administrative aspect of the case was
meeting de avance at the San Andres Parish church grounds, and that they did not go to conducted pursuant to Sec. 6, Rule 18 of the COMELEC Rules of Procedure. The re-
nor visit the office of the Homeowner's Association of North Hills Village at the time the deliberation resulted in the issuance of the assailed Order9 dated January 28, 2015 with a
election offenses were allegedly committed.4 3-2-2 vote: the previously voting commissioners maintained their respective positions
while then newly-appointed commissioner Arthur D. Lim took no part in the
Giving due credence and consideration to the evidence adduced by petitioner,5 the deliberations and abstained from voting.10 Citing the same procedural rule, the
COMELEC Special First Division, by a 2-1 vote on October 3, 2013, disqualified private COMELEC en bancdismissed the original Petition for Disqualification filed by Legaspi in
respondents from the 2013 electoral race. The dispositive portion of the COMELEC the following wise:
resolution6 reads:

98
WHEREFORE, premises considered, the Commission RESOLVED, as it regardless of the COMELEC division's ruling. This, according to the ponencia, is the first
hereby RESOLVESto DISMISS the administrative aspect of this Petition for effect of Sec. 6, Rule 18 of the COMELEC Rules of Procedure, as previously applied
Disqualification for FAILURE TO OBTAIN THE NECESSARY MAJORITY VOTES AFTER in Mendoza.
RE-DELIBERATION/REHEARING by the members of the Commission en banc.
To summarize Mendoza, therein petitioner Joselito R. Mendoza (Mendoza) was
SO ORDERED. proclaimed winner of the 2007 gubernatorial election for the province of Bulacan,
besting respondent Roberto M. Pagdanganan (Pagdanganan). On June 1, 2007,
Perplexed as to how he who prevailed before the COMELEC Special First Division can Pagdanganan filed an election protest that the COMELEC Second Division eventually
face defeat before the COMELEC en banc when three (3) commissioners voted to deny granted, thereby annulling Mendoza's proclamation. Aggrieved, Mendoza moved for
private respondents' motion for reconsideration and only two (2) commissioners voted reconsideration with the en banc, but the COMELEC failed to reach a majority vote to
to reverse the judgment in his favor, Legaspi launched a Rule 64 petition assailing the either grant or deny the motion. Pursuant to its rules, the COMELEC en banc reheard the
January 28, 2015 COMELEC en banc Order before this Court. Regrettably, the Court, on case but was, nevertheless, unsuccessful in obtaining the required majority vote to
September 1, 2015, voted to dismiss the petition. render a valid ruling. Thus, in a 3-1 vote, with three votes denying the motion, the
COMELEC en banc sustained the ruling of its Second Division.11
From the September 1, 2015 Decision, petitioner Legaspi interposed the instant motion
for reconsideration. Hence, the Court is faced once again with the issue on how to treat On petition with the Court, Mendoza pointed out that because the necessary majority
the rulings of the COMELEC en banc when less than four (4) votes were cast to either vote of four (4) was not obtained by the COMELEC en banc, Pagdanganan's election
grant or deny the motion for reconsideration pending before it. protest ought to be dismissed. Agreeing, the Court, on March 25, 2010, ruled for Mendoza
and explained that as an original action before the Commission, failure to muster the
The Court's Ruling required majority vote on reconsideration would lead to the election protest's dismissal,
not just of the motion for reconsideration.12
The Court GRANTS petitioner's motion for reconsideration. The September 1, 2015
Decision in the case at bar is hereby REVERSED and SET ASIDE, and the instant petition Aside from relying on the Mendoza ruling, the September 1, 2015 Decision discussed that
is GRANTED. a motion for reconsideration lodged with the COMELEC en banc is not an "action or
proceeding" within the contemplation of the rules; that the phrase ought to be construed
Primarily, the Court is called to interpret Sec. 6, Rule 18 of the COMELEC Rules on as pertaining to Part V of the COMELEC Rules of Procedure, denominated as "Particular
Procedure. The provision reads: Actions or Proceedings" and covering Rules 20-34. Thus, the Court applied the first effect
and ordered that Legaspi's Petition for Disqualification, the alleged "action or
Section 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is proceeding" in this case, be dismissed in its entirety.
equally divided in opinion, or the necessary majority cannot be had, the case shall be
reheard, and if on rehearing no decision is reached, the action or proceeding shall be The interpretation of Sec. 6, Rule 18
dismissed if originally commenced in the Commission; in appealed cases, the judgment of the COMELEC Rules of Procedure in Mendoza
or order appealed from shall stand affirmed; and all incidental matters, the petition and in the September 1, 2015 Decision
or motion shall be denied." (emphasis added) renders the rule unconstitutional

As framed in the September 1, 2015 Decision, the afore-cited provision outlines the The Mendoza doctrine, as reiterated in the September 1, 2015 Decision, deviated from
effects of the COMELEC en banc's failure to decide: the 1987 Constitution. Not only does it circumvent the four-vote requirement under Sec.
7, Art. IX-A of the Constitution, it likewise diminishes the adjudicatory powers of the
COMELEC Divisions under Sec. 3, Article IX-C.14
1. If the action or proceeding is originally commenced in the COMELEC, such
action or proceeding shall be dismissed; Under Sec. 3, Article IX-C of the 1987 Constitution,15 the COMELEC Divisions are granted
2. In appealed cases, the judgment or order appealed from shall stand adjudicatory powers to decide election cases, provided that the COMELEC en banc shall
affirmed; or resolve motions for reconsideration of the division rulings. Further, under Sec. 7, Article
3. In incidental matters, the petition or motion shall be denied. IX-A of the Constitution,16 four (4) votes are necessary for the COMELEC en banc to
decide a case. Naturally, the party moving for reconsideration, as the party seeking
affirmative relief, carries the burden of proving that the division committed reversible
In dismissing Legaspi's petition on September 1, 2015, the Court first categorized SPA error. The movant then shoulders the obligation of convincing four (4) Commissioners to
No. 13-353 (DC) as an action "originally commenced with the Commission" warranting the grant his or her plea.17
entire case's dismissal should the en banc fail to reach the required majority vote,

99
This voting threshold, however, is easily rendered illusory by the application of xxx [T]he effects of the COMELEC en banc's failure to decide vary depending on the type
the Mendozaruling, which virtually allows the grant of a motion for of case or matter that is before the commission. Thus, under the provision, the first
reconsideration even though the movant fails to secure four votes in his or her effect (i.e., the dismissal of the action or proceeding) only applies when the type of case
favor, in blatant violation of Sec. 7, Art. IX-A of the Constitution. In this case, in spite before the COMELEC is an action or proceeding "originally commenced in the
of securing only two (2) votes to grant their motion for reconsideration, private commission"; the second effect (i.e., the affirmance of a judgment or order) only applies
respondents were nevertheless declared the victors in the January 28, 2015 COMELEC en when the type of case before the COMELEC is an "appealed case"; and the third effect
banc Resolution.18 (i.e., the denial of the petition or motion) only applies when the case or matter
before the COMELEC is an "incidental matter." (emphasis added)
To exacerbate the situation, the circumvention of the four-vote requirement, in turn,
trivializes the proceedings before the COMELEC divisions and presents rather Verily, classifying the pending case or matter before the COMELEC is a prerequisite
paradoxical scenarios, to wit:19 to identifying the applicable effect. Here, while the case originated from Legaspi's
filing of a Petition for Disqualification, said petition has already been passed upon and
i. The failure of the COMELEC en banc to muster the required majority vote only decided by the COMELEC Special First Division on October 3, 2013. Instead, what was
means that it could not have validly decided the case. Yet curiously, it managed under consideration when Sec. 6, Rule 18 was invoked was no longer Legaspi's petition
to reverse the ruling of a body that has properly exercised its adjudicatory for disqualification itself but his motion for reconsideration before the COMELEC en
powers; and banc. The pending issue at the time was not directly private respondents' qualification or
disqualification to run for or hold office, but, more precisely, whether or not the
COMELEC division committed reversible error in its October 3, 2013 ruling.
ii. A motion for reconsideration may be filed on the ground that the evidence is
insufficient to justify the decision, order or ruling; or that the said decision,
For the first effect to apply, the pending case or matter must be an original action
order or ruling is contrary to law. If the COMELEC en banc does not find that
or proceeding originally commenced before the COMELEC. This could take either of
either ground exists, there would be no cogent reason to disturb the ruling of
two forms: those originally commenced with the COMELEC Division or those originally
the COMELEC division. Otherwise stated, failure to muster four votes to sustain
commenced with the COMELEC en banc.
the motion for reconsideration should be understood as tantamount to the
COMELEC en banc finding no reversible error attributable to its division's
Under Article IX-C, Sec. 2(2) of the Constitution, actions originally commenced before the
ruling. Said decision, therefore, ought to be affirmed, not reversed nor vacated.
COMELEC Division consist of all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials.22 On the other hand,
the cases directly filed with the COMELEC en banc are those specifically provided in the
These resultant paradoxes have to be avoided. Under the prevailing interpretation of Sec. COMELEC Rules of Procedure, such as petitions for postponement of elections under Sec.
6, Rule 18 of the COMELEC Rules of Procedure, a movant, in situations such as this, need 1, Rule 26, petitions for failure of election under Sec. 2, Rule 26, complaints or charges
not even rely on the strength of his or her arguments and evidence to win a case, and for indirect contempt under Sec. 2, Rule 29, preliminary investigation of election offenses
may, instead, choose to rest on inhibitions and abstentions of COMELEC members to under Sec. 1, Rule 34, and all other cases where the COMELEC division is not authorized
produce the same result. To demonstrate herein, it is as though the two (2) abstention to act.23
votes were counted in favor of the private respondents to reach the majority vote of four
(4). This impedes and undermines the adjudicatory powers of the COMELEC divisions by In this case, while the motion for reconsideration was filed with the COMELEC en banc in
allowing their rulings to be overruled by the en banc without the latter securing the the first instance, it cannot strictly be considered as an "action or proceeding" originally
necessary number to decide the case.20 commenced with the commission as contemplated by the rules. As held in the September
1, 2015 Decision, the coverage of the phrase is limited to those itemized in Part V of the
From the foregoing disquisitions, it is then difficult to see how the Mendoza doctrine COMELEC Rules of Procedure, viz:
"complements our Constitution."21 Far from it, the prevailing interpretation of Sec. 6, Rule
18 of the COMELEC Rules of Procedure severely suffers from constitutional infirmities
and calls for the nullification of the rule itself.

The motion for reconsideration


before the COMELEC en banc
is an "incidental matter"

Proceeding to the core of the controversy, we now apply Sec. 6, Rule 18 in the case at bar.
As discussed in the September 1, 2015 ponencia:

100
A.M. No. RTJ-92-881 June 2, 1994 resolution dated March 18, 1993, referred the administrative matter to Justice Salome A.
Montoya of the Court of Appeals for investigation, report and recommendation.
ANTONIO A. GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVEZ, EMMANUEL Complying with said resolution, Justice Montoya, in her final report, found the evidence
ARANAS, PALERMO SIA, RONNIE RAMBUYON, PRIMO NAVARRO and NOEL as follows:
NAVARRO, petitioners,
vs. A. Re: SPECIAL CIVIL ACTION NO. 465:
JUDGE SINFOROSO V. TABAMO, JR. respondent.
It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo
Hermosisima, Sision & Inso for petitioners. were both candidates in the May 11, 1992 elections for the positions
of congressmen and governor, respectively, of Camiguin. They
RESOLUTION belonged to opposing political factions and were in a bitter electoral
battle.

On April 10, 1992 or about a month before the elections,


Cong. Romualdo filed a petition docketed as Special Civil Action No.
KAPUNAN, J.: 465 before the Regional Trial Court of Camiguin (Br. 28) presided
over by respondent Judge Tabamo against Gov. Gallardo, the
For this Court's consideration is a letter-complaint, dated May 5, 1992 of Governor Provincial Treasurer, the Provincial Auditor, the Provincial Engineer,
Antonio A. Gallardo of the Province of Camiguin and other officials of the said province, and the Provincial Budget Officer as respondents. In this petition
charging Judge Sinforoso V. Tabamo, Jr. of the Regional Trial Court, Branch 28, at Cong. Romualdo sought to prohibit and restrain the respondents from
Mambajao, Camiguin with manifest bias and partiality and highly irregular and undertaking and/or pursuing certain public works projects and from
outrightly illegal acts in connection with two cases filed before his court, namely: disbursing, releasing, and/or spending public funds for said projects,
allegedly because, among other reasons, said projects were
A. Special Civil Case No. 465 entitled "Pedro P. Romualdo vs. Governor undertaken in violation of the 45-day ban on public works imposed by
Antonio A. Gallardo, et al." for Injunction, Prohibition, and Mandamus the Omnibus Election Code (B.P. Blg. 881); that the public works
with Prayer for the Issuance of a Writ of Preliminary Injunction and projects were commenced without the approved detailed engineering
Restraining Order; and plans and specification and corresponding program of works; that the
expenditures of the 20% development fund for projects other than for
maintenance violated the Local Government Code; that locally funded
B. Criminal Case No. 561 entitled "People vs. Ruel D. Dagondon, et al." projects had been pursued without the provincial budget having been
for Illegal Possession of Indian Hemp (marijuana). first approved, and reviewed by the Department of Budget and
Management; and that the illegal prosecution of the said public works
In Special Civil Action No. 465, respondent judge issued an Order restraining the projects requiring massive outlay or public funds during the election
continuance of various public works projects being undertaken by the provincial period was done maliciously and intentionally to corrupt voters and
government and the disbursement of funds therefor, allegedly in violation of a 45-day induce them to support the candidacy of Gov. Gallardo and his ticket
ban on public works imposed by the Omnibus Election Code. Complainant alleged that in the May 11, 1992 elections.
respondent Judge, in spite of the fact that it was the Commission on Elections, not the
Regional Trial Court, which had jurisdiction over the case, took cognizance of the same In the afternoon of the same day that the petition was filed, Judge
and issued the temporary restraining order. Tabamo issued a temporary restraining order as prayed for by the
petitioner Cong. Romualdo, as follows:
In Criminal Case No. 561, respondent Judge is accused to have imposed the wrong
sentence in violation of specific provisions of the Dangerous Drugs Law, the It appearing from the verified petition in this case
Indeterminate Sentence Law and the Revised Penal Code in order to afford the accused that great and irreparable damage and/or injury
in said case the right to avail of provisions of the Probation Law. shall be caused to the petitioner as candidate and
taxpayer, such damage or injury taking the form
Respondent Judge's actuations, according to complainant, were intended to favor the and shape occasioned by the alleged wanton,
political faction of Congressman Pedro P. Romualdo in the struggle with the group of excessive, abusive and flagrant waste of public
Governor Gallardo for political supremacy in the 1992 elections. This Court, in a money, before the matter can be heard on notice,
101
the respondents are hereby Temporarily xxx xxx xxx
Restrained from pursuing or prosecuting the
project itemized in Annexes "A" and "A-1" of the In the afternoon of April 23, 1992 Judge Tabamo received a telegram
petition; from releasing, disbursing and/or from the Supreme Court in connection with G.R. No. L-104848, the
spending any public funds for such projects; from petition for certiorari filed by Gov. Gallardo reading as follows:
issuing, using or availing of treasury warrants or
any device undertaking future delivery of money,
goods, or other things of value chargeable against SUPREME COURT IN AN ORDER DATED APRIL 20
public funds in connection with the said projects. IN G.R. NUMBER 104848 ENTITLED ANTONIO
GALLARDO ET AL. VERSUS HONORABLE
SINFOROSO TABAMO JR. ET AL. REQUEST
In the same Order of April 10, 1993 the judge gave the respondents RESPONDENTS TO COMMENT ON PETITION
ten (10) days from receipt of a copy of the petition to answer the WITHIN TEN DAYS FROM NOTICE AS WELL AS
same, and set the prayer for the issuance of a preliminary injunction ISSUED TEMPORARY RESTRAINING ORDER
for hearing on April 24, 1992 at 8:30 A.M. EFFECTIVE IMMEDIATELY AND CONTINUING
UNTIL FURTHER ORDERS FROM COURT
Gov. Gallardo testified that when he received a copy of the restraining ORDERING RESPONDENTS JUDGE TO CEASE AND
order and reviewed the petition filed, being a lawyer, he at once saw DESIST FROM IMPLEMENTING AND ENFORCING
that the same was not within the jurisdiction of the Regional Trial YOUR QUESTIONED ORDER DATED APRIL 10,
Court. He said that the elections were nearing and all their projects 1992 AND FROM CONTINUING WITH THE
were suspended, the laborers could not get their salaries, and the PROCEEDINGS IN SPECIAL ACTION NUMBER 465
judge had set the hearing of the injunction on April 24, 1992 or very ENTITLED PEDRO ROMUALDO VERSUS
close to the elections of May 11, 1992. Believing that he could not get GOVERNOR ANTONIO GALLARDO ET AL. STOP
justice from the respondent court, he decided to go to the Supreme FORMAL ORDERS FOLLOWS END. SUPREME
Court where he filed a petition for certiorari (docketed as G.R. No. L- COURT ASSISTANT CLERK LUZVIMINDA PUNO.
104848) questioning the issuance of the temporary restraining order
and the jurisdiction of the court over Special Civil Action No. 465. After receiving this telegram Judge Tabamo issued an Order on the
same day of April 23, 1992 canceling the hearing of the application for
xxx xxx xxx a writ of preliminary injunction which had been previously set for
April 24, 1992. He also said that he decided not to go to court on April
On April 13, 1992 a rally or demonstration was held in front of the 24, 1992 in order to avoid being caught in the crossfire between the
premises of the Regional Trial Court of Camiguin. People, composed two great political leaders in his province.
mostly of the unpaid laborers, carried placards which protested the
restraining order and urged Judge Tabamo to order the release of It appears that on April 24, 1992 people came to the premises of the
their salaries. Most of the placards expressed contempt and ridicule court for the hearing of the application for injunction in SP No. 465.
for the judge and referred to him as the "tuta" of Cong. Romualdo and They were composed of followers of both Gov. Gallardo and Cong.
to the RTC as the "Romualdo-Tabamo-Court" and "Romualdo Tabamo- Romualdo. Gov. Gallardo said he went there to inform the judge about
Corruption". the temporary restraining order issued by the Supreme Court,
thinking that the same had not been communicated to the judge. Cong.
Respondent Judge Tabamo testified in this regard that the rallyists Romualdo was then likewise present. The Clerk of Court of Judge
were laborers affected by the restraining order. They were taken from Tabamo announced that the case would not be heard any more as the
all over the island of Camiguin and loaded in several cargo trucks Supreme Court had issued an order for Judge Tabamo not to hear the
chartered by the followers of Gov. Gallardo. Judge Tabamo saw some case. After this announcement, Cong. Romualdo announced to the
of his relatives among the rallyists and when he asked them why they people that he had already ordered Gov. Gallardo to give the salaries
were there, he was told that the laborers were gathered on the of the laborers and when the latter heard the announcement, he told
representation that they would collect their salaries in Mambajao, the people that it was not Cong. Romualdo responsible for the release
they were told that they could not receive their salaries because of the of the salaries.
restraining order issued by Judge Tabamo, and the laborers did not
feel good about it.
102
Thereafter, there were passionate exchanges of words between the those not paid his salary. He said he saw Junar Marbella being mauled
two factions and a rumble occurred among the followers of Cong. by the group of Cong Romualdo and Rollie Gallardo being chased by
Romualdo and Gov. Gallardo, where many were hurt and during the same group; that he saw Gov. Gallardo trying to help his brother
which Gov. Gallardo claims his life was placed in danger. and Jun Marbella and when he (witness) tried to go near Gov.
Gallardo, he was also chased by the group of Cong. Romualdo who
Aristeo Marbella, Jr., who testified in this case for the complainants, caught him at the steps of the Capitol Building where Cong. Romualdo
said that he was then with Gov. Gallardo and he was choked by Jayjay boxed him, and Dandan Romualdo kicked him, Gogo Romualdo boxed
Romualdo, the eldest son of the congressman; that another son of him, and Dandan Romualdo wrestled with him; that he fell to the
Romualdo tried to hit him and still another son, Gogo Romualdo, also ground and the group of Cong. Romualdo took turns kicking him; that
choked him; that thereafter, Jayjay and Gogo attacked Rollie Gallardo, he has a medical certificate to show the injuries he sustained; and that
brother of Gov. Gallardo, and when he (Marbella) turned around, he at first thought of filing a case but decided not to, believing that the
Cong. Romualdo himself choked him and wrestled with him; that he case will fall in the sala of Judge Tabamo who is the ‘tuta' or tool of
pleaded with the congressman who was his godfather but the latter Cong. Romualdo. He further claimed that the reputation of Judge
continued to pull and wrestle with him and then the brother of the Tabamo in Camiguin is no longer good and that his court is termed
congressman pulled his hair and George Romualdo, a son of the RTC or Romualdo-Tabamo-Court.
congressman, hit him at the back, and he fell down. Marbella said that
Gov. Gallardo tried to help him and Rollie Gallardo but was held down Edmundo Damisa, corroborated the testimony of Camilo Abanil on the
by his bodyguards. incident of April 23, 1992 when they went around the province to
announce that the laborers can get their salaries already, adding that
Thereafter, Marbella went to the police and reported the matter, as Mayor Talian told them to leave the municipality of Sagay, otherwise
shown in the police blotter of the Mambajao Police Station. He said they would be killed. He also testified that on April 24, 1992 he was
that he decided not to file a case knowing that the same would fall in outside the Capitol Building when he noticed a big commotion in front
the sala of Judge Tabamo and it would be useless as Judge Tabamo is of the RTC which was about 30 to 40 meters away; that he saw Rollie
the "tuta" or tool of Cong. Romualdo. Gallardo being chased by the men of Cong. Romualdo and saw Junar
Marbella being chased and then choked and boxed by the group of the
congressman; that he also saw Gov. Gallardo being held tightly by his
Another witness for the complainants on rebuttal was Camilo Abanil, security men as he wanted to free himself and help Marbella and
who testified that on April 23, 1992 he was with Edmundo Damisa Rollie Gallardo; that he also saw the group run after and maul Camilo
and Ruben Cloma in a Ford Fiera going around the province of Abanil; that he himself was chased by Cong. Romualdo who was
Camiguin on request of Gov. Gallardo who asked them to announce to holding a small gun so he ran up the stairs of the Capitol; and that he
the laborers that they could already collect their salaries from the helped Gov. Gallardo get inside the Capitol because the commotion
province; that when they reached the town of Sagay, they were was already very tense.
stopped by Mayor Talian and Vice Mayor Mabolo who was angry and
said that they were poisoning the minds of the people; that the
younger brother of Vice Mayor Mabolo pulled down Damisa from the Damisan said he had known Judge Tabamo since childhood days; that
Ford Fiera where they were riding; that he (witness) went down to the judge is not popular and is nicknamed RTC or Romualdo-Tabamo-
pacify the person who pulled Damisa but he was the one mauled; and Court even in the billiard halls and cockpit; and that Judge Tabamo is
that he pleaded to the men and to the Mayor, asking the latter to often seen in the cockpit because he participates in derbies. He denied
forgive him as they had not committed any fault but only followed that Judge Tabamo had told him to look for a lawyer instead of making
Gov. Gallardo. demands in the streets on April 24, 1992 and said that what Judge
Tabamo told him was that it was not easy for him to lift the
restraining order because he has children and it is Cong. Romualdo,
Abanil said that he too reported the matter to the police station where who is the godfather of one of his children, who can help them; and
the incident was placed in the blotter, and that he later had himself that Judge Tabamo also said that he knew very well on whose side
examined by a doctor who gave him a medical certificate. Thereafter, Damisa was and the latter also knew on whose side he (Judge
he filed a case for slight physical injuries against Tata Mabolo (Crim. Tabamo) was.
Case No. 3488).
On January 29, 1993 the Supreme Court rendered its Decision in G.R.
Abanil also testified on the incident of April 24, 1992 when he went to No. L-104848, the petition for certiorari filed by Gov. Antonio
the court premises to witness the hearing because he was among
103
Gallardo, et al. against the respondent Judge Sinforoso V. Tabamo, Jr. Subsequently, the accused Dagondon applied for probation, which the
and Cong. Pedro P. Romualdo, granting the same. The Supreme Court respondent judge granted in an Order dated November 13, 1991.
ruled that the respondent court had no jurisdiction over Special Civil
Action No. 465 and ordered its dismissal. The challenged temporary Complainants charge that Judge Tabamo modified the penalty so that
restraining order of April 10, 1992 was set aside. Dagondon can apply for probation, upon orders of Cong. Pedro P.
Romualdo who was approached by a close relative of Dagondon.
B. RE: CRIMINAL CASE NO. 561:
In support of this allegation, the complainants presented only the bare
One Ruel Dagondon was charged of Illegal Possession of Indian Hemp testimony of Ceferino E. Chan, Jr., a former process server in the court
(Marijuana) in Criminal Case No. 561 filed before the Regional Trial of the respondent judge. Chan testified in this regard that he was
Court of Camiguin (Branch 28). employed as process server in Branch 28 from January, 1978 to April
1992 when he took a leave of absence; that he is familiar with
In a judgment dated July 18, 1991 the respondent Judge Sinforoso V. Criminal Case No. 561 because sometime in August, 1991 he served a
Tabamo, Jr. found the accused guilty as charged and sentenced him to copy of an Order modifying the judgment to the mother of Ruel
an imprisonment for the indeterminate period of from 2 years, 4 Dagondon as the latter was then not in the house; and that he told
months and 1 day of prision correccional in its medium period to 8 Dagondon's mother that it was good that the decision was changed
years and 1 day of prision mayor in its medium period, and to pay a and the latter answered that they had gone to Cong. Romualdo to ask
fine of P6,000.00. for help.

After this judgment was promulgated on July 31, 1991, the accused Chan further testified that he resigned from his position as process
Dagondon filed a Notice of Appeal on the same day. On August 7, server sometime in July, 1992 because the people in Camiguin no
1991, however, the accused withdrew his Notice of Appeal and longer respect the court and even make fun of it, like saying that the
instead filed a Motion for Reconsideration of the Judgment on August RTC means Romualdo-Tabamo-Court; that people would also say that
9, 1991, praying that the penalty imposed upon him be reconsidered it one wants to win a case in the sala of Judge Tabamo, he should first
and that the following circumstances be considered as mitigating in kiss the hand of Cong. Romualdo; and that people used to ask where
his favor: (1) that the accused did not intend to commit so grave a else they could go since the court is already controlled by Cong.
wrong, (2) extreme poverty of the accused, (3) lack of proper Romualdo. He stated that Cong. Romualdo often goes to the chambers
education, and (4) voluntary surrender. The respondent Judge asked of Judge Tabamo sometimes only in shorts and T-shirts.
Public Prosecutor Julio A. Vivares to comment on the motion. The
latter filed a Comment dated August 19, 1991 stating that the bases The respondent judge presented Alfreda Daiz, OIC Clerk of Court of
for the motion for reconsideration are matters that should have been Branch 28 of the RTC of Camiguin. She testified that although Chan did
established during the trial for the appreciation of the court and that not tell her the real reason for his resignation from the court, there
even if these circumstances were directly or indirectly touched during was a time that Chan told them that his mother wanted him to
the presentation of the defense of the accused, their acceptability or administer their vast idle lands because even they, the owners, did not
credibility is left to the sound discretion of the judge. know the location and boundaries of their lands; and that Chan also
had the plan to put up a business, particularly that of selling motor
On August 26, 1991 respondent Judge issued an Order modifying the parts, because he noticed the motorcycle drivers travel as far as
Judgment dated July 18, 1991, by amending the penalty imposed on Cagayan de Oro just to buy parts for their motorcycles.
the accused Dagondon to a minimum of 2 years, 4 months and 1 day
of prision correccional on its medium period to 6 years of prision Judge Tabamo denied that he had sent Chan to serve a copy of the
correccional in its maximum period, "in view of the mitigating modified decision to the residence of Dagondon. He stated that the
circumstances of extreme poverty and voluntary surrender." modified decision was promulgated in open court on August 30, 1991,
during which the accused was present with his counsel, hence there
This modified judgment was promulgated in open court on August 30, was no need to serve a copy of the decision in his house. The judge
1991 in the presence of the accused Dagondon and his counsel. maintained that in all his 23 years in the judiciary it was never his
practice to serve copies of decisions in criminal cases to parties
because they are promulgated in open court and that his practice was
to furnish their counsels after the decision is read and that in the
104
Dagondon case the lawyer was furnished a copy of the modified The staging of the rally in front of the courthouse on April 13, 1992 cannot be imputed to
judgment in open court. He added that if Chan had served a copy of respondent Judge. Obviously, the rally was orchestrated by the group of Gov. Gallardo
the decision before it was promulgated, then Chan had leaked it out who picked up the participants from the different parts of the province. Also, the chaos
and should have been made to answer for the act had he known that took place on April 24, 1992 after this Court set aside the temporary restraining
earlier about it. order issued by respondent Judge was occasioned by the attempt of Cong. Romualdo to
get the credit for the fact that the laborers would now be paid. This was resented by Gov.
At any rate, Judge Tabamo points out that Chan has not presented any Gallardo and his followers, resulting in the clash between the two contending groups.
proof to show that he served a copy of the decision to Dagondon's The motive of Gov. Gallardo in initiating the rally is not hard to find. He had sponsored a
mother and the records of the case indeed do not show that the number of public works projects and hired hundreds of laborers, which fact boosted his
alleged service was made. chances of political victory. When the projects were stopped and the laborers could not
get paid, he had to find a scapegoat, thus, the rally against respondent Judge.
Judge Tabamo denied that Cong. Romualdo goes often to his chambers
in shorts and T-shirts, since the congressman stays most of the time in However, respondent Judge can hardly justify his acts not only of entertaining Special
Manila and goes home only for special occasions. He explained that Civil Case No. 465 and issuing a temporary restraining order stopping the prosecution of
Cong. Romualdo used to go around the province to inspect his projects the public works projects on the ground that it violated the 45-day ban on public works
and visit his leaders and constituents, in the same manner that Gov. imposed by the Omnibus Election Code, but also, as will be discussed later, of imposing a
Gallardo, being a lawyer, makes it a point to visit the offices of the wrong penalty in Criminal Case No. 561 and, almost simultaneously, reducing the penalty
Register of Deeds, the fiscals, the courts and other offices and engage with the evident purpose of allowing the accused to avail of the benefits of the Probation
the officials in conferences regarding matters of vital concern, like the Law. Being an experienced judge, it is highly inconceivable that he was not aware
construction of the Hall of Justice. of Zaldivar vs. Estenzo (23 SCRA 533) where this Court categorically held that
considering that the COMELEC is vested by the Constitution with the exclusive charge of
the enforcement of all laws relative to the conduct of elections, the assumption of
Judge Tabamo said that he had to maintain a healthy relationship with jurisdiction by the trial court over a case involving the enforcement of the Election Code
the officials of the province. Incidentally, the Mayor of Mambajao is "is at war with the plain constitutional command, the implementing statutory provisions,
the wife of Cong. Romualdo. and the hospitable scope afforded such grant of authority so clear and unmistakable in
recent decisions."
Judge Tabamo further testified that before Chan resigned on July 1,
1992, the latter went on leave to campaign for his father who ran for RE: CRIMINAL CASE NO. 561:
mayor of Mambajao; that Chan's father lost in the elections but Chan
refused to go back to work; and that he had to send Alfreda Daiz to tell
Chan to go back to work or to resign. Judge Tabamo also said that We agree with respondent Judge that the testimony of Ceferino E. Chan, Jr. hardly
Chan was bitter because a sister of his lost a estafa case in the court deserves any credence. Respondent Judge emphasized without contradiction that he had
and a brother-in-law of Chan also lost his first case before the court. never served copies of his decisions in criminal cases to the parties; he promulgated his
decisions in open court and thereafter furnished copies thereof to counsels. If, indeed,
Chan served a copy of respondent Judge's order modifying his decision to the mother of
The complainants point out in regard to Criminal Case No. 561 that Ruel Dagondon, during which the mother allegedly blurted out her having gone to Cong.
the court considered the mitigating circumstance of voluntary Romualdo to ask for his help to reduce her son's penalty, proof of service of the order to
surrender in favor of Dagondon when the records show that he was the accused's mother should have been presented in evidence. The bare testimony of
arrested in a buy-bust operation; and that the court imposed a Chan lacks any corroboration.
maximum of six (6) years and one (1) day provided under B.P. Blg.
179 for the offense committed by Dagondon.
Neither was Chan's declaration that Cong. Romualdo frequented respondent Judge's
chambers buttressed by any independent proof. Respondent Judge admitted though that
FINDINGS — at times, Cong. Romualdo would make official visits to his court regarding matters like
the construction of the Hall of Justice, in the same way that he would also visit other
RE: SPECIAL CIVIL ACTION NO. 465: provincial offices.

It may be conceded that on the basis alone of the actuations of respondent Judge in Nonetheless, the facts as established in their totality, more particularly respondent
relation to Special Civil Case No. 465, there may be no clear and convincing evidence that Judge's taking cognizance of Special Civil Case No. 465, despite his lack of jurisdiction, his
respondent Judge had acted with manifest bias and partiality for Cong. Romualdo. issuance of a temporary restraining order in said case, his imposition of the penalty in
105
Criminal Case No. 561 which was unconscionably unwarranted given the facts and the matter, life imprisonment and not reclusion perpetua was used in and imposed under
law applicable, and his reduction of the penalty by the application of two non-existent that law then in force. The inexorable conclusion, therefore, is that drug offenses were
mitigating circumstances with the obvious result of enabling the accused to avail of the then considered, not as felonies, but as crimes punished under a special law, hence the
Probation Law, demonstrate an unmistakable pattern of highly irregular acts provisions of Arts. 13, 64, 71 and 76 of the Revised Penal Code could not be given
constitutive of gross ignorance of the law and grave arbitrariness. Respondent Judge has suppletory effect. Consequently, the indeterminate sentence should have been within the
a long experience as a judge, having been in the judiciary for over 20 years. It is, range for offenses punished by special laws as provided in Sec. 1 of the Indeterminate
therefore, difficult for this Court to sustain the contention that what he had done were Sentence Law.
mere errors of judgment. In fact, no discretion was required in both instances: the
applicable legal provisions are crystal clear and need no interpretation. To compound his error, respondent Judge considered in favor of the accused the
mitigating circumstances of extreme poverty and voluntary surrender. Justice Montoya
In his July 18, 1991 judgment in Criminal Case No. 561 (People vs. Dagondon, et al.), noted:
respondent judge found the accused guilty as charged of Illegal Possession of Indian
Hemp (marijuana) and sentenced him to imprisonment for an indeterminate period of Extreme poverty is not among the mitigating circumstances
from two (2) years, four (4) months and one (1) day of prision correccional in its medium enumerated in Article 13 of the Revised Penal Code and it is doubtful
period to eight (8) years and one (1) day of prision mayor in its medium period. whether it may be considered as a circumstance of a similar nature or
Additionally, the accused was ordered to pay a fine of Six Thousand Pesos (P6,000.00). analogous to those mentioned in said Article. On the other hand, there
appears to be no voluntary surrender on the part of the accused
On the same day judgment was promulgated, the accused filed a notice of appeal which because the decision itself states that the accused was arrested by the
he later withdrew in favor of a Motion for Reconsideration of Judgment praying that the authorities in a buy-bust operation and was brought to the police
circumstances of voluntary surrender, extreme poverty and lack of proper education be station in Mambajao, and later to the PC-INP Headquarters at Camp
considered as mitigating in his favor. On August 26, 1991, respondent judge issued an Gen. Bonifacio Aranas. In stating that there was voluntary surrender,
order amending the penalty imposed to a minimum of two (2) years, four (4) months the respondent postulated in his Order modifying the judgment that
and one (1) day of prision correccional in its medium period to six (6) years of prision the accused, after committing the crime and having all the chances to
correccional in its maximum period. In modifying the judgment, the alleged mitigating escape, voluntarily gave himself up to the authorities.
circumstances of extreme poverty and voluntary surrender were taken into
consideration by the respondent judge. The reduction of the penalty enabled the It might, perhaps, have been easy for this Court to act with extreme leniency if the only
accused, Ruel Dagondon to apply for probation which was granted by respondent Judge mistake committed by respondent Judge was the application of Article 64 of the Revised
in an Order dated November 13, 1991. Penal Code to an offense punishable by a special law. However, the pattern of the
"errors" committed one after another, which eventually enabled the respondent Judge to
It should be noted that the accused was charged with violation of B.P. Blg. 179 apply the provisions of the Probation Law in letting off the accused with a virtual slap in
(Dangerous Drugs Act), a special law. Under the Indeterminate Sentence Law, when an the wrist was so gross as to be unconscionable.
offense is punishable by a law other than the Revised Penal Code, the court should
sentence the accused to an indeterminate sentence, the maximum term of which shall Considering his experience in the bench and the ready availability of legal sources and
not exceed the maximum fixed by law and the minimum shall not be less than the materials from which he could check and verify his findings and conclusions, respondent
minimum term prescribed by the same. The accused Dagondon should have been Judge was clearly negligent in misapplying the law. He knew or ought to know that our
sentenced to imprisonment anywhere from six (6) years and one (1) day to twelve (12) laws impose severe penalties on violations of our dangerous drugs laws; consequently,
years as mandated by B.P. 179. In applying the Indeterminate Sentence Law after finding he should have been alerted to the possibility of error when the penalty imposed was
no mitigating or aggravating circumstances, the minimum penalty originally imposed by finally reduced to a ridiculously lenient one. The inexplicably low penalty which
respondent Judge should not have been two (2) years, four (4) months and one (1) day respondent Judge meted out on the accused in Criminal Case No. 561, was certainly out
but six (6) years and one (1) day. The incorrect minimum penalty was obviously of proportion to the crime for which the latter had been convicted of.
mistakenly arrived at by applying the rule applicable only for crimes punishable under
the Revised Penal code, not a special law like B.P. 179. The basic error of respondent
Judge stemmed from his unwarranted assumption that the penalty of imprisonment The policy of the law in imposing strict penalties for violations of the Dangerous Drugs
ranging from 6 years and 1 day to 12 years, provided for the offense involved by Sec. 8 of Act cannot be gainsaid. The intendment of the law is to eradicate a menace to our society
the governing law, is the same as prision mayor despite the fact that the technical by a pernicious evil which day in and day out victimizes our youth. To lightly dismiss the
terminology of penalties for felonies in the Revised Penal Code were not used in the respondent judge's mistakes in Criminal Case No. 561 would be to send the wrong
Dangerous Drugs Act at that time. He should likewise have readily noted that neither signals.
were the terms prision correccional or reclusion temporalused therein and, for that

106
The office of a judge exists for one solemn end — to promote justice by administering it
fairly and impartially. The judge is the visible representation of the law and justice. A
judge who, through gross ignorance of the law or serious misconduct frustrates the ends
of justice commits a rank disservice to the cause of justice which calls for the application
of appropriate disciplinary measures (Villa vs. Amonoy, 194 SCRA 48 [1991]).

Finally, respondent Judge failed to meet the standard mandated by Rules 3.01 and 3.02 of
Canon 3 of the Code of Judicial Conduct, to wit:

Rule 3.01 — A judge shall be faithful to the law and maintain


professional competence.

Rule 3.02 — In every case, a judge shall endeavor diligently to


ascertain the fact and the applicable law unswayed by partisan
interests, public opinion or fear of criticism.

ACCORDINGLY, the Court resolved to hold respondent Judge administratively liable for
gross ignorance of the law and with grave abuse of discretion, and to impose on him a
fine of TEN THOUSAND PESOS (P10,000.00) with a STERN WARNING that a repetition of
the same or similar act or acts in the future will be dealt with more severely.

SO ORDERED.

107
G.R. No. 193808 June 26, 2012 petitioners Luis Lokin, Jr. and Teresita Planas as party-list nominees. Derla affixed to the
certification her signature as "acting secretary-general" of CIBAC.
LUISK. LOKIN, JR. and TERESITA F. PLANAS, Petitioners,
vs. Claiming that the nomination of petitioners Lokin, Jr. and Planas was unauthorized,
COMMISSION ON ELECTIONS (COMELEC), CITIZENS’ BATTLE AGAINST respondents filed with the COMELEC a "Petition to Expunge From The Records And/Or
CORRUPTION PARTY LIST represented by VIRGINIA S. JOSE SHERWIN N. TUGNA, For Disqualification," seeking to nullify the Certificate filed by Derla. Respondents
and CINCHONA CRUZ-GONZALES, Respondents, contended that Derla had misrepresented herself as "acting secretary-general," when she
was not even a member of CIBAC; that the Certificate of Nomination and other
The present petition having been flied beyond the reglementary period, Rule 64 of the documents she submitted were unauthorized by the party and therefore invalid; and that
Rules of Court compels a dismissal on this basis alone. Despite petitioner's inexplicable it was Villanueva who was duly authorized to file the Certificate of Nomination on its
disregard of basic concepts, this Court deems it appropriate to reiterate the specific behalf.11
procedure for the review of judgments made by the Commission on Elections
(COMELEC) as laid down in Rule 64, and how it is differentiated from the more general In the Resolution dated 5 July 2010, the COMELEC First Division granted the Petition,
remedy afforded by Rule 65. ordered the Certificate filed by Derla to be expunged from the records, and declared
respondents’ faction as the true nominees of CIBAC.12Upon Motion for Reconsideration
On 5 July 2010, the COMELEC First Division issued a Resolution1 expunging the separately filed by the adverse parties, the COMELEC en banc affirmed the Division’s
Certificate of Nomination which included herein petitioners as representatives of the findings. In a per curiam Resolution dated 31 August 2010,13 the Commission reiterated
party-list group known as Citizens’ Battle Against Corruption (CIBAC). The COMELEC en that Pia Derla was unable to prove her authority to file the said Certificate, whereas
banc affirmed the said Resolution, prompting Luis Lokin, Jr. and Teresita F. Planas to file respondents presented overwhelming evidence that Villanueva deputized CIBAC
the present Petition for Certiorari. Petitioners allege grave abuse of discretion on the Secretary General Virginia Jose to submit the Certificate of Nomination pursuant to
part of the COMELEC in issuing both Resolutions, praying that they be recognized as the CIBAC’s Constitution and bylaws.
legitimate nominees of CIBAC party-list, and that petitioner Lokin, Jr. be proclaimed as
the CIBAC party-list representative to the House of Representatives. Petitioners now seek recourse with this Court in accordance with Rules 64 and 65 of the
Rules of Court, raising these issues: I) Whether the authority of Secretary General
Respondent CIBAC party-list is a multi-sectoral party registered2 under Republic Act No. Virginia Jose to file the party’s Certificate of Nomination is an intra-corporate matter,
(R.A.) 7941, otherwise known as the Party- List System Act. As stated in its constitution exclusively cognizable by special commercial courts, and over which the COMELEC has
and bylaws, the platform of CIBAC is to fight graft and corruption and to promote ethical no jurisdiction; and II) Whether the COMELEC erred in granting the Petition for
conduct in the country’s public service.3 Under the leadership of the National Council, its Disqualification and recognizing respondents as the properly authorized nominees of
highest policymaking and governing body, the party participated in the 2001, 2004, and CIBAC party-list.
2007 elections.4On 20 November 2009, two different entities, both purporting to
represent CIBAC, submitted to the COMELEC a "Manifestation of Intent to Participate in As earlier stated, this Court denies the petition for being filed outside the requisite
the Party-List System of Representation in the May 10, 2010 Elections." The first period. The review by this Court of judgments and final orders of the COMELEC is
Manifestation5 was signed by a certain Pia B. Derla, who claimed to be the party’s acting governed specifically by Rule 64 of the Rules of Court, which states:
secretary-general. At 1:30 p.m. of the same day, another Manifestation 6 was submitted by
herein respondents Cinchona Cruz-Gonzales and Virginia Jose as the party’s vice- Sec. 1. Scope. This rule shall govern the review of judgments and final orders or
president and secretary-general, respectively. resolutions of the Commission on Elections and the Commission on Audit.

On 15 January 2010, the COMELEC issued Resolution No. 87447 giving due course to Sec. 2. Mode of review. A judgment or final order or resolution of the Commission on
CIBAC’s Manifestation, "WITHOUT PREJUDICE …TO the determination which of the two Elections and the Commission on Audit may be brought by the aggrieved party to the
factions of the registered party-list/coalitions/sectoral organizations which filed two (2) Supreme Court on certiorari under Rule 65, except as hereinafter provided.
manifestations of intent to participate is the official representative of said party-
list/coalitions/sectoral organizations xxx."8
The exception referred to in Section 2 of this Rule refers precisely to the immediately
succeeding provision, Section 3 thereof,14 which provides for the allowable period within
On 19 January 2010, respondents, led by President and Chairperson Emmanuel Joel J. which to file petitions for certiorari from judgments of both the COMELEC and the
Villanueva, submitted the Certificate of Nomination9 of CIBAC to the COMELEC Law Commission on Audit. Thus, while Rule 64 refers to the same remedy of certiorari as the
Department. The nomination was certified by Villanueva and Virginia S. Jose. On 26 general rule in Rule 65, they cannot be equated, as they provide for different
March 2010, Pia Derla submitted a second Certificate of Nomination, 10 which included reglementary periods.15 Rule 65 provides for a period of 60 days from notice of judgment

108
sought to be assailed in the Supreme Court, while Section 3 expressly provides for only Court’s treatment of the periods for the filing of the different modes of review, he misses
30 days, viz: out on the reason why the period under Section 3, Rule 64 has been retained. The reason,
as made clear above, is constitutionally-based and is no less than the importance our
SEC. 3. Time to file petition.—The petition shall be filed within thirty (30) days from Constitution accords to the prompt determination of election results.18 x x x. (Emphasis
notice of the judgment or final order or resolution sought to be reviewed. The filing of a supplied, footnotes omitted.)
motion for new trial or reconsideration of said judgment or final order or resolution, if
allowed under the procedural rules of the Commission concerned, shall interrupt the In this case, petitioners do not even attempt to explain why the Petition was filed out of
period herein fixed. If the motion is denied, the aggrieved party may file the petition time. Clearly, they are aware of the applicable period for filing, as they themselves invoke
within the remaining period, but which shall not be less than five (5) days in any event, the remedy under Rule 64 in conjunction with Rule 65. Hence, there is no acceptable
reckoned from notice of denial. reason for their failure to comply with the proper procedure. But even if this Court were
to apply liberality and take cognizance of the late Petition, the arguments therein are
Petitioner received a copy of the first assailed Resolution on 12 July 2010. Upon the flawed. The COMELEC has jurisdiction over cases pertaining to party leadership and
Motion for Reconsideration filed by petitioners on 15 July 2010, the COMELEC en banc the nomination of party-list representatives.
issued the second assailed Resolution on 31 August 2010. This per curiam Resolution
was received by petitioners on 1 September 2010.16 Thus, pursuant to Section 3 above, Petitioners contend that the COMELEC never should have taken cognizance of
deducting the three days it took petitioners to file the Motion for Reconsideration, they respondents’ Petition to Expunge and/or for Disqualification. They have reached this
had a remaining period of 27 days or until 28 September 2010 within which to file the conclusion by characterizing the present matter as an intra-corporate dispute and, thus,
Petition for Certiorari with this Court. cognizable only by special commercial courts, particularly the designated commercial
court in this case, the Regional Trial Court in Pasig City.19 Pia Derla purportedly filed the
However, petitioners filed the present Petition only on 1 October 2010, clearly outside Certificate of Nomination pursuant to the authority granted by the Board of Trustees of
the required period. In Pates v. Commission on Elections and Domingo v. Commission on the "CIBAC Foundation, Inc.," the non-stock entity that is registered with the Securities
Elections,17 we have established that the fresh-period rule used in Rule 65 does not and Exchange Commission (SEC).20
similarly apply to the timeliness of petitions under Rule 64. In Pates, this Court dismissed
the Thus, petitioners insist that the group that participated in the party-list system in the
2004 and 2007 elections was the SEC-registered entity, and not the National Council,
Petition for Certiorari on the sole ground that it was belatedly filed, reasoning thus: which had allegedly become defunct since 2003. That was the year when CIBAC
Foundation, Inc. was established and registered with the SEC.21 On the other hand,
respondents counter that the foundation was established solely for the purpose of acting
x x x. While it is true that a litigation is not a game of technicalities, it is equally true that as CIBAC’s legal and financial arm, as provided by the party’s Constitution and bylaws. It
every case must be prosecuted in accordance with the prescribed procedure to ensure an was never intended to substitute for, or oust CIBAC, the party-list itself.22
orderly and speedy administration of justice. There have been some instances wherein
this Court allowed a relaxation in the application of the rules, but this flexibility was
"never intended to forge a bastion for erring litigants to violate the rules with impunity." Even as petitioners insisted on the purely intra-corporate nature of the conflict between
"CIBAC Foundation" and the CIBAC Sectoral Party, they submitted their Certificate of
Nomination and Manifestation of Intent to participate in the party-list elections.
Under this unique nature of the exceptions, a party asking for the suspension of the Rules Precisely, petitioners were seeking the COMELEC’s approval of their eligibility to
of Court comes to us with the heavy burden of proving that he deserves to be accorded participate in the upcoming party-list elections. In effect, they invoke its authority under
exceptional treatment. Every plea for a liberal construction of the Rules must at least be the Party-List System Act.23 Contrary to their stance that the present dispute stemmed
accompanied by an explanation of why the party-litigant failed to comply with the rules from an intra-corporate matter, their submissions even recognize the COMELEC’s
and by a justification for the requested liberal construction. constitutional power to enforce and administer all laws relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.24 More specifically, as one of its
x x x. Section 3, Article IX-C of the Constitution expressly requires that the COMELEC’s constitutional functions, the COMELEC is also tasked to "register, after sufficient
rules of procedure should expedite the disposition of election cases. This Court labors publication, political parties, organizations, or coalitions which, in addition to other
under the same command, as our proceedings are in fact the constitutional extension of requirements, must present their platform or program of government."25
cases that start with the COMELEC.
In any case, the COMELEC’s jurisdiction to settle the struggle for leadership within the
Based on these considerations, we do not find convenience and uniformity to be reasons party is well established. This singular power to rule upon questions of party identity
sufficiently compelling to modify the required period for the filing of petitions for and leadership is exercised by the COMELEC as an incident to its enforcement powers. In
certiorari under Rule 64. While the petitioner is correct in his historical data about the Laban ng Demokratikong Pilipino v. Commission on Elections,26 the Court held:
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x x x. Corollary to the right of a political party "to identify the people who constitute the thereof state: Sec. 8. Nomination of Party-List Representatives. Each registered party,
association and to select a standard bearer who best represents the party’s ideologies organization or coalition shall submit to the COMELEC not later than forty-five (45) days
and preference" is the right to exclude persons in its association and to not lend its name before the election a list of names, not less than five (5), from which party-list
and prestige to those which it deems undeserving to represent its ideals. A certificate of representatives shall be chosen in case it obtains the required number of votes.
candidacy makes known to the COMELEC that the person therein mentioned has been
nominated by a duly authorized political group empowered to act and that it reflects A person may be nominated in one (1) list only. Only persons who have given their
accurately the sentiment of the nominating body. A candidate’s political party affiliation consent in writing may be named in the list. The list shall not include any candidate for
is also printed followed by his or her name in the certified list of candidates. A candidate any elective office or a person who has lost his bid for an elective office in the
misrepresenting himself or herself to be a party’s candidate, therefore, not only immediately preceding election. No change of names or alteration of the order of
misappropriates the party’s name and prestige but foists a deception upon the nominees shall be allowed after the same shall have been submitted to the COMELEC
electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that except in cases where the nominee dies, or withdraws in writing his nomination,
he or she stands for the party’s principles. To prevent this occurrence, the COMELEC has becomes incapacitated in which case the name of the substitute nominee shall be placed
the power and the duty to step in and enforce the law not only to protect the party but, last in the list. Incumbent sectoral representatives in the House of Representatives who
more importantly, the electorate, in line with the Commission’s broad constitutional are nominated in the party-list system shall not be considered resigned.
mandate to ensure orderly elections.27 (Emphasis supplied.)
Sec. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list
Similar to the present case, Laban delved into the issue of leadership for the purpose of representative unless he is a natural-born citizen of the Philippines, a registered voter, a
determining which officer or member was the duly authorized representative tasked resident of the Philippines for a period of not less than one (1)year immediately
with filing the Certificate of Nomination, pursuant to its Constitution and bylaws, to wit: preceding the day of the election, able to read and write, a bona fide member of the party
or organization which he seeks to represent for at least ninety (90) days preceding the
The only issue in this case, as defined by the COMELEC itself, is who as between the Party day of the election, and is at least twenty-five (25) years of age on the day of the election.
Chairman and the Secretary General has the authority to sign certificates of candidacy of
the official candidates of the party. Indeed, the petitioners’ Manifestation and Petition By virtue of the aforesaid mandate of the Party-List Law vesting the COMELEC with
before the jurisdiction over the nomination of party-list representatives and prescribing the
qualifications of each nominee, the COMELEC promulgated its "Rules on Disqualification
COMELEC merely asked the Commission to recognize only those certificates of candidacy Cases Against Nominees of Party-List Groups/ Organizations Participating in the 10 May
signed by petitioner Sen. Angara or his authorized representative, and no other. 28 2010 Automated National and Local Elections."31 Adopting the same qualifications of
party-list nominees listed above, Section 6 of these Rules also required that:
In the 2010 case Atienza v. Commission on Elections,29 it was expressly settled that the
COMELEC possessed the authority to resolve intra-party disputes as a necessary The party-list group and the nominees must submit documentary evidence in
tributary of its constitutionally mandated power to enforce election laws and register consonance with the Constitution, R.A. 7941 and other laws to duly prove that the
political parties. The Court therein cited Kalaw v. Commission on Elections and Palmares nominees truly belong to the marginalized and underrepresented sector/s, the sectoral
v. Commission on Elections, which uniformly upheld the COMELEC’s jurisdiction over party, organization, political party or coalition they seek to represent, which may include
intra-party disputes: but not limited to the following:

The COMELEC’s jurisdiction over intra-party leadership disputes has already been a. Track record of the party-list group/organization showing active
settled by the Court. The Court ruled in Kalaw v. Commission on Elections that the participation of the nominee/s in the undertakings of the party-list
COMELEC’s powers and functions under Section 2, Article IX-C of the Constitution, group/organization for the advancement of the marginalized and
"include the ascertainment of the identity of the political party and its legitimate officers underrepresented sector/s, the sectoral party, organization, political party or
responsible for its acts." The Court also declared in another case that the COMELEC’s coalition they seek to represent;
power to register political parties necessarily involved the determination of the persons
who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership b. Proofs that the nominee/s truly adheres to the advocacies of the party-list
dispute, in a proper case brought before it, as an incident of its power to register political group/organizations (prior declarations, speeches, written articles, and such
parties.30 other positive actions on the part of the nominee/s showing his/her adherence
to the advocacies of the party-list group/organizations);
Furthermore, matters regarding the nomination of party-list representatives, as well as
their individual qualifications, are outlined in the Party-List System Law. Sections 8 and 9

110
c. Certification that the nominee/s is/are a bona fide member of the party-list presented evidence proving the affiliation of the so-called Board of Trustees to the CIBAC
group/ organization for at least ninety (90) days prior to the election; and Sectoral Party that is registered with COMELEC.

d. In case of a party-list group/organization seeking representation of the Petitioners cannot draw authority from the Board of Trustees of the SEC-registered
marginalized and underrepresented sector/s, proof that the nominee/s is not entity, because the Constitution of CIBAC expressly mandates that it is the National
only an advocate of the party-list/organization but is/are also a bona fide Council, as the governing body of CIBAC, that has the power to formulate the policies,
member/s of said marginalized and underrepresented sector. plans, and programs of the Party, and to issue decisions and resolutions binding on party
members and officers.34 Contrary to petitioners’ allegations, the National Council of
The Law Department shall require party-list group and nominees to submit the CIBAC has not become defunct, and has certainly not been replaced by the Board of
foregoing documentary evidence if not complied with prior to the effectivity of this Trustees of the SEC-registered entity. The COMELEC carefully perused the documents of
resolution not later than three (3) days from the last day of filing of the list of nominees. the organization and outlined the process followed by the National Council before it
complied with its task of choosing the party’s nominees.This was based on the "Minutes
of Meeting of CIBAC Party-List National Council" held on 12 November 2009, which
Contrary to petitioners’ stance, no grave abuse of discretion is attributable to the respondents attached to their Memorandum.35
COMELEC First Division and the COMELEC en banc.1âwphi1 The tribunal correctly found
that Pia Derla’s alleged authority as "acting secretary-general" was an unsubstantiated
allegation devoid of any supporting evidence. Petitioners did not submit any For its part, the COMELEC en banc also enumerated the documentary evidence that
documentary evidence that Derla was a member of CIBAC, let alone the representative further bolstered respondents’ claim that it is Chairman Villanueva and Secretary
authorized by the party to submit its Certificate of Nomination.32 The COMELEC ruled: General Virginia Jose who were duly authorized to submit the Certificate of Nomination
to the COMELEC.36 These include:
A careful perusal of the records readily shows that Pia B. Derla, who has signed and
submitted, as the purported Acting Secretary General of CIBAC, the Certificates of a. The Joint Affidavit of Resolutions of the CIBAC National Council and the
Nomination of Respondents, has no authority to do so. Despite Respondents’ repeated National Electoral Congress of CIBAC dated 12 November 2009;
claim that Ms. Derla is a member and officer of CIBAC, they have not presented any proof
in support of the same. We are at a loss as to the manner by which Ms. Derla has assumed b. Certificate of Deputization and Delegation of Authority issued to CIBAC
the post, and We see nothing but Respondents’ claims and writings/certifications by Ms. Secretary-General Virginia S. Jose by the CIBAC President;
Derla herself that point to that alleged fact. Surely, We cannot rely on these submissions,
as they are the very definition of self-serving declarations. c. Constitution and By-Laws of CIBAC as annexed to its Petition for Registration
as Sectoral Organization Under the Party-List System filed by CIBAC on 13
On the other hand…We cannot help but be convinced that it was Emmanuel Joel J. November 2000; and
Villanueva, as the Party President and Chairman, who had been given the sole authority,
at least for the 10 May 2010 Elections, to submit the list of nominees for the Party. The d. Manifestation dated 8 January 2010 by CIBAC’s Secretary General Virginia S.
records would show that, in accordance with the Party’s Constitution and by-laws, its Jose providing the official list of officers of CIBAC.37
National Council, the highest policymaking and governing body of the Party, met on 12
November 2009 and there being a quorum, then proceeded to elect its new set of
officers, which included Mr. Villanueva as both Party President and Party Chairman, and WHEREFORE , finding no grave abuse of discretion on the part of the COMELEC in
Virginia S. Jose as Party Secretary General. During the same meeting, the Party’s New issuing the assailed Resolutions, the instant Petition is DISMISSED. This Court AFFIRMS
Electoral Congress, which as per the CIBAC’s Constitution and By-Laws, was also the judgment of the COMELEC expunging from its records the Certificate of Nomination
composed of the National Council Members and had the task of choosing the nominees filed on 26 March 2010 by Pia B. Derla. The nominees, as listed in the Certificate of
for the Party in the Party-List Elections, unanimously ruled to delegate to the Party Nomination filed on 19 January 2010 by Emmanuel Joel J. Villanueva, President and
President such latter function. This set of facts, which had not been belied by concrete Chairman of Citizens’ Battle Against Corruption (CIBAC) Party List, are recognized as the
contrary evidence, weighed heavily against Respondents and favorably for Petitioner.33 legitimate nominees of the said party.

Pia Derla, who is not even a member of CIBAC, is thus a virtual stranger to the party-list, SO ORDERED.
and clearly not qualified to attest to petitioners as CIBAC nominees, or certify their
nomination to the COMELEC. Petitioners cannot use their registration with the SEC as a
substitute for the evidentiary requirement to show that the nominees, including Derla,
are bona fide members of the party. Petitioners Planas and Lokin, Jr. have not even

111
[G.R. No. 163193. June 15, 2004] equipment, devices and materials; and to adopt new electoral forms and printing
materials.
The COMELEC initially intended to implement the automation during the May 11,
1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao
SIXTO S. BRILLANTES, JR. petitioner, vs. JOSE CONCEPCION, JR., JOSE DE VENECIA, (ARMM). The failure of the machines to read correctly some automated ballots, however,
EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ, TAN, FRANKLIN M. DRILON, deferred its implementation.[3]
FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. ISLETA, AND
JOSE A. BERNAS, petitioners-in-intervention, vs. In the May 2001 elections, the counting and canvassing of votes for both national
and local positions were also done manually, as no additional ACMs had been acquired
COMMISSION ON ELECTIONS, respondent. for that electoral exercise because of time constraints.

DECISION On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a
modernization program for the 2004 elections consisting of three (3) phases, to wit:
CALLEJO, SR., J.:
(1) PHASE I Computerized system of registration and voters validation or the so-
called biometrics system of registration;
Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of
Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for (2) PHASE II Computerized voting and counting of votes; and
having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on (3) PHASE III Electronic transmission of results.
Elections (COMELEC) En Banccaptioned GENERAL INSTRUCTIONS FOR THE It resolved to conduct biddings for the three phases.
ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE
MAY 10, 2004 ELECTIONS.[1] The petitioner, likewise, prays for the issuance of a On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order
temporary restraining order and, after due proceedings, a writ of prohibition to No. 172,[4] which allocated the sum of P2,500,000,000 to exclusively fund the AES in time
permanently enjoin the respondent COMELEC from enforcing and implementing the for the May 10, 2004 elections.
questioned resolution.
On January 28, 2003, the COMELEC issued an Invitation to Bid [5] for the
After due deliberation, the Court resolved to require the respondent to comment procurement of supplies, equipment, materials and services needed for the complete
on the petition and to require the parties to observe the status quo prevailing before the implementation of all three phases of the AES with an approved budget
issuance by the COMELEC of the assailed resolution. The parties were heard on oral of P2,500,000,000.
arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to
make a presentation of the Electronic Transmission, Consolidation and Dissemination On February 10, 2003, upon the request of the COMELEC, President Gloria
(PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi- Macapagal-Arroyo issued Executive Order No. 175,[6] authorizing the release of a
Media System, Inc. (PMSI). supplemental P500 million budget for the AES project of the COMELEC. The said
issuance, likewise, instructed the Department of Budget and Management (DBM) to
The Court, thereafter, resolved to maintain the status quo order issued on May 6, ensure that the aforementioned additional amount be used exclusively for the AES
2004 and expanded it to cover any and all other issuances related to the implementation prescribed under Rep. Act No. 8436, particularly the process of voting, counting of votes
of the so-called election quick count project. In compliance with the resolution of the and canvassing/consolidation of results of the national and local elections.[7]
Court, the respondent, the petitioner and the petitioners-in-intervention submitted the
documents required of them. On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the
contract for Phase II of the AES to Mega Pacific Consortium and correspondingly entered
into a contract with the latter to implement the project. On the same day, the COMELEC
entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI)
The Antecedents denominated ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF
ELECTION RESULTS PROJECT CONTRACT.[8] The contract, by its very terms, pertains to
Phase III of the respondent COMELECs AES modernization program. It was predicated on
On December 22, 1997, Congress enacted Republic Act No. 8436 [2] authorizing the a previous bid award of the contract, for the lease of 1,900 units of satellite-based Very
COMELEC to use an automated election system (AES) for the process of voting, counting Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor
of votes and canvassing/consolidating the results of the national and local elections. It equipment, to PMSI for possessing the legal, financial and technical expertise necessary
also mandated the COMELEC to acquire automated counting machines (ACMs), computer to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the
sum of P298,375,808.90 as rentals for the leased equipment and for its services.
112
In the meantime, the Information Technology Foundation of the Philippines (ITFP), The COMELEC approved a Resolution on February 10, 2004 referring the letter of
filed a petition for certiorari and prohibition in this Court for the nullification of the Senate President to the members of the COMELEC and its Law Department for study
Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacific and recommendation. Aside from the concerns of the Senate President, the COMELEC
Consortium, entitled and docketed as Information Technology Foundation of the had to contend with the primal problem of sourcing the money for the implementation of
Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this the project since the money allocated by the Office of the President for the AES had
Court, the COMELEC paid the contract fee to the PMSI in trenches. already been spent for the acquisition of the equipment. All these developments
notwithstanding, and despite the explicit specification in the project contract for Phase
On January 13, 2004, this Court promulgated its Decision nullifying COMELEC III that the same was functionally intended to be an interface of Phases I and II of the AES
Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific modernization program, the COMELEC was determined to carry out Phase III of the
Consortium. Also voided was the subsequent contract entered into by the respondent AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI,
COMELEC with Mega Pacific Consortium for the purchase of computerized conducted a field test of the electronic transmission of election results.
voting/counting machines for the purpose of implementing the second phase of the
modernization program. Phase II of the AES was, therefore, scrapped based on the said On April 27, 2004, the COMELEC met en banc to update itself on and resolve
Decision of the Court and the COMELEC had to maintain the old manual voting and whether to proceed with its implementation of Phase III of the AES.[10] During the said
counting system for the May 10, 2004 elections. meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow
Commissioners that whatever is said here should be confined within the four walls of
On the other hand, the validation scheme under Phase I of the AES apparently this room and the minutes so that walang masyadong problema.[11] Commissioner
encountered problems in its implementation, as evinced by the COMELECs Tuason, Jr. stated that he had no objection as to the Phase III of the modernization
pronouncements prior to the elections that it was reverting to the old listing of project itself, but had concerns about the budget. He opined that other funds of the
voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured COMELEC may not be proper for realignment. Commissioners Resurreccion Z. Borra and
to implement Phase III of the AES through an electronic transmission of advanced Virgilio Garcillano also expressed their concerns on the budget for the project.
unofficial results of the 2004 elections for national, provincial and municipal positions, Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano
also dubbed as an unofficial quick count. and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then
Senate President Franklin Drilon had misgivings and misapprehensions about the manifested that the consideration for the contract for Phase III had already been almost
constitutionality of the proposed electronic transmission of results for the positions of fully paid even before the Courts nullification of the contract for Phase II of the AES, but
President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his he was open to the possibility of the realignment of funds of the COMELEC for the
position during their meeting on January 28, 2004. He also wrote Chairman Abalos on funding of the project. He added that if the implementation of Phase III would not be
February 2, 2004. The letter reads: allowed to continue just because Phase II was nullified, then it would be P300,000,000
down the drain, in addition to the already allocated disbursement on Phase II of the
AES.[12] Other concerns of the Commissioners were on the legality of the project
Dear Chairman Abalos, considering the scrapping of Phase II of the AES, as well as the operational constraints
related to its implementation.
This is to confirm my opinion which I relayed to you during our meeting on January
28th that the Commission on Elections cannot and should not conduct a quick count on Despite the dire and serious reservations of most of its members, the COMELEC,
the results of the elections for the positions of President and Vice-President. the next day, April 28, 2004, barely two weeks before the national and local elections,
approved the assailed resolution declaring that it adopts the policy that the precinct
election results of each city and municipality shall be immediately transmitted
Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and electronically in advance to the COMELEC, Manila.[13] For the purpose, respondent
exclusive authority to canvass the votes for President and Vice-President. Thus, any COMELEC established a National Consolidation Center (NCC), Electronic Transmission
quick count to be conducted by the Commission on said positions would in effect Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC,
constitute a canvass of the votes of the President and Vice-President, which not only Manila, for the Overseas Absentee Voting.[14]
would be pre-emptive of the authority of the Congress, but also would be lacking of any
Constitutional authority. You conceded the validity of the position we have taken on this Briefly, the procedure for this electronic transmission of precinct results is outlined
point. as follows:
I. The NCC shall receive and consolidate all precinct results based on the data
In view of the foregoing, we asked the COMELEC during that meeting to reconsider its transmitted to it by each ETC;[15]
plan to include the votes for President and Vice-President in the quick count, to which
you graciously consented. Thank you very much.[9] II. Each city and municipality shall have an ETC where votes obtained by each
candidate for all positions shall be encoded, and shall consequently be
transmitted electronically to the NCC, through Very Small Aperture

113
Terminal (VSAT) facilities.[16] For this purpose, personal computers shall the ETC and at the NCC.[20] Instead, consolidated and per-precinct results shall be made
be allocated for all cities and municipalities at the rate of one set for every available via the Internet, text messaging, and electronic billboards in designated
one hundred seventy-five (175) precincts;[17] locations. Interested parties may print the result published in the COMELEC web site.[21]
III. A Department of Education (DepEd) Supervisor shall be designated in the When apprised of the said resolution, the National Citizens Movement for Free
area who will be assigned in each polling center for the purpose of Elections (NAMFREL), and the heads of the major political parties, namely, Senator
gathering from all Board of Election Inspectors (BEI) therein the Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and Chairman of
envelopes containing the Copy 3 of the Election Returns (ER) for national the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z.
positions and Copy 2 of the ER for local positions, both intended for the Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples
COMELEC, which shall be used as basis for the encoding and transmission Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin
of advanced precinct results.[18] Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim
Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng
The assailed resolution further provides that written notices of the date, time and Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed
place of the electronic transmission of advanced precinct results shall be given not later resolution:
than May 5, 2004 to candidates running for local positions, and not later than May 7,
2004 to candidates running for national positions, as well as to political parties fielding
candidates, and parties, organizations/coalitions participating under the party-list This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.
system.[19]
NAMFREL and political parties have the following concerns about Resolution 6712
In relation to this, Section 13 of the assailed resolution provides that the encoding which arose during consultation over the past week[:]
proceedings were ministerial and the tabulations were advanced unofficial results. The
entirety of Section 13, reads:
a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens
arm to use an election return for an unofficial count; other unofficial counts may not be
Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition based on an election return; Indeed, it may be fairly inferred from the law that except for
of parties, accredited political party, sectoral party/organization or coalition thereof the copy of the citizens arm, election returns may only be used for canvassing or for
under the party-list, through its representative, and every candidate for national receiving dispute resolutions.
positions has the right to observe/witness the encoding and electronic transmission of the
ERs within the authorized perimeter.
b) The Commissions copy, the second or third copy of the election return, as the case
may be, has always been intended to be an archived copy and its integrity preserved
Provided, That candidates for the sangguniang panlalawigan, sangguniang until required by the Commission to resolve election disputes. Only the Board of Election
panglungsod or sangguniang bayan belonging to the same slate or ticket shall collectively Inspectors is authorized to have been in contact with the return before the Commission
be entitled to only one common observer at the ETC. unseals it.

The citizens arm of the Commission, and civic, religious, professional, business, service, c) The instruction contained in Resolution 6712, to break the seal of the envelope
youth and other similar organizations collectively, with prior authority of the containing copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its
Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the opening by the Commission on Election[s]. In the process of prematurely breaking the
Minutes. seal of the Board of Election Inspectors, the integrity of the Commissions copy is
breached, thereby rendering it void of any probative value.
The observer shall have the right to observe, take note of and make observations on the
proceedings of the team. Observations shall be in writing and, when submitted, shall be To us, it does appear that the use of election returns as prescribed in Resolution 6712
attached to the Minutes. departs from the letters and spirit of the law, as well as previous practice. More
importantly, questions of legalities aside, the conduct of an advanced count by the
The encoding proceedings being ministerial in nature, and the tabulations COMELEC may affect the credibility of the elections because it will differ from the results
being advanced unofficial results, no objections or protests shall be allowed or obtained from canvassing. Needless to say, it does not help either that Resolution 6712
entertained by the ETC. was promulgated only recently, and perceivably, on the eve of the elections.

In keeping with the unofficial character of the electronically transmitted precinct


results, the assailed resolution expressly provides that no print-outs shall be released at

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In view of the foregoing, we respectfully request the Commission to reconsider the respondent COMELECs executive or administrative power. It asserts that the present
Resolution 6712 which authorizes the use of election returns for the consolidation of the controversy involves a political question; hence, beyond the ambit of judicial review. It,
election results for the May 10, 2004 elections.[22] likewise, impugns the standing of the petitioner to file the present petition, as he has not
alleged any injury which he would or may suffer as a result of the implementation of the
assailed resolution.

The Present Petition On the merits, the respondent COMELEC denies that the assailed resolution was
promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III
of its modernization program. Rather, as its bases, the respondent COMELEC invokes the
On May 4, 2004, the petition at bar was filed in this Court. general grant to it of the power to enforce and administer all laws relative to the conduct
of elections and to promulgate rules and regulations to ensure free, orderly and honest
Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and
Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. 7166. The COMELEC avers that granting arguendo that the assailed resolution is related
Bernas, filed with this Court their Motion to Admit Attached Petition-in-Intervention. In to or connected with Phase III of the modernization program, no specific law is violated
their petition-in-intervention, movants-petitioners urge the Court to declare as null and by its implementation. It posits that Phases I, II and III are mutually exclusive schemes
void the assailed resolution and permanently enjoin the respondent COMELEC from such that, even if the first two phases have been scrapped, the latter phase may still
implementing the same. The Court granted the motion of the petitioners-in-intervention proceed independently of and separately from the others. It further argues that there is
and admitted their petition. statutory basis for it to conduct an unofficial quick count. Among others, it invokes the
general grant to it of the power to ensure free, orderly, honest, peaceful and credible
In assailing the validity of the questioned resolution, the petitioner avers in his
elections. Finally, it claims that it had complied with Section 52(i) of the Omnibus
petition that there is no provision under Rep. Act No. 8436 which authorizes the
Election Code, as the political parties and all the candidates of the 2004 elections were
COMELEC to engage in the biometrics/computerized system of validation of voters
sufficiently notified of the electronic transmission of advanced election results.
(Phase I) and a system of electronic transmission of election results (Phase III). Even
assuming for the nonce that all the three (3) phases are duly authorized, they must The COMELEC trivializes as purely speculative these constitutional concerns raised
complement each other as they are not distinct and separate programs but mere stages by the petitioners-in-intervention and the Senate President. It maintains that what is
of one whole scheme. Consequently, considering the failed implementation of Phases I contemplated in the assailed resolution is not a canvass of the votes but merely
and II, there is no basis at all for the respondent COMELEC to still push through and consolidation and transmittal thereof. As such, it cannot be made the basis for the
pursue with Phase III. The petitioner essentially posits that the counting and proclamation of any winning candidate.Emphasizing that the project is unofficial in
consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to nature, the COMELEC opines that it cannot, therefore, be considered as preempting or
the official COMELEC count under the fully automated system and not any kind usurping the exclusive power of Congress to canvass the votes for President and Vice-
of unofficial count via electronic transmission of advanced results as now provided President.
under the assailed resolution.
The petitioners-in-intervention point to several constitutional infractions
occasioned by the assailed resolution. They advance the view that the assailed resolution The Issues
effectively preempts the sole and exclusive authority of Congress under Article VII,
Section 4 of the Constitution to canvass the votes for President and Vice-
President. Further, as there has been no appropriation by Congress for the respondent At the said hearing on May 8, 2004, the Court set forth the issues for resolution as
COMELEC to conduct an unofficial electronic transmission of results of the May 10, 2004 follows:
elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1)
of the Constitution. 1. Whether the petitioner and the petitioners-intervenors have standing
to sue;
On statutory grounds, the petitioner and petitioners-in-intervention contend that
the assailed resolution encroaches upon the authority of NAMFREL, as the citizens 2. Assuming that they have standing, whether the issues they raise are
accredited arm, to conduct the unofficial quick count as provided under pertinent political in nature over which the Court has no jurisdiction;
election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election
Code, relating to the requirement of notice to the political parties and candidates of the 3. Assuming the issues are not political, whether Resolution No. 6712 is
adoption of technological and electronic devices during the elections. void:

For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass (a) for preempting the sole and exclusive authority of Congress
upon the assailed resolutions validity claiming that it was promulgated in the exercise of under Art. VII, Sec. 4 of the 1987 Constitution to

115
canvass the votes for the election of President and and personal interest in the manner by which the respondent COMELEC would conduct
Vice-President; the elections, including the counting and canvassing of the votes cast therein.
(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively,
that no money shall be paid out of the treasury except President of the Senate and Speaker of the House of Representatives, the heads of
in pursuance of an appropriation made by law; Congress which is exclusively authorized by the Constitution to canvass the votes for
President and Vice-President. They have the requisite standing to prevent the usurpation
(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which of the constitutional prerogative of Congress.
authorize only the citizens arm to use an election
return for an unofficial count;
(d) for violation of Sec. 52(i) of the Omnibus Election Code, The Issue Raised By The
requiring not less than thirty (30) days notice of the Petition Is Justiciable
use of new technological and electronic devices; and,
(e) for lack of constitutional or statutory basis; and,
Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial
4. Whether the implementation of Resolution No. 6712 would cause review by providing that:
trending, confusion and chaos.
SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
The Ruling of the Court
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
The issues, as earlier defined, shall now be resolved in seriatim: whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.

The Court does not agree with the posture of the respondent COMELEC that the
The Petitioners And Petitioners-In-
issue involved in the present petition is a political question beyond the jurisdiction of
Intervention Possess The Locus
this Court to review. As the leading case of Taada vs. Cuenco[26] put it, political questions
Standi To Maintain The Present
are concerned with issues dependent upon the wisdom, not legality of a particular
Action
measure.
The issue raised in the present petition does not merely concern the wisdom of the
The gist of the question of standing is whether a party has "alleged such a personal assailed resolution but focuses on its alleged disregard for applicable statutory and
stake in the outcome of the controversy as to assure that concrete adverseness which constitutional provisions. In other words, that the petitioner and the petitioners-in-
sharpens the presentation of issues upon which the court so largely depends for intervention are questioning the legality of the respondent COMELECs administrative
illumination of difficult constitutional questions.[23] Since the implementation of the issuance will not preclude this Court from exercising its power of judicial review to
assailed resolution obviously involves the expenditure of funds, the petitioner and the determine whether or not there was grave abuse of discretion amounting to lack or
petitioners-in-intervention, as taxpayers, possess the requisite standing to question its excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No.
validity as they have sufficient interest in preventing the illegal expenditure of money 6712. Indeed, administrative issuances must not override, supplant or modify the law,
raised by taxation.[24] In essence, taxpayers are allowed to sue where there is a claim of but must remain consistent with the law they intend to carry out.[27] When the grant of
illegal disbursement of public funds, or that public money is being deflected to any power is qualified, conditional or subject to limitations, the issue of whether the
improper purpose, or where the petitioners seek to restrain the respondent from prescribed qualifications or conditions have been met or the limitations respected, is
wasting public funds through the enforcement of an invalid or unconstitutional law.[25] justiciable the problem being one of legality or validity, not its wisdom.[28] In the present
petition, the Court must pass upon the petitioners contention that Resolution No. 6712
Most of the petitioners-in-intervention are also representatives of major political
does not have adequate statutory or constitutional basis.
parties that have participated in the May 10, 2004 elections. On the other hand,
petitioners-in-intervention Concepcion and Bernas represent the National Citizens Although not raised during the oral arguments, another procedural issue that has
Movement for Free Elections (NAMFREL), which is the citizens arm authorized to to be addressed is whether the substantive issues had been rendered moot and
conduct an unofficial quick count during the said elections. They have sufficient, direct academic. Indeed, the May 10, 2004 elections have come and gone. Except for the
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President and Vice-President, the newly- elected national and local officials have been Nonetheless, in disregard of the valid objection of the Senate President, the
proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the COMELEC proceeded to promulgate the assailed resolution. Such resolution directly
substantive issues for future guidance of both the bench and bar.[29] Further, it is settled infringes the authority of Congress, considering that Section 4 thereof allows the use of
rule that courts will decide a question otherwise moot and academic if it is capable of the third copy of the Election Returns (ERs) for the positions of President, Vice-
repetition, yet evading review.[30] President, Senators and Members of the House of Representatives, intended for the
COMELEC, as basis for the encoding and transmission of advanced precinct results, and
in the process, canvass the votes for the President and Vice-President, ahead of the
canvassing of the same votes by Congress.
The Respondent COMELEC
Committed Grave Abuse Of Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional
Discretion Amounting To Lack Or undertaking of Congress as the sole body tasked to canvass the votes for the President
Excess Of Jurisdiction In Issuing and Vice-President. Section 24 thereof provides:
Resolution No. 6712
SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. --
The Senate and the House of Representatives, in joint public session, shall compose the
The preliminary issues having been thus resolved, the Court shall proceed to national board of canvassers for president and vice-president. The returns of every
determine whether the respondent COMELEC committed grave abuse of discretion election for president and vice-president duly certified by the board of canvassers of
amounting to lack or excess of jurisdiction in promulgating the assailed resolution. each province or city, shall be transmitted to the Congress, directed to the president of
the Senate. Upon receipt of the certificates of canvass, the president of the Senate shall,
The Court rules in the affirmative.
not later than thirty (30) days after the day of the election, open all the certificates in the
An administrative body or tribunal acts without jurisdiction if it does not have the presence of the Senate and the House of Representatives in joint public session, and the
legal power to determine the matter before it; there is excess of jurisdiction where the Congress upon determination of the authenticity and the due execution thereof in the
respondent, being clothed with the power to determine the matter, oversteps its manner provided by law, canvass all the results for president and vice-president by
authority as determined by law.[31] There is grave abuse of discretion justifying the consolidating the results contained in the data storage devices submitted by the district,
issuance of the writ of certiorari when there is a capricious and whimsical exercise of his provincial and city boards of canvassers and thereafter, proclaim the winning candidates
judgment as is equivalent to lack of jurisdiction.[32] for president and vice-president.

First. The assailed resolution usurps, under the guise of an unofficial tabulation of
The contention of the COMELEC that its tabulation of votes is not prohibited by the
election results based on a copy of the election returns, the sole and exclusive authority
Constitution and Rep. Act No. 8436 as such tabulation is unofficial, is puerile and totally
of Congress to canvass the votes for the election of President and Vice-President. Article
unacceptable. If the COMELEC is proscribed from conducting an official canvass of the
VII, Section 4 of the Constitution provides in part:
votes cast for the President and Vice-President, the COMELEC is, with more reason,
prohibited from making an unofficial canvass of said votes.
The returns of every election for President and Vice-President duly certified by the board
of canvassers of each province or city, shall be transmitted to the Congress, directed to The COMELEC realized its folly and the merits of the objection of the Senate
the President of the Senate.Upon receipt of the certificates of canvass, the President of President on the constitutionality of the resolution that it decided not to conduct an
the Senate shall, not later than thirty days after the day of the election, open all the unofficial quick count of the results of the elections for President and Vice-President.
certificates in the presence of the Senate and the House of Representatives in joint public Commissioner Sadain so declared during the hearing:
session, and the Congress, upon determination of the authenticity and due execution
JUSTICE PUNO:
thereof in the manner provided by law, canvass the votes.
The word you are saying that within 36 hours after election, more or
As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed less, you will be able to tell the people on the basis of your quick count,
to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent who won the election, is that it?
COMELEC could not and should not conduct any quick count of the votes cast for the
positions of President and Vice-President. In his Letter dated February 2, COMM. SADAIN:
2004[33] addressed to Chairman Abalos, Senate President Drilon reiterated his position Well, its not exactly like that, Your Honor. Because the fact of winning
emphasizing that any quick count to be conducted by the Commission on said positions the election would really depend on the canvassed results, but probably,
would in effect constitute a canvass of the votes of the President and Vice-President, it would already give a certain degree of comfort to certain politicians to
which not only would be pre-emptive of the authority of Congress, but would also be people rather, as to who are leading in the elections, as far as Senator
lacking of any constitutional authority.[34] down are concerned, but not to President and Vice-President.
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JUSTICE PUNO: count project may even be considered as a felony under Article 217 of the Revised Penal
Code, as amended.[39]
So as far as the Senatorial candidates involved are concerned, but you
dont give this assurance with respect to the Presidential and Vice- Irrefragably, the implementation of the assailed resolution would entail, in due
Presidential elections which are more important? course, the hiring of additional manpower, technical services and acquisition of
equipment, including computers and software, among others. According to the
COMM. SADAIN: COMELEC, it needed P55,000,000 to operationalize the project, including the encoding
In deference to the request of the Senate President and the House process.[40] Hence, it would necessarily involve the disbursement of public funds for
Speaker, Your Honor. According to them, they will be the ones which there must be the corresponding appropriation.
canvassing and proclaiming the winner, so it is their view that we will The COMELEC posited during the hearing that the 2003 General Appropriations Act
be pre-empting their canvassing work and the proclamation of the has appropriated the amount needed for its unofficial tabulation. We quote the transcript
winners and we gave in to their request.[35] of stenographic notes taken during the hearing:
JUSTICE CALLEJO, [SR.]: JUSTICE VITUG:
Perhaps what you are saying is that the system will minimize dagdag- And you mentioned earlier something about 55 million not being paid
bawas but not totally eradicate dagdag-bawas? as yet?
COMM. SADAIN: COMM. SADAIN:
Yes, Your Honor. This is an extra amount that we will be needing to operationalize.
JUSTICE CALLEJO, [SR.]: JUSTICE VITUG:
Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there And this has not yet been done?
was a conference between the Speaker and the Senate President and the
Chairman during which the Senate President and the Speaker voice[d] COMM. SADAIN:
their objections to the electronic transmission results system, can you
share with us the objections of the two gentlemen? It has not yet been done, Your Honor.

COMM. SADAIN: JUSTICE VITUG:

These was relayed to us Your Honor and their objection or request Would you consider the funds that were authorized by you under the
rather was for us to refrain from consolidating and publishing the General Appropriations Act as capable of being used for this purpose?
results for presidential and vice-presidential candidates which we have COMM. SADAIN:
already granted Your Honors. So, there is going to be no consolidation
and no publication of the Yes, thats our position, Your Honor.[41]
COMM. SADAIN: But then the COMELEC, through Commissioner Sadain, admitted during the said
hearing that although it had already approved the assailed resolution, it was still looking
Reason behind being that it is actually Congress that canvass that the for the P55,000,000 needed to operationalize the project:
official canvass for this and proclaims the winner.[36]
JUSTICE CARPIO:
Second. The assailed COMELEC resolution contravenes the constitutional provision
that no money shall be paid out of the treasury except in pursuance of an appropriation Just a clarification. You stated that you signed already the main contract
made by law.[37] for 300 million but you have not signed the 55 million supplemental
contract for the encoding?
By its very terms, the electronic transmission and tabulation of the election results
projected under Resolution No. 6712 is unofficial in character, meaning not emanating COMM. SADAIN:
from or sanctioned or acknowledged by the government or government body. [38] Any
disbursement of public funds to implement this project is contrary to the provisions of Yes, Your Honor.
the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations JUSTICE CARPIO:
Act. The use of the COMELEC of its funds appropriated for the AES for the unofficial quick

118
Because you still dont have the money for that? JUSTICE CARPIO:
COMM. SADAIN: So, you have found the money already?
Well, yes, we are trying to determine where we can secure the money. COMM. SADAIN:
JUSTICE CARPIO: Yes, Your Honor.[43]
Now, the encoding is crucial; without the encoding, the entire project Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the
collapses? Commissioners expressed their serious concerns about the lack of funds for the project,
the propriety of using the funds for Phase III of its modernization, and the possibility of
COMM. SADAIN: realigning funds to finance the project:
Yes.[42] Comm. Tuason:
Inexplicably, Commissioner Sadain contradicted himself when he said that its May I just request all the parties who are in here na whatever is said
Financial Department had already found the money, but that proper documentation was here should be confined within the four walls of this room and the
forthcoming: minutes so that walang masyadong problema.
JUSTICE CARPIO: Comm. Borra:
Just a clarification. You stated that you signed already the main contract Sa akin lang, we respect each others opinion. I will not make any
for 300 million but you have not signed the 55 million supplemental observations. I will just submit my own memo to be incorporated in the
contract for the encoding? minutes.
COMM. SADAIN: Comm. Tuason:
Yes, Your Honor. Commissioner Borra will submit a comment to be attached to the
JUSTICE CARPIO: minutes but not on the resolution. Ako naman, I will just make it on
record my previous reservation. I do not have any objection as to the
Because you still dont have the money for that? Phase III modernization project itself. My main concern is the budget. I
would like to make it on record that the budget for Phase III should be
COMM. SADAIN: taken from the modernization program fund because Phase III is
Well, yes, we are trying to determine where we can secure the money. definitely part of the modernization project. Other funds, for instance
other funds to be used for national elections may not be proper for
JUSTICE CARPIO: realignment. That is why I am saying that the funds to be used for Phase
III should properly come from the modernization. The other reservation
Now, the encoding is crucial; without the encoding, the entire project is that the Election Officers are now plagued with so much work such as
collapses? the preparation of the list of voters and their concern in their respective
areas. They were saying to me, specially so in my own region, that to
COMM. SADAIN:
burden them with another training at this point in time will make them
Yes. loose (sic) focus on what they are really doing for the national elections
and what they are saying is that they should not be subjected to any
JUSTICE CARPIO: training anymore. And they also said that come canvassing time, their
priority would be to canvass first before they prepare the certificate of
So, you have two (2) days to look for the 55 million, you have signed the
votes to be fed to the encoders [to be fed to the encoders] for electronic
contract on the main contract and if you dont get that 55 million, that
transmission. I share the sentiments of our people in the field. That is
300 million main contract goes to waste, because you cannot encode?
also one of my reservations. Thank you.
COMM. SADAIN:
Comm. Garcillano:
Its just a matter of proper documentation, Your Honor, because I was
informed by our Finance Department that the money is there.

119
I also have my observations regarding the financial restraint that we are might explore the possibility of realigning funds although that might
facing if the money that is going to be used for this is taken from the not (inaudible). Now with regards the legality, I think what
Phase II, I dont think there is money left. Commissioner Borra has derived his opinion but I would like to think
the legality issue must have been settled already as early as when we
Comm. Borra: approved the modernization program involving all three
There is no more money in Phase II because the budget for Phase II is phases although we also grant the benefit of the argument for
1.3 Billion. The award on the contract for Phase II project is 1.248 Commissioner Borra if he thinks that there is going to be a legal gap for
billion. So the remaining has been allocated for additional expenses for the loss of Phase II. With regards the concern with the Election Officers,
the technical working group and staff for Phase II. I also share the same concern. In fact, on this matter alone, we try to
make the GI as simple as possible so that whatever burden we will be
Comm. Garcillano: giving to the EOs and EAs will be minimized. As in fact, we will be
recommending that the EOs will no longer be bothered to attend the
I also have one problem. We have to have additional people to man this training. They can probably just sit in for the first hour and then they
which I think is already being taken cared of. Third is, I know that this can go on with their normal routine and then leave the encoders as well
will disrupt the canvassing that is going to be handled by our EO and as the reception officers to attend the training because there (sic) are
Election Assistant. I do not know if it is given to somebody (inaudible) the people who will really be doing the ministerial, almost mechanical,
Comm. Tuason: work of encoding and transmitting the election results. Yun lang.[44]

Those are your reservations. We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took
effect on April 23, 2003 and find no appropriation for the project of the COMELEC for
Comm. Barcelona: electronic transmission of unofficial election results. What is appropriated therein is the
amount of P225,000,000 of the capital outlay for the modernization of the electoral
As far as I am concerned, I also have my reservations because I have the B. PROJECTS Maintenance & Capital Outlays Total
same experience as Commissioner Tuason when I went to Region IX and Other Operating
Caraga. Our EOs and PES expressed apprehension over the additional Expenses
training period that they may have to undergo although, they say, that if I. Locally-Funded Projects
that is an order they will comply but it will be additional burden on a. For the Modernization of Electoral
them. I also share the concern of Commissioner Tuason with regard to System 225,000,000 225,000,000
the budget that should be taken from the modernization budget. b. FY 2003 Preparatory Activities for
National Elections 250,000,000 250,000,000
Comm. Borra:
c. Upgrading of Voters Database 125,000,000 125,000,000
For the minutes, my memo is already prepared. I will submit it in d. Conduct of Special Election to
detail. On three counts naman yan eh legal, second is fill the vacancy in the Third District
technical/operational and third is financial. of Cavite 6,500,000 6,500,000

Comm. Sadain:
e. Implementation of Absentee
Ako naman, for my part as the CIC for Phase III, we were left with no Voting Act of 2003 (RA 9189) 300,000,000 300,000,000
choice but to implement Phase III inasmuch as expenses has already ========== ========= ==========
been incurred in Phase III to the tune of almost 100% at the time when
the Phase II contract was nullified. So if we stop the implementation of Sub-Total, Locally-Funded Projects 681,500,000 225,000,000 300,000,000[45]
Phase III just because Phase II was nullified, which means that there system.
would be no consolidation and accounting consolidation for the
machines, then it would be again 300 million pesos down the
drain. Necessarily there would be additional expense but we see this as
a consequence of the loss of Phase II. I share the view of Comm. Tuason
that as much as possible this should be taken from the modernization Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount
fund as much as this is properly modernization concern. However, I of P225,000,000 shall be used primarily for the establishment of the AES prescribed
would like to open myself to the possibility na in case wala talaga, we under Rep. Act No. 8436, viz:

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3. Modernization of Electoral System. The appropriations herein authorized for the purposes of conducting an unofficial count. In addition, the second or third copy of the
Modernization of the Electoral System in the amount of Two Hundred Twenty-Five election returns, while required to be delivered to the COMELEC under the
Million Pesos (P225,000,000.00) shall be used primarily for the establishment of the aforementioned laws, are not intended for undertaking an unofficial count. The aforesaid
automated election system, prescribed under Republic Act No. 8436, particularly for the COMELEC copies are archived and unsealed only when needed by the respondent
process of voting, counting of votes and canvassing/consolidation of results of the COMELEC to verify election results in connection with resolving election disputes that
national and local elections.[46] may be imminent. However, in contravention of the law, the assailed Resolution
authorizes the so-called Reception Officers (RO), to open the second or third copy
Section 52 of Rep. Act No. 9206 proscribes any change or modification in the intended for the respondent COMELEC as basis for the encoding and transmission of
expenditure items authorized thereunder. Thus: advanced unofficial precinct results. This not only violates the exclusive prerogative of
NAMFREL to conduct an unofficial count, but also taints the integrity of the envelopes
containing the election returns, as well as the returns themselves, by creating a gap in its
Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this chain of custody from the Board of Election Inspectors to the COMELEC.
Act, no change or modification shall be made in the expenditure items in this Act and
other appropriations laws unless in cases of augmentation from savings in Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC
appropriations as authorized under Section 25(5), Article VI of the 1987 Philippine as the statutory basis for the assailed resolution, does not cover the use of the latest
Constitution. technological and election devices for unofficial tabulations of votes. Moreover, the
COMELEC failed to notify the authorized representatives of accredited political parties
Neither can the money needed for the project be taken from the COMELECs and all candidates in areas affected by the use or adoption of technological and electronic
savings, if any, because it would be violative of Article VI, Section 25 (5)[47] of the 1987 devices not less than thirty days prior to the effectivity of the use of such devices. Section
Constitution. 52(i) reads:

The power to augment from savings lies dormant until authorized by law.[48] In this SEC. 52. Powers and functions of the Commission on Elections. In addition to the powers
case, no law has, thus, far been enacted authorizing the respondent COMELEC to transfer and functions conferred upon it by the Constitution, the Commission shall have exclusive
savings from another item in its appropriation, if there are any, to fund the assailed charge of the enforcement and administration of all laws relative to the conduct of
resolution. No less than the Secretary of the Senate certified that there is no law elections for the purpose of ensuring free, orderly and honest elections, and shall :
appropriating any amount for an unofficial count and tabulation of the votes cast during
the May 10, 2004 elections:
(i) Prescribe the use or adoption of the latest technological and electronic devices, taking
into account the situation prevailing in the area and the funds available for the
CERTIFICATION purpose: Provided, That the Commission shall notify the authorized representatives of
accredited political parties and candidates in areas affected by the use or adoption of
I hereby certify that per records of the Senate, Congress has not legislated any technological and electronic devices not less than thirty days prior to the effectivity of
appropriation intended to defray the cost of an unofficial count, tabulation or the use of such devices.
consolidation of the votes cast during the May 10, 2004 elections.
From the clear terms of the above provision, before the COMELEC may resort to
May 11, 2004. Pasay City, Philippines. and adopt the latest technological and electronic devices for electoral purposes, it must
act in accordance with the following conditions:
What is worrisome is that despite the concerns of the Commissioners during its En (a) Take into account the situation prevailing in the area and the funds available for
Banc meeting on April 27, 2004, the COMELEC nevertheless approved the assailed the purpose; and,
resolution the very next day. The COMELEC had not executed any supplemental contract
for the implementation of the project with PMSI. Worse, even in the absence of a (b) Notify the authorized representatives of accredited political parties and
certification of availability of funds for the project, it approved the assailed resolution. candidates in areas affected by the use or adoption of technological and electronic
devices not less than thirty days prior to the effectivity of the use of such devices.
Third. The assailed resolution disregards existing laws which authorize solely the
duly-accredited citizens arm to conduct the unofficial counting of votes. Under Section 27 It is quite obvious that the purpose of this provision is to accord to all political
of Rep. Act No. 7166, as amended by Rep. Act No. 8173,[49] and reiterated in Section 18 of parties and all candidates the opportunity to object to the effectiveness of the proposed
Rep. Act No. 8436,[50] the accredited citizens arm - in this case, NAMFREL - is exclusively technology and devices, and, if they are so minded not to object, to allow them ample
authorized to use a copy of the election returns in the conduct of an unofficial counting of time to field their own trusted personnel especially in far flung areas and to take other
the votes, whether for the national or the local elections. No other entity, including the necessary measures to ensure the reliability of the proposed electoral technology or
respondent COMELEC itself, is authorized to use a copy of the election returns for device.
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As earlier pointed out, the assailed resolution was issued by the COMELEC despite COMM. SADAIN:
most of the Commissioners apprehensions regarding the legal, operational and financial
impediments thereto. More significantly, since Resolution No. 6712 was made effective Yes, Your Honor.
immediately a day after its issuance on April 28, 2004, the respondent COMELEC could JUSTICE CARPIO:
not have possibly complied with the thirty-day notice requirement provided under
Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional And you think that is substantial compliance, you would notify how
right to due process of the political parties and candidates. The Office of the Solicitor many political parties as against hundreds of thousands of candidates?
General (OSG) concedes this point, as it opines that the authorized representatives of
accredited political parties and candidates should have been notified of the adoption of COMM. SADAIN:
the electronic transmission of election returns nationwide at the latest on April 7, 2004, Yes, Your Honor, we notified the major political parties, Your Honor.
April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the
Omnibus Election Code.[51] Furthermore, during the hearing on May 18, 2004, JUSTICE CARPIO:
Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it
failed to notify all the candidates for the 2004 elections, as mandated by law: Only the major political parties?

JUSTICE CARPIO: COMM. SADAIN:

You stated that you have notified in writing all the political parties and Including party list?
candidates as required in Section 52 (i)?
JUSTICE CARPIO:
COMM. SADAIN:
But not the candidates, individual candidates?
Yes, Your Honor.
COMM. SADAIN:
JUSTICE CARPIO:
We were not able to do that, Your Honor, I must admit.
Now, how many candidates are there nationwide now?
JUSTICE CARPIO:
COMM. SADAIN:
So, you did not notify hundreds of thousands of candidates?
I must admit you Honor we were not able to notify the candidates but
COMM. SADAIN:
we notified the politicians.
No, Your Honors.[52]
JUSTICE CARPIO:
The respondent COMELEC has, likewise, failed to submit any resolution or
Yes, but what does the law state? Read the law please.
document to prove that it had notified all political parties of the intended adoption of
COMM. SADAIN: Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This
notwithstanding the fact that even long before the issuance of the assailed resolution, it
Yes, Your Honor. I understand that it includes candidates. had admittedly entered into a contract on April 15, 2003[53] and acquired facilities
pertaining to the implementation of the electronic transmission and official tabulation of
JUSTICE CARPIO: election results. As correctly pointed out by the petitioners-in-intervention, the
And there are how many candidates nationwide running in this invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference
election? with the political parties on election security measures did not mention electronic
transmission of advanced results, much less the formal adoption of the purpose of the
COMM. SADAIN: conference. Such notices merely invited the addressee thereof or its/his authorized
representative to a conference where the COMELEC would show a sample of the official
Hundreds of thousands, Your Honor. ballot to be used in the elections, discuss various security measures that COMELEC had
JUSTICE CARPIO: put in place, and solicit suggestions to improve the administration of the
polls.[54] Further, the invitations purportedly sent out to the political parties regarding
Hundreds of thousands, so you mean you just notified the political the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and
parties not the candidates? Dissemination System to be conducted by the COMELEC appear to have been sent out in
the late afternoon of April 5, 2004, after office hours.There is no showing that all the

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political parties attended the Field Test, or received the invitations. More importantly, COMELEC. The three phases cannot be effected independently of each other. The
the said invitations did not contain a formal notice of the adoption of a technology, as implementation of Phase II of the AES is a condition sine qua non to the implementation
required by Section 52(i) of the Omnibus Election Code.[55] of Phase III. The nullification by this Court of the contract for Phase II of the System
effectively put on hold, at least for the May 10, 2004 elections, the implementation of
Fifth. The assailed resolution has no constitutional and statutory basis. That Phase III of the AES.
respondent COMELEC is the sole body tasked to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and Sixth. As correctly observed by the petitioner, there is a great possibility that the
recall[56] and to ensure free, orderly, honest, peaceful and credible elections [57] is beyond unofficial results reflected in the electronic transmission under the supervision and
cavil. That it possesses the power to promulgate rules and regulations in the control of the COMELEC would significantly vary from the results reflected in the
performance of its constitutional duties is, likewise, undisputed. However, the duties of COMELEC official count. The latter follows the procedure prescribed by the Omnibus
the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are Election Code, which is markedly different from the procedure envisioned in the assailed
carried out, at all times, in its official capacity. There is no constitutional and statutory resolution.
basis for the respondent COMELEC to undertake a separate and an unofficial tabulation
of results, whether manually or electronically. Indeed, by conducting such unofficial Under the Omnibus Election Code, after the votes are cast and the polls closed, the
tabulation of the results of the election, the COMELEC descends to the level of a private Board of Election Inspectors (BEI) for each precinct is enjoined to publicly count the
organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC votes and record the same simultaneously on the tally boards and on two sets of
to conduct two kinds of electoral counts a slow but official count, and an alleged quicker ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished,
but unofficial count, the results of each may substantially differ. they are forwarded to the Municipal Board of Canvassers (MBC), which would canvass all
the ERs and proclaim the elected municipal officials. All the results in the ERs are
Clearly, the assailed resolution is an implementation of Phase III of the transposed to the statements of votes (SOVs) by precinct. These SOVs are then
modernization program of the COMELEC under Rep. Act No. 8436. Section 2 of the transferred to the certificates of canvass (COCs) which are, in turn, brought to the
assailed resolution expressly refers to the Phase III-Modernization Project of the Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs
COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the from various municipalities and proclaim the elected provincial officials, including those
COMELEC cannot as yet implement the Phase III of the program. This is so provided in to the House of Representatives. The PBC would then prepare two sets of Provincial
Section 6 of Rep. Act No. 8436. Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of
the results for the President and Vice-President. The other set is forwarded to the
SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated COMELEC for its canvassing of the results for Senators.
policy, the Commission on Elections, herein referred to as the Commission, is hereby As the results are transposed from one document to another, and as each document
authorized to use an automated election system, herein referred to as the System, for the undergoes the procedure of canvassing by various Boards of Canvassers, election returns
process of voting, counting of votes and canvassing/consolidation of results of the and certificates of canvass are objected to and at times excluded and/or deferred and not
national and local elections: Provided, however, That for the May 11, 1998 elections, the tallied, long after the pre-proclamation controversies are resolved by the canvass boards
System shall be applicable in all areas within the country only for the positions of and the COMELEC.
president, vice-president, senators and parties, organizations or coalitions participating
under the party-list system. On the other hand, under the assailed resolution, the precinct results of each city
and municipality received by the ETCs would be immediately electronically transmitted to
To achieve the purpose of this Act, the Commission is authorized to procure by purchase, the NCC.Such data, which have not undergone the process of canvassing, would
lease or otherwise, any supplies, equipment, materials and services needed for the expectedly be dissimilar to the data on which the official count would be based.
holding of the elections by an expedited process of public bidding of vendors, suppliers Resultantly, the official and unofficial canvass, both to be administered by the
or lessors: Provided, That the accredited political parties are duly notified of and allowed respondent COMELEC, would most likely not tally. In the past elections, the unofficial
to observe but not to participate in the bidding. If in spite of its diligent efforts to quick count conducted by the NAMFREL had never tallied with that of the official count
implement this mandate in the exercise of this authority, it becomes evident by February of the COMELEC, giving rise to allegations of trending and confusion. With a second
9, 1998 that the Commission cannot fully implement the automated election system for unofficial count to be conducted by the official election body, the respondent COMELEC,
national positions in the May 11, 1998 elections, the elections for both national and local in addition to its official count, allegations of trending, would most certainly be
positions shall be done manually except in the Autonomous Region in Muslim Mindanao aggravated. As a consequence, the electoral process would be undermined.
(ARMM) where the automated election system shall be used for all positions.
The only intimated utility claimed by the COMELEC for the unofficial electronic
The AES provided in Rep. Act No. 8436 constitutes the entire process of voting, transmission count is to avert the so-called dagdag-bawas. The purpose, however, as the
counting of votes and canvassing/consolidation of results of the national and local petitioner properly characterizes it, is a total sham. The Court cannot accept as tenable
elections corresponding to the Phase I, Phase II and Phase III of the AES of the the COMELECs profession that from the results of the unofficial count, it would be able to

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validate the credibility of the official tabulation. To sanction this process would in effect
allow the COMELEC to preempt or prejudge an election question or dispute which has
not been formally brought before it for quasi-judicial cognizance and resolutions.
Moreover, the Court doubts that the problem of dagdag-bawas could be addressed
by the implementation of the assailed resolution. It is observed that such problem arises
because of the element of human intervention. In the prevailing set up, there is human
intervention because the results are manually tallied, appreciated, and canvassed. On the
other hand, the electronic transmission of results is not entirely devoid of human
intervention. The crucial stage of encoding the precinct results in the computers prior to
the transmission requires human intervention. Under the assailed resolution, encoding is
accomplished by employees of the PMSI. Thus, the problem of dagdag-bawas could still
occur at this particular stage of the process.
As it stands, the COMELEC unofficial quick count would be but a needless
duplication of the NAMFREL quick count, an illegal and unnecessary waste of
government funds and effort.

Conclusion

The Court is mindful of the salutary goals that the respondent COMELEC had
envisioned in promulgating the assailed resolution, to wit: [t]o renew the publics
confidence in the Philippine Electoral System by:
1. Facilitating transparency in the process;
2. Ensuring the integrity of the results;
3. Reducing election results manipulation;
4. Providing timely, fast and accurate information to provide the public re
election results;
5. Enabling the validation of its own official count and other counts;
6. Having an audit trail in its own account.[58]
Doubtless, these are laudable intentions. But the rule of law requires that even the
best intentions must be carried out within the parameters of the Constitution and the
law. Verily, laudable purposes must be carried out by legal methods.[59]
WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated
April 28, 2004 issued by the Commission on Elections (COMELEC) En Banc is hereby
declared NULL AND VOID.
SO ORDERED.

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[G.R. No. 147066. March 26, 2001] Please be advised that the undersigned attended the public hearing called by the Senate
Committee on electoral Reforms, Suffrage and Peoples Participation presided over by the
Hon. Sen. Raul Roco, its Committee Chairman to date at the Senate, New GSIS
Headquarters Building, Pasay City. The main agenda item is the request by youth
AKBAYAN Youth, SCAP, UCSC, MASP, KOMPIL II Youth, ALYANSA, KALIPI, PATRICIA organizations to hold additional two days of registration. Thus, participating students
O. PICAR, MYLA GAIL Z. TAMONDONG, EMMANUEL E.OMBAO, JOHNNY and civic leaders along with Comelec Representatives were in agreement that is legally
ACOSTA, ARCHIE JOHN TALAUE, RYAN DAPITAN, CHRISTOPHER OARDE, feasible to have a two-day additional registration of voters to be conducted preferably on
JOSE MARI MODESTO, RICHARD M. VALENCIA, EDBEN February 17 and 18, 2001 nationwide. The deadline for the continuing voters
TABUCOL, petitioners, vs. COMMISSION ON ELECTIONS, respondents. registration under R.A. 8189 is December 27, 2000.

To address the concern that this may open the flood parts for hakot system, certain
restrictive parameters were discussed. The following guidelines to serve as safeguards
against fraudulent applicants:
[G.R. No. 147179. March 26, 2001]

1. The applicants for the registration shall be 25 years of age or less and will
be registering for the first time on May 14, 2001;
MICHELLE D. BETITO, petitioner, vs. CHAIRMAN ALFREDO BENIPAYO, 2. The applicants shall register in their places of residences; and
COMMISSIONERS MEHOL SADAIN, RUFINO JAVIER, LUZVIMINDA
TANCANGCO, RALPH LANTION, FLORENTINO TUASON and RESURRECCION 3. The applicants shall present valid identification documents, like school
BORRA, all of the Commission on Election (COMELEC), respondents. records.

DECISION Preparatory to the registration days, the following activities are likewise agreed:

BUENA, J.: 1. Submission of the list of students and their addresses immediately prior to
the actual registration of the applicants;
At the helm of controversy in the instant consolidated petitions[1] before us is the
exercise of a right so indubitably cherished and accorded primacy, if not utmost 2. The Comelec field officers will be given the opportunity to verify the voters
reverence, no less than by the fundamental law - the right of suffrage. enumerators list or conduct ocular inspection;

Invoking this right, herein petitioners - representing the youth sector - seek to 3. Availability of funds for the purpose; and
direct the Commission on Elections (COMELEC) to conduct a special registration before 4. Meetings with student groups to ensure orderly and honest conduct of the
the May 14, 2001 General Elections, of new voters ages 18 to 21. According to registration and drum up interest to register among the new voters.
petitioners, around four million youth failed to register on or before the December 27,
2000 deadline set by the respondent COMELEC under Republic Act No. 8189.[2]
The rationale for the additional two-day registration is the renewed political awareness
Acting on the clamor of the students and civic leaders, Senator Raul Roco, Chairman and interest to participate in the political process generated by the recent political
of the Committee on Electoral Reforms, Suffrage, and Peoples Participation, through a events in the country among our youth. Considering that they failed to register on
Letter dated January 25, 2001, invited the COMELEC to a public hearing for the purpose December 27, 2000 deadline, they approved for special registration days.
of discussing the extension of the registration of voters to accommodate those who were
not able to register before the COMELEC deadline.[3] In view of the foregoing, the Commission en banc has to discuss all aspects regarding
Commissioners Luzviminda G. Tancangco and Ralph C. Lantion, together with this request with directives to the Finance Services Department (FSD) to submit
Consultant Resurreccion Z. Borra (now Commissioner) attended the public hearing certified available funds for the purpose, and for the Deputy Executive Director for
called by the Senate Committee headed by Senator Roco, held at the Senate, New GSIS Operations (DEDO) for the estimated costs of additional two days of registration.
Headquarters Bldg., Pasay City.
The presence of REDs on January 30 can be used partly for consultation on the practical
On January 29, 2001, Commissioners Tancangco and Lantion submitted side and logistical requirements of such additional registration days. The meeting will be
Memorandum No. 2001-027 on the Report on the Request for a Two-day Additional set at 1:30 p.m. at the Office of ED.[4]
Registration of New Voters Only, excerpts of which are hereto quoted:

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Immediately, Commissioner Borra called a consultation meeting among regional and caused the disenfranchisement of around four (4) million Filipinos of voting age who
heads and representatives and a number of senior staff headed by Executive Director failed to register before the registration deadline set by the COMELEC.
Mamasapunod Aguam. It was the consensus of the group, with the exception of Director
Jose Tolentino, Jr. of the ASD, to disapprove the request for additional registration of Thus, this Court shall determine:
voters on the ground that Section 8 of R.A. 8189 explicitly provides that no registration a) Whether or not respondent COMELEC committed grave abuse of discretion
shall be conducted during the period starting one hundred twenty (120) days before a in issuing COMELEC Resolution dated February 8, 2001;
regular election and that the Commission has no more time left to accomplish all pre-
election activities.[5] b) Whether or not this Court can compel respondent COMELEC, through the
extraordinary writ of mandamus, to conduct a special registration of new
On February 8, 2001, the COMELEC issued Resolution No. 3584, the decretal voters during the period between the COMELECs imposed December 27,
portion of which reads: 2000 deadline and the May 14, 2001 general elections.

Deliberating on the foregoing memoranda, the Commission RESOLVED, as it hereby The petitions are bereft of merit.
RESOLVES, to deny the request to conduct a two-day additional registration of new In a representative democracy such as ours, the right of suffrage, although
voters on February 17 and 18, 2001. accorded a prime niche in the hierarchy of rights embodied in the fundamental law,
ought to be exercised within the proper bounds and framework of the Constitution and
Commissioners Rufino S. B. Javier and Mehol K. Sadain voted to deny the request must properly yield to pertinent laws skillfully enacted by the Legislature, which statutes
while Commissioners Luzviminda Tancangco and Ralph Lantion voted to accommodate for all intents and purposes, are crafted to effectively insulate such so cherished right
the students request. With this impasse, the Commission construed its Resolution as from ravishment and preserve the democratic institutions our people have, for so long,
having taken effect. guarded against the spoils of opportunism, debauchery and abuse.
Aggrieved by the denial, petitioners AKBAYAN-Youth, SCAP, UCSC, MASP, KOMPIL To be sure, the right of suffrage ardently invoked by herein petitioners, is not at all
II (YOUTH) et al. filed before this Court the instant Petition for Certiorari and Mandamus, absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all
docketed as G.R. No. 147066, which seeks to set aside and nullify respondent COMELECs other rights, is subject to existing substantive and procedural requirements embodied in
Resolution and/or to declare Section 8 of R. A. 8189 unconstitutional insofar as said our Constitution, statute books and other repositories of law. Thus, as to the substantive
provision effectively causes the disenfranchisement of petitioners and others similarly aspect, Section 1, Article V of the Constitution provides:
situated. Likewise, petitioners pray for the issuance of a writ of mandamus directing
respondent COMELEC to conduct a special registration of new voters and to admit for SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES NOT
registration petitioners and other similarly situated young Filipinos to qualify them to OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE,
vote in the May 14, 2001 General Elections. AND WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST ONE YEAR AND
On March 09, 2001, herein petitioner Michelle Betito, a student of the University of IN THE PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT LEAST SIX MONTHS
the Philippines, likewise filed a Petition for Mandamus, docketed as G.R. No. 147179, IMMEDIATELY PRECEDING THE ELECTIONS. NO LITERACY, PROPERTY, OR OTHER
praying that this Court direct the COMELEC to provide for another special registration SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE.
day under the continuing registration provision under the Election Code.
As to the procedural limitation, the right of a citizen to vote is necessarily
On March 13, 2001, this Court resolved to consolidate the two petitions and further conditioned upon certain procedural requirements he must undergo: among others, the
required respondents to file their Comment thereon within a non-extendible period process of registration. Specifically, a citizen in order to be qualified to exercise his right
expiring at 10:00 A.M. of March 16, 2001. Moreover, this Court resolved to set the to vote, in addition to the minimum requirements set by the fundamental charter, is
consolidated cases for oral arguments on March 16, 2001.[6] obliged by law to register, at present, under the provisions of Republic Act No. 8189,
On March 16, 2001, the Solicitor General, in its Manifestation and Motion in lieu of otherwise known as the Voters Registration Act of 1996.
Comment, recommended that an additional continuing registration of voters be Stated differently, the act of registration is an indispensable precondition to the
conducted at the soonest possible time in order to accommodate that disenfranchised right of suffrage. For registration is part and parcel of the right to vote and an
voters for purposes of the May 14, 2001 elections. indispensable element in the election process.Thus, contrary to petitioners argument,
In effect, the Court in passing upon the merits of the present petitions, is tasked to registration cannot and should not be denigrated to the lowly stature of a mere statutory
resolve a two-pronged issue focusing on respondent COMELECs issuance of the assailed requirement. Proceeding from the significance of registration as a necessary requisite to
Resolution dated February 8, 2001, which Resolution, petitioners, by and large, argue to the right to vote, the State undoubtedly, in the exercise of its inherent police power, may
have undermined their constitutional right to vote on the May 14, 2001 general elections then enact laws to safeguard and regulate the act of voters registration for the ultimate
purpose of conducting honest, orderly and peaceful election, to the incidental yet

126
generally important end, that even pre-election activities could be performed by the duly x x x The short cuts that will have to be adopted in order to fit the entire process of
constituted authorities in a realistic and orderly manner one which is not indifferent and registration within the last 60 days will give rise to haphazard list of voters, some of
so far removed from the pressing order of the day and the prevalent circumstances of the whom might not even be qualified to vote. x x x the very possibility that we shall be
times. conducting elections on the basis of an inaccurate list is enough to cast a cloud of doubt
over the results of the polls. If that happens, the unforgiving public will disown the
Viewed broadly, existing legal proscription and pragmatic operational results of the elections, regardless of who wins, and regardless of how many courts
considerations bear great weight in the adjudication of the issues raised in the instant validate our own results. x x x
petitions.
On the legal score, Section 8, of the R.A. 8189, which provides a system of Perhaps undaunted by such scenario, petitioners invoke the so called standby
continuing registration, is explicit, to wit: powers or residual powers of the COMELEC, as provided under the relevant provisions of
Section 29, Republic Act No. 6646[7] and adopted verbatim in Section 28 of Republic Act
SEC. 8. System of Continuing Registration of Voters. The Personal filing of application of No. 8436,[8] thus:
registration of voters shall be conducted daily in the office of the Election Officer during
regular office hours. No registration shall, however, be conducted during the period SEC. 28. Designation of other Dates for Certain Pre-election Acts - If it should no longer
starting one hundred twenty (120) days before a regular election and ninety (90) be possible to observe the periods and dates prescribed by law for certain pre-election
days before a special election. (Emphasis Ours) acts, the Commission shall fix other periods and dates in order to ensure
accomplishments of the activities so voters shall not be deprived of their right to
Likewise, Section 35 of R.A. 8189, which among others, speaks of a prohibitive suffrage.
period within which to file a sworn petition for the exclusion of voters from the
permanent voters list, provides: On this matter, the act of registration is concededly, by its very nature, a pre-
election act. Under Section 3(a) of R.A. 8189, registration, as a process, has its own
SEC. 35. Petition for Exclusion of Voters from the List Any registered voter, specific definition, precise meaning and coverage, thus:
representative of a political party x x x may file x x x except one hundred (100) days
prior to a regular election xxx. a) Registration refers to the act of accomplishing and filing of a sworn application for
registration by a qualified voter before the election officer of the city or municipality
As aptly observed and succinctly worded by respondent COMELEC in its Comment: wherein he resides and including the same in the book of registered voters upon
approval by the Election Registration Board;
x x x The petition for exclusion is a necessary component to registration since it is a
safety mechanism that gives a measure of protection against flying voters, non-qualified At this point, it bears emphasis that the provisions of Section 29 of R.A. 8436
registrants, and the like. The prohibitive period, on the other hand serves the purpose of invoked by herein petitioners and Section 8 of R.A. 8189 volunteered by respondent
securing the voters substantive right to be included in the list of voters. COMELEC, far from contradicting each other, actually share some common ground. True
enough, both provisions, although at first glance may seem to be at war in relation to the
other, are in a more circumspect perusal, necessarily capable of being harmonized and
In real-world terms, this means that if a special voters registration is conducted, then the reconciled.
prohibitive period for filing petitions for exclusion must likewise be adjusted to a later
date. If we do not, then no one can challenge the Voters list since we would already be Rudimentary is the principle in legal hermeneutics that changes made by the
well into the 100-day prohibitive period. Aside from being a flagrant breach of the legislature in the form of amendments to a statute should be given effect, together with
principles of due process, this would open the registration process to abuse and other parts of the amended act. It is not to be presumed that the legislature, in making
seriously compromise the integrity of the voters list, and consequently, that of the entire such changes, was indulging in mere semantic exercise. There must be some purpose in
election. making them, which should be ascertained and given effect.[9]
Similarly, every new statute should be construed in connection with those already
x x x It must be remembered that the period serve a vital role in protecting the integrity existing in relation to the same subject matter and all should be made to harmonize and
of the registration process. Without the prohibitive periods, the COMELEC would be stand together, if they can be done by any fair and reasonable
deprived of any time to evaluate the evidence on the application. We would be obliged to interpretation.[10] Interpretare et concordare legibus est optimus interpretandi,
simply take them at face value. If we compromise on these safety nets, we may very well which means that the best method of interpretation is that which makes laws consistent
end up with a voters list full of flying voters, overflowing with unqualified registrants, with other laws. Accordingly, courts of justice, when confronted with apparently
populated with shadows and ghosts x x x. conflicting statutes, should endeavor to reconcile them instead of declaring outright the

127
invalidity of one against the other. Courts should harmonize them, if this is possible, that precinct is located - must be furnished by the Election Officer to all
because they are equally the handiwork of the same legislature.[11] the candidates and political candidates not later than the 26th of March.
In light of the foregoing doctrine, we hold that Section 8 of R.A. 8189 applies in the 23) Third, the Book of Voters, which contains the approved Voter
present case, for the purpose of upholding the assailed COMELEC Resolution and Registration Records of registered voters in particular precinct, must be
denying the instant petitions, considering that the aforesaid law explicitly provides that inspected, verified, and sealed beginning March 30, until April 15.
no registration shall be conducted during the period starting one hundred twenty (120)
days before a regular election. 24) Fourth, the Computerized Voters List must be finalized and printed out of
use on election day; and finally
Corollarily, it is specious for herein petitioners to argue that respondent COMELEC
may validly and legally conduct a two-day special registration, through the expedient of 25) Fifth, the preparation, bidding, printing, and distribution of the Voters
the letter of Section 28 of R.A. 8436. To this end, the provisions of Section 28, R.A. 8436 Information Sheet must be completed on or before April 15.
would come into play in cases where the pre-election acts are susceptible of 26) With this rigorous schedule of pre-election activities, the Comelec will
performance within the available period prior to election day. In more categorical have roughly a month that will act as a buffer against any number of
language, Section 28 of R.A. 8436 is, to our mind, anchored on the sound premise that unforeseen occurrences that might delay the elections. This is the logic
these certain pre-election acts are still capable of being reasonably performed vis-a- and the wisdom behind setting the 120-day prohibitive period. After all,
vis the remaining period before the date of election and the conduct of other related pre- preparing for an election is no easy task.
election activities required under the law.
27) To hold special registrations now would, aside from being Illegal, whittle
In its Comment, respondent COMELECwhich is the constitutional body tasked by that approximately 30-day margin away to nothing.
no less than the fundamental charter (Sec. 2, par. 3, Article IX-C of the Constitution) to
decide, except those involving the right to vote, all questions affecting elections, 28) When we say registration of voters, we do not - contrary to popular
including registration of voterspainstakingly and thoroughly emphasized the operational opinion - refer only to the act of going to the Election Officer and writing
impossibility[12] of conducting a special registration, which in its on language, can no our names down. Registration is, In fact, a long process that takes about
longer be accomplished within the time left to (us) the Commission.[13] three weeks to complete not even counting how long it would take to
prepare for the registration in the first place.
Hence:
29) In order to concretize, the senior Staff of the Comelec, the other
xxx xxx xxx. Commissioners, prepared a time-table in order to see exactly how the
superimposition of special registration would affect the on-going
preparation for the May 14 elections.
19) In any case, even without the legal obstacles, the last 60 days will not be a
walk in the park for the Comelec. Allow us to outline what the 30) We assumed for the sake of argument that we were to hold the special
Commission has yet to do, and the time to do it in: registration on April 16 and 17. These are not arbitrary numbers, by the
way it takes in account the fact that we only have about 800,000 Voters
20) First we have to complete the Project of Precincts by the 19th of March. Registration Forms available, as against an estimated 4.5 million potential
The Projects of Precincts Indicate the total number of established registrants, and it would take about 14 days If we were to declare special
precincts and the number of registered voters per precincts in a city or registrations today to print up the difference and to verify these
municipality. Without the final Project of Precincts, we cannot even accountable forms. After printing and verification, the forms would have
determine the proper allocation of official ballots, election returns and to be packed and shipped - roughly taking up a further two and a half
other election forms and paraphernalia. More succinctly said, without the weeks. Only then can we get on with registration.
Project of Precincts, we wont know how many forms to print and so were
liable to come up short. 31) The first step in registration is, of course, filling the application for
registration with the Election Officer. The application, according to
21) More Importantly, without a completed Project of Precincts, it will be Section 17 of R.A. 8189, is then set for hearing, with notice of that hearing
impossible to complete the rest of the tasks that must be accomplished being posted in the city or municipal bulletin board for at least one week
prior to the elections. prior. Thus, if we held registrations on the 16th and the 17th the posting
22) Second, the Board of Elections Inspectors must be constituted on or requirement would be completed by the 24th. Considering that time must
before the 4th of March. In addition, the list of the members of the BEI be allowed for the filling of oppositions, the earliest that the Election
including the precinct where they are assigned and the barangay where Registration Board can be convened for hearing would be the May 1st and
2nd.

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32) Assuming and this is a big assumption that there are nit challenges to the Further, petitioners bare allegation that they were disenfranchised when
applicants right to register, the Election registration Board can respondent COMELEC pegged the registration deadline on December 27, 2000 instead of
immediately rule on the Applicants registration, and post notices of its January 13, 2001 the day before the period before the May 14, 2001 regular elections
action by the 2nd until the 7th of May. By the 10th, copies of the notice of commences is, to our mind, not sufficient. On this matter, there is no allegation in the two
the action taken by the Board will have already been furnished to the consolidated petitions and the records are bereft of any showing that anyone of herein
applicants and the heads of registered political parties. petitioners has filed an application to be registered as a voter which was denied by the
COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she
33) Only at this point can our Election Officers once again focus on the proceeded to the Office of the Election Officer to register between the period starting
business of getting ready for the elections. Once the results of the special from December 28, 2000 to January 13, 2001, and that he or she was disallowed or
registration are finalized, they can be encoded and a new Computerized barred by respondent COMELEC from filing his application for registration. While it may
Voters List generated - at the earliest, by May 11, after which the new CVL be true that respondent COMELEC set the registration deadline on December 27, 2000,
would be posted. Incidentally, it we were to follow the letter of the law this Court is of the Firm view that petitioners were not totally denied the opportunity to
strictly, a May 11 posting date for the new CVL would be improper since avail of the continuing registration under R.A. 8189. Stated in a different manner, the
the R.A. 8189 provides that the CVL be posted at least 90 days before the petitioners in the instant case are not without fault or blame. They admit in their
election. petition[18] that they failed to register, for whatever reason, within the period of
34) Assuming optimistically that we can then finish the inspection, registration and came to this Court and invoked its protective mantle not realizing, so to
verification, and sealing of the Book if Voters by May 15, we will already speak, the speck in their eyes. Impuris minibus nemo accedat curiam. Let no one come
have overshot the May 14, election date, and still not have finished our to court with unclean hands.
election preparations. In a similar vein, well-entrenched is the rule in our jurisdiction that the law aids the
35) After this point, we could have to prepare the allocation of Official Ballots, vigilant and not those who slumber on their rights. Vigilantis sed non dormientibus
Election Returns, and other Non-Accountable Forms and Supplies to be jura in re subveniunt.
used for the new registrants. Once the allocation is ready, the contracts Applying the foregoing, this court is of the firm view that respondent COMELEC did
would be awarded, the various forms printed, delivered, verified, and not commit an abuse of discretion, much less be adjudged to have committed the same in
finally shipped out to the different municipalities. All told, this process some patent, whimsical and arbitrary manner, in issuing Resolution No. 3584 which, in
would take approximately 26 days, from the 15th of May until June 10. respondents own terms, resolved to deny the request to conduct a two-day additional
36) Only then can we truly say that we are ready to hold the elections. registration of new voters on February 17 and 18, 2001.
On this particular matter, grave abuse of discretion implies a capricious and
xxx xxx xxx.[14] whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
It is an accepted doctrine in administrative law that the determination of hostility, and it must be so patent and gross as to amount to an evasion of positive duty
administrative agency as to the operation, implementation and application of a law enjoined or to act at all in contemplation of laws.[19]
would be accorded great weight considering that these specialized government bodies Under these circumstances, we rule that the COMELEC, in denying the request of
are, by their nature and functions, in the best position to know what they can possibly do petitioners to hold a special registration, acted within the bounds and confines of the
or not do, under prevailing circumstances. applicable law on the matter --Section 8 of RA 8189. In issuing the assailed Resolution,
Beyond this, it is likewise well-settled that the law does not require that the respondent COMELEC simply performed its constitutional task to enforce and administer
impossible be done.[15] The law obliges no one to perform an impossibility, expressed in all laws and regulations relative to the conduct of an election,[20] inter alia, questions
the maxim, nemo tenetur ad impossible.[16] In other words, there is no obligation to do relating to the registration of voters; evidently, respondent COMELEC merely exercised a
an impossible thing. Impossibilium nulla obligato est. Hence, a statute may not be so prerogative that chiefly pertains to it and one which squarely falls within the proper
construed as to require compliance with what it prescribes cannot, at the time, be legally, sphere of its constitutionally-mandated powers. Hence, whatever action respondent
coincidentally[17], it must be presumed that the legislature did not at all intend an takes in the exercise of its wide latitude of discretion, specifically on matters involving
interpretation or application of a law which is far removed from the realm of the voters registration, pertains to the wisdom rather than the legality of the
possible.Truly, in the interpretation of statutes, the interpretation to be given must be act. Accordingly, in the absence of clear showing of grave abuse of power of discretion on
such that it is in accordance with logic, common sense, reasonableness and the part of respondent COMELEC, this Court may not validly conduct an incursion and
practicality. Thus, we are of the considered view that the stand-by power of the meddle with affairs exclusively within the province of respondent COMELEC a body
respondent COMELEC under Section 28 of R.A. 8436, presupposes the possibility of its accorded by no less than the fundamental law with independence.
being exercised or availed of, and not otherwise.

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As to petitioners prayer for the issuance of the writ of mandamus, we hold that this
Court cannot, in view of the very nature of such extraordinary writ, issue the same
without transgressing the time-honored principles in this jurisdiction.
As an extraordinary writ, the remedy of mandamus lies only to compel an officer to
perform a ministerial duty, not a discretionary one; mandamus will not issue to control
the exercise of discretion of a public officer where the law imposes upon him the duty to
exercise his judgment in reference to any manner in which he is required to act, because
it is his judgment that is to be exercised and not that of the court.[21]
Considering the circumstances where the writ of mandamus lies and the
peculiarities of the present case, we are of the firm belief that petitioners failed to
establish, to the satisfaction of this Court, that they are entitled to the issuance of this
extraordinary writ so as to effectively compel respondent COMELEC to conduct a special
registration of voters. For the determination of whether or not the conduct of a special
registration of voters is feasible, possible or practical within the remaining period before
the actual date of election, involves the exercise of discretion and thus, cannot be
controlled by mandamus.
In Bayan vs. Executive Secretary Zamora and related cases,[22] we enunciated
that the Courts function, as sanctioned by Article VIII, Section 1, is merely (to) check
whether or not the governmental branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing...(of) grave abuse of discretion amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective power... It has no power to look into what
it thinks is apparent error.[23]
Finally, the Court likewise takes judicial notice of the fact that the President has
issued Proclamation No. 15 calling Congress to a Special Session on March 19, 2001, to
allow the conduct of Special Registration of new voters. House Bill No. 12930 has been
filed before the Lower House, which bill seeks to amend R.A. 8189 as to the 120-day
prohibitive period provided for under said law. Similarly, Senate Bill No. 2276[24] was
filed before the Senate, with the same intention to amend the aforesaid law and, in effect,
allow the conduct of special registration before the May 14, 2001 General Elections.This
Court views the foregoing factual circumstances as a clear intimation on the part of both
the executive and legislative departments that a legal obstacle indeed stands in the way
of the conduct by the Commission on Elections of a special registration before the May
14, 2001 General Elections.
WHEREFORE, premises considered, the instant petitions for certiorari and
mandamus are hereby DENIED.
SO ORDERED.

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G.R. Nos. 207199-200 October 22, 2013 On May 15 and 16, 2013, Wigberto filed with the COMELEC En Banc an Extremely Urgent
Motion to Admit Additional and Newly Discovered Evidence and to Urgently Resolve
WIGBERTO R. TAÑADA, JR. Petitioner, Motion for Reconsideration16 and an Urgent Manifestation and Supplemental17 thereto.
vs. These motions, however, remained un-acted upon until the filing of the present petition
COMMISSION ON ELECTIONS ANGELINA D. TAN, AND ALVIN JOHN S. before the Court on May 27, 2013. Thus, in order to avoid charges of forum-shopping,
TAÑADA, Respondents. said motions were withdrawn by Wigberto.

RESOLUTION In a related development, despite the cancellation of Alvin John’s CoC due to his material
misrepresentations therein, his na