G.R. No. 167810. October 4, 2010.

REPUBLIC OF THE PHILIPPINES, represented by the

NATIONAL POWER CORPORATION, petitioner,

vs.

ATTY. RICHARD B. RAMBUYONG, respondent.

National Power Corporation (NPC); Government-owned and -Controlled

Corporations (GOCC); Local Government Code; Words and Phrases; The term
“instrumentality” includes government-owned or -controlled corporations—the NPC is
clearly an instrumentality of the government.—Section 2 of the Administrative Code of
1987 is clear and unambiguous. It categorically provides that the term “instrumentality”
includes government-owned or -controlled corporations. Hence there is no room for
construction. All that has to be done is to apply the law as called for by the
circumstances of the case. It is not disputed that the NPC is a government-owned or -
controlled corporation. Therefore following Section 2 of the Administrative Code of
1987, the NPC is clearly an instrumentality of the government.

Same; Same; Same; Statutory Construction; Given the categorical words of both the
law and jurisprudence, to still go to extra-ordinary lengths to interpret the intention of the
lawmakers and come out with the construction that a government-owned or controlled
corporation like the National Power Corporation (NPC) is not included within the term
“instrumentality of the government” is grave abuse of discretion.—It is also significant to
point out that in Maceda v. Macaraig, Jr., 197 SCRA 771 (1991), the Court stated that
“[t]he NPC is a government instrumentality with the enormous task of undertaking
development of hydroelectric generation of power and production of electricity from
other sources, as well as the transmission of electric power on a nationwide basis, to
improve the quality of life of the people pursuant to the State policy embodied in Section
[9], Article II of the 1987 Constitution.” Given the categorical words of both the law and
jurisprudence, to still go to extraordinary lengths to interpret the intention of the
lawmakers and come out with the construction that a government-owned or controlled
corporation like the NPC is not included within the term “instrumentality of the
government” is grave abuse of discretion.
Same; Same; Same; Attorneys; Local Government Units; A sanggunian member
cannot appear as counsel of a party adverse to the National Power Corporation (NPC),
which is an instrumentality of the government.—Section 446 of the Local Government
Code provides that “[t]he sangguniang bayan, the legislative body of the municipality,
shall be composed of the municipal vice mayor as the presiding officer x x x.” Thus,
pursuant to Sec. 90(b) (1) of the Local Government Code, Atty. Rambuyong, as
sanggunian member, cannot appear as counsel of a party adverse to the NPC, which is
an instrumentality of government.

DEL CASTILLO, J.:

This petition for review assails the May 20, 2004 Decision[1] and April 13, 2005 Resolution[2] of the
Court of Appeals (CA) in CA-G.R. SP No. 72800, which dismissed the petition before it and denied
reconsideration, respectively.
Factual Antecedents
Alfredo Y. Chu (Chu) filed a case for collection of a sum of money and/or damages against the
National Power Corporation (NPC) docketed as Civil Case No. 1-197 which was raffled to the
Regional Trial Court (RTC) of Ipil, Zamboanga Sibugay, Branch 24. Appearing as counsel for Chu is
Atty. Richard B. Rambuyong (Atty. Rambuyong) who was then the incumbent Vice-Mayor of Ipil,
Zamboanga Sibugay.
Thereafter, NPC filed a Motion for Inhibition[3] of Atty. Rambuyong arguing that under Section 90 (b),
(1) of Republic Act (RA) No. 7160, otherwise known as the Local Government
Code, sanggunian members are prohibited "to appear as counsel before any court wherein x x x any
office, agency or instrumentality of the government is the adverse party." NPC contended that being
a government-owned or controlled corporation, it is embraced within the term "instrumentality."
Ruling of the Regional Trial Court
In an Order[4] dated January 4, 2002, the RTC ruled that government-owned or controlled
corporations are expressly excluded from Section 90 (b), (1) of the Local Government Code. Citing
other provisions of the Local Government Code wherein the phrase "including government-owned or
controlled corporations" is explicitly included, the trial court held that if it was the intention of the
framers of RA 7160 to impose obligations or give rights and privileges to local government units,
agencies, instrumentalities or corporate entities, then they would have explicitly stated so. The RTC
further held that "to insistently maintain that 'government-owned or controlled corporations' are
included in the signification of 'agency and instrumentality of the government' x x x would be leaving
behind what is apparent in favor of opening the door to the realm of presumption, baseless
conjecture and even absurdity."[5]
The dispositive portion of the Order reads:
WHEREFORE, upon the foregoing disquisition, the defendant's motion is DENIED due course, and
this Court declares:

1. Sec. 90 of R.A. 7160 does not include government-owned or controlled corporations as

among the political units against which lawyer members of the Sanggunian cannot appear as
counsel of the adverse party;
2.
3. That Atty. Richard B. Rambuyong, who is the incumbent Vice-Mayor of the Municipality of
Ipil, Zamboanga Sibugay, is not disqualified to continue acting as counsel for the plaintiff in
this case.

SO ORDERED.[6]
Petitioner filed a motion for reconsideration but it was denied.[7]
Hence, petitioner filed a petition for certiorari with the CA alleging grave abuse of discretion on the
part of the trial judge in ruling that the statutory prohibition pertaining to the private practice of law
by sanggunian members does not apply to cases where the adverse party is a government-owned
or controlled corporation.
Ruling of the Court of Appeals
On May 20, 2004, the CA dismissed the petition for lack of merit. The CA pointed out that
for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power. It held that
there was no showing that the trial judge exercised his power of judgment capriciously, arbitrarily
and whimsically. Neither did it find proof that the trial judge, in making the rulings, was motivated by
passion or personal hostility towards the petitioner.
It ruled that if ever there has been an erroneous interpretation of the law, the same may be attributed
to a mere error of judgment which is definitely not the same as "grave abuse of discretion." The
dispositive portion of the Decision states:
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED.
SO ORDERED.[8]
The motion for reconsideration of NPC was denied. Hence, the present petition.
Issues
Petitioner raises the following arguments:
I
BOTH THE LOCAL GOVERNMENT CODE AND THE 1987 ADMINISTRATIVE [CODE]
ESSENTIALLY REQUIRE ATTY. RAMBUYONG TO INHIBIT HIMSELF FROM ACTING AS
COUNSEL AGAINST NPC IN THE PROCEEDINGS BELOW.

II
NPC IS INCLUDED IN THE TERM "INSTRUMENTALITY" OF GOVERNMENT.

III
THE PROHIBITION IN SECTION 90(b), (1) OF RA 7160 INTENDS TO PREVENT PUBLIC
OFFICIALS FROM REPRESENTING INTEREST ADVERSE TO THE GOVERNMENT.

IV
BACANI CASE IS NO LONGER THE PREVAILING JURISPRUDENCE ON THE REAL MEANING
OF GOVERNMENT INSTRUMENTALITIES.

V
ATTY. RICHARD RAMBUYONG IS THE REAL-PARTY-IN-INTEREST IN THE SUBJECT
PETITION.[9]

In the main the issue is whether NPC is an instrumentality of government such that Atty.
Rambuyong, as a sanggunian member, should not appear as counsel against it.
Petitioner's Arguments
Petitioner contends that the trial court refused to apply the law, specifically Section 90 (b), (1) of RA
7160, which clearly states that lawyer-sanggunian members cannot appear as counsel in any case
where the adverse party is a local government unit, office, agency or instrumentality. It argues that
courts are not authorized to distinguish where the law makes no distinction.
Petitioner alleges that the RTC gravely abused its discretion when it failed to recognize that the 1987
Administrative Code and the Local Government Code are in pari materia in defining the terms used
in the latter, such as "office, agency or instrumentality." It argues that the RTC acted beyond the
scope of its jurisdiction when it constricted the definition of "instrumentality" in Section 90 (b), (1) of
RA 7160 to exclude government-owned and controlled corporations.
Petitioner argues that NPC is an instrumentality of government and that there is no cogent reason to
exclude government-owned and controlled corporations from the operation of Section 90 (b), (1) of
RA 7160.
Finally, petitioner claims that the government's challenge against Atty. Rambuyong's appearance is
directed against him alone to the exclusion of his client whose right to prosecute his claim as party
litigant is beyond question.
Respondent's Arguments
On the other hand, respondent contends that the party who would be benefited or injured by the
compulsory inhibition of plaintiffs counsel is the plaintiff in Civil Case No. 1-197. Thus, , he insists
that the plaintiff is the real party in interest and his (Atty. Rambuyong) inclusion as respondent in the
present petition is erroneous.
Our Ruling
The petition has merit.
Instrumentality of the Government
The provisions of law relevant to the present case state:
Sec. 90.[10] Practice of Profession. (a) All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation, other than the exercise of their functions
as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in
schools except during session hours:

Provided, That sanggunian members who are also members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any
office, agency, or instrumentality of the government is the adverse party;

xxx xxx xxx

Sec. 5.[11] Rules of Interpretation. In the interpretation of the provisions of this Code, the following
rules shall apply:

xxx xxx xxx

(e) In the resolution of controversies arising under this Code where no legal provision or
jurisprudence applies, resort may be had to the customs and traditions in the place where the
controversies take place. (Emphasis supplied.)
Sec. 2.[12] General Terms Defined. Unless the specific words of the text, or the context as a whole, or
a particular statute, shall require a different meaning:

xxx xxx xxx

(4) "Agency of the Government" refers to any of the various units of the Government, including a
department, bureau, office, instrumentality, or government-owned or controlled corporations, or a
local government or a distinct unit therein.

xxx xxx xxx

(10) Instrumentality refers to any agency of the National Government, not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed with some if not
all corporate powers, administering special funds, and enjoying operational autonomy, usually
through a charter. This term includes regulatory agencies, chartered institutions and
government-owned or controlled corporations. (Emphasis supplied.)

In Aparri v. Court of Appeals,,13 the Court instructs:

It is the rule in statutory construction that if the words and phrases of a statute are not obscure or
ambiguous, its meaning and the intention of the legislature must be determined from the language
employed, and, where there is no ambiguity in the words, there is no room for construction. The
courts may not speculate as to the probable intent of the legislature apart from the words. The
reason for the rule is that the legislature must be presumed to know the meaning of words, to have
used words advisedly and to have expressed its intent by use of such words as are found in the
statute.

Section 2 of the Administrative Code of 1987 is clear and unambiguous. It categorically provides that
the term "instrumentality" includes government-owned or controlled corporations. Hence there is no
room for construction. All that has to be done is to apply the law as called for by the circumstances
of the case. It is not disputed that the NPC is a government-owned or controlled corporation.
Therefore following Section 2 of the Administrative Code of 1987, the NPC is clearly an
instrumentality of the government.
It is also significant to point out that in Maceda v. Macaraig, Jr.[14] the Court stated that "[t]he NPC is
a government instrumentalitywith the enormous task of undertaking development of hydroelectric
generation of power and production of electricity from other sources, as well as the transmission of
electric power on a nationwide basis, to improve the quality of life of the people pursuant to the State
policy embodied in Section [9], Article II of the 1987 Constitution."
Given the categorical words of both the law and jurisprudence, to still go to extra-ordinary lengths to
interpret the intention of the lawmakers and come out with the construction that a government-
owned or controlled corporation like the NPC is not included within the term "instrumentality of the
government" is grave abuse of discretion.
"By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction."[15]"Grave abuse of discretion is an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the
judgment rendered is not based on law and evidence but on caprice, whim and despotism."[16]
The strained and contrary interpretation of clearly worded provisions of law, which therefore should
be merely applied and not interpreted, is an earmark of despotism and grave abuse of discretion.
Finally, Section 446 of the Local Government Code provides that "[t]he sanggnniang bayan, the
legislative body of the municipality, shall be composed of the municipal vice mayor as the presiding
officer x x x." Thus, pursuant to Sec. 90 (b), (1) of the Local Government Code, Atty. Rambuyong,
as sanggunian member, cannot appear as counsel of a party adverse to the NPC, which is an
instrumentality of government.
WHEREFORE, the petition is GRANTED. The May 20, 2004 Decision and April 13,2005 Resolution
of the Court of Appeals in CA-G.R. SP No. 72800 are REVERSED and SET ASIDE. Atty. Richard B.
Rambuyong is disqualified from appearing in Civil Case No. 1-197.
SO ORDERED.

A.C. No. 5738. February 19, 2008.*

WILFREDO M. CATU, complainant,

vs.

ATTY. VICENTE G. RELLOSA, respondent.

(See Problem Areas in Legal Ethics Full Text of Case, No. 2)

Legal Ethics; Attorneys; Rule 6.03 of the Code of Professional Responsibility

applies only to a lawyer who has left government service and in connection “with any
matter in which he intervened while in said service.”—Respondent cannot be found
liable for violation of Rule 6.03 of the Code of Professional Responsibility. As worded,
that Rule applies only to a lawyer who has left government service and in connection
“with any matter in which he intervened while in said service.” In PCGG v.
Sandiganbayan, 455 SCRA 526 (2005) we ruled that Rule 6.03 prohibits former
government lawyers from accepting “engagement or employment in connection with any
matter in which [they] had intervened while in said service.” Respondent was an
incumbent punong barangay at the time he committed the act complained of. Therefore,
he was not covered by that provision.

Same; Same; Local Government Code (R.A. No. 7160); The Code of Conduct and
Ethical Standards for Public Officials and Employees (R.A. 6713); Section 90 of R.A.
7160, not Section 7(B)(2) of R.A. 6713, governs the practice of profession of elective
local officials.—Section 7(b)(2) of RA 6713 prohibits public officials and employees,
during their incumbency, from engaging in the private practice of their profession
“unless authorized by the Constitution or law, provided that such practice will not conflict
or tend to conflict with their official functions.” This is the general law which applies to all
public officials and employees. For elective local government officials, Section 90 of RA
7160 governs: x x x This is a special provision that applies specifically to the practice of
profession by elective local officials. As a special law with a definite scope (that is, the
practice of profession by elective local officials), it constitutes an exception to Section
7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by
public officials and employees. Lex specialibus derogate generalibus.

Same; Same; Same; Unlike governors, city mayors and municipal mayors, members of
the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayan are
required to hold regular sessions only at least once a week, and since the law itself
grants them the authority to practice their professions, engage in any occupation or
teach in schools outside session hours, there is no longer any need for them to secure
prior permission or authorization from any other person or office for any of these
purposes.—Of these elective local officials, governors, city mayors and municipal
mayors are prohibited from practicing their profession or engaging in any occupation
other than the exercise of their functions as local chief executives. This is because they
are required to render full time service. They should therefore devote all their time and
attention to the performance of their official duties. On the other hand, members of the
sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayan may
practice their professions, engage in any occupation, or teach in schools except during
session hours. In other words, they may practice their professions, engage in any
occupation, or teach in schools outside their session hours. Unlike governors, city
mayors and municipal mayors, members of the sangguniang panlalawigan,
sangguniang panlungsod or sangguniang bayan are required to hold regular sessions
only at least once a week. Since the law itself grants them the authority to practice their
professions, engage in any occupation or teach in schools outside session hours, there
is no longer any need for them to secure prior permission or authorization from any
other person or office for any of these purposes.

Same; Same; Same; Civil Service; Public Officers; A punong barangay is not
forbidden to practice his profession but he should procure prior permission or
authorization from the head of his Department, as required by civil service
regulations.—Certain local elective officials (like governors, mayors, provincial board
members and councilors) are expressly subjected to a total or partial proscription to
practice their profession or engage in any occupation, no such interdiction is made on
the punong barangay and the members of the sangguniang barangay. Expressio unius
est exclusio alterius. Since they are excluded from any prohibition, the presumption is
that they are allowed to practice their profession. And this stands to reason because
they are not mandated to serve full time. In fact, the sangguniang barangay is supposed
to hold regular sessions only twice a month. Accordingly, as punong barangay,
respondent was not forbidden to practice his profession. However, he should have
procured prior permission or authorization from the head of his Department, as required
by civil service regulations.

Same; Same; Same; Same; Same; A punong barangay who is also a lawyer should
obtain the prior written permission of the Secretary of Interior and Local Government
before he enters his appearance as counsel for any party, and his failure to comply with
Section 12, Rule XVIII of the Revised Civil Service Rules constitutes a violation of his
oath as a lawyer—to obey the laws; Lawyers are servants of the law, vires legis, men of
the law.—As punong barangay, respondent should have there-fore obtained the prior
written permission of the Secretary of Interior and Local Government before he entered
his appearance as counsel for Elizabeth and Pastor. This he failed to do. The failure of
respondent to comply with Section 12, Rule XVIII of the Revised Civil Service Rules
constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants of
the law, vires legis, men of the law. Their paramount duty to society is to obey the law
and promote respect for it. To underscore the primacy and importance of this duty, it is
enshrined as the first canon of the Code of Professional Responsibility. In acting as
counsel for a party without first securing the required written permission, respondent not
only engaged in the unauthorized practice of law but also violated civil service rules
which is a breach of Rule 1.01 of the Code of Professional Responsibility: Rule 1.01—A
lawyer shall not engage in un-lawful, dishonest, immoral or deceitful conduct. (emphasis
supplied)
Same; Same; Same; Same; Same; A lawyer who disobeys the law disrespects it.—For
not living up to his oath as well as for not complying with the exacting ethical standards
of the legal profession, respondent failed to comply with Canon 7 of the Code of
Professional Responsibility: CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD
THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT
THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied) Indeed, a lawyer
who disobeys the law disrespects it. In so doing, he disregards legal ethics and
disgraces the dignity of the legal profession.

G.R. No. 104732. June 22, 1993.*

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO,

DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES,
petitioners,

vs.

HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.

GORDON, respondents.

Constitutional Law; Local Government Code; Sec. 94 of the LGC is not

determinative of the constitutionality of Sec. 13, par.(d), of RA 7227 for no legislative act
prevail over the fundamental law of the land.—In the case before us, the subject proviso
directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to
other government posts (as Chairman of the Board and Chief Executive Officer of
SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it
needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7,
first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective
official may be most beneficial to the higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment
of a local elective official to another post if so allowed by law or by the primary functions
of his office. But, the contention is fallacious. Section 94 of the LGC is not determinative
of the constitutionality of Sec. 13, par. (d), of RA 7227, for no legislative act can prevail
over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of
LGC is not the issue here nor is that section sought to be declared unconstitutional, we
need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional
as authority for its validity.

Same; Same; Subic Bay Metropolitan Authority; Meaning of the phrase “shall be
appointed”; The phrase shall be appointed unquestionably shows the intent to make
the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo
City.—It is further argued that the SBMA posts are merely ex officio to the position of
Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union
v. Executive Secretary, where we stated that the prohibition against the holding of any
other office or employment by the President, Vice-President, Members of the Cabinet,
and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of
the Constitution, does not comprehend additional duties and functions required by the
primary functions of the officials concerned, who are to perform them in an ex officio
capacity as provided by law, without receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not contemplate
making the subject SBMA posts as ex officio or automatically attached to the Office of
the Mayor of Olongapo City without need of appointment. The phrase “shall be
appointed” unquestionably shows the intent to make the SBMA posts appointive and not
merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent
to make the subject positions ex officio, Congress would have, at least, avoided the
word “appointed” and, instead, “ex officio” would have been used.

Same; Appointing Power; The appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for himself who is best qualified
among those who have the necessary qualifications and eligibilities.—Considering that
appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., “the choice of a person to fill an office constitutes
the essence of his appointment,” and Mr. Justice Malcolm adds that an “[a]ppointment
to office is intrinsically an executive act involving the exercise of discretion.” In
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we held: The
power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who
is best qualified among those who have the necessary qualifications and eligibilities. It is
a prerogative of the appointing power x x x x”
Same; De Facto Officer; Respondent Gordon’s appointment pursuant to a legislative
act that contravenes the Constitution cannot be sustained. His acts as SBMA official are
not necessarily null and void, he may be considered a de facto officer.—As incumbent
elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive Officer of SBMA; hence, his appointment
thereto pursuant to a legislative act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official
are not necessarily null and void; he may be considered a de facto officer, “one whose
acts, though not those of a lawful officer, the law, upon principles of policy and justice,
will hold valid so far as they involve the interest of the public and third persons, where
the duties of the office were exercised x x x x under color of a known election or
appointment, void because the officer was not eligible, or because there was a want of
power in the electing or appointing body, or by reason of some defect or irregularity in
its exercise, such ineligibility, want of power or defect being unknown to the public x x x
x [or] under color of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38
Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan’s
Case, 122 Mass, 445, 23 Am. Rep., 323).”

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227,1 otherwise known as the "Bases Conversion
and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City
was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority
(SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and
temporary restraining order "to prevent useless and unnecessary expenditures of public funds by
way of salaries and other operational expenses attached to the office . . . ."2 Paragraph (d) reads —

(d) Chairman administrator — The President shall appoint a professional manager as

administrator of the Subic Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget, who shall be the ex
oficio chairman of the Board and who shall serve as the chief executive officer of the
Subic Authority: Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on
the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in
any capacity to any public officer or position during his tenure,"3 because the City Mayor of Olongapo
City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the
Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint",4since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts;5 and, (c) Sec. 261, par. (g), of the Omnibus
Election Code, which says:

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

for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May
1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states,
"Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor
of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic
Authority," violates the constitutional proscription against appointment or designation of elective
officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to

any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person,
so that a public officer or employee may serve full-time with dedication and thus be efficient in the
delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public
officer or employee, like the head of an executive department described in Civil Liberties Union v.
Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C.
Juico, as Secretary of Agrarian Reform, G.R. No. 83815,6 ". . . . should be allowed to attend to his
duties and responsibilities without the distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation
where a local elective official will work for his appointment in an executive position in government,
and thus neglect his constituents . . . ."7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it
needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art.
IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most
beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local
elective official to another post if so allowed by law or by the primary functions of his office. 8 But, the
contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13,
par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land.
Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section
sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a
practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or
by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2)
paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first
paragraph appears to be more stringent by not providing any exception to the rule against
appointment or designation of an elective official to the government post, except as are particularly
recognized in the Constitution itself, e.g., the President as head of the economic and planning
agency;9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of
Congress who may be designated ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental
when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as
shown in their deliberation, thus —

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding
Officer, is that the prohibition is more strict with respect to elective officials, because
in the case of appointive officials, there may be a law that will allow them to hold
other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive
officials, there will be certain situations where the law should allow them to hold
some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph
cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo
City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where
we stated that the prohibition against the holding of any other office or employment by the President,
Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure,
as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and
functions required by the primary functions of the officials concerned, who are to perform them in an
ex officio capacity as provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the
subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo
City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent
to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City.
Had it been the legislative intent to make the subject positions ex officio, Congress would have, at
least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene
Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy
resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec.
7, first par., had they considered the SBMA posts as ex officio.

Cognizant of the complication that may arise from the way the subject proviso was stated, Senator
Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the
Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator took a view
that the constitutional proscription against appointment of elective officials may have been
sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing
the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it
suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the
argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents
cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in issue
in the present case. In the same vein, the argument that if no elective official may be appointed or
designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double
compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of
the subject proviso. In any case, the Vice-President for example, an elective official who may be
appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the
cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President.
Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and
the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint
the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons

having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or
designation of a person, by the person or persons having authority therefor, to fill an office or public
function and discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the
authority vested with the power, of an individual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the
essence of his appointment," 21and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng
Maynila v. Intermediate Appellate Court 23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the
appointee. In other words, the choice of the appointee is a fundamental component of the appointing
power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress)
cannot at the same time limit the choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment necessarily carries the discretion of
whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may
not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met
by one individual, such enactment effectively eliminates the discretion of the appointing power to
choose and constitutes an irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee
for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one
can qualify for the posts in question, the President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of appointment, sans the essential element of
choice, is no power at all and goes against the very nature itself of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the first
year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or
during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment. The
deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word
"term" with TENURE.
 MR. FOZ. The effect of the proposed amendment is to make possible for one to
resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say,
incapacity, he may leave the service, but if he is prohibited from being appointed
within the term for which he was elected, we may be depriving the government of the
needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment

to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office
nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation thereto cannot be
valid in view of his disqualification or lack of eligibility. This provision should not be confused with
Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives
may hold any other office or employment in the Government . . . during his term without forfeiting his
seat . . . ." The difference between the two provisions is significant in the sense that incumbent
national legislators lose their elective posts only after they have been appointed to another
government office, while other incumbent elective officials must first resign their posts before they
can be appointed, thus running the risk of losing the elective post as well as not being appointed to
the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . .
The effect is quite different where it is expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from
accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d
258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or
voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or
statutes declare that persons holding one office shall be ineligible for election or appointment to
another office, either generally or of a certain kind, the prohibition has been held to incapacitate the
incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. —
State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon
principles of policy and justice, will hold valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised . . . . under color of a known election or
appointment, void because the officer was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election,
or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be
such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213;
Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may
be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the
legality of the questioned proviso as well as the appointment of said respondent made pursuant
thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he
expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated —
 . . . . (much) as we would like to have the present Mayor of Olongapo City as the
Chief Executive of this Authority that we are creating; (much) as I, myself, would like
to because I know the capacity, integrity, industry and dedication of Mayor Gordon;
(much) as we would like to give him this terrific, burdensome and heavy
responsibility, we cannot do it because of the constitutional prohibition which is very
clear. It says: "No elective official shall be appointed or designated to another
position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms
or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the
Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by
legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the
people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to
suit political expediency, personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however,
That for the first year of its operations from the effectivity of this Act, the Mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is
declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo
City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any,
as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise
legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby
UPHELD.

SO ORDERED.

G.R. No. 193237. October 9, 2012.*

DOMINADOR G. JALOSJOS, JR., petitioner,

vs.

COMMISSION ON ELECTIONS and AGAPITO J. CARDINO,

respondents.

G.R. No. 193536. October 9, 2012.*

AGAPITO J. CARDINO, petitioner, vs. DOMINADOR G. JALOSJOS, JR.

and COMMISSION ON ELECTIONS, respondents.

Election Law; Perpetual Special Disqualification; The perpetual special

disqualification against Jalosjos arising from his criminal conviction by final judgment is
a material fact involving eligibility which is a proper ground for a petition under Section
78 of the Omnibus Election Code.―The perpetual special disqualification against
Jalosjos arising from his criminal conviction by final judgment is a material fact involving
eligibility which is a proper ground for a petition under Section 78 of the Omnibus
Election Code. Jalosjos’ certificate of candidacy was void from the start since he was
not eligible to run for any public office at the time he filed his certificate of candidacy.
Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes.
As a result of Jalosjos’ certificate of candidacy being void ab initio, Cardino, as the only
qualified candidate, actually garnered the highest number of votes for the position of
Mayor.

Same; Same; If a candidate is not actually eligible because he is barred by final

judgment in a criminal case from running for public office, and he still states under oath
in his certificate of candidacy that he is eligible to run for public office, then the
candidate clearly makes a false material representation that is a ground for a petition
under Section 78 of the Omnibus Election Code.―Section 74 requires the candidate to
state under oath in his certificate of candidacy “that he is eligible for said office.” A
candidate is eligible if he has a right to run for the public office. If a candidate is not
actually eligible because he is barred by final judgment in a criminal case from running
for public office, and he still states under oath in his certificate of candidacy that he is
eligible to run for public office, then the candidate clearly makes a false material
representation that is a ground for a petition under Section 78.

Same; Same; A sentence of prisión mayor by final judgment is a ground for

disqualification under Section 40 of the Local Government Code and under Section 12
of the Omnibus Election Code.―A sentence of prisión mayor by final judgment is a
ground for disqualification under Section 40 of the Local Government Code and under
Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility
of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a person
can file a petition under Section 40 of the Local Government Code or under either
Section 12 or Section 78 of the Omnibus Election Code.

Same; Same; The penalty of prisión mayor automatically carries with it, by operation of
law, the accessory penalties of temporary absolute disqualification and perpetual
special disqualification. Under Article 30 of the Revised Penal Code, temporary absolute
disqualification produces the effect of “deprivation of the right to vote in any election for
any popular elective office or to be elected to such office.”―The penalty of prisión
mayor automatically carries with it, by operation of law, the accessory penalties of
temporary absolute disqualification and perpetual special disqualification. Under Article
30 of the Revised Penal Code, temporary absolute disqualification produces the effect
of “deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.” The duration of the temporary absolute disqualification is the
same as that of the principal penalty. On the other hand, under Article 32 of the Revised
Penal Code perpetual special disqualification means that “the offender shall not be
permitted to hold any public office during the period of his disqualification,” which is
perpetually. Both temporary absolute disqualification and perpetual special
disqualification constitute ineligibilities to hold elective public office. A person suffering
from these ineligibilities is ineligible to run for elective public office, and commits a false
material representation if he states in his certificate of candidacy that he is eligible to so
run.

Same; Same; The accessory penalty of perpetual special disqualification takes effect
immediately once the judgment of conviction becomes final; Any public office that the
convict may be holding at the time of his conviction becomes vacant upon finality of the
judgment, and the convict becomes ineligible to run for any elective public office
perpetually.―The accessory penalty of perpetual special disqualification takes effect
immediately once the judgment of conviction becomes final. The effectivity of this
accessory penalty does not depend on the duration of the principal penalty, or on
whether the convict serves his jail sentence or not. The last sentence of Article 32
states that “the offender shall not be permitted to hold any public office during the period
of his [perpetual special] disqualification.” Once the judgment of conviction becomes
final, it is immediately executory. Any public office that the convict may be holding at the
time of his conviction becomes vacant upon finality of the judgment, and the convict
becomes ineligible to run for any elective public office perpetually. In the case of
Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office
from the time his judgment of conviction became final.

Same; Same; Certificates of Candidacy; A void certificate of candidacy on the ground

of ineligibility that existed at the time of the filing of the certificate of candidacy can
never give rise to a valid candidacy, and much less to valid votes.―The COMELEC
properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on
the ground of ineligibility that existed at the time of the filing of the certificate of
candidacy can never give rise to a valid candidacy, and much less to valid votes.
Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the start
to run for Mayor. Whether his certificate of candidacy is cancelled before or after the
elections is immaterial because the cancellation on such ground means he was never a
valid candidate from the very beginning, his certificate of candidacy being void ab initio.
Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the
cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino
ran unopposed. There was only one qualified candidate for Mayor in the May 2010
elections―Cardino―who received the highest number of votes.

Same; Same; Same; Decisions of the Supreme Court holding that the second-placer
cannot be proclaimed winner if the first-placer is disqualified or declared ineligible
should be limited to situations where the certificate of candidacy of the first-placer was
valid at the time of filing but subsequently had to be cancelled because of a violation of
law that took place, or a legal impediment that took effect, after the filing of the
certificate of candidacy.―Decisions of this Court holding that the second-placer cannot
be proclaimed winner if the first-placer is disqualified or declared ineligible should be
limited to situations where the certificate of candidacy of the first-placer was valid at the
time of filing but subsequently had to be cancelled because of a violation of law that
took place, or a legal impediment that took effect, after the filing of the certificate of
candidacy. If the certificate of candidacy is void ab initio, then legally the person who
filed such void certificate of candidacy was never a candidate in the elections at any
time. All votes for such non-candidate are stray votes and should not be counted. Thus,
such non-candidate can never be a first-placer in the elections. If a certificate of
candidacy void ab initio is cancelled on the day, or before the day, of the election,
prevailing jurisprudence holds that all votes for that candidate are stray votes. If a
certificate of candidacy void ab initio is cancelled one day or more after the elections, all
votes for such candidate should also be stray votes because the certificate of candidacy
is void from the very beginning. This is the more equitable and logical approach on the
effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a
certificate of candidacy void ab initio can operate to defeat one or more valid certificates
of candidacy for the same position.
Same; Same; Same; Commission on Elections (COMELEC); The COMELEC is
under a legal duty to cancel the certificate of candidacy of anyone suffering from the
accessory penalty of perpetual special disqualification to run for public office by virtue of
a final judgment of conviction.―Even without a petition under either Section 12 or
Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government
Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of
anyone suffering from the accessory penalty of perpetual special disqualification to run
for public office by virtue of a final judgment of conviction. The final judgment of
conviction is notice to the COMELEC of the disqualification of the convict from running
for public office. The law itself bars the convict from running for public office, and the
disqualification is part of the final judgment of conviction. The final judgment of the court
is addressed not only to the Executive branch, but also to other government agencies
tasked to implement the final judgment under the law.

DECISION

CARPIO, J.:

These are two special civil actions for certiorari1 questioning the resolutions of the Commission on
Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr.
(Jalosjos) seeks to annul the 10 May 2010 Resolution2 of the COMELEC First Division and the 11
August 2010 Resolution3 of the COMELEC En Banc, which both ordered the cancellation of his
certificate of candidacy on the ground of false material representation. In G.R. No. 193536, Agapito
J. Cardino (Cardino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which
applied the rule on succession under the Local Government Code in filling the vacancy in the Office
of the Mayor of Dapitan City, Zamboanga del Norte created by the cancellation of Jalosjos’
certificate of candidacy.

The Facts

Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the
May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a
petition under Section 78 of the Omnibus Election Code to deny due course and to cancel the
certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material
representation in his certificate of candidacy when he declared under oath that he was eligible for
the Office of Mayor.

Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already
been convicted by final judgment for robbery and sentenced to prisión mayor by the Regional Trial
Court, Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted
that Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but stated that he had
already been granted probation. Cardino countered that the RTC revoked Jalosjos’ probation in an
Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order
dated 5 February 2004 declaring that Jalosjos had duly complied with the order of probation.
Jalosjos further stated that during the 2004 elections the COMELEC denied a petition for
disqualification filed against him on the same grounds.4

The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows:

As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22,
1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court
of Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the
penalty of prision correccional minimum to prision mayor maximum. Jalosjos appealed this decision
to the Court of Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of
several years or more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before
the RTC Branch 18 of Cebu City which was granted by the court. But then, on motion filed by his
Probation Officer, Jalosjos’ probation was revoked by the RTC Cebu City on March 19, 1987 and the
corresponding warrant for his arrest was issued. Surprisingly, on December 19, 2003, Parole and
Probation Administrator Gregorio F. Bacolod issued a Certification attesting that respondent
Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This Certification was the
one used by respondent Jalosjos to secure the dismissal of the disqualification case filed against
him by Adasa in 2004, docketed as SPA No. 04-235.

This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan
dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and
Probation Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified
Certification on December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied
with the terms and conditions of his probation. A portion of the decision of the Sandiganbayan is
quoted hereunder:

The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr.,
unwarranted benefits and advantage because the subject certification, which was issued by the
accused without adequate or official support, was subsequently utilized by the said probationer as
basis of the Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed with the
Regional Trial Court of Cebu City, which prompted the said court to issue the Order dated February
5, 2004 in Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with
the order of probation and setting aside its Order of January 16, 2004 recalling the warrant or [sic]
arrest; and that said Certification was also used by the said probationer and became the basis for
the Commission on Elections to deny in its Resolution of August 2, 2004 the petition or [sic] private
complainant James Adasa for the disqualification of the probationer from running for re-election as
Mayor of Dapitan City in the National and Local Elections of 2004.5

The COMELEC’s Rulings

On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled Jalosjos’
certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed
committed material misrepresentation in his certificate of candidacy when he declared, under oath,
that he is eligible for the office he seeks to be elected to when in fact he is not by reason of a final
judgment in a criminal case, the sentence of which he has not yet served."6 The COMELEC First
Division found that Jalosjos’ certificate of compliance of probation was fraudulently issued; thus,
Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the indeterminate
sentence of one year, eight months and twenty days of prisión correccional as minimum, to four
years, two months and one day of prisión mayor as maximum. The COMELEC First Division ruled
that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40(a) of
Republic Act No. 7160."7

On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsideration. The
pertinent portions of the 11 August 2010 Resolution read:

With the proper revocation of Jalosjos’ earlier probation and a clear showing that he has not yet
served the terms of his sentence, there is simply no basis for Jalosjos to claim that his civil as well
as political rights have been violated. Having been convicted by final judgment,

Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the
elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to
resolve the present petition to its finality, and to oust him from the office he now wrongfully holds.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of
merit. Jalosjos is hereby OUSTED from office and ordered to CEASE and DESIST from occupying
and discharging the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the
provisions of the Local Government Code on succession apply.

SO ORDERED.8

Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his
petition on 17 September 2010, docketed as G.R. No. 193536.

On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The
assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission
on Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.9

Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its
resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29
March 2011, this Court resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos
then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of
Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the
Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation was
made "in deference with the provision of the Omnibus Election Code in relation to his candidacy as
Provincial Governor of Zamboanga del Sur in May 2013."13

These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’ Motion for
Reconsideration in G.R. No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not only
Jalosjos’ eligibility to run for public office and the consequences of the cancellation of his certificate
of candidacy, but also COMELEC’s constitutional duty to enforce and administer all laws relating to
the conduct of elections.

The Issues

In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2)
ruled that Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del
Norte; and (3) cancelled Jalosjos’ certificate of candidacy without making a finding that Jalosjos
committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in good faith
upon a previous COMELEC decision declaring him eligible for the same position from which he is
now being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were issued in
violation of the COMELEC Rules of Procedure.

In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August
2010 Resolution that the provisions of the Local Government Code on succession should apply.

This Court’s Ruling

The perpetual special disqualification against Jalosjos arising from his criminal conviction by final
judgment is a material fact involving eligibility which is a proper ground for a petition under Section
78 of the Omnibus Election Code. Jalosjos’ certificate of candidacy was void from the start since he
was not eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos
was never a candidate at any time, and all votes for Jalosjos were stray votes. As a result of
Jalosjos’ certificate of candidacy being void ab initio, Cardino, as the only qualified candidate,
actually garnered the highest number of votes for the position of Mayor.

The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First
Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions
erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus
Election Code and apply the rule on succession under the Local Government Code.

A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a
false material representation which is a ground for a petition under Section 78 of the same Code.
Sections 74 and 78 read:

Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for said
office; if for Member of the Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to
the best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by the person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election. (Emphasis supplied)

Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is
eligible for said office." A candidate is eligible if he has a right to run for the public office. 14 If a
candidate is not actually eligible because he is barred by final judgment in a criminal case from
running for public office, and he still states under oath in his certificate of candidacy that he is eligible
to run for public office, then the candidate clearly makes a false material representation that is a
ground for a petition under Section 78.

A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the
Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material
fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code.
Thus, a person can file a petition under Section 40 of the Local Government Code or under either
Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read:

Section 40, Local Government Code:

Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

Section 12, Omnibus Election Code:

Sec. 12. Disqualifications. — Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he was sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he
has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he
again becomes disqualified.

Section 68, Omnibus Election Code:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision by a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence requirement provided for
in the election laws.

Revised Penal Code:

Art. 27. Reclusion perpetua. — x x x

Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and
temporary disqualification shall be from six years and one day to twelve years, except when the
penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the
principal penalty.

xxxx

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties
of perpetual or temporary absolute disqualification for public office shall produce the following
effects:

1. The deprivation of the public offices and employments which the offender may have held,
even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.

3. The disqualification for the offices or public employments and for the exercise of any of the
rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2

and 3 of this article shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of
perpetual or temporary special disqualification for public office, profession or calling shall produce
the following effects:

1. The deprivation of the office, employment, profession or calling affected.

2. The disqualification for holding similar offices or employments either perpetually or during
the term of the sentence, according to the extent of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of
the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the
right of suffrage shall deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any public office or to be
elected to such office. Moreover, the offender shall not be permitted to hold any public office during
the period of his disqualification.

Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor shall carry with it
that of temporary absolute disqualification and that of perpetual special disqualification from the right
of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon. (Emphasis supplied)

The penalty of prisión mayor automatically carries with it, by operation of law,15 the accessory
penalties of temporary absolute disqualification and perpetual special disqualification. Under Article
30 of the Revised Penal Code, temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any popular elective office or to be elected to such
office." The duration of the temporary absolute disqualification is the same as that of the principal
penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual special
disqualification means that "the offender shall not be permitted to hold any public office during the
period of his disqualification," which is perpetually. Both temporary absolute disqualification and
perpetual special disqualification constitute ineligibilities to hold elective public office. A person
suffering from these ineligibilities is ineligible to run for elective public office, and commits a false
material representation if he states in his certificate of candidacy that he is eligible to so run.

In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the
accessory penalty of perpetual special disqualification:

On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction
of a crime penalized with prisión mayor which carried the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised
Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he
had been sentenced by final judgment to suffer one year or more of imprisonment.

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office
and for the right to vote, such disqualification to last only during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict
of the right to vote or to be elected to or hold public office perpetually, as distinguished from
temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised
Penal Code, provides:

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of
the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the
right of suffrage shall deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any public office or to be
elected to such office. Moreover, the offender shall not be permitted to hold any public office during
the period of disqualification.

The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind
of special disqualification, while the phrase "during the term of the sentence" refers to the temporary
special disqualification. The duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their durations into one period, states
that such duration is "according to the nature of said penalty" — which means according to whether
the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives
the convict of the right to vote or to be elected to or hold public office perpetually."

The accessory penalty of perpetual special disqualification takes effect immediately once the
judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on
the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The
last sentence of Article 32 states that "the offender shall not be permitted to hold any public office
during the period of his perpetual special disqualification." Once the judgment of conviction becomes
final, it is immediately executory. Any public office that the convict may be holding at the time of his
conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run
for any elective public office perpetually. In the case of Jalosjos, he became ineligible perpetually to
hold, or to run for, any elective public office from the time his judgment of conviction became final.

Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election
Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to
run for public office, contrary to the statement that Section 74 requires him to state under oath. As
used in Section 74, the word "eligible" means having the right to run for elective public office, that is,
having all the qualifications and none of the ineligibilities to run for public office. As this Court held in
Fermin v. Commission on Elections,17 the false material representation may refer to "qualifications or
eligibility." One who suffers from perpetual special disqualification is ineligible to run for public office.
If a person suffering from perpetual special disqualification files a certificate of candidacy stating
under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then
he clearly makes a false material representation that is a ground for a petition under Section 78. As
this Court explained in Fermin:

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on
the lack of qualifications but on a finding that the candidate made a material representation that is
false, which may relate to the qualifications required of the public office he/she is running for. It is
noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks.
Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory
provisions on qualifications or eligibility for public office. If the candidate subsequently states a
material representation in the CoC that is false, the COMELEC, following the law, is empowered to
deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section
78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of
the winning candidate.18 (Emphasis supplied)

Conviction for robbery by final judgment with the penalty of prisión mayor, to which perpetual special
disqualification attaches by operation of law, is not a ground for a petition under Section 68 because
robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned,
Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes
under the Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus
Election Code:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision by a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions;

(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the election laws.
(Emphasis supplied)

There is absolutely nothing in the language of Section 68 that will justify including the crime of
robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section
68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes
gravely errs when it holds that Jalosjos’ conviction for the crime of robbery under the Revised Penal
Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for
cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished
in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68.
In Codilla, Sr. v. de Venecia,19 the Court declared:

The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section
68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC
jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied)

A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a
statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the
candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the
candidate is eligible for the office he seeks election; and (4) a statement of the candidate’s
allegiance to the Constitution of the Republic of the Philippines.20

We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy
when he stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting
opinions all found that Jalosjos was not eligible to run for public office. The COMELEC concluded
that Jalosjos made a false material representation that is a ground for a petition under Section 78.
The dissenting opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a
disqualification which is a ground for a petition under Section 68 and not under Section 78. The
dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that
is not a ground under Section 78 without, however, saying under what specific provision of law a
petition against Jalosjos can be filed to cancel his certificate of candidacy.

What is indisputably clear is that the false material representation of Jalosjos is a ground for a
petition under Section 78. However, since the false material representation arises from a crime
penalized by prisión mayor, a petition under Section 12 of the Omnibus Election Code or Section 40
of the Local Government Code can also be properly filed. The petitioner has a choice whether to
anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of
the Local Government Code. The law expressly provides multiple remedies and the choice of which
remedy to adopt belongs to the petitioner.

The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy
on the ground of ineligibility that existed at the time of the filing of the certificate of candidacy can
never give rise to a valid candidacy, and much less to valid votes.21 Jalosjos’ certificate of candidacy
was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of
candidacy is cancelled before or after the elections is immaterial because the cancellation on such
ground means he was never a valid candidate from the very beginning, his certificate of candidacy
being void ab initio. Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and
the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran
unopposed. There was only one qualified candidate for Mayor in the May 2010 elections – Cardino –
who received the highest number of votes.

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer
is disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy
of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a
violation of law that took place, or a legal impediment that took effect, after the filing of the certificate
of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such
void certificate of candidacy was never a candidate in the elections at any time. All votes for such
non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a
first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or
before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are
stray votes.23 If a certificate of candidacy void ab initio is cancelled one day or more after the
elections, all votes for such candidate should also be stray votes because the certificate of
candidacy is void from the very beginning. This is the more equitable and logical approach on the
effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of
candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the
same position.

Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or
under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from the accessory penalty of perpetual special
disqualification to run for public office by virtue of a final judgment of conviction. The final judgment
of conviction is notice to the COMELEC of the disqualification of the convict from running for public
office. The law itself bars the convict from running for public office, and the disqualification is part of
the final judgment of conviction. The final judgment of the court is addressed not only to the
Executive branch, but also to other government agencies tasked to implement the final judgment
under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to run for
elective public office is addressed to the COMELEC because under the Constitution the COMELEC
is duty bound to "enforce and administer all laws and regulations relative to the conduct of an
election."24 The disqualification of a convict to run for public office under the Revised Penal Code, as
affirmed by final judgment of a competent court, is part of the enforcement and administration of "all
laws" relating to the conduct of elections.

To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of
one suffering from perpetual special disqualification will result in the anomaly that these cases so
grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and
served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce
and administer all laws" relating to the conduct of elections if it does not motu proprio bar from
running for public office those suffering from perpetual special disqualification by virtue of a final
judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in
G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the
COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are
AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010
elections and thus received the highest number of votes for Mayor. The COMELEC En Bane is
DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the
duly elected Mayor of Dapitan City, Zamboanga del Norte.

Let copies of this Decision be furnished the Secretaries of the Department of Justice and the
Department of Interior and Local Government so they can cause the arrest of, and enforce the jail
sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final
judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-
XIV-140-CEBU.

SO ORDERED.

G.R. No. 205033. June 18, 2013.*

ROMEO G. JALOSJOS, petitioner,

vs.

THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-

SALAZAR, ROEL B. NATIVIDAD, ARTURO N. ONRUBIA, AHMAD
NARZAD K. SAMPANG, JOSE L. LOBREGAT, ADELANTE
ZAMBOANGA PARTY, and ELBERT C. ATILANO, respondents.

(See Full Text of Case in Election Law Syllabus, A. Flores)

Election Law; Commission on Elections (COMELEC); Motion for Reconsideration;

Section 3, Article IX-C of the 1987 Constitution requiring a motion for reconsideration
before the COMELEC En Banc may take action is confined only to cases where the
COMELEC exercises its quasi-judicial power.―Section 3, Article IX-C of the 1987
Constitution requiring a motion for reconsideration before the COMELEC En Banc may
take action is confined only to cases where the COMELEC exercises its quasi-judicial
power. It finds no application, however, in matters concerning the COMELEC’s exercise
of administrative functions. The distinction between the two is well-defined. As illumined
in Villarosa v. COMELEC, 319 SCRA 470 (1999): [T]he term ‘administrative’ connotes,
or pertains, to ‘administration, especially management, as by managing or conducting,
directing or superintending, the execution, application, or conduct of persons or things.
It does not entail an opportunity to be heard, the production and weighing of evidence,
and a decision or resolution thereon. While a ‘quasi-judicial function’ is a term which
applies to the action, discretion, etc., of public administrative officers or bodies, who are
required to investigate facts, or ascertain the existence of facts, hold hearings, and draw
conclusions from them, as a basis for their official action and to exercise discretion of a
judicial nature.

Same; Same; Disqualification of Candidates; Certificate of Candidacy; The

COMELEC’s denial of due course to and/or cancellation of a Certificate of Candidacy in
view of a candidate’s disqualification to run for elective office based on a final conviction
is subsumed under its mandate to enforce and administer all laws relating to the
conduct of elections.―In Jalosjos, Jr. and Cardino, 683 SCRA 1 (2012), the Court held
that the COMELEC’s denial of due course to and/or cancellation of a CoC in view of a
candidate’s disqualification to run for elective office based on a final conviction is
subsumed under its mandate to enforce and administer all laws relating to the conduct
of elections. Accordingly, in such a situation, it is the COMELEC’s duty to cancel motu
proprio the candidate’s CoC, notwithstanding the absence of any petition initiating a
quasi-judicial proceeding for the resolution of the same.

Same; Same; Same; Same; As petitioner’s disqualification to run for public office had
already been settled in a previous case and now stands beyond dispute, it is incumbent
upon the COMELEC En Banc to cancel his Certificate of Candidacy as a matter of
course, else it be remiss in fulfilling its duty to enforce and administer all laws and
regulations relative to the conduct of an election.―In this light, there is also no violation
of procedural due process since the COMELEC En Banc would be acting in a purely
administrative manner. Administrative power is concerned with the work of applying
policies and enforcing orders as determined by proper governmental organs. As
petitioner’s disqualification to run for public office had already been settled in a previous
case and now stands beyond dispute, it is incumbent upon the COMELEC En Banc to
cancel his CoC as a matter of course, else it be remiss in fulfilling its duty to enforce and
administer all laws and regulations relative to the conduct of an election. Equally
compelling is the fact that the denial of petitioner’s Petition for Inclusion as a registered
voter in Zamboanga City had already attained finality by virtue of the RTC’s Order dated
October 31, 2012. In this accord, petitioner’s non-compliance with the voter registration
requirement under Section 39(a) of the LGC is already beyond question and likewise
provides a sufficient ground for the cancellation of his CoC altogether.
Statutory Construction; Every new statute should be construed in connection with
those already existing in relation to the same subject matter and all should be made to
harmonize and stand together, if they can be done by any fair and reasonable
interpretation.―Well-established is the rule that every new statute should be construed
in connection with those already existing in relation to the same subject matter and all
should be made to harmonize and stand together, if they can be done by any fair and
reasonable interpretation.

Same; Election Law; Disqualification of Candidates; While Section 40(a) of the

Local Government Code allows a prior convict to run for local elective office after the
lapse of two (2) years from the time he serves his sentence, the said provision should
not be deemed to cover cases wherein the law imposes a penalty, either as principal or
accessory, which has the effect of disqualifying the convict to run for elective
office.―Section 40(a) of the LGC, applicable as it is to local elective candidates,
provides: SEC. 40. Disqualifications.—The following persons are disqualified from
running for any elective local position: (a) Those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence; (Emphasis and underscoring
supplied) And on the other hand, Article 30 of the RPC reads: ART. 30. Effects of the
penalties of perpetual or temporary absolute disqualification.—The penalties of
perpetual or temporary absolute disqualification for public office shall produce the
following effects: 1. The deprivation of the public offices and employments which the
offender may have held, even if conferred by popular election. 2. The deprivation of the
right to vote in any election for any popular office or to be elected to such office. 3. The
disqualification for the offices or public employments and for the exercise of any of the
rights mentioned. In case of temporary disqualification, such disqualification as is
comprised in paragraphs 2 and 3 of this Article shall last during the term of the
sentence. 4. The loss of all rights to retirement pay or other pension for any office
formerly held. (Emphasis and underscoring supplied) Keeping with the above-
mentioned statutory construction principle, the Court observes that the conflict between
these provisions of law may be properly reconciled. In particular, while Section 40(a) of
the LGC allows a prior convict to run for local elective office after the lapse of two (2)
years from the time he serves his sentence, the said provision should not be deemed to
cover cases wherein the law imposes a penalty, either as principal or accessory, which
has the effect of disqualifying the convict to run for elective office. An example of this
would be Article 41 of the RPC, which imposes the penalty of perpetual absolute
disqualification as an accessory to the principal penalties of reclusion perpetua and
reclusion temporal:

ART. 41. Reclusion perpetua and reclusion temporal―Their accessory

penalties.―The penalties of reclusion perpetua and reclusion temporal shall carry with
them that of civil interdiction for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon. (Emphasis and underscoring supplied) In this relation, Article 30
of the RPC, as earlier cited, provides that the penalty of perpetual absolute
disqualification has the effect of depriving the convicted felon of the privilege to run for
elective office. To note, this penalty, as well as other penalties of similar import, is
based on the presumptive rule that one who is rendered infamous by conviction of a
felony, or other base offense indicative of moral turpitude, is unfit to hold public office,
as the same partakes of a privilege which the State grants only to such classes of
persons which are most likely to exercise it for the common good.

Same; Same; Same; Section 40(a) of the Local Government Code should be
considered as a law of general application and therefore, must yield to the more
definitive Revised Penal Code provisions in line with the principle of lex specialis
derogat generali ― general legislation must give way to special legislation on the same
subject, and generally is so interpreted as to embrace only cases in which the special
provisions are not applicable.―Pertinently, it is observed that the import of Article 41 in
relation to Article 30 of the RPC is more direct and specific in nature ― insofar as it
deprives the candidate to run for elective office due to his conviction ― as compared to
Section 40(a) of the LGC which broadly speaks of offenses involving moral turpitude
and those punishable by one (1) year or more of imprisonment without any
consideration of certain disqualifying effects to one’s right to suffrage. Accordingly,
Section 40(a) of the LGC should be considered as a law of general application and
therefore, must yield to the more definitive RPC provisions in line with the principle of
lex specialis derogat generali ― general legislation must give way to special legislation
on the same subject, and generally is so interpreted as to embrace only cases in which
the special provisions are not applicable. In other words, where two statutes are of
equal theoretical application to a particular case, the one specially designed therefor
should prevail.
Same; Same; Same; Article 41 of the Revised Penal Code expressly states that one
who is previously convicted of a crime punishable by reclusion perpetua or reclusion
temporal continues to suffer the accessory penalty of perpetual absolute disqualification
even though pardoned as to the principal penalty, unless the said accessory penalty
shall have been expressly remitted in the pardon.―Article 41 of the RPC expressly
states that one who is previously convicted of a crime punishable by reclusion perpetua
or reclusion temporal continues to suffer the accessory penalty of perpetual absolute
disqualification even though pardoned as to the principal penalty, unless the said
accessory penalty shall have been expressly remitted in the pardon. In this case, the
same accessory penalty had not been expressly remitted in the Order of Commutation
or by any subsequent pardon and as such, petitioner’s disqualification to run for elective
office is deemed to subsist. Further, it is well to note that the use of the word “perpetual”
in the aforementioned accessory penalty connotes a lifetime restriction and in this
respect, does not depend on the length of the prison term which is imposed as its
principal penalty. Instructive on this point is the Court’s ruling in Lacuna v. Abes, 24
SCRA 780 (1968), where the Court explained the meaning of the term “perpetual” as
applied to the penalty of disqualification to run for public office: The accessory penalty of
temporary absolute disqualification disqualifies the convict for public office and for the
right to vote, such disqualification to last only during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have
expired on 13 October 1961. But this does not hold true with respect to the other
accessory penalty of perpetual special disqualification for the exercise of the right of
suffrage. This accessory penalty deprives the convict of the right to vote or to be elected
to or hold public office perpetually, distinguished from temporary special disqualification,
which lasts during the term of the sentence.
 G.R. No. 195229. October 9, 2012.*

EFREN RACEL ARATEA, petitioner,

vs.

COMMISSION ON ELECTIONS and ESTELA D. ANTIPOLO,

respondents.

(For Full Text, See Case on A. Flores Syllabus on Election Law)

Election Law; Omnibus Election Code; Three-Term Limit Rule; All the offenses
mentioned in Section 68 refer to election offenses under the Omnibus Election Code,
not to violations of other penal laws. There is absolutely nothing in the language of
Section 68 that would justify including violation of the three-term limit rule, or conviction
by final judgment of the crime of falsification under the Revised Penal Code, as one of
the grounds or offenses covered under Section 68.—A petition for disqualification
under Section 68 clearly refers to “the commission of prohibited acts and possession of
a permanent resident status in a foreign country.” All the offenses mentioned in Section
68 refer to election offenses under the Omnibus Election Code, not to violations of other
penal laws. There is absolutely nothing in the language of Section 68 that would justify
including violation of the three-term limit rule, or conviction by final judgment of the
crime of falsification under the Revised Penal Code, as one of the grounds or offenses
covered under Section 68. In Codilla, Sr. v. de Venecia, 393 SCRA 639 (2002), this
Court ruled: [T]he jurisdiction of the COMELEC to disqualify candidates is limited to
those enumerated in Section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not
administrative in nature. x x x Clearly, the violation by Lonzanida of the three-term limit
rule, or his conviction by final judgment of the crime of falsification under the Revised
Penal Code, does not constitute a ground for a petition under Section 68.

Same; Same; Section 78 of the Omnibus Election Code states that a certificate of
candidacy may be denied or cancelled when there is false material representation of the
contents of the certificate of candidacy.—Section 78 of the Omnibus Election Code
states that a certificate of candidacy may be denied or cancelled when there is false
material representation of the contents of the certificate of candidacy: Sec. 78. Petition
to deny due course to or cancel a certificate of candidacy.—A verified petition seeking
to deny due course or to cancel a certificate of candidacy may be filed by the person
exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election.

Same; Suffrage; The conviction of Lonzanida by final judgment, with the penalty of
prisión mayor, disqualifies him perpetually from holding any public office, or from being
elected to any public office.—The conviction of Lonzanida by final judgment, with the
penalty of prisión mayor, disqualifies him perpetually from holding any public office, or
from being elected to any public office. This perpetual disqualification took effect upon
the finality of the judgment of conviction, before Lonzanida filed his certificate of
candidacy.

Same; Same; Perpetual Special Disqualification; Temporary Absolute

Disqualification; The penalty of prisión mayor automatically carries with it, by operation
of law, the accessory penalties of temporary absolute disqualification and perpetual
special disqualification.—The penalty of prisión mayor automatically carries with it, by
operation of law, the accessory penalties of temporary absolute disqualification and
perpetual special disqualification. Under Article 30 of the Revised Penal Code,
temporary absolute disqualification produces the effect of “deprivation of the right to
vote in any election for any popular elective office or to be elected to such office.” The
duration of temporary absolute disqualification is the same as that of the principal
penalty of prisión mayor. On the other hand, under Article 32 of the Revised Penal
Code, perpetual special disqualification means that “the offender shall not be permitted
to hold any public office during the period of his disqualification,” which is perpetually.
Both temporary absolute disqualification and perpetual special disqualification constitute
ineligibilities to hold elective public office. A person suffering from these ineligibilities is
ineligible to run for elective public office, and commits a false material representation if
he states in his certificate of candidacy that he is eligible to so run.

Same; Same; The accessory penalty of perpetual special disqualification takes effect
immediately once the judgment of conviction becomes final.—The accessory penalty of
perpetual special disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does not depend on
the duration of the principal penalty, or on whether the convict serves his jail sentence
or not. The last sentence of Article 32 states that “the offender shall not be permitted to
hold any public office during the period of his [perpetual special] disqualification.” Once
the judgment of conviction becomes final, it is immediately executory. Any public office
that the convict may be holding at the time of his conviction becomes vacant upon
finality of the judgment, and the convict becomes ineligible to run for any elective public
office perpetually. In the case of Lonzanida, he became ineligible perpetually to hold, or
to run for, any elective public office from the time the judgment of conviction against him
became final. The judgment of conviction was promulgated on 20 July 2009 and
became final on 23 October 2009, before Lonzanida filed his certificate of candidacy on
1 December 2009.

Same; Same; Same; Perpetual special disqualification is a ground for a petition under
Section 78 of the Omnibus Election Code because this accessory penalty is an
ineligibility, which means that the convict is not eligible to run for public office, contrary
to the statement that Section 74 requires him to state under oath in his certificate of
candidacy.—Perpetual special disqualification is a ground for a petition under Section
78 of the Omnibus Election Code because this accessory penalty is an ineligibility,
which means that the convict is not eligible to run for public office, contrary to the
statement that Section 74 requires him to state under oath in his certificate of
candidacy. As this Court held in Fermin v. Commission on Elections, 574 SCRA 782
(2008), the false material representation may refer to “qualifications or eligibility.” One
who suffers from perpetual special disqualification is ineligible to run for public office. If
a person suffering from perpetual special disqualification files a certificate of candidacy
stating under oath that “he is eligible to run for (public) office,” as expressly required
under Section 74, then he clearly makes a false material representation that is a ground
for a petition under Section 78.

Same; Three-Term Limit Rule; After being elected and serving for three consecutive
terms, an elective local official cannot seek immediate reelection for the same office in
the next regular election because he is ineligible.—Section 74 requires the candidate to
certify that he is eligible for the public office he seeks election. Thus, Section 74 states
that “the certificate of candidacy shall state that the person filing x x x is eligible for said
office.” The three-term limit rule, enacted to prevent the establishment of political
dynasties and to enhance the electorate’s freedom of choice, is found both in the
Constitution and the law. After being elected and serving for three consecutive terms,
an elective local official cannot seek immediate reelection for the same office in the next
regular election because he is ineligible. One who has an ineligibility to run for elective
public office is not “eligible for [the] office.” As used in Section 74, the word “eligible”
means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for the public office.

Same; Same; Lonzanida’s representation that he was eligible for the office that he
sought election constitutes false material representation as to his qualification or
eligibility for the office.—In a certificate of candidacy, the candidate is asked to certify
under oath his eligibility, and thus qualification, to the office he seeks election. Even
though the certificate of candidacy does not specifically ask the candidate for the
number of terms elected and served in an elective position, such fact is material in
determining a candidate’s eligibility, and thus qualification for the office. Election to and
service of the same local elective position for three consecutive terms renders a
candidate ineligible from running for the same position in the succeeding elections.
Lonzanida misrepresented his eligibility because he knew full well that he had been
elected, and had served, as mayor of San Antonio, Zambales for more than three
consecutive terms yet he still certified that he was eligible to run for mayor for the next
succeeding term. Thus, Lonzanida’s representation that he was eligible for the office
that he sought election constitutes false material representation as to his qualification or
eligibility for the office.

Same; Same; Omnibus Election Code; Even without a petition under Section 78 of
the Omnibus Election Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from perpetual special disqualification to run
for public office by virtue of a final judgment of conviction.—Even without a petition
under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to
cancel the certificate of candidacy of anyone suffering from perpetual special
disqualification to run for public office by virtue of a final judgment of conviction. The
final judgment of conviction is judicial notice to the COMELEC of the disqualification of
the convict from running for public office. The law itself bars the convict from running for
public office, and the disqualification is part of the final judgment of conviction. The final
judgment of the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.
Same; Certificate of Candidacy; A cancelled certificate of candidacy void ab initio
cannot give rise to a valid candidacy, and much less to valid votes.—A cancelled
certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much
less to valid votes. x x x Lonzanida’s certificate of candidacy was cancelled because he
was ineligible or not qualified to run for Mayor. Whether his certificate of candidacy is
cancelled before or after the elections is immaterial because the cancellation on such
ground means he was never a candidate from the very beginning, his certificate of
candidacy being void ab initio. There was only one qualified candidate for Mayor in the
May 2010 elections—Antipolo, who therefore received the highest number of votes.

G.R. No. 180088. January 19, 2009.*

MANUEL B. JAPZON, petitioner,

vs.

COMMISSION ON ELECTIONS and JAIME S. TY, respondents.

Citizenship; Citizenship Retention and Re-Acquisition Act of 2003; Republic Act

(RA) No. 9225 imposes no residency requirement for the reacquisition or retention of
Philippine citizenship; nor does it mention any effect of such reacquisition or retention of
Philippine citizenship on the current residence of the concerned natural-born Filipino.—
It bears to point out that Republic Act No. 9225 governs the manner in which a natural-
born Filipino may reacquire or retain his Philippine citizenship despite acquiring a
foreign citizenship, and provides for his rights and liabilities under such circumstances.
A close scrutiny of said statute would reveal that it does not at all touch on the matter of
residence of the natural-born Filipino taking advantage of its provisions. Republic Act
No. 9225 imposes no residency requirement for the reacquisition or retention of
Philippine citizenship; nor does it mention any effect of such reacquisition or retention of
Philippine citizenship on the current residence of the concerned natural-born Filipino.
Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is
only logical and consistent with the general intent of the law to allow for dual citizenship.
Since a natural-born Filipino may hold, at the same time, both Philippine and foreign
citizenships, he may establish residence either in the Philippines or in the foreign
country of which he is also a citizen.

Same; Same; Residency in the Philippines only becomes relevant when the natural-
born Filipino with dual citizenship decides to run for public office.—Residency in the
Philippines only becomes relevant when the natural-born Filipino with dual citizenship
decides to run for public office. Section 5(2) of Republic Act No. 9225 reads: SEC. 5.
Civil and Political Rights and Liabilities.—Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the
following conditions: x x x x (2) Those seeking elective public office in the Philippines
shall meet the qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath.

Same; Same; A domicile of origin is acquired by every person at birth.—The term

“residence” is to be understood not in its common acceptation as referring to “dwelling”
or “habitation,” but rather to “domicile” or legal residence, that is, “the place where a
party actually or constructively has his permanent home, where he, no matter where he
may be found at any given time, eventually intends to return and remain (animus
manendi).” A domicile of origin is acquired by every person at birth. It is usually the
place where the child’s parents reside and continues until the same is abandoned by
acquisition of new domicile (domicile of choice). In Coquilla v. Commission on Elections,
385 SCRA 607 (2002), the Court already acknowledged that for an individual to acquire
American citizenship, he must establish residence in the USA. Since Ty himself
admitted that he became a naturalized American citizen, then he must have necessarily
abandoned the Municipality of General Macarthur, Eastern Samar, Philippines, as his
domicile of origin; and transferred to the USA, as his domicile of choice.

Same; Same; Ty’s reacquisition of his Philippine citizenship under Republic Act No.
9225 had no automatic impact or effect on his residence/domicile.—As has already
been previously discussed by this Court herein, Ty’s reacquisition of his Philippine
citizenship under Republic Act No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA, and he did not
necessarily regain his domicile in the Municipality of General Macarthur, Eastern
Samar, Philippines. Ty merely had the option to again establish his domicile in the
Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his
new domicile of choice. The length of his residence therein shall be determined from the
time he made it his domicile of choice, and it shall not retroact to the time of his birth.

Election Law; Residence; Animus Revertendi; The principle of animus revertendi

has been used to determine whether a candidate has an “intention to return” to the
place where he seeks to be elected.—Our decisions have applied certain tests and
concepts in resolving the issue of whether or not a candidate has complied with the
residency requirement for elective positions. The principle of animus revertendi has
been used to determine whether a candidate has an “intention to return” to the place
where he seeks to be elected. Corollary to this is a determination whether there has
been an “abandonment” of his former residence which signifies an intention to depart
therefrom. In Caasi v. Court of Appeals, 191 SCRA 229 (1990), this Court set aside the
appealed orders of the COMELEC and the Court of Appeals and annulled the election
of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that
respondent’s immigration to the United States in 1984 constituted an abandonment of
his domicile and residence in the Philippines. Being a green card holder, which was
proof that he was a permanent resident or immigrant of the United States, and in the
absence of any waiver of his status as such before he ran for election on January 18,
1988, respondent was held to be disqualified under §68 of the Omnibus Election Code
of the Philippines (Batas Pambansa Blg. 881).

Same; Same; Same; The fact that respondent made periodical journeys to his home
province in Laoag revealed that he always had animus revertendi.—In Co v. Electoral
Tribunal of the House of Representatives, 199 SCRA 692 (1991), respondent Jose Ong,
Jr. was proclaimed the duly elected representative of the 2nd District of Northern
Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election
against claims that he was not a natural born Filipino citizen and a resident of Laoang,
Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v.
Quirino, applied the concept of animus revertendi or “intent to return,” stating that his
absence from his residence in order to pursue studies or practice his profession as a
certified public accountant in Manila or his registration as a voter other than in the place
where he was elected did not constitute loss of residence. The fact that respondent
made periodical journeys to his home province in Laoag revealed that he always had
animus revertendi.

Same; Same; Same; It was held that the sudden departure from the country of
petitioner, because of the EDSA People’s Power Revolution of 1986, to go into self-exile
in the United States until favorable conditions had been established, was not voluntary
so as to constitute an abandonment of residence.—In Romualdez v. RTC, Br. 7,
Tacloban City, 226 SCRA 408 (1993), the Court held that “domicile” and “residence” are
synonymous. The term “residence,” as used in the election law, imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. “Domicile” denotes a fixed permanent residence to
which when absent for business or pleasure, or for like reasons, one intends to return.
In that case, petitioner Philip G. Romualdez established his residence during the early
1980’s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from
the country of petitioner, because of the EDSA People’s Power Revolution of 1986, to
go into self-exile in the United States until favorable conditions had been established,
was not voluntary so as to constitute an abandonment of residence. The Court
explained that in order to acquire a new domicile by choice, there must concur

(1) residence or bodily presence in the new locality,

(2) an intention to remain there, and

(3) an intention to abandon the old domicile.

There must be animus manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.

Same; Same; The Court recapitulates in Papandayan, Jr. v. Commission on Elections,

381 SCRA 133 (2002), that it is the fact of residence that is the decisive factor in
determining whether or not an individual has satisfied the residency qualification
requirement.—The Court recapitulates in Papandayan, Jr. that it is the fact of residence
that is the decisive factor in determining whether or not an individual has satisfied the
residency qualification requirement.
Judgments; Administrative Agencies; Commission on Elections (COMELEC); It is
axiomatic that factual findings of administrative agencies, such as the COMELEC, which
have acquired expertise in their field are binding and conclusive on the Court.—The
COMELEC, taking into consideration the very same pieces of evidence presently before
this Court, found that Ty was a resident of the Municipality of General Macarthur,
Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that
factual findings of administrative agencies, such as the COMELEC, which have
acquired expertise in their field are binding and conclusive on the Court. An application
for certiorari against actions of the COMELEC is confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due process, considering that
the COMELEC is presumed to be most competent in matters falling within its domain.

Same; Same; The findings of facts of quasi-judicial agencies which have acquired
expertise in the specific matters entrusted to their jurisdiction are accorded by this Court
not only respect but even finality if they are supported by substantial evidence.—The
findings of facts of quasi-judicial agencies which have acquired expertise in the specific
matters entrusted to their jurisdiction are accorded by this Court not only respect but
even finality if they are supported by substantial evidence. Only substantial, not
preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court
provides that 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.

Election Law; Residence; The Court has previously ruled that absence from residence
to pursue studies or practice a profession or registration as a voter other than in the
place where one is elected, does not constitute loss of residence.—There is no basis for
this Court to require Ty to stay in and never leave at all the Municipality of General
Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local
elections so that he could be considered a resident thereof. To the contrary, the Court
has previously ruled that absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where one is elected, does
not constitute loss of residence. The Court also notes, that even with his trips to other
countries, Ty was actually present in the Municipality of General Macarthur, Eastern
Samar, Philippines, for at least nine of the 12 months preceding the 14 May 2007 local
elections. Even if length of actual stay in a place is not necessarily determinative of the
fact of residence therein, it does strongly support and is only consistent with Ty’s
avowed intent in the instant case to establish residence/domicile in the Municipality of
General Macarthur, Eastern Samar.

Same; Same; In Aquino v. COMELEC (248 SCRA 400 [1995]), the Court did not find
anything wrong in an individual changing residences so he could run for an elective
post, for as long as he is able to prove with reasonable certainty that he has effected a
change of residence for election law purposes for the period required by law.—Japzon
repeatedly brings to the attention of this Court that Ty arrived in the Municipality of
General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year
residency requirement, so Ty could run as a mayoralty candidate in the 14 May 2007
elections. In Aquino v. COMELEC, 248 SCRA 400 (1995), the Court did not find
anything wrong in an individual changing residences so he could run for an elective
post, for as long as he is able to prove with reasonable certainty that he has effected a
change of residence for election law purposes for the period required by law. As this
Court already found in the present case, Ty has proven by substantial evidence that he
had established residence/domicile in the Municipality of General Macarthur, Eastern
Samar, by 4 May 2006, a little over a year prior to the 14 May 2007 local elections, in
which he ran as a candidate for the Office of the Mayor and in which he garnered the
most number of votes.

Same; Same; When the evidence of the alleged lack of residence qualification of a
candidate for an elective position is weak or inclusive and it clearly appears that the
purpose of the law would not be thwarted by upholding the victor’s right to the office, the
will of the electorate should be respected.—When the evidence of the alleged lack of
residence qualification of a candidate for an elective position is weak or inconclusive
and it clearly appears that the purpose of the law would not be thwarted by upholding
the victor’s right to the office, the will of the electorate should be respected. For the
purpose of election laws is to give effect to, rather than frustrate, the will of the voters.
To successfully challenge Ty’s disqualification, Japzon must clearly demonstrate that
Ty’s ineligibility is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the people
would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote. In this case,
Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the
Municipality of General Macarthur, Eastern Samar, Philippines.

DECISION
CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rules 641 and 652 of the Revised Rules of Court
seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division of public
respondent Commission on Elections (COMELEC) and the Resolution4 dated 28 September 2007 of
COMELEC en banc, in SPA No. 07-568, for having been rendered with grave abuse of discretion,
amounting to lack or excess of jurisdiction.

Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were
candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, in the
local elections held on 14 May 2007.

On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a Petition5 to
disqualify and/or cancel Ty’s Certificate of Candidacy on the ground of material misrepresentation.
Japzon averred in his Petition that Ty was a former natural-born Filipino, having been born on 9
October 1943 in what was then Pambujan Sur, Hernani Eastern Samar (now the Municipality of
General Macarthur, Easter Samar) to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas
Sumiguin (a Filipino). Ty eventually migrated to the United States of America (USA) and became a
citizen thereof. Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of
Candidacy on 28 March 2007, he falsely represented therein that he was a resident of Barangay 6,
Poblacion, General Macarthur, Eastern Samar, for one year before 14 May 2007, and was not a
permanent resident or immigrant of any foreign country. While Ty may have applied for the
reacquisition of his Philippine citizenship, he never actually resided in Barangay 6, Poblacion,
General Macarthur, Eastern Samar, for a period of one year immediately preceding the date of
election as required under Section 39 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991. In fact, even after filing his application for reacquisition of his Philippine
citizenship, Ty continued to make trips to the USA, the most recent of which was on 31 October
2006 lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to the
Republic of the Philippines, he continued to comport himself as an American citizen as proven by his
travel records. He had also failed to renounce his foreign citizenship as required by Republic Act No.
9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related laws.
Hence, Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from
running for public office and the cancellation of the latter’s Certificate of Candidacy.

In his Answer6 to Japzon’s Petition in SPA No. 07-568, Ty admitted that he was a natural-born
Filipino who went to the USA to work and subsequently became a naturalized American citizen. Ty
claimed, however, that prior to filing his Certificate of Candidacy for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he already performed the
following acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to natural-
born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an
application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty executed an
Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the
Philippine Consulate General in Los Angeles, California, USA; (3) Ty applied for a Philippine
passport indicating in his application that his residence in the Philippines was at A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar. Ty’s application was approved and he
was issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured
and signed his Community Tax Certificate (CTC) from the Municipality of General Macarthur, in
which he stated that his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar;
(5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6,
Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January 2007
again stating therein his address as Barangay 6, Poblacion, General Macarthur, Eastern Samar; and
(7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of Foreign Citizenship.
Given the aforementioned facts, Ty argued that he had reacquired his Philippine citizenship and
renounced his American citizenship, and he had been a resident of the Municipality of General
Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty
sought the dismissal of Japzon’s Petition in SPA No. 07-568.

Pending the submission by the parties of their respective Position Papers in SPA No. 07-568, the 14
May 2007 elections were already held. Ty acquired the highest number of votes and was declared
Mayor of the Municipality of General Macarthur, Eastern Samar, by the Municipal Board of
Canvassers on 15 May 2007.7

Following the submission of the Position Papers of both parties, the COMELEC First Division
rendered its Resolution8 dated 31 July 2007 in favor of Ty.
The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of
Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:

Philippine citizenship is an indispensable requirement for holding an elective public office, and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person
owing allegiance to another nation, shall govern our people and our country or a unit of territory
thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice
Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and
executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.]
9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as
commissioned or non-commissioned officer in the armed forces in the country of which he was
naturalized citizen.9

The COMELEC First Division also held that Ty did not commit material misrepresentation in stating
in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for at least one year before the elections on 14 May 2007. It reasoned that:

Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in
1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has
been a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for at least one (1)
year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.]

As held in Coquilla vs. Comelec:

"The term ‘residence’ is to be understood not in its common acceptation as referring to ‘dwelling’ or
‘habitation,’ but rather to ‘domicile’ or legal residence, that is, ‘the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at any given
time, eventually intends to return and remain (animus manendi).’ A domicile of origin is acquired by
every person at birth. It is usually the place where the child’s parents reside and continues until the
same is abandoned by acquisition of new domicile (domicile of choice).

In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after
enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired
Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as
our immigration laws may have allowed him to stay as a visitor or as a resident alien.

Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8,
§1427(a) of the United States Code provides:

Requirements of naturalization: Residence

(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such
applicant, (1) year immediately preceding the date of filing his application for naturalization has
resided continuously, after being lawfully admitted for permanent residence, within the United States
for at least five years and during the five years immediately preceding the date of filing his petition
has been physically present therein for periods totaling at least half of that time, and who has
resided within the State or within the district of the Service in the United States in which the applicant
filed the application for at least three months, (2) has resided continuously within the United States
from the date of the application up to the time of admission to citizenship, and (3) during all period
referred to in this subsection has been and still is a person of good moral character, attached to the
principles of the Constitution of the United States, and well disposed to the good order and
happiness of the United States. (Emphasis added)

In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a
‘greencard,’ which entitles one to reside permanently in that country, constitutes abandonment of
domicile in the Philippines. With more reason then does naturalization in a foreign country result in
an abandonment of domicile in the Philippines.

Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine
Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on
October 26, 2005; and secured a community tax certificate from the Municipality of General
Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion,
General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14,
2007.10 (Emphasis ours.)

The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus, reads:

WHEREFORE, premises considered, the petition is DENIED for lack of merit.11

Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First
Division. On 28 September 2007, the COMELEC en banc issued its Resolution 12 denying Japzon’s
Motion for Reconsideration and affirming the assailed Resolution of the COMELEC First Division, on
the basis of the following ratiocination:

We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns
the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate
for any local post.

xxxx

It must be noted that absent any showing of irregularity that overturns the prevailing status of a
citizen, the presumption of regularity remains. Citizenship is an important aspect of every individual’s
constitutionally granted rights and privileges. This is essential in determining whether one has the
right to exercise pre-determined political rights such as the right to vote or the right to be elected to
office and as such rights spring from citizenship.

Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in
which he resides; that citizenship once granted is presumably retained unless voluntarily
relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to
establish the fact.

Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues.
The arguments made therein have already been dissected and expounded upon extensively by the
first Division of the Commission, and there appears to be no reason to depart from the wisdom of the
earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he
accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy
would be when there was material misrepresentation meant to mislead the electorate as to the
qualifications of the candidate. There was none in this case, thus there is not enough reason to deny
due course to the Certificate of Candidacy of Respondent James S. Ty.13

Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the instant
Petition for Certiorari, relying on the following grounds:

A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND
JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND
RESIDENCE.14

B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TY’S] CERTIFICATE OF CANDIDACY,
AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN.
MACARTHUR, EASTERN SAMAR.15

Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of origin. Ty
did not establish his residence in the Municipality of General Macarthur, Eastern Samar, Philippines,
just because he reacquired his Philippine citizenship. The burden falls upon Ty to prove that he
established a new domicile of choice in General Macarthur, Eastern Samar, a burden which he failed
to discharge. Ty did not become a resident of General Macarthur, Eastern Samar, by merely
executing the Oath of Allegiance under Republic Act No. 9225.

Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for running as a
mayoralty candidate in the 14 May 2007 local elections. The one-year residency requirement for
those running for public office cannot be waived or liberally applied in favor of dual citizens.
Consequently, Japzon believes he was the only remaining candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local
elections.

Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28
September 2007 of the COMELEC First Division and en banc, respectively; to issue a new
resolution denying due course to or canceling Ty’s Certificate of Candidacy; and to declare Japzon
as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar.

As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC
already found sufficient evidence to prove that Ty was a resident of the Municipality of General
Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The Court cannot
evaluate again the very same pieces of evidence without violating the well-entrenched rule that
findings of fact of the COMELEC are binding on the Court. Ty disputes Japzon’s assertion that the
COMELEC committed grave abuse of discretion in rendering the assailed Resolutions, and avers
that the said Resolutions were based on the evidence presented by the parties and consistent with
prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office
of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified from
running in the local elections, Japzon as the second placer in the same elections cannot take his
place.

The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the
one-year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14
May 2007 local elections. The OSG opines that Ty was unable to prove that he intended to remain in
the Philippines for good and ultimately make it his new domicile. Nonetheless, the OSG still prays for
the dismissal of the instant Petition considering that Japzon, gathering only the second highest
number of votes in the local elections, cannot be declared the duly elected Mayor of the Municipality
of General Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said
position. And since it took a position adverse to that of the COMELEC, the OSG prays from this
Court to allow the COMELEC to file its own Comment on Japzon’s Petition. The Court, however, no
longer acted on this particular prayer of the COMELEC, and with the submission of the Memoranda
by Japzon, Ty, and the OSG, it already submitted the case for decision.

The Court finds no merit in the Petition at bar.

There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of
General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually
became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking
his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the
Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of
Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It
was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and,
resultantly, became a pure Philippine citizen again.

It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino
may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and
provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would
reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking
advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the
reacquisition or retention of Philippine citizenship; nor does it mention any effect of such
reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-
born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is
only logical and consistent with the general intent of the law to allow for dual citizenship. Since a
natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may
establish residence either in the Philippines or in the foreign country of which he is also a citizen.

Residency in the Philippines only becomes relevant when the natural-born Filipino with dual
citizenship decides to run for public office.

Section 5(2) of Republic Act No. 9225 reads:

SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:
xxxx

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding
such public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.

Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his
Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the
qualifications for holding such public office as required by the Constitution and existing laws; and (2)
make a personal and sworn renunciation of any and all foreign citizenships before any public officer
authorized to administer an oath.

That Ty complied with the second requirement is beyond question. On 19 March 2007, he personally
executed a Renunciation of Foreign Citizenship before a notary public. By the time he filed his
Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern
Samar, on 28 March 2007, he had already effectively renounced his American citizenship, keeping
solely his Philippine citizenship.

The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications
required by the Constitution and existing laws.

Article X, Section 3 of the Constitution left it to Congress to enact a local government code which
shall provide, among other things, for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.

Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local
Government Code of 1991, Section 39 of which lays down the following qualifications for local
elective officials:

SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.

xxxx

(c) Candidates for the position of mayor or vice mayor of independent component cities, component
cities, or municipalities must be at least twenty-one (21) years of age on election day.

The challenge against Ty’s qualification to run as a candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet the one-
year residency requirement in the said municipality.

The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or
"habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at any given
time, eventually intends to return and remain (animus manendi)."18

A domicile of origin is acquired by every person at birth. It is usually the place where the child’s
parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of
choice). In Coquilla,19 the Court already acknowledged that for an individual to acquire American
citizenship, he must establish residence in the USA. Since Ty himself admitted that he became a
naturalized American citizen, then he must have necessarily abandoned the Municipality of General
Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the USA, as his
domicile of choice.

As has already been previously discussed by this Court herein, Ty’s reacquisition of his Philippine
citizenship under Republic Act No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain
his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the
option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines, said place becoming his new domicile of choice. The length of his residence therein
shall be determined from the time he made it his domicile of choice, and it shall not retroact to the
time of his birth.

How then could it be established that Ty indeed established a new domicile in the Municipality of
General Macarthur, Eastern Samar, Philippines?

In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the different
principles and concepts in jurisprudence relating to the residency qualification for elective local
officials. Pertinent portions of the ratio in Papandayan are reproduced below:

Our decisions have applied certain tests and concepts in resolving the issue of whether or not a
candidate has complied with the residency requirement for elective positions. The principle of
animus revertendi has been used to determine whether a candidate has an "intention to return" to
the place where he seeks to be elected. Corollary to this is a determination whether there has been
an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi
v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of
Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on
the ground that respondent’s immigration to the United States in 1984 constituted an abandonment
of his domicile and residence in the Philippines. Being a green card holder, which was proof that he
was a permanent resident or immigrant of the United States, and in the absence of any waiver of his
status as such before he ran for election on January 18, 1988, respondent was held to be
disqualified under §68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a
natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the
HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to
return," stating that his absence from his residence in order to pursue studies or practice his
profession as a certified public accountant in Manila or his registration as a voter other than in the
place where he was elected did not constitute loss of residence. The fact that respondent made
periodical journeys to his home province in Laoag revealed that he always had animus revertendi.

In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained

that the determination of a person’s legal residence or domicile largely depends upon the intention
that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina
Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988
and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC
for lack of residence and registration qualifications, not being a resident nor a registered voter of
Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her
residence one year before the election by registering at Kananga, Leyte to qualify her to run for the
position of governor of the province of Leyte was proof that she considered herself a resident of
Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had
established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she
ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to
show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her
husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did
not signify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are
synonymous. The term "residence," as used in the election law, imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled with conduct indicative of
such intention. "Domicile" denotes a fixed permanent residence to which when absent for business
or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez
established his residence during the early 1980’s in Barangay Malbog, Tolosa, Leyte. It was held
that the sudden departure from the country of petitioner, because of the EDSA People’s Power
Revolution of 1986, to go into self-exile in the United States until favorable conditions had been
established, was not voluntary so as to constitute an abandonment of residence. The Court
explained that in order to acquire a new domicile by choice, there must concur (1) residence or
bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon
the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose
to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be
actual.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the
decisive factor in determining whether or not an individual has satisfied the residency qualification
requirement.

As espoused by Ty, the issue of whether he complied with the one-year residency requirement for
running for public office is a question of fact. Its determination requires the Court to review, examine
and evaluate or weigh the probative value of the evidence presented by the parties before the
COMELEC.

The COMELEC, taking into consideration the very same pieces of evidence presently before this
Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one
year prior to the 14 May 2007 local elections. It is axiomatic that factual findings of administrative
agencies, such as the COMELEC, which have acquired expertise in their field are binding and
conclusive on the Court. An application for certiorari against actions of the COMELEC is confined to
instances of grave abuse of discretion amounting to patent and substantial denial of due process,
considering that the COMELEC is presumed to be most competent in matters falling within its
domain.21

The Court even went further to say that the rule that factual findings of administrative bodies will not
be disturbed by courts of justice, except when there is absolutely no evidence or no substantial
evidence in support of such findings, should be applied with greater force when it concerns the
COMELEC, as the framers of the Constitution intended to place the COMELEC—created and
explicitly made independent by the Constitution itself—on a level higher than statutory administrative
organs. The factual finding of the COMELEC en banc is therefore binding on the Court.22

The findings of facts of quasi-judicial agencies which have acquired expertise in the specific matters
entrusted to their jurisdiction are accorded by this Court not only respect but even finality if they are
supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary.
Section 5, Rule 133 of the Rules of Court provides that 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 assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First
Division and en banc, respectively, were both supported by substantial evidence and are, thus,
binding and conclusive upon this Court.

Ty’s intent to establish a new domicile of choice in the Municipality of General Macarthur, Eastern
Samar, Philippines, became apparent when, immediately after reacquiring his Philippine citizenship
on 2 October 2005, he applied for a Philippine passport indicating in his application that his
residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur,
Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax
jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying community tax and
securing CTCs from the said municipality stating therein his address as A. Mabini St., Barangay 6,
Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for and was registered as a
voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern
Samar.

In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern
Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior to the
14 May 2007 local elections. Japzon maintains that Ty’s trips abroad during said period, i.e., to
Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January
2007), indicate that Ty had no intention to permanently reside in the Municipality of General
Macarthur, Eastern Samar, Philippines. The COMELEC First Division and en banc, as well as this
Court, however, view these trips differently. The fact that Ty did come back to the Municipality of
General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation of his
animus manendi and animus revertendi.

There is no basis for this Court to require Ty to stay in and never leave at all the Municipality of
General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local
elections so that he could be considered a resident thereof. To the contrary, the Court has previously
ruled that absence from residence to pursue studies or practice a profession or registration as a
voter other than in the place where one is elected, does not constitute loss of residence.24 The Court
also notes, that even with his trips to other countries, Ty was actually present in the Municipality of
General Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the 14
May 2007 local elections. Even if length of actual stay in a place is not necessarily determinative of
the fact of residence therein, it does strongly support and is only consistent with Ty’s avowed intent
in the instant case to establish residence/domicile in the Municipality of General Macarthur, Eastern
Samar.

Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General
Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement,
so Ty could run as a mayoralty candidate in the 14 May 2007 elections. In Aquino v.
COMELEC,25 the Court did not find anything wrong in an individual changing residences so he could
run for an elective post, for as long as he is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the period required by law. As this Court
already found in the present case, Ty has proven by substantial evidence that he had established
residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little
over a year prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office of
the Mayor and in which he garnered the most number of votes.

Finally, when the evidence of the alleged lack of residence qualification of a candidate for an elective
position is weak or inconclusive and it clearly appears that the purpose of the law would not be
thwarted by upholding the victor’s right to the office, the will of the electorate should be respected.
For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters.26 To
successfully challenge Ty’s disqualification, Japzon must clearly demonstrate that Ty’s ineligibility is
so patently antagonistic to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately create greater prejudice to
the very democratic institutions and juristic traditions that our Constitution and laws so zealously
protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be
Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines.

WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.

SO ORDERED.

G.R. No. 198742. August 10, 2012.*

TEODORA SOBEJANA-CONDON, petitioner,

vs.

COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V.

PICAR and WILMA P. PAGADUAN, respondents.

(Full Text on Syllabus of Election Laws By A. Flores)

Election Law; Motion for Reconsideration; The power to decide motions for
reconsideration in election cases is arrogated unto the COMELEC en banc by Section
3, Article IX-C of the Constitution.—The power to decide motions for reconsideration
in election cases is arrogated unto the COMELEC en banc by Section 3, Article IX-C of
the Constitution, viz.: Sec. 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to expedite disposition of
election cases, including pre-proclamation controversies. All such election cases shall
be heard and decided in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc. A complementary provision is present in
Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit: Any motion to
reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division which shall
be resolved by the division which issued the order.

Remedial Law; Election Law; Execution Pending Appeal; Judgments in election

cases which may be executed pending appeal includes those decided by trial courts
and those rendered by the COMELEC whether in the exercise of its original or appellate
jurisdiction.—There is no reason to dispute the COMELEC’s authority to order
discretionary execution of judgment in view of the fact that the suppletory application of
the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC
Rules of Procedure. Under Section 2, Rule 39 of the Rules of Court, execution pending
appeal may be issued by an appellate court after the trial court has lost jurisdiction. In
Batul v. Bayron, 424 SCRA 26 (2004), we stressed the import of the provision vis-à-vis
election cases when we held that judgments in election cases which may be executed
pending appeal includes those decided by trial courts and those rendered by the
COMELEC whether in the exercise of its original or appellate jurisdiction.

Same; Quo Warranto; Remedy of a person who fails to file the petition to disqualify a
certain candidate within the twenty-five (25)-day period prescribed by Section 78 of
the Omnibus Election Code is to file a petition for quo warranto within ten (10)
days from proclamation of the results of the election.—If a person qualified to file a
petition to disqualify a certain candidate fails to file the petition within the twenty-five
(25)-day period prescribed by Section 78 of the Omnibus Election Code for whatever
reasons, the elections laws do not leave him completely helpless as he has another
chance to raise the disqualification of the candidate by filing a petition for quo warranto
within ten (10) days from the proclamation of the results of the election, as provided
under Section 253 of the Omnibus Election Code.
Constitutional Law; Civil Law; Citizenship; Citizenship Retention and Re-
Acquisition Act of 2003 (R.A. No. 9225); R.A. No. 9225 allows the retention and re-
acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine
citizenship by taking an oath of allegiance to the Republic.—R.A. No. 9225 allows the
retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost
their Philippine citizenship by taking an oath of allegiance to the Republic, thus: x x x
The oath is an abbreviated repatriation process that restores one’s Filipino citizenship
and all civil and political rights and obligations concomitant therewith, subject to certain
conditions imposed in Section 5.

Same; Same; Same; Same; Renunciation of Foreign Citizenship; For renunciation

of foreign citizenship to be valid, the renunciation must be contained in an affidavit duly
executed before an officer of the law who is authorized to administer an oath stating in
clear and unequivocal terms that affiant is renouncing all foreign citizenship.—The
language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC, 559 SCRA
696 (2008), we declared its categorical and single meaning: a Filipino American or any
dual citizen cannot run for any elective public position in the Philippines unless he or
she personally swears to a renunciation of all foreign citizenship at the time of filing the
certificate of candidacy. We also expounded on the form of the renunciation and held
that to be valid, the renunciation must be contained in an affidavit duly executed before
an officer of the law who is authorized to administer an oath stating in clear and
unequivocal terms that affiant is renouncing all foreign citizenship.

Remedial Law; Evidence; To prove a foreign law, the party invoking it must present a
copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules
of Court.—Foreign laws are not a matter of judicial notice. Like any other fact, they
must be alleged and proven. To prove a foreign law, the party invoking it must present a
copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of
Court. x x x The Court has admitted certain exceptions to the above rules and held
that the existence of a foreign law may also be established through:

(1) a testimony under oath of an expert witness such as an attorney-at-law in the

country where the foreign law operates wherein he quotes verbatim a section of the law
and states that the same was in force at the time material to the facts at hand; and

(2) likewise, in several naturalization cases, it was held by the Court that evidence of the
law of a foreign country on reciprocity regarding the acquisition of citizenship, although
not meeting the prescribed rule of practice, may be allowed and used as basis for
favorable action, if, in the light of all the circumstances, the Court is “satisfied of the
authenticity of the written proof offered.” Thus, in a number of decisions, mere
authentication of the Chinese Naturalization Law by the Chinese Consulate General of
Manila was held to be a competent proof of that law.

Election Law; Citizenship; Citizenship Retention and Re-Acquisition Act of 2003

(R.A. No. 9225); Renunciation of Foreign Citizenship; R.A. No. 9225 categorically
demands natural-born Filipinos who re-acquire their citizenship and seek elective office,
to execute a personal and sworn renunciation of any and all foreign citizenships before
an authorized public officer prior to or simultaneous to the filing of their certificates of
candidacy, to qualify as candidates in Philippine elections.—In fine, R.A. No. 9225
categorically demands natural-born Filipinos who re-acquire their citizenship and seek
elective office, to execute a personal and sworn renunciation of any and all foreign
citizenships before an authorized public officer prior to or simultaneous to the filing of
their certificates of candidacy, to qualify as candidates in Philippine elections. The rule
applies to all those who have re-acquired their Filipino citizenship, like petitioner, without
regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for
the exercise of the right to run for public office.

G.R. No. 176947. February 19, 2009.*

GAUDENCIO M. CORDORA, petitioner,

vs.

COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, respondents.

(Full Text, See Election Law Syllabus By A. Flores)

Election Law; Election Offense; Probable Cause; Determining probable cause is an

intellectual activity premised on the prior physical presentation or submission of
documentary or testimonial proofs either confirming, negating or qualifying the
allegations in the complaint.—There was no grave abuse of discretion in the COMELEC
En Banc’s ruling that there is no sufficient and convincing evidence to support a finding
of probable cause to hold Tambunting for trial for violation of Section 74 in relation to
Section 262 of the Omnibus Election Code. Probable cause constitutes those facts and
circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed. Determining probable cause is an intellectual activity
premised on the prior physical presentation or submission of documentary or testimonial
proofs either confirming, negating or qualifying the allegations in the complaint.

Same; Citizenship; Dual Citizenship; The fact that a candidate has dual citizenship
prior to his filing his certificate of candidacy does not disqualify him from running for
public office.—We agree with Commissioner Sarmiento’s observation that Tambunting
possesses dual citizenship. Because of the circumstances of his birth, it was no longer
necessary for Tambunting to undergo the naturalization process to acquire American
citizenship. The process involved in INS Form I-130 only served to confirm the
American citizenship which Tambunting acquired at birth. The certification from the
Bureau of Immigration which Cordora presented contained two trips where Tambunting
claimed that he is an American. However, the same certification showed nine other trips
where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual
citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The
fact that Tambunting had dual citizenship did not disqualify him from running for public
office.

Same; Same; Same; Citizenship Retention and Reacquisition Act of 2003 (R.A.
No. 9225); The twin requirements of swearing to an Oath of Allegiance and executing
a Renunciation of Foreign Citizenship in R.A. No. 9225 do not apply to a natural-born
Filipino who did not subsequently become a naturalized citizen of another country.—In
Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship
per se, but with the status of naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Section 5(3) of R.A. No. 9225 states
that naturalized citizens who reacquire Filipino citizenship and desire to run for elective
public office in the Philippines shall “meet the qualifications for holding such public office
as required by the Constitution and existing laws and, at the time of filing the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath” aside from the oath of
allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing
to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as
the bases for our recent rulings in Jacot v. Dal and COMELEC, 572 SCRA 295 (2008);
Velasco v. COMELEC, 575 SCRA 590 (2008) and Japzon v. COMELEC, 576 SCRA
331 (2009), all of which involve natural-born Filipinos who later became naturalized
citizens of another country and thereafter ran for elective office in the Philippines. In the
present case, Tambunting, a natural-born Filipino, did not subsequently become a
naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do
not apply to him.

Same; Same; Residence; Residency, for the purpose of election laws, includes the
twin elements of the fact of residing in a fixed place and the intention to return there
permanently, and is not dependent upon citizenship.—Cordora concluded that
Tambunting failed to meet the residency requirement because of Tambunting’s
naturalization as an American. Cordora’s reasoning fails because Tambunting is not a
naturalized American. Moreover, residency, for the purpose of election laws, includes
the twin elements of the fact of residing in a fixed place and the intention to return there
permanently, and is not dependent upon citizenship.

G.R. No. 201716. January 8, 2013.*

MAYOR ABELARDO ABUNDO, SR., petitioner,

vs.

COMMISSION ON ELECTIONS and ERNESTO R. VEGA, respondents.

(Full Text, See Syllabus of Election Law By A. Flores)

Election Law; Three-Term Limit Rule; Disqualification from Office; To constitute a

disqualification to run for an elective local office, the following requisites must
concur:

(1) that the official concerned has been elected for three consecutive terms in the same
local government post; and
(2) that he has fully served three consecutive terms.―The three-term limit rule for
elective local officials, a disqualification rule, is found in Section 8, Article X of the
1987 Constitution, which provides: Sec. 8. The term of office of elective local
officials, except barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected.
(Emphasis supplied.) and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or
the Local Government Code (LGC) of 1991, thusly: Sec. 43. Term of Office.―x x x x (b)
No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected. (Emphasis Ours.) To constitute a
disqualification to run for an elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following requisites must concur: (1) that the
official concerned has been elected for three consecutive terms in the same local
government post; and (2) that he has fully served three consecutive terms.

Same; Same; Same; Voluntary renunciation of the office by the incumbent elective
local official for any length of time shall not, in determining service for three consecutive
terms, be considered an interruption in the continuity of service for the full term for
which the elective official concerned was elected.―As is clearly provided in Sec. 8, Art.
X of the Constitution as well as in Sec. 43(b) of the LGC, voluntary renunciation of
the office by the incumbent elective local official for any length of time shall NOT, in
determining service for three consecutive terms, be considered an interruption in the
continuity of service for the full term for which the elective official concerned was
elected. In Aldovino, Jr. vs. COMELEC, 609 SCRA 234 (2009), however, the Court
stated the observation that the law “does not textually state that voluntary renunciation
is the only actual interruption of service that does not affect ‘continuity of service for a
full term’ for purposes of the three-term limit rule.”

Same; Same; Same; The principle behind the three-term limit rule covers only
consecutive terms and that what the Constitution prohibits is a consecutive fourth
term.―As stressed in Socrates v. Commission on Elections, 391 SCRA 457 (2002), the
principle behind the three-term limit rule covers only consecutive terms and that what
the Constitution prohibits is a consecutive fourth term. Put a bit differently, an elective
local official cannot, following his third consecutive term, seek immediate reelection for a
fourth term, albeit he is allowed to seek a fresh term for the same position after the
election where he could have sought his fourth term but prevented to do so by reason of
the prohibition.

Same; Same; Same; An interruption usually occurs when the official does not seek a
fourth term, immediately following the third.―An interruption usually occurs when the
official does not seek a fourth term, immediately following the third. Of course, the basic
law is unequivocal that a “voluntary renunciation of the office for any length of time shall
NOT be considered an interruption in the continuity of service for the full term for which
the elective official concerned was elected.” This qualification was made as a deterrent
against an elective local official intending to skirt the three-term limit rule by merely
resigning before his or her third term ends. This is a voluntary interruption as
distinguished from involuntary interruption which may be brought about by certain
events or causes.

Same; Same; Same; Involuntary interruption is claimed to result from any of these
events or causes: succession or assumption of office by operation of law, preventive
suspension, declaration of the defeated candidate as the winner in an election contest,
declaration of the proclaimed candidate as the losing party in an election contest,
proclamation of a non-candidate as the winner in a recall election, removal of the official
by operation of law, and other analogous causes.―While appearing to be seemingly
simple, the three-term limit rule has engendered a host of disputes resulting from the
varying interpretations applied on local officials who were elected and served for three
terms or more, but whose terms or service was punctuated by what they view as
involuntary interruptions, thus entitling them to a, but what their opponents perceive as a
proscribed, fourth term. Involuntary interruption is claimed to result from any of these
events or causes: succession or assumption of office by operation of law, preventive
suspension, declaration of the defeated candidate as the winner in an election contest,
declaration of the proclaimed candidate as the losing party in an election contest,
proclamation of a non-candidate as the winner in a recall election, removal of the official
by operation of law, and other analogous causes.

Same; Same; Same; For the disqualification rule to apply, “it is not enough that an
individual has served three consecutive terms in an elective local office, he must also
have been elected to the same position for the same number of times before the
disqualification can apply.”―In Borja, Jr. v. Commission on Elections and Jose T.
Capco, Jr., 295 SCRA 157 (1998), and Montebon v. Commission on Elections, 551
SCRA 50 (2008), the Court delved on the effects of “assumption to office by operation
of law” on the three-term limit rule. This contemplates a situation wherein an elective
local official fills by succession a higher local government post permanently left vacant
due to any of the following contingencies, i.e., when the supposed incumbent refuses to
assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is
otherwise permanently incapacitated to discharge the functions of his office. In Borja,
Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988
for a term ending June 30, 1992. On September 2, 1989, Capco became mayor, by
operation of law, upon the death of the incumbent mayor, Cesar Borja. Capco was then
elected and served as mayor for terms 1992-1995 and 1995-1998. When Capco
expressed his intention to run again for the mayoralty position during the 1998 elections,
Benjamin U. Borja, Jr., who was then also a candidate for mayor, sought Capco’s
disqualification for violation of the three-term limit rule. Finding for Capco, the Court held
that for the disqualification rule to apply, “it is not enough that an individual has served
three consecutive terms in an elective local office, he must also have been elected to
the same position for the same number of times before the disqualification can apply.”
There was, the Court ruled, no violation of the three-term limit, for Capco “was not
elected to the office of the mayor in the first term but simply found himself thrust into it
by operation of law” when a permanent vacancy occurred in that office.

Same; Same; Same; The conversion of a municipality into a city does not constitute an
interruption of the incumbent official’s continuity of service; He never ceased from
discharging his duties and responsibilities as chief executive of the same local
government unit.―The conversion of a municipality into a city does not constitute an
interruption of the incumbent official’s continuity of service. The Court said so in Latasa
v. Commission on Elections, 417 SCRA 601 (2003). Latasa is cast against the ensuing
backdrop: Arsenio A. Latasa was elected and served as mayor of the Municipality of
Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third
term, Digos was converted into a component city, with the corresponding cityhood law
providing the holdover of elective officials. When Latasa filed his certificate of candidacy
as mayor for the 2001 elections, the Court declared Latasa as disqualified to run as
mayor of Digos City for violation of the three-term limit rule on the basis of the following
ratiocination: This Court believes that (Latasa) did involuntarily relinquish his office as
municipal mayor since the said office has been deemed abolished due to the
conversion. However, the very instant he vacated his office as municipal mayor, he also
assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even
just a short period of time, stepped down from office, petitioner Latasa never ceased
from acting as chief executive of the local government unit. He never ceased from
discharging his duties and responsibilities as chief executive of Digos.

Same; Same; Same; Preventive Suspension; The period during which a local elected
official is under preventive suspension cannot be considered as an interruption of the
continuity of his service.―In 2009, in the case Aldovino Jr., the Court espoused the
doctrine that the period during which a local elected official is under preventive
suspension cannot be considered as an interruption of the continuity of his service. The
Court explained why so: Strict adherence to the intent of the three-term limit rule
demands that preventive suspension should not be considered an interruption that
allows an elective official’s stay in office beyond three terms. A preventive suspension
cannot simply be a term interruption because the suspended official continues to stay in
office although he is barred from exercising the functions and prerogatives of the office
within the suspension period. The best indicator of the suspended official’s continuity in
office is the absence of a permanent replacement and the lack of the authority to
appoint one since no vacancy exists.

Same; Same; Same; Summary of the Prevailing Jurisprudence on Issues Affecting

Consecutiveness of Terms and/or Involuntary Interruption.―To summarize, hereunder
are the prevailing jurisprudence on issues affecting consecutiveness of terms
and/or involuntary interruption, viz.:

1. When a permanent vacancy occurs in an elective position and the official merely
assumed the position pursuant to the rules on succession under the LGC, then his
service for the unexpired portion of the term of the replaced official cannot be treated as
one full term as contemplated under the subject constitutional and statutory provision
that service cannot be counted in the application of any term limit (Borja, Jr.). If the
official runs again for the same position he held prior to his assumption of the higher
office, then his succession to said position is by operation of law and is considered an
involuntary severance or interruption (Montebon).

2. An elective official, who has served for three consecutive terms and who did not seek
the elective position for what could be his fourth term, but later won in a recall election,
had an interruption in the continuity of the official’s service. For, he had become in the
interim, i.e., from the end of the 3rd term up to the recall election, a private citizen
(Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a

city does not, by itself, work to interrupt the incumbent official’s continuity of service
(Latasa).

4. Preventive suspension is not a term-interrupting event as the elective officer’s

continued stay and entitlement to the office remain unaffected during the period of
suspension, although he is barred from exercising the functions of his office during this
period (Aldovino, Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes

office, his term is interrupted when he loses in an election protest and is ousted from
office, thus disenabling him from serving what would otherwise be the unexpired portion
of his term of office had the protest been dismissed (Lonzanida and Dizon). The break
or interruption need not be for a full term of three years or for the major part of the 3-
year term; an interruption for any length of time, provided the cause is involuntary, is
sufficient to break the continuity of service (Socrates, citing Lonzanida). 6. When an
official is defeated in an election protest and said decision becomes final after said
official had served the full term for said office, then his loss in the election contest does
not constitute an interruption since he has managed to serve the term from start to
finish. His full service, despite the defeat, should be counted in the application of term
limits because the nullification of his proclamation came after the expiration of the term
(Ong and Rivera).

Same; Same; Same; The intention behind the three-term limit rule was not only to
abrogate the “monopolization of political power” and prevent elected officials from
breeding “proprietary interest in their position” but also to “enhance the people’s
freedom of choice.”―The intention behind the three-term limit rule was not only to
abrogate the “monopolization of political power” and prevent elected officials from
breeding “proprietary interest in their position” but also to “enhance the people’s
freedom of choice.” In the words of Justice Vicente V. Mendoza, “while people should
be protected from the evils that a monopoly of power may bring about, care should be
taken that their freedom of choice is not unduly curtailed.”

Same; Same; Same; Term; Words and Phrases; A “term,” as defined in Appari v.
Court of Appeals, 127 SCRA 231 (1984), means, in a legal sense, “a fixed and definite
period of time which the law describes that an officer may hold an office.”―A “term,” as
defined in Appari v. Court of Appeals, 127 SCRA 231 (1984), means, in a legal sense,
“a fixed and definite period of time which the law describes that an officer may hold an
office.” It also means the “time during which the officer may claim to hold office as a
matter of right, and fixes the interval after which the several incumbents shall succeed
one another.” It is the period of time during which a duly elected official has title to and
can serve the functions of an elective office. From paragraph (a) of Sec. 43, RA 7160,
the term for local elected officials is three (3) years starting from noon of June 30 of the
first year of said term.

Same; Same; Same; Interruption of Service; The notion of full service of three
consecutive terms is related to the concepts of interruption of service and voluntary
renunciation of service.―The notion of full service of three consecutive terms is related
to the concepts of interruption of service and voluntary renunciation of service. The
word interruption means temporary cessation, intermission or suspension. To interrupt
is to obstruct, thwart or prevent. When the Constitution and the LGC of 1991 speak of
interruption, the reference is to the obstruction to the continuance of the service by the
concerned elected official by effectively cutting short the service of a term or giving a
hiatus in the occupation of the elective office. On the other hand, the word
“renunciation” connotes the idea of waiver or abandonment of a known right. To
renounce is to give up, abandon, decline or resign. Voluntary renunciation of the office
by an elective local official would thus mean to give up or abandon the title to the office
and to cut short the service of the term the concerned elected official is entitled to.

Same; Same; Same; Same; To be considered as interruption of service, the “law

contemplates a rest period during which the local elective official steps down from office
and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit.”―As aptly stated in Latasa, to be
considered as interruption of service, the “law contemplates a rest period during which
the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local
government unit.” Applying the said principle in the present case, there is no question
that during the pendency of the election protest, Abundo ceased from exercising power
or authority over the good people of Viga, Catanduanes. Consequently, the period
during which Abundo was not serving as mayor should be considered as a rest period
or break in his service because, as earlier stated, prior to the judgment in the election
protest, it was Abundo’s opponent, Torres, who was exercising such powers by virtue of
the still then valid proclamation.

G.R. No. 133495. September 3, 1998.*

BENJAMIN U. BORJA, JR., petitioner,

vs.

COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.

Constitutional Law; Election Law; Suffrage; Term Limits; Political Dynasties; To

prevent the establishment of political dynasties is not the only policy embodied in
Article X, §8 of the Constitution—the other policy is that of enhancing the freedom of
choice of the people.—To prevent the establishment of political dynasties is not the only
policy embodied in the constitutional provision in question. The other policy is that of
enhancing the freedom of choice of the people. To consider, therefore, only stay in
office regardless of how the official concerned came to that office—whether by election
or by succession by operation of law—would be to disregard one of the purposes of the
constitutional provision in question.

Same; Same; Same; Same; Same; Statutory Construction; A consideration of the

historical background of Art. X, §8 of the Constitution reveals that the members of
the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political
power.—A consideration of the historical background of Art. X, §8 of the Constitution
reveals that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine
years there should be no further reelection for local and legislative officials. Instead,
they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election
following the expiration of the third consecutive term. Monsod warned against
“prescreening candidates [from] whom the people will choose” as a result of the
proposed absolute disqualification, considering that the draft constitution contained
provisions “recognizing people’s power.”

Same; Same; Same; Same; Same; A fundamental tenet of representative democracy

is that the people should be allowed to choose those whom they please to govern
them.—Indeed, a fundamental tenet of representative democracy is that the people
should be allowed to choose those whom they please to govern them. To bar the
election of a local official because he has already served three terms, although the first
as a result of succession by operation of law rather than election, would therefore be to
violate this principle.

Same; Same; Same; Same; Statutory Construction; Not only historical examination
but textual analysis as well supports the ruling of the COMELEC that Art. X, §8
contemplates service by local officials for three consecutive terms as a result of
election.—Not only historical examination but textual analysis as well supports the ruling
of the COMELEC that Art. X, §8 contemplates service by local officials for three
consecutive terms as a result of election. The first sentence speaks of “the term of office
of elective local officials” and bars “such official[s]” from serving for more than three
consecutive terms. The second sentence, in explaining when an elective local official
may be deemed to have served his full term of office, states that “voluntary renunciation
of the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.” The term served
must therefore be one “for which [the official concerned] was elected.” The purpose of
this provision is to prevent a circumvention of the limitation on the number of terms an
elective local official may serve. Conversely, if he is not serving a term for which he was
elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term notwithstanding his voluntary
renunciation of office prior to its expiration.

Same; Same; Same; Same; Municipal Corporations; Local Government Units;

There is a difference between the case of a vice-mayor and that of a member of the
House of Representatives who succeeds another who dies, resigns, becomes
incapacitated, or is removed from office—the vice-mayor succeeds to the mayorship by
operation of law while the Representative is elected to fill the vacancy.—There is a
difference, however, between the case of a vice-mayor and that of a member of the
House of Representatives who succeeds another who dies, resigns, becomes
incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by
operation of law. On the other hand, the Representative is elected to fill the vacancy. In
a real sense, therefore, such Representative serves a term for which he was elected. As
the purpose of the constitutional provision is to limit the right to be elected and to serve
in Congress, his service of the unexpired term is rightly counted as his first term. Rather
than refute what we believe to be the intendment of Art. X, §8 with regard to elective
local officials, the case of a Representative who succeeds another confirms the theory.

Same; Same; Same; Same; Same; Same; Presidency; The Vice-President is elected
primarily to succeed the President in the event of the latter’s death, permanent
disability, removal, or resignation—in running for Vice-President, he may thus be said to
also seek the Presidency.—There is another reason why the Vice-President who
succeeds to the Presidency and serves in that office for more than four years is
ineligible for election as President. The Vice-President is elected primarily to succeed
the President in the event of the latter’s death, permanent disability, removal, or
resignation. While he may be appointed to the cabinet, his becoming so is entirely
dependent on the good graces of the President. In running for Vice-President, he may
thus be said to also seek the Presidency. For their part, the electors likewise choose as
Vice-President the candidate who they think can fill the Presidency in the event it
becomes vacant. Hence, service in the Presidency for more than four years may rightly
be considered as service for a full term.

Same; Same; Same; Same; Same; Same; It is not enough that an individual has
served three consecutive terms in an elective local office—he must also have been
elected to the same position for the same number of times before the disqualification
can apply.—To recapitulate, the term limit for elective local officials must be taken to
refer to the right to be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served three consecutive terms in
an elective local office, he must also have been elected to the same position for the
same number of times before the disqualification can apply.

MENDOZA, J.:

This case presents for determination the scope of the constitutional provision barring elective local
officials, with the exception of barangay officials, from serving more than three consecutive terms. In
particular, the question is whether a vice-mayor who succeeds to the office of mayor by operation of
law and serves the remainder of the term is considered to have served a term in that office for the
purpose of the three-term limit.

Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a
term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the
death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of
three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another
term of three years ending June 30, 1998.1

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros
relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja Jr., who was also a candidate for
mayor, sought Capco's disqualification on the theory that the latter would have already served as
mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for
another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner
and declared private respondent Capco disqualified from running for reelection as mayor of
Pateros. 2 However, on motion of private respondent the COMELEC en banc, voting 5-2, reversed
the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. 3 The
majority stated in its decision:

In both the Constitution and the Local Government Code, the three-term limitation
refers to the term of office for which the local official was elected. It made no
reference to succession to an office to which he was not elected. In the case before
the Commission, respondent Capco was not elected to the position of Mayor in the
January 18, 1988 local elections. He succeeded to such office by operation of law
and served for the unexpired term of his predecessor. Consequently, such
succession into office is not counted as one (1) term for purposes of the computation
of the three-term limitation under the Constitution and the Local Government Code.

Accordingly, private respondent was voted for in the elections. He received 16,558 votes against
petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of Canvassers.

This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the
COMELEC and to seek a declaration that private respondent is disqualified to serve another term as
mayor of Pateros, Metro Manila.

Petitioner contends that private respondent Capco's service as mayor from September 2, 1989 to
June 30, 1992 should be considered as service for one full term, and since he thereafter served from
1992 to 1998 two more terms as mayor, he should be considered to have served three consecutive
terms within the contemplation of Art. X, §8 of the Constitution and §43(b) of the Local Government
Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja on September 2, 1989,
private respondent became the mayor and thereafter served the remainder of the term. Petitioner
argues that it is irrelevant that private respondent became mayor by succession because the
purpose of the constitutional provision in limiting the number of terms elective local officials may
serve is to prevent a monopolization of political power.

This contention will not bear analysis. Article X, §8 of the Constitution provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.

This provision is restated in §43(b) of the Local Government Code (R.A. No. 7160):

Sec. 43. Term of Office. — . . .

(b) No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall not
 be considered as an interruption in the continuity of service for the full term for which
the elective official concerned was elected. . . .

First, to prevent the establishment of political dynasties is not the only policy embodied in the
constitutional provision in question. The other policy is that of enhancing the freedom of choice of the
people. To consider, therefore, only stay in office regardless of how the official concerned came to
that office — whether by election or by succession by operation of law — would be to disregard one
of the purposes of the constitutional provision in question.

Thus, a consideration of the historical background of Article X, §8 of the Constitution reveals that the
members of the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political power. Indeed, they
rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three
consecutive terms or nine years there should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the of the succeeding election
following the expiration of the third consecutive term. 4 Monsod warned against "prescreening
candidates [from] whom the people will choose" as a result of the proposed absolute disqualification,
considering that the draft constitution contained provisions "recognizing people's power." 5

Commissioner Blas F. Ople, who supported the Monsod proposal, said:

The principle involved is really whether this Commission shall impose a temporary or
a perpetual disqualification on those who have served their terms in accordance with
the limits on consecutive service as decided by the Constitutional Commission. I
would be very wary about this Commission exercising a sort of omnipotent power in
order to disqualify those who will already have served their terms from perpetuating
themselves in office. I think the Commission achieves its purpose in establishing
safeguards against the excessive accumulation of power as a result of consecutive
terms. We do put a cap on consecutive service — in the case of the President, six
years, in the case of the Vice-President, unlimited; and in the case of the Senators,
one reelection. In the case of the Members of Congress, both from the legislative
districts and from the party list and sectoral representation, this is now under
discussion and later on the policy concerning local officials will be taken up by the
Committee on Local Governments. The principle remains the same. I think we want
to prevent future situations where, as a result of continuous service and frequent
reelections, officials from the President down to the municipal mayor tend to develop
a proprietary interest in their positions and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to
members of their families in a subsequent election. I think that is taken care of
because we put a gap on the continuity or the unbroken service of all of these
officials. But where we now decide to put these prospective servants of the people or
politicians, if we want to use the coarser term, under a perpetual disqualification, I
have a feeling that we are taking away too much from the people, whereas we
should be giving as much to the people as we can in terms of their own freedom of
choice. . . . 6

Other commissioners went on record against "perpetually disqualifying" elective officials who have
served a certain number of terms as this would deny the right of the people to choose. As
Commissioner Yusup R. Abubakar asked, "why should we arrogate unto ourselves the right to
decide what the people want?" 7

Commissioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to
"allow the people to exercise their own sense of proportion and [rely] on their own strength to curtail
power when it overreaches itself." 8

Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual disqualification
after serving a number of terms] to the premise accepted by practically everybody here that our
people are politically mature? Should we use this assumption only when it is convenient for us, and
not when it may also lead to a freedom of choice for the people and for politicians who may aspire to
serve them longer?" 9

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

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the
assumption that the officials concerned were serving by reason of election. This is clear from the
following exchange in the Constitutional Commission concerning term limits, now embodied in Art.
VI, §§4 and 7 of the Constitution, for members of Congress:

MR. GASCON. I would like to ask a question with regard to the issue after the
second term. We will allow the Senator to rest for a period of time before he
can run again?

MR. DAVIDE. That is correct.

MR. GASCON. And the question that we left behind before — if the Gentlemen will
remember — was: How long will that period of rest be? Will it be one election which
is three years or one term which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of hibernation for six
years. That was the Committee's stand. 10

Indeed a fundamental tenet of representative democracy is that the people should be allowed to
choose those whom they please to govern them. 11 To bar the election of a local official because he
has already served three terms, although the first as a result of succession by operation of law rather
than election, would therefore be to violate this principle.

Second, not only historical examination but textual analysis as well supports the ruling of the
COMELEC that Art. X, §8 contemplates service by local officials for three consecutive terms as a
result of election. The first sentence speaks of "the term of office of elective local officials" and bars
"such official[s]" from serving for more than three consecutive terms. The second sentence, in
explaining when an elective local official may be deemed to have served his full term of office, states
that "voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected." The term
served must therefore be one "for which [the official concerned] was elected." The purpose of this
provision is to prevent a circumvention of the limitation on the number of terms an elective local
official may serve. Conversely, if he is not serving a term for which he was elected because he is
simply continuing the service of the official he succeeds, such official cannot be considered to have
fully served the term notwithstanding his voluntary renunciation of office prior to its expiration.

Reference is made to Commissioner Bernas' comment on Art. VI, §7, which similarly bars members
of the House of Representatives from serving for more than three terms. Commissioner Bernas
states that "if one is elected Representative to serve the unexpired term of another, that unexpired
term, no matter how short, will be considered one term for the purpose of computing the number of
successive terms allowed." 12

This is actually based on the opinion expressed by Commissioner Davide in answer to a query of
Commissioner Suarez: "For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that mean that serving
the unexpired portion of the term is already considered one term? So, half a term, which is actually
the correct statement, plus one term would disqualify the Senator concerned from running? Is that
the meaning of this provision on disqualification, Madam President?" Commissioner Davide said:
"Yes, because we speak of "term," and if there is a special election, he will serve only for the
unexpired portion of that particular term plus one more term for the Senator and two more terms for
the Members of the Lower House." 13

There is a difference, however, between the case of a vice-mayor and that of a member of the
House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is
removed from office. The vice-mayor succeeds to the mayorship by operation of law. 14 On the other
hand, the Representative is elected to fill the vacancy. 15 In a real sense, therefore, such
Representative serves a term for which he was elected. As the purpose of the constitutional
provision is to limit the right to be elected and to serve in Congress, his service of the unexpired term
is rightly counted as his first term. Rather than refute what we believe to be the intendment of Art. X,
§8 with regard to elective local officials, the case of a Representative who succeeds another
confirms the theory.

Petitioner also cites Art. VII, §4 of the Constitution which provides for succession of the Vice-
President to the Presidency in case of vacancy in that office. After stating that "The President shall
not be eligible for any reelection," this provision says that "No person who has succeeded as
President and has served as such for more than four years shall be qualified for election to the same
office at any time." Petitioner contends that, by analogy, the vice-mayor should likewise be
considered to have served a full term as mayor if he succeeds to the latter's office and serves for the
remainder of the term.

The framers of the Constitution included such a provision because, without it, the Vice-President,
who simply steps into the Presidency by succession, would be qualified to run President even if he
has occupied that office for more than four years. The absence of a similar provision in Art. X, §8 on
elective local officials throws in bold relief the difference between the two cases. It underscores the
constitutional intent to cover only the terms of office to which one may have been elected for
purposes of the three-term limit on local elective officials, disregarding for this purpose service by
automatic succession.

There is another reason why the Vice-President who succeeds to the Presidency and serves in that
office for more than four years is ineligible for election as President. The Vice-President is elected
primarily to succeed the President in the event of the latter's death, permanent disability, removal, or
resignation. While he may be appointed to the cabinet, his becoming, so is entirely dependent on the
good graces of the President. In running for Vice-President, he may thus be said to also seek the
Presidency. For their part, the electors likewise choose as Vice-President the candidate who they
think can fill the Presidency in the event it becomes vacant. Hence, service in the Presidency for
more than four years may rightly be considered as service for a full term.

This is not so in the case of the vice-mayor. Under the Local Government Code, he is the presiding
officer of the sanggunian and he appoints all officials and employees of such local assembly. He has
distinct powers and functions, succession to mayorship in the event of vacancy therein being only
one of
them. 16 It cannot be said of him, as much as of the Vice-President in the event of a vacancy in the
Presidency, that, in running for vice-mayor, he also seeks the mayorship. His assumption of the
mayorship in the event of vacancy is more a matter of chance than of design. Hence, his service in
that office should not be counted in the application of any term limit.

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it is not enough that
an individual has served three consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times before the disqualification can
apply. This point can be made clearer by considering the following cases or situations:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death
of the incumbent. Six months before the next election, he resigns and is twice
elected thereafter. Can he run again for mayor in the next election?

Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art. X,
§8, voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one "for which he was
elected." Since A is only completing the service of the term for which the deceased
and not he was elected, A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.

Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?

Yes, because he has served only two full terms successively.

In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he has fully served three consecutive
terms. In the first case, even if the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the fact remains that he has not
been elected three times. In the second case, the local official has been elected three consecutive
times, but he has not fully served three consecutive terms.

Case No. 3. The case of vice-mayor C who becomes mayor by succession involves
a total failure of the two conditions to concur for the purpose of applying Art. X, §8.
Suppose he is twice elected after that term, is he qualified to run again in the next
election?

Yes, because he was not elected to the office of mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death, of the deceased
mayor.

To consider C in the third case to have served the first term in full and therefore ineligible to run a
third time for reelection would be not only to falsify reality but also to unduly restrict the right of the
people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the
people can remedy the situation by simply not reelecting him for another term. But if, on the other
hand, he proves to be a good mayor, there will be no way the people can return him to office (even if
it is just the third time he is standing for reelection) if his service of the first term is counted as one for
the purpose of applying the term limit.

To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a monopoly
of political power may bring about, care should be taken that their freedom of choice is not unduly
curtailed.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 184836. December 23, 2009.*

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N.

TALABONG, petitioners,

vs.

COMMISSION ON ELECTIONS AND WILFREDO F. ASILO,

respondents.

Election Law; Three-Term Limit Rule; Preventive Suspension; Judgments; Legal

Research; Doctrinally, Borja v. Commission on Elections, 329 Phil. 409 (1996), is not a
controlling ruling; it did not deal with preventive suspension, but with the application of
the three-term rule on the term that an elective official acquired by succession.—The
present case is not the first before this Court on the three-term limit provision of the
Constitution, but is the first on the effect of preventive suspension on the continuity of an
elective official’s term. To be sure, preventive suspension, as an interruption in the term
of an elective public official, has been mentioned as an example in Borja v. Commission
on Elections, 260 SCRA 604 (1996). Doctrinally, however, Borja is not a controlling
ruling; it did not deal with preventive suspension, but with the application of the three-
term rule on the term that an elective official acquired by succession.

Same; Same; As worded, the constitutional provision fixes the term of a local elective
office and limits an elective official’s stay in office to no more than three consecutive
terms—the first branch of the rule embodied in Section 8, Article X of the Constitution.—
As worded, the constitutional provision fixes the term of a local elective office and limits
an elective official’s stay in office to no more than three consecutive terms. This is the
first branch of the rule embodied in Section 8, Article X. Significantly, this provision
refers to a “term” as a period of time—three years—during which an official has title to
office and can serve. Appari v. Court of Appeals, 127 SCRA 231 (1984), a Resolution
promulgated on November 28, 2007, succinctly discusses what a “term” connotes, as
follows: “The word “term” in a legal sense means a fixed and definite period of time
which the law describes that an officer may hold an office. According to Mechem, the
term of office is the period during which an office may be held. Upon expiration of the
officer’s term, unless he is authorized by law to holdover, his rights, duties and authority
as a public officer must ipso facto cease. In the law of public officers, the most and
natural frequent method by which a public officer ceases to be such is by the expiration
of the terms for which he was elected or appointed.”

Same; Same; The second branch relates to the provision’s express initiative to prevent
any circumvention of the limitation through voluntary severance of ties with the public
office—that voluntary renunciation of office “shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected”; A notable feature
of the second branch is that it does not textually state that voluntary renunciation is the
only actual interruption of service that does not affect “continuity of service for a full
term” for purposes of the three-term limit rule.—The second branch relates to the
provision’s express initiative to prevent any circumvention of the limitation through
voluntary severance of ties with the public office; it expressly states that voluntary
renunciation of office “shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.” This declaration complements the
term limitation mandated by the first branch. A notable feature of the second branch is
that it does not textually state that voluntary renunciation is the only actual interruption
of service that does not affect “continuity of service for a full term” for purposes of the
three-term limit rule. It is a pure declaratory statement of what does not serve as an
interruption of service for a full term, but the phrase “voluntary renunciation,” by itself, is
not without significance in determining constitutional intent.

Same; Same; Words and Phrases; The descriptive word “voluntary” linked together
with “renunciation” signifies an act of surrender based on the surenderee’s own freely
exercised will— in other words, a loss of title to office by conscious choice—and in the
context of the three-term limit rule, such loss of title is not considered an interruption
because it is presumed to be purposely sought to avoid the application of the term
limitation.—The word “renunciation” carries the dictionary meaning of abandonment. To
renounce is to give up, abandon, decline, or resign. It is an act that emanates from its
author, as contrasted to an act that operates from the outside. Read with the definition
of a “term” in mind, renunciation, as mentioned under the second branch of the
constitutional provision, cannot but mean an act that results in cutting short the term,
i.e., the loss of title to office. The descriptive word “voluntary” linked together with
“renunciation” signifies an act of surrender based on the surenderee’s own freely
exercised will; in other words, a loss of title to office by conscious choice. In the context
of the three-term limit rule, such loss of title is not considered an interruption because it
is presumed to be purposely sought to avoid the application of the term limitation.

Same; Same; The “interruption” of a term exempting an elective official from the
three-term limit rule is one that involves no less than the involuntary loss of title to
office.—From all the above, we conclude that the “interruption” of a term exempting an
elective official from the three-term limit rule is one that involves no less than the
involuntary loss of title to office. The elective official must have involuntarily left his office
for a length of time, however short, for an effective interruption to occur. This has to be
the case if the thrust of Section 8, Article X and its strict intent are to be faithfully served,
i.e., to limit an elective official’s continuous stay in office to no more than three
consecutive terms, using “voluntary renunciation” as an example and standard of what
does not constitute an interruption.
Same; Same; Temporary inability or disqualification to exercise the functions of an
elective post, even if involuntary, should not be considered an effective interruption of a
term because it does not involve the loss of title to office or at least an effective break
from holding office—the office holder, while retaining title, is simply barred from
exercising the functions of his office for a reason provided by law.—Thus, based on this
standard, loss of office by operation of law, being involuntary, is an effective interruption
of service within a term, as we held in Montebon. On the other hand, temporary inability
or disqualification to exercise the functions of an elective post, even if involuntary,
should not be considered an effective interruption of a term because it does not involve
the loss of title to office or at least an effective break from holding office; the office
holder, while retaining title, is simply barred from exercising the functions of his office for
a reason provided by law. An interruption occurs when the term is broken because the
office holder lost the right to hold on to his office, and cannot be equated with the failure
to render service. The latter occurs during an office holder’s term when he retains title to
the office but cannot exercise his functions for reasons established by law. Of course,
the term “failure to serve” cannot be used once the right to office is lost; without the right
to hold office or to serve, then no service can be rendered so that none is really lost.

Same; Same; Section 8, Article X of the Constitution, both by structure and

substance, fixes an elective official’s term of office and limits his stay in office to three
consecutive terms as an inflexible rule—the provision should be read in the context of
interruption of term, not in the context of interrupting the full continuity of the exercise of
the powers of the elective position.—To put it differently although at the risk of
repetition, Section 8, Article X—both by structure and substance—fixes an elective
official’s term of office and limits his stay in office to three consecutive terms as an
inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of
a circumvention. The provision should be read in the context of interruption of term, not
in the context of interrupting the full continuity of the exercise of the powers of the
elective position. The “voluntary renunciation” it speaks of refers only to the elective
official’s voluntary relinquishment of office and loss of title to this office. It does not
speak of the temporary “cessation of the exercise of power or authority” that may occur
for various reasons, with preventive suspension being only one of them. To quote
Latasa v. Comelec: “Indeed, [T]he law contemplates a rest period during which the local
elective official steps down from office and ceases to exercise power or authority over
the inhabitants of the territorial jurisdiction of a particular local government unit.”
Same; Same; Preventive Suspension; Preventive suspension—whether under the
Local Government Code, the Anti-Graft and Corrupt Practices Act, or the Ombudsman
Act—is an interim remedial measure to address the situation of an official who have
been charged administratively or criminally, where the evidence preliminarily indicates
the likelihood of or potential for eventual guilt or liability.—Preventive suspension—
whether under the Local Government Code, the Anti-Graft and Corrupt Practices Act, or
the Ombudsman Act—is an interim remedial measure to address the situation of an
official who have been charged administratively or criminally, where the evidence
preliminarily indicates the likelihood of or potential for eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code “when the
evidence of guilt is strong and given the gravity of the offense, there is a possibility that
the continuance in office of the respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence.” Under the Anti-
Graft and Corrupt Practices Act, it is imposed after a valid information (that requires a
finding of probable cause) has been filed in court, while under the Ombudsman Act, it is
imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and
(a) the charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (b) the charges would warrant removal from the service; or (c)
the respondent’s continued stay in office may prejudice the case filed against him.

Same; Same; Same; Preventive suspension is a remedial measure that operates under
closely-controlled conditions and gives a premium to the protection of the service rather
than to the interests of the individual office holder—while a temporary incapacity in the
exercise of power results, no position is vacated when a public official is preventively
suspended.—Notably in all cases of preventive suspension, the suspended official is
barred from performing the functions of his office and does not receive salary in the
meanwhile, but does not vacate and lose title to his office; loss of office is a
consequence that only results upon an eventual finding of guilt or liability. Preventive
suspension is a remedial measure that operates under closely-controlled conditions and
gives a premium to the protection of the service rather than to the interests of the
individual office holder. Even then, protection of the service goes only as far as a
temporary prohibition on the exercise of the functions of the official’s office; the official is
reinstated to the exercise of his position as soon as the preventive suspension is lifted.
Thus, while a temporary incapacity in the exercise of power results, no position is
vacated when a public official is preventively suspended. This was what exactly
happened to Asilo.
Same; Same; Same; Preventive suspension, by its nature, is a temporary incapacity to
render service during an unbroken term, and in the context of term limitation,
interruption of service occurs after there has been a break in the term.—Term limitation
and preventive suspension are two vastly different aspects of an elective officials’
service in office and they do not overlap. As already mentioned above, preventive
suspension involves protection of the service and of the people being served, and
prevents the office holder from temporarily exercising the power of his office. Term
limitation, on the other hand, is triggered after an elective official has served his three
terms in office without any break. Its companion concept—interruption of a term—on the
other hand, requires loss of title to office. If preventive suspension and term limitation or
interruption have any commonality at all, this common point may be with respect to the
discontinuity of service that may occur in both. But even on this point, they merely run
parallel to each other and never intersect; preventive suspension, by its nature, is a
temporary incapacity to render service during an unbroken term; in the context of term
limitation, interruption of service occurs after there has been a break in the term.

Same; Same; Same; Strict adherence to the intent of the three-term limit rule demands
that preventive suspension should not be considered an interruption that allows an
elective official’s stay in office beyond three terms; The best indicator of the suspended
official’s continuity in office is the absence of a permanent replacement and the lack of
the authority to appoint one since no vacancy exists.—Strict adherence to the intent of
the three-term limit rule demands that preventive suspension should not be considered
an interruption that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended
official continues to stay in office although he is barred from exercising the functions and
prerogatives of the office within the suspension period. The best indicator of the
suspended official’s continuity in office is the absence of a permanent replacement and
the lack of the authority to appoint one since no vacancy exists. To allow a preventively
suspended elective official to run for a fourth and prohibited term is to close our eyes to
this reality and to allow a constitutional violation through sophistry by equating the
temporary inability to discharge the functions of office with the interruption of term that
the constitutional provision contemplates. To be sure, many reasons exist, voluntary or
involuntary—some of them personal and some of them by operation of law—that may
temporarily prevent an elective office holder from exercising the functions of his office in
the way that preventive suspension does. A serious extended illness, inability through
force majeure, or the enforcement of a suspension as a penalty, to cite some
involuntary examples, may prevent an office holder from exercising the functions of his
office for a time without forfeiting title to office. Preventive suspension is no different
because it disrupts actual delivery of service for a time within a term. Adopting such
interruption of actual service as the standard to determine effective interruption of term
under the three-term rule raises at least the possibility of confusion in implementing this
rule, given the many modes and occasions when actual service may be interrupted in
the course of serving a term of office. The standard may reduce the enforcement of the
three-term limit rule to a case-to-case and possibly see-sawing determination of what an
effective interruption is.

Same; Same; Same; Recognizing preventive suspension as an effective interruption of

a term can serve as a circumvention more potent than the voluntary renunciation that
the Constitution expressly disallows as an interruption.—Preventive suspension, by its
nature, does not involve an effective interruption of a term and should therefore not be a
reason to avoid the three-term limitation. It can pose as a threat, however, if we shall
disregard its nature and consider it an effective interruption of a term. Let it be noted
that a preventive suspension is easier to undertake than voluntary renunciation, as it
does not require relinquishment or loss of office even for the briefest time. It merely
requires an easily fabricated administrative charge that can be dismissed soon after a
preventive suspension has been imposed. In this sense, recognizing preventive
suspension as an effective interruption of a term can serve as a circumvention more
potent than the voluntary renunciation that the Constitution expressly disallows as an
interruption.

DECISION

BRION, J.:

Is the preventive suspension of an elected public official an interruption of his term of office for
purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b)
of Republic Act No. 7160 (RA 7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an

effective interruption because it renders the suspended public official unable to provide complete
service for the full term; thus, such term should not be counted for the purpose of the three-term limit
rule.

The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.

THE ANTECEDENTS

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive
terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or
during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in
relation with a criminal case he then faced. This Court, however, subsequently lifted the
Sandiganbayan’s suspension order; hence, he resumed performing the functions of his office and
finished his term.
In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners
Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny
due course to Asilo’s certificate of candidacy or to cancel it on the ground that he had been elected
and had served for three terms; his candidacy for a fourth term therefore violated the three-term limit
rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.

The COMELEC’s Second Division ruled against the petitioners and in Asilo’s favour in its Resolution
of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to
render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had
ordered.

The COMELEC en banc refused to reconsider the Second Division’s ruling in its October 7, 2008
Resolution; hence, the PRESENT PETITION raising the following ISSUES:

1. Whether preventive suspension of an elected local official is an interruption of the three-

term limit rule; and

2. Whether preventive suspension is considered involuntary renunciation as contemplated in

Section 43(b) of RA 7160

Thus presented, the case raises the direct issue of whether Asilo’s preventive suspension
constituted an interruption that allowed him to run for a 4th term.

THE COURT’S RULING

We find the petition meritorious.

General Considerations

The present case is not the first before this Court on the three-term limit provision of the Constitution,
but is the first on the effect of preventive suspension on the continuity of an elective official’s term.
To be sure, preventive suspension, as an interruption in the term of an elective public official, has
been mentioned as an example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is
not a controlling ruling; it did not deal with preventive suspension, but with the application of the
three-term rule on the term that an elective official acquired by succession.

a. The Three-term Limit Rule:

The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in
wording does not assume any significance in this case.

As worded, the constitutional provision fixes the term of a local elective office and limits an elective
official’s stay in office to no more than three consecutive terms. This is the first branch of the rule
embodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time – three years – during which an
official has title to office and can serve. Appari v. Court of Appeals,3 a Resolution promulgated on
November 28, 2007, succinctly discusses what a "term" connotes, as follows:

The word "term" in a legal sense means a fixed and definite period of time which the law
describes that an officer may hold an office. According to Mechem, the term of office is the
period during which an office may be held. Upon expiration of the officer’s term, unless he is
authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto
cease. In the law of public officers, the most and natural frequent method by which a public officer
ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis
supplied].1avv phi 1

A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during
which the officer may claim to hold office as of right, and fixes the interval after which the several
incumbents shall succeed one another."

The "limitation" under this first branch of the provision is expressed in the negative – "no such
official shall serve for more than three consecutive terms." This formulation – no more than three
consecutive terms – is a clear command suggesting the existence of an inflexible rule. While it gives
no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the meaning is
clear – reference is to the term, not to the service that a public official may render. In other words,
1awphi1

the limitation refers to the term.

The second branch relates to the provision’s express initiative to prevent any circumvention of the
limitation through voluntary severance of ties with the public office; it expressly states that voluntary
renunciation of office "shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected." This declaration complements the term limitation mandated
by the first branch.

A notable feature of the second branch is that it does not textually state that voluntary renunciation is
the only actual interruption of service that does not affect "continuity of service for a full term" for
purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an
interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without
significance in determining constitutional intent.

The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up,
abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that
operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned
under the second branch of the constitutional provision, cannot but mean an act that results in
cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together
with "renunciation" signifies an act of surrender based on the surenderee’s own freely exercised will;
in other words, a loss of title to office by conscious choice. In the context of the three-term limit rule,
such loss of title is not considered an interruption because it is presumed to be purposely sought to
avoid the application of the term limitation.

The following exchanges in the deliberations of the Constitutional Commission on the term
"voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":

MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary
renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].

MR DAVIDE. Yes.

MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee
please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment?

MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by
merely resigning at any given time on the second term.

MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general
than abandonment and resignation?

MR. DAVIDE. It is more general, more embracing.6

From this exchange and Commissioner Davide’s expansive interpretation of the term "voluntary
renunciation," the framers’ intent apparently was to close all gaps that an elective official may seize
to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered
unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the
constitutional provision, we note further that Commissioner Davide’s view is consistent with the
negative formulation of the first branch of the provision and the inflexible interpretation that it
suggests.
This examination of the wording of the constitutional provision and of the circumstances surrounding
its formulation impresses upon us the clear intent to make term limitation a high priority constitutional
objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed
for, values of less than equal constitutional worth. We view preventive suspension vis-à-vis term
limitation with this firm mindset.

b. Relevant Jurisprudence on the

Three-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the
provision’s contemplation, particularly on the "interruption in the continuity of service for the full term"
that it speaks of.

Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the
basis of the three-term limit applies if the election of the public official (to be strictly accurate, the
proclamation as winner of the public official) for his supposedly third term had been declared invalid
in a final and executory judgment. We ruled that the two requisites for the application of the
disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in
the same local government post; and 2. that he has fully served three consecutive terms) were not
present. In so ruling, we said:

The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant
their elected official full service of a term is evident in this provision. Voluntary renunciation of a term
does not cancel the renounced term in the computation of the three term limit; conversely,
involuntary severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but in compliance with the legal
process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-
1998 mayoral term. [Emphasis supplied]

Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of
title, that renders the three-term limit rule inapplicable.

Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there
had been a completed term for purposes of the three-term limit disqualification. These cases,
however, presented an interesting twist, as their final judgments in the electoral contest came after
the term of the contested office had expired so that the elective officials in these cases were never
effectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the
Court concluded that there was nevertheless an election and service for a full term in contemplation
of the three-term rule based on the following premises: (1) the final decision that the third-termer lost
the election was without practical and legal use and value, having been promulgated after the term
of the contested office had expired; and (2) the official assumed and continuously exercised the
functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and
the deleterious effect of a contrary view – that the official (referring to the winner in the election
protest) would, under the three-term rule, be considered to have served a term by virtue of a
veritably meaningless electoral protest ruling, when another actually served the term pursuant to a
proclamation made in due course after an election. This factual variation led the Court to rule
differently from Lonzanida.

In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election
contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that
Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully
served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer,
he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on
indefinitely."

Ong and Rivera are important rulings for purposes of the three-term limitation because of what they
directly imply. Although the election requisite was not actually present, the Court still gave full effect
to the three-term limitation because of the constitutional intent to strictly limit elective officials to
service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit
rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation
rather than its exception.

Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit
disqualification. The case presented the question of whether the disqualification applies if the official
lost in the regular election for the supposed third term, but was elected in a recall election covering
that term. The Court upheld the COMELEC’s ruling that the official was not elected for three (3)
consecutive terms. The Court reasoned out that for nearly two years, the official was a private
citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third
term.

Socrates v. Commission on Elections11 also tackled recall vis-à-vis the three-term limit
disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for
a fourth term, he did not participate in the election that immediately followed his third term. In this
election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 ½ years after
Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him,
leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the
recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully
served three terms prior to the recall election and was therefore disqualified to run because of the
three-term limit rule. We decided in Hagedorn’s favor, ruling that:

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end
of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by
the prohibition for two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question
asked was whether there would be no further election after three terms, or whether there would be
"no immediate reelection" after three terms.

xxxx

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth
term as long as the reelection is not immediately after the end of the third consecutive term. A recall
election mid-way in the term following the third consecutive term is a subsequent election but not an
immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any
other subsequent election involving the same term of office. What the Constitution prohibits is a
consecutive fourth term.12

Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor
who had fully served for three consecutive terms could run as city mayor in light of the intervening
conversion of the municipality into a city. During the third term, the municipality was converted into a
city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover
capacity, continue to exercise their powers and functions until elections were held for the new city
officials. The Court ruled that the conversion of the municipality into a city did not convert the office
of the municipal mayor into a local government post different from the office of the city mayor – the
territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the
same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the
same inhabitants over whom the municipal mayor held power and authority as their chief executive
for nine years. The Court said:

This Court reiterates that the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served
for three consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over
the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the
very scenario sought to be avoided by the Constitution, if not abhorred by it.14

Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-
term limit violation results if a rest period or break in the service between terms or tenure in a given
elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective
office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the
private respondents lived as private citizens for two years and fifteen months, respectively. Thus,
these cases establish that the law contemplates a complete break from office during which the local
elective official steps down and ceases to exercise power or authority over the inhabitants of the
territorial jurisdiction of a particular local government unit.

Seemingly differing from these results is the case of Montebon v. Commission on Elections,15 where
the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law.
The question posed when he subsequently ran for councilor was whether his assumption as vice-
mayor was an interruption of his term as councilor that would place him outside the operation of the
three-term limit rule. We ruled that an interruption had intervened so that he could again run as
councilor. This result seemingly deviates from the results in the cases heretofore discussed since
the elective official continued to hold public office and did not become a private citizen during the
interim. The common thread that identifies Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the higher post of vice-mayor by operation of
law. Thus, for a time he ceased to be councilor – an interruption that effectively placed him outside
the ambit of the three-term limit rule.

c. Conclusion Based on Law and Jurisprudence

From all the above, we conclude that the "interruption" of a term exempting an elective official from
the three-term limit rule is one that involves no less than the involuntary loss of title to office. The
elective official must have involuntarily left his office for a length of time, however short, for an
effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict
intent are to be faithfully served, i.e., to limit an elective official’s continuous stay in office to no more
than three consecutive terms, using "voluntary renunciation" as an example and standard of what
does not constitute an interruption.

Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term, as we held in Montebon. On the other hand, temporary inability
or disqualification to exercise the functions of an elective post, even if involuntary, should not be
considered an effective interruption of a term because it does not involve the loss of title to office or
at least an effective break from holding office; the office holder, while retaining title, is simply barred
from exercising the functions of his office for a reason provided by law.

An interruption occurs when the term is broken because the office holder lost the right to hold on to
his office, and cannot be equated with the failure to render service. The latter occurs during an office
holder’s term when he retains title to the office but cannot exercise his functions for reasons
established by law. Of course, the term "failure to serve" cannot be used once the right to office is
lost; without the right to hold office or to serve, then no service can be rendered so that none is really
lost.

To put it differently although at the risk of repetition, Section 8, Article X – both by structure and
substance – fixes an elective official’s term of office and limits his stay in office to three consecutive
terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of
a circumvention. The provision should be read in the context of interruption of term, not in the
context of interrupting the full continuity of the exercise of the powers of the elective position. The
"voluntary renunciation" it speaks of refers only to the elective official’s voluntary relinquishment of
office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of
power or authority" that may occur for various reasons, with preventive suspension being only one of
them. To quote Latasa v. Comelec:16

Indeed, [T]he law contemplates a rest period during which the local elective official steps down from
office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit. [Emphasis supplied].

Preventive Suspension and the Three-Term Limit Rule

a. Nature of Preventive Suspension

Preventive suspension – whether under the Local Government Code,17 the Anti-Graft and Corrupt
Practices Act,18or the Ombudsman Act19 – is an interim remedial measure to address the situation of
an official who have been charged administratively or criminally, where the evidence preliminarily
indicates the likelihood of or potential for eventual guilt or liability.

Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is
strong and given the gravity of the offense, there is a possibility that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity of the records
and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid
information (that requires a finding of probable cause) has been filed in court, while under the
Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is
strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (b) the charges would warrant removal from the service; or (c) the
respondent’s continued stay in office may prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred from performing the
functions of his office and does not receive salary in the meanwhile, but does not vacate and lose
title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or
liability.

Preventive suspension is a remedial measure that operates under closely-controlled conditions and
gives a premium to the protection of the service rather than to the interests of the individual office
holder. Even then, protection of the service goes only as far as a temporary prohibition on the
exercise of the functions of the official’s office; the official is reinstated to the exercise of his position
as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of
power results, no position is vacated when a public official is preventively suspended. This was what
exactly happened to Asilo.

That the imposition of preventive suspension can be abused is a reality that is true in the exercise of
all powers and prerogative under the Constitution and the laws. The imposition of preventive
suspension, however, is not an unlimited power; there are limitations built into the laws 20 themselves
that the courts can enforce when these limitations are transgressed, particularly when grave abuse
of discretion is present. In light of this well-defined parameters in the imposition of preventive
suspension, we should not view preventive suspension from the extreme situation – that it can totally
deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an
election official’s term.

Term limitation and preventive suspension are two vastly different aspects of an elective officials’
service in office and they do not overlap. As already mentioned above, preventive suspension
involves protection of the service and of the people being served, and prevents the office holder from
temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an
elective official has served his three terms in office without any break. Its companion concept –
interruption of a term – on the other hand, requires loss of title to office. If preventive suspension and
term limitation or interruption have any commonality at all, this common point may be with respect to
the discontinuity of service that may occur in both. But even on this point, they merely run parallel to
each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to
render service during an unbroken term; in the context of term limitation, interruption of service
occurs after there has been a break in the term.

b. Preventive Suspension and the Intent of the Three-Term Limit Rule

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should
not be considered an interruption that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended official
continues to stay in office although he is barred from exercising the functions and prerogatives of the
office within the suspension period. The best indicator of the suspended official’s continuity in office
is the absence of a permanent replacement and the lack of the authority to appoint one since no
vacancy exists.

To allow a preventively suspended elective official to run for a fourth and prohibited term is to close
our eyes to this reality and to allow a constitutional violation through sophistry by equating the
temporary inability to discharge the functions of office with the interruption of term that the
constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary –
some of them personal and some of them by operation of law – that may temporarily prevent an
elective office holder from exercising the functions of his office in the way that preventive suspension
does. A serious extended illness, inability through force majeure, or the enforcement of a suspension
as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the
functions of his office for a time without forfeiting title to office. Preventive suspension is no different
because it disrupts actual delivery of service for a time within a term. Adopting such interruption of
actual service as the standard to determine effective interruption of term under the three-term rule
raises at least the possibility of confusion in implementing this rule, given the many modes and
occasions when actual service may be interrupted in the course of serving a term of office. The
standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly
see-sawing determination of what an effective interruption is.

c. Preventive Suspension and Voluntary Renunciation

Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act
on the part of the suspended official, except in the indirect sense that he may have voluntarily
committed the act that became the basis of the charge against him. From this perspective,
preventive suspension does not have the element of voluntariness that voluntary renunciation
embodies. Neither does it contain the element of renunciation or loss of title to office as it merely
involves the temporary incapacity to perform the service that an elective office demands. Thus
viewed, preventive suspension is – by its very nature – the exact opposite of voluntary renunciation;
it is involuntary and temporary, and involves only the actual delivery of service, not the title to the
office. The easy conclusion therefore is that they are, by nature, different and non-comparable.

But beyond the obvious comparison of their respective natures is the more important consideration
of how they affect the three-term limit rule.

Voluntary renunciation, while involving loss of office and the total incapacity to render service, is
disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a
mode of circumventing the three-term limit rule.

Preventive suspension, by its nature, does not involve an effective interruption of a term and should
therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we
shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a
preventive suspension is easier to undertake than voluntary renunciation, as it does not require
relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated
administrative charge that can be dismissed soon after a preventive suspension has been imposed.
In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a
circumvention more potent than the voluntary renunciation that the Constitution expressly disallows
as an interruption.

Conclusion

To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed

preventive suspension in 2005, as preventive suspension does not interrupt an elective official’s
term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the
Constitution when it granted due course to Asilo’s certificate of candidacy for a prohibited fourth
term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to
lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less
than the Constitution and was one undertaken outside the contemplation of law.21

WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed
COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and
perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private
respondent Asilo.

SO ORDERED.
 G.R. No. 147927. February 4, 2002.*

RAYMUNDO M. ADORMEO, petitioner,

vs.

COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR.,

respondents.

Election Law; Commission on Election’s (COMELEC) ruling that private respondent

was not elected for three (3) consecutive terms should be upheld.—Accordingly,
COMELEC’s ruling that private respondent was not elected for three (3) consecutive
terms should be upheld. For nearly two years he was a private citizen. The continuity of
his mayorship was disrupted by his defeat in the 1998 elections.

DECISION

QUISUMBING, J.:

Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction and/or temporary
restraining order, to nullify and set aside the resolution dated May 9, 2001 of public respondent
Commission on Elections in Comelec SPA No. 01-055, which granted the motion for reconsideration
and declared private respondent Ramon Y. Talaga, Jr., qualified to run for Mayor in Lucena City for
the May 14, 2001 election. Petitioner prays that votes cast in private respondent’s favor should not
be counted; and should it happen that private respondent had been already proclaimed the winner,
his proclamation should be declared null and void.

The uncontroverted facts are as follows:

Petitioner and private respondent were the only candidates who filed their certificates of candidacy
for mayor of Lucena City in the May 14, 2001 elections. Private respondent was then the incumbent
mayor.

Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he
was re-elected in 1995-1998. In the election of 1998, he lost to Bernard G. Tagarao. In the recall
election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30,
2001.

On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a
Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon
Y. Talaga, Jr., on the ground that the latter was elected and had served as city mayor for three (3)
consecutive terms as follows: (1) in the election of May 1992, where he served the full term; (2) in
the election of May 1995, where he again served the full term; and, (3) in the recall election of May
12, 2000, where he served only the unexpired term of Tagarao after having lost to Tagarao in the
1998 election. Petitioner contended that Talaga’s candidacy as Mayor constituted a violation of
Section 8, Article X of the 1987 Constitution which provides:

Sec. 8. – The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.
On March 9, 2001, private respondent responded that he was not elected City Mayor for three (3)
consecutive terms but only for two (2) consecutive terms. He pointed to his defeat in the 1998
election by Tagarao. Because of his defeat the consecutiveness of his years as mayor was
interrupted, and thus his mayorship was not for three consecutive terms of three years each.
Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and
eighteen (18) days was not a full term, in the contemplation of the law and the Constitution. He
cites Lonzanida vs. COMELEC, G.R. No. 135150, 311 SCRA 602, 611 (1999), as authority to the
effect that to apply disqualification under Section 8, Article X of the Constitution, two (2) conditions
must concur, to wit: (a) that the official concerned has been elected for three consecutive terms in
the same local government post, and (b) that he has fully served three (3) consecutive terms.

On April 20, 2001, the COMELEC, through the First Division, found private respondent Ramon Y.
Talaga, Jr. disqualified for the position of city mayor on the ground that he had already served three
(3) consecutive terms, and his Certificate of Candidacy was ordered withdrawn and/or cancelled.

On April 27, 2001, private respondent filed a motion for reconsideration reiterating that "three (3)
consecutive terms" means continuous service for nine (9) years and that the two (2) years service
from 1998 to 2000 by Tagarao who defeated him in the election of 1998 prevented him from having
three consecutive years of service. He added that Tagarao’s tenure from 1998 to 2000 could not be
considered as a continuation of his mayorship. He further alleged that the recall election was not a
regular election, but a separate special election specifically to remove incompetent local officials.

On May 3, 2001, petitioner filed his Opposition to private respondent’s Motion for Reconsideration
stating therein that serving the unexpired term of office is considered as one (1) term.1 Petitioner
further contended that Article 8 of the Constitution speaks of "term" and does not mention "tenure".
The fact that private respondent was not elected in the May 1998 election to start a term that began
on June 30, 1998 was of no moment, according to petitioner, and what matters is that respondent
was elected to an unexpired term in the recall election which should be considered one full term from
June 30, 1998 to June 30, 2001.

On May 9, 2001, the COMELEC en banc ruled in favor of private respondent Ramon Y. Talaga, Jr..
It reversed the First Division’s ruling and held that 1) respondent was not elected for three (3)
consecutive terms because he did not win in the May 11, 1998 elections; 2) that he was installed
only as mayor by reason of his victory in the recall elections; 3) that his victory in the recall elections
was not considered a term of office and is not included in the 3-term disqualification rule, and 4) that
he did not fully serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is
considered an interruption in the continuity of his service as Mayor of Lucena City.

On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected Mayor of
Lucena City.

Petitioner is now before this Court, raising the sole issue:

WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED ITS
RESOLUTION DATED MAY 9, 2001, DECLARING PRIVATE RESPONDENT RAMON Y. TALAGA,
JR., QUALIFIED TO RUN FOR MAYOR IN LUCENA CITY FOR THE MAY 14, 2001 ELECTIONS.2

Stated differently, was private respondent disqualified to run for mayor of Lucena City in the May 14,
2001 elections?3 This issue hinges on whether, as provided by the Constitution, he had already
served three consecutive terms in that office.

Petitioner contends that private respondent was disqualified to run for city mayor by reason of the
three-term rule because the unexpired portion of the term of office he served after winning a recall
election, covering the period May 12, 2000 to June 30, 2001 is considered a full term. He posits that
to interpret otherwise, private respondent would be serving four (4) consecutive terms of 10 years, in
violation of Section 8, Article X of 1987 Constitution4 and Section 43 (b) of R.A. 7160, known as the
Local Government Code.

Section 43. Term of Office.—

xxx
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected.

Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive. He
lost his bid for a second re-election in 1998 and between June 30, 1998 to May 12, 2000, during
Tagarao’s incumbency, he was a private citizen, thus he had not been mayor for 3 consecutive
terms.

In its comment, the COMELEC restated its position that private respondent was not elected for three
(3) consecutive terms having lost his third bid in the May 11, 1998 elections, said defeat is an
interruption in the continuity of service as city mayor of Lucena.

The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998),
where we held,

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it is not enough
1âwphi 1

that an individual has served three consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times before the disqualification can
apply. This point can be made clearer by considering the following case or situation:

xxx

Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for
misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in
the next election?

Yes, because he has served only two full terms successively.

xxx

To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a monopoly
of political power may bring about, care should be taken that their freedom of choice is not unduly
curtailed.

Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said,

This Court held that the two conditions for the application of the disqualification must concur: a) that
the official concerned has been elected for three consecutive terms in the same local government
post and 2) that he has fully served three consecutive terms.

Accordingly, COMELEC’s ruling that private respondent was not elected for three (3) consecutive
terms should be upheld. For nearly two years he was a private citizen. The continuity of his
mayorship was disrupted by his defeat in the 1998 elections.

Patently untenable is petitioner’s contention that COMELEC in allowing respondent Talaga, Jr. to run
in the May 1998 election violates Article X, Section 8 of 1987 Constitution.5 To bolster his case,
respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutional Commission member,
stating that in interpreting said provision that "if one is elected representative to serve the unexpired
term of another, that unexpired, no matter how short, will be considered one term for the purpose of
computing the number of successive terms allowed."6

As pointed out by the COMELEC en banc, Fr. Bernas’ comment is pertinent only to members of the
House of Representatives. Unlike local government officials, there is no recall election provided for
members of Congress.7

Neither can respondent’s victory in the recall election be deemed a violation of Section 8, Article X of
the Constitution as "voluntary renunciation" for clearly it is not. In Lonzanida vs. COMELEC, we
1âw phi 1

said:
…The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation
of office for any length of time shall not be considered as an interruption in the continuity of service
for the full term for which he was elected." The clear intent of the framers of the constitution to bar
any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same
time respect the people’s choice and grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of
the three term limit; conversely, involuntary severance from office for any length of time short of the
full term provided by law amounts to an interruption of continuity of service. The petitioner vacated
his post a few months before the next mayoral elections, not by voluntary renunciation but in
compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such
involuntary severance from office is an interruption of continuity of service and thus, the petitioner
did not fully serve the 1995-1998 mayoral term.8

WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public respondent
Commission on Elections dated May 9, 2001, in Comelec SPA No. 01-055 is AFFIRMED. Costs
against petitioner.

SO ORDERED.

G.R. No. 154512. November 12, 2002.*

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City,

petitioner,

vs.

THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL

ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim Chairman
Punong Bgy. MARK DAVID HAGEDORN, PRA Interim Secretary
Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding
Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary Punong
Bgy. CARLOS ABALLA, JR., respondents.

G.R. No. 154683. November 12, 2002.*

VICENTE S. SANDOVAL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS,

respondent.

G.R. Nos. 155083-84. November 12, 2002.*

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR.,

petitioners, vs. THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN,
respondents.
Election Law; Commission on Elections; Court is bound by the findings of fact of the
COMELEC on matters within the competence and expertise of the COMELEC, unless
the findings are patently erroneous.—This Court is bound by the findings of fact of the
COMELEC on matters within the competence and expertise of the COMELEC, unless
the findings are patently erroneous. In Malonzo v. COMELEC, which also dealt with
alleged defective service of notice to PRA members, we ruled that—“Needless to state,
the issue of propriety of the notices sent to the PRA members is factual in nature, and
the determination of the same is therefore a function of the COMELEC. In the absence
of patent error, or serious inconsistencies in the findings, the Court should not disturb
the same. The factual findings of the COMELEC, based on its own assessments and
duly supported by gathered evidence, are conclusive upon the court, more so, in the
absence of a substantiated attack on the validity of the same.” In the instant case, we
do not find any valid reason to hold that the COMELEC’s findings of fact are patently
erroneous.

Same; Constitutional Law; Term of Office; The intent in Section 8, Article X of the
Constitution and under Section 43 (b) of RA No. 7160 is that only consecutive terms
count in determining the three-term limit rule; Involuntary severance from office for any
length of time interrupts continuity of service.—These constitutional and statutory
provisions have two parts. The first part provides that an elective local official cannot
serve for more than three consecutive terms. The clear intent is that only consecutive
terms count in determining the three-term limit rule. The second part states that
voluntary renunciation of office for any length of time does not interrupt the continuity of
service. The clear intent is that involuntary severance from office for any length of time
interrupts continuity of service and prevents the service before and after the interruption
from being joined together to form a continuous service or consecutive terms.

Same; Same; Same; After three consecutive terms, an elective local official cannot
seek immediate reelection for a fourth term; Any subsequent election, like a recall
election, is no longer covered by the prohibition.—After three consecutive terms, an
elective local official cannot seek immediate reelection for a fourth term. The prohibited
election refers to the next regular election for the same office following the end of the
third consecutive term. Any subsequent election, like a recall election, is no longer
covered by the prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after three consecutive terms. Second, the
intervening period constitutes an involuntary interruption in the continuity of service.
Same; Same; Same; Recall; A recall election mid-way in the term following the third
consecutive term is a subsequent election but not an immediate reelection after the third
term.—Clearly, what the Constitution prohibits is an immediate reelection for a fourth
term following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately after
the end of the third consecutive term. A recall election mid-way in the term following the
third consecutive term is a subsequent election but not an immediate reelection after the
third term.

Same; Same; Same; Same; The winner in the recall election cannot be charged or
credited with the full term of three years for purposes of counting the consecutiveness of
an elective official’s terms in office.—In Adormeo, the recall term of Talaga began only
from the date he assumed office after winning the recall election. Talaga’s recall term
did not retroact to include the tenure in office of his predecessor. If Talaga’s recall term
was made to so retroact, then he would have been disqualified to run in the 2001
elections because he would already have served three consecutive terms prior to the
2001 elections. One who wins and serves a recall term does not serve the full term of
his predecessor but only the unexpired term. The period of time prior to the recall term,
when another elective official holds office, constitutes an interruption in continuity of
service. Clearly, Adormeo established the rule that the winner in the recall election
cannot be charged or credited with the full term of three years for purposes of counting
the consecutiveness of an elective official’s terms in office.

DECISION

CARPIO, J.:

The Case

Before us are consolidated petitions for certiorari1 seeking the reversal of the resolutions issued by
the Commission on Elections ("COMELEC" for brevity) in relation to the recall election for mayor of
Puerto Princesa City, Palawan.

The Antecedents

On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto
Princesa convened themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the
Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate
the recall2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as Puerto
Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn,
president of the Association of Barangay Captains, as interim chair of the PRA.

On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which
declared its loss of confidence in Socrates and called for his recall. The PRA requested the
COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall
Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC),
to nullify and deny due course to the Recall Resolution.

On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for lack of merit
Socrates' petition. The COMELEC gave due course to the Recall Resolution and scheduled the
recall election on September 7, 2002.

On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the
calendar of activities and periods of certain prohibited acts in connection with the recall election. The
COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10
days.

On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy
for mayor in the recall election.

On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity)
filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from
running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a certain
Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-intervention in SPA No. 02-492 also
seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another
petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and
involving the same issues. The petitions were all anchored on the ground that "Hagedorn is
disqualified from running for a fourth consecutive term, having been elected and having served as
mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for
the same post." Subsequently, SPA Nos. 02-492 and 02-539 were consolidated.

In a resolution promulgated on September 20, 2002, the COMELEC's First Division4 dismissed for
lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in
the recall election. The COMELEC also reset the recall election from September 7, 2002 to
September 24, 2002.

On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for
reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn
qualified to run in the recall election.

Hence, the instant consolidated petitions.

G.R. No. 154512

Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M.
No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election
on September 7, 2002.

Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall
Resolution. Socrates cites the following circumstances as legal infirmities attending the convening of
the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of
the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally
deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their
respective constituents; (4) the adoption of the resolution was exercised with grave abuse of
authority; and (5) the PRA proceedings were conducted in a manner that violated his and the
public's constitutional right to information.

G.R. No. 154683

Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21,
2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a ten-
day campaign period. He prayed that the COMELEC be enjoined from holding the recall election on
September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days
to campaign.

In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from
implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September 7,
2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from
September 7, 2002 within which to campaign.

Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the
candidates an additional 15 days from September 7, 2002 within which to campaign. Thus, the
COMELEC reset the recall election to September 24, 2002.

G.R. Nos. 155083-84

Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20, 2002
and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for
mayor in the recall election. They likewise prayed for the issuance of a temporary restraining order to
enjoin the proclamation of the winning candidate in the recall election.

Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's
qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions
against a fourth consecutive term for elective local officials.

In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from
proclaiming any winning candidate in the recall election until further orders from the Court.
Petitioners were required to post a P20,000 bond.

On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention
seeking the same reliefs as those sought by Adovo, Gilo and Ollave.

In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238
votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes,
respectively.

Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning
candidate and to allow him to assume office to give effect to the will of the electorate.

On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for intervention.

The Issues

The issues for resolution of the Court are:

1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving
due course to the Recall Resolution and scheduling the recall election for mayor of Puerto
Princesa.

2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall
election of Puerto Princesa on September 24, 2002.

In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in
fixing a campaign period of only 10 days has become moot. Our Resolution of September 3, 2002
and COMELEC Resolution No. 5708 granted an additional 15 days for the campaign period as
prayed for by petitioner.

First Issue: Validity of the Recall Resolution.

Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the
Recall Resolution despite the absence of notice to 130 PRA members and the defective service of
notice to other PRA members. The COMELEC, however, found that –

"On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor
Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof
pursuant to Section 70 of the Local Government Code. Copies of the said notice are in Volumes I
and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices were attached
to the Petition and marked as Annex "G" of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos
establishing the same were attached to the Petition and marked as Annex "H". The proponents
likewise utilized the broadcast mass media in the dissemination of the convening of the PRA.

Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25
names of provincial elective officials, print and broadcast media practitioners, PNP officials,
COMELEC city, regional and national officials, and DILG officials].

xxx

The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that
upon a 'thorough and careful verification of the signatures appearing in PRA Resolution 01-02, x x x
the majority of all members of the PRA concerned approved said resolution.' She likewise certified
'that not a single member/signatory of the PRA complained or objected as to the veracity and
authenticity of their signatures.'

The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10
July 2002, stated, 'upon proper review, all documents submitted are found in order.'

The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following
recommendations:

'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and
substance. That the PRA was validly constituted and that the majority of all members thereof
approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.'

x x x ."

This Court is bound by the findings of fact of the COMELEC on matters within the competence and
expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v.
COMELEC,5 which also dealt with alleged defective service of notice to PRA members, we ruled that
–

"Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature,
and the determination of the same is therefore a function of the COMELEC. In the absence of patent
error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual
findings of the COMELEC, based on its own assessments and duly supported by gathered evidence,
are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of
the same."

In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact are
patently erroneous.

Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July
2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay
elections scheduled on July 15, 2002. This argument deserves scant consideration considering that
when the PRA members adopted the Recall Resolution their terms of office had not yet expired.
They were all de jure sangguniang barangay members with no legal disqualification to participate in
the recall assembly under Section 70 of the Local Government Code.

Socrates bewails that the manner private respondents conducted the PRA proceedings violated his
constitutional right to information on matters of public concern. Socrates, however, admits receiving
notice of the PRA meeting and of even sending his representative and counsel who were present
during the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the
Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance
sheets, notices sent to PRA members, and authenticated master list of barangay officials in Puerto
Princesa. Socrates had the right to examine and copy all these public records in the official custody
of the COMELEC. Socrates, however, does not claim that the COMELEC denied him this right.
There is no legal basis in Socrates' claim that respondents violated his constitutional right to
information on matters of public concern.

Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity
of the Recall Resolution and in scheduling the recall election on September 24, 2002.
Second Issue: Hagedorn's qualification to run for mayor

in the recall election of September 24, 2002.

The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution,
which states:

"Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected."

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the
Local Government Code, which provides:

"Section 43. Term of Office. – (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which the elective official was
elected."

These constitutional and statutory provisions have two parts. The first part provides that an elective
local official cannot serve for more than three consecutive terms. The clear intent is that only
consecutive terms count in determining the three-term limit rule. The second part states that
voluntary renunciation of office for any length of time does not interrupt the continuity of service. The
clear intent is that involuntary severance from office for any length of time interrupts continuity of
service and prevents the service before and after the interruption from being joined together to form
a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end
of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by
the prohibition for two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question
asked was whether there would be no further election after three terms, or whether there would be
"no immediate reelection" after three terms. This is clear from the following deliberations of the
Constitutional Commission:

"THE PRESIDENT: The Acting Floor Leader is recognized.

MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the
blackboard, and these are Alternative No. I where there is no further election after a total of
three terms and Alternative No. 2 where there is no immediate reelection after three
successive terms."7

The Journal of the Constitutional Commission reports the following manifestation on the term of
elective local officials:

"MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1) Alternative
No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate
reelection after three successive terms)."8

The framers of the Constitution used the same "no immediate reelection" question in voting for the
term limits of Senators9 and Representatives of the House.10
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth
term as long as the reelection is not immediately after the end of the third consecutive term. A recall
election mid-way in the term following the third consecutive term is a subsequent election but not an
immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any
other subsequent election involving the same term of office. What the Constitution prohibits is a
consecutive fourth term. The debates in the Constitutional Commission evidently show that the
prohibited election referred to by the framers of the Constitution is the immediate reelection after the
third term, not any other subsequent election.

If the prohibition on elective local officials is applied to any election within the three-year full term
following the three-term limit, then Senators should also be prohibited from running in any election
within the six-year full term following their two-term limit. The constitutional provision on the term limit
of Senators is worded exactly like the term limit of elective local officials, thus:

"No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected."11

In the debates on the term limit of Senators, the following exchange in the Constitutional Convention
is instructive:

"GASCON:12 I would like to ask a question with regard to the issue after the second term. We
will allow the Senator to rest for a period of time before he can run again?

DAVIDE:13 That is correct.

GASCON: And the question that we left behind before - if the Gentleman will remember -
was: How long will that period of rest be? Will it be one election which is three years or one
term which is six years?

DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view that
during the election following the expiration of the first 12 years, whether such election will be
on the third or on the sixth year thereafter, this particular member of the Senate can run. So,
it is not really a period of hibernation for six years. That was the Committee's stand.

GASCON: So, effectively, the period of rest would be three years at the least."14 (Emphasis
supplied)

The framers of the Constitution thus clarified that a Senator can run after only three years 15 following
his completion of two terms. The framers expressly acknowledged that the prohibited election refers
only to the immediate reelection, and not to any subsequent election, during the six-year period
following the two term limit. The framers of the Constitution did not intend "the period of rest" of an
elective official who has reached his term limit to be the full extent of the succeeding term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an
immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate
reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in
2001. Hagedorn did not seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served
in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution
and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term
limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in
the 2001 elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After
Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election
of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa
was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly
an interruption in the continuity of Hagedorn's service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition. Hagedorn's three consecutive terms ended on June
30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless
continuation of his previous three consecutive terms as mayor. One cannot stitch together
Hagedorn's previous three-terms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001
to September 24, 2002 which broke the continuity or consecutive character of Hagedorn's service as
mayor.

In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of service in
this manner:

"x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected." The clear intent of the framers of the
constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office
and at the same time respect the people's choice and grant their elected official full service of a term
is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in
the computation of the three-term limit; conversely, involuntary severance from office for any length
of time short of the full term provided by law amounts to an interruption of continuity of service. x x
x." (Emphasis supplied)

In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of
three years, constituted an interruption in the continuity of his service as mayor. The Constitution
does not require the interruption or hiatus to be a full term of three years. The clear intent is that
interruption "for any length of time," as long as the cause is involuntary, is sufficient to break an
elective local official's continuity of service.

In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the rule that
an interruption consisting of a portion of a term of office breaks the continuity of service of an
elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as
mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard G.
Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired
term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001
elections, Raymundo Adormeo, the other candidate for mayor, petitioned for Talaga's disqualification
on the ground that Talaga had already served three consecutive terms as mayor.

Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous two
terms so that he was deemed to have already served three consecutive terms as mayor. The Court
ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30,
1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as
mayor. Talaga's recall term as mayor was not consecutive to his previous two terms because of this
interruption, there having been a break of almost two years during which time Tagarao was the
mayor.

We held in Adormeo that the period an elective local official is out of office interrupts the continuity
of his service and prevents his recall term from being stitched together as a seamless continuation of
his previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months
Hagedorn was out of office interrupted his continuity of service and prevents his recall term from
being stitched together as a seamless continuation of his previous three consecutive terms. The only
difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the
interruption occurred after the first two consecutive terms. In the instant case, the interruption
happened after the first three consecutive terms. In both cases, the respondents were seeking
election for a fourth term.

In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the
recall election. Talaga's recall term did not retroact to include the tenure in office of his predecessor.
If Talaga's recall term was made to so retroact, then he would have been disqualified to run in the
2001 elections because he would already have served three consecutive terms prior to the 2001
elections. One who wins and serves a recall term does not serve the full term of his predecessor but
only the unexpired term. The period of time prior to the recall term, when another elective official
holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule
that the winner in the recall election cannot be charged or credited with the full term of three years
for purposes of counting the consecutiveness of an elective official's terms in office.
In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of
Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the
recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth
consecutive term. But to consider Hagedorn's recall term as a full term of three years, retroacting to
June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore
reality. This Court cannot declare as consecutive or successive terms of office which historically and
factually are not.

Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that unduly
curtails the freedom of the people to choose their leaders through popular elections. The concept of
term limits is in derogation of the sovereign will of the people to elect the leaders of their own
choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign
will of the people. As this Court aptly stated in Borja, Jr. v. Comelec:

"Thus, a consideration of the historical background of Art. X, §8 of the Constitution reveals that the
members of the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political power. Indeed, they
rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three
consecutive terms or nine years there should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election following the
expiration of the third consecutive term. Monsod warned against 'prescreening candidates [from]
whom the people will choose' as a result of the proposed absolute disqualification, considering that
the draft constitution contained provisions 'recognizing people's power.'"19 (Emphasis supplied)

A necessary consequence of the interruption of continuity of service is the start of a new term
following the interruption. An official elected in recall election serves the unexpired term of the
recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit.
This is clear from the following discussion in the Constitutional Commission:

"SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly elected
would have to serve the unexpired portion of the term. Would that mean that serving the unexpired
portion of the term is already considered one term? So, half a term, which is actually the correct
statement, plus one term would disqualify the Senator concerned from running? Is that the meaning
of this provision on disqualification, Madam President?

DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only for the
unexpired portion of that particular term plus one more term for the Senator and two more terms for
the Members of the Lower House."21

Although the discussion referred to special elections for Senators and Representatives of the House,
the same principle applies to a recall election of local officials. Otherwise, an elective local official
who serves a recall term can serve for more than nine consecutive years comprising of the recall
term plus the regular three full terms. A local official who serves a recall term should know that the
recall term is in itself one term although less than three years. This is the inherent limitation he takes
by running and winning in the recall election.

In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for
mayor of Puerto Princesa because:

1. Hagedorn is not running for immediate reelection following his three consecutive terms as
mayor which ended on June 30, 2001;

2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30,
2001 to September 24, 2002 during which time he was a private citizen;

3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to
retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term
is not a fourth consecutive term; and

4. Term limits should be construed strictly to give the fullest possible effect to the right of the
electorate to choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The
temporary restraining order issued by this Court on September 24, 2002 enjoining the proclamation
of the winning candidate for mayor of Puerto Princesa in the recall election of September 24, 2002 is
lifted. No costs.

SO ORDERED.

G.R. No. 154829. December 10, 2003.*

ARSENIO A. LATASA, petitioner,

vs.

COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents.

Election Law; Jurisdiction; Actions; Procedural Rules and Technicalities; While it

has been held that after an elective official has been proclaimed as winner of the
elections, the COMELEC has no jurisdiction to pass upon his qualifications—certain
peculiarities in the present case reveal the fact that its very heart is something which the
Supreme Court considers of paramount interest.—It cannot be denied that the Court
has previously held in Mamba-Perez v. COMELEC that after an elective official has
been proclaimed as winner of the elections, the COMELEC has no jurisdiction to pass
upon his qualifications. An opposing party’s remedies after proclamation would be to file
a petition for quo warranto within ten days after the proclamation. On the other hand,
certain peculiarities in the present case reveal the fact that its very heart is something
which this Court considers of paramount interest. This Court notes from the very
beginning that petitioner himself was already entertaining some doubt as to whether or
not he is indeed eligible to run for city mayor in the May 14, 2001 elections.

Same; Same; Same; Same; The spirit embodied in a Constitutional provision must not
be attenuated by a rigid application of procedural rules.—Time and again, this Court has
held that rules of procedure are only tools designed to facilitate the attainment of justice,
such that when rigid application of the rules tend to frustrate rather than promote
substantial justice, this Court is empowered to suspend their operation. We will not
hesitate to set aside technicalities in favor of what is fair and just. The spirit embodied in
a Constitutional provision must not be attenuated by a rigid application of procedural
rules.
Same; Term Limits; Political Dynasties; An examination of the historical background
of Article X, Section 8 of the Constitution on term limits reveals that the members of
the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political
power.—As a rule, in a representative democracy, the people should be allowed freely
to choose those who will govern them. Article X, Section 8 of the Constitution is an
exception to this rule, in that it limits the range of choice of the people. Section 8. The
term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for
which he was elected. An examination of the historical background of the subject
Constitutional provision reveals that the members of the Constitutional Commission
were as much concerned with preserving the freedom of choice of the people as they
were with preventing the monopolization of political power. In fact, they rejected a
proposal set forth by Commissioner Edmundo Garcia that after serving three
consecutive terms or nine years, there should be no further reelection for local and
legislative officials. The members, instead, adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred from running for
the same position in the succeeding election following the expiration of the third
consecutive term.

Same; Same; Requisites.—An elective local official, therefore, is not barred from
running again in for same local government post, unless two conditions concur:

1.) that the official concerned has been elected for three consecutive terms to the same
local government post, and

2.) that he has fully served three consecutive terms.

Same; Same; Conversion of Local Government Units; Component Cities;

Substantial differences do exist between a municipality and a city; As may be gleaned
form the Local Government Code, the creation or conversion of a local government unit
is done mainly to help assure its economic viability.—Substantial differences do exist
between a municipality and a city. For one, there is a material change in the political
and economic rights of the local government unit when it is converted from a
municipality to a city and undoubtedly, these changes affect the people as well. It is
precisely for this reason why Section 10, Article X of the Constitution mandates that no
province, city, municipality, or barangay may be created, divided, merged, abolished, or
its boundary substantially altered, without the approval by a majority of the votes cast in
a plebiscite in the political units directly affected. As may be gleaned from the Local
Government Code, the creation or conversion of a local government unit is done mainly
to help assure its economic viability. Such creation or conversion is based on verified
indicators.

Same; Same; Same; Same; While a new component city which was converted from a
municipality acquires a new corporate existence separate and distinct from that of the
municipality, this does not mean, however, that for the purpose of applying the
constitutional provision on term limits, the office of the municipal mayor would now be
construed as a different local government post as that of the office of the city mayor.—
As seen in the aforementioned provisions, this Court notes that the delineation of the
metes and bounds of the City of Digos did not change even by an inch the land area
previously covered by the Municipality of Digos. This Court also notes that the elective
officials of the Municipality of Digos continued to exercise their powers and functions
until elections were held for the new city officials. True, the new city acquired a new
corporate existence separate and distinct from that of the municipality. This does not
mean, however, that for the purpose of applying the subject Constitutional provision, the
office of the municipal mayor would now be construed as a different local government
post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of
the City of Digos is the same as that of the municipality. Consequently, the inhabitants
of the municipality are the same as those in the city. These inhabitants are the same
group of voters who elected petitioner Latasa to be their municipal mayor for three
consecutive terms. These are also the same inhabitants over whom he held power and
authority as their chief executive for nine years.

Same; Same; Political Dynasties; The framers of the Constitution specifically included
an exception to the people’s freedom to choose those who will govern them in order to
avoid the evil of a single person accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in the same office.—This Court
reiterates that the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the evil of a
single person accumulating excessive power over a particular territorial jurisdiction as a
result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a municipal
mayor would obviously defeat the very intent of the framers when they wrote this
exception. Should he be allowed another three consecutive terms as mayor of the City
of Digos, petitioner would then be possibly holding office as chief executive over the
same territorial jurisdiction and inhabitants for a total of eighteen consecutive years.
This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.

Same; The fact that a plurality or a majority of the votes are cast for an ineligible
candidate at a popular election, or that a candidate is later declared to be disqualified to
hold office, does not entitle the candidate who garnered the second highest number of
votes to be declared elected.—This Court has consistently ruled that the fact that a
plurality or a majority of the votes are cast for an ineligible candidate at a popular
election, or that a candidate is later declared to be disqualified to hold office, does not
entitle the candidate who garnered the second highest number of votes to be declared
elected. The same merely results in making the winning candidate’s election a nullity. In
the present case, moreover, 13,650 votes were cast for private respondent Sunga as
against the 25,335 votes cast for petitioner Latasa. The second placer is obviously not
the choice of the people in that particular election. In any event, a permanent vacancy in
the contested office is thereby created which should be filled by succession.

DECISION

AZCUNA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the
resolution issued by the First Division of the Commission on Elections (COMELEC) dated April 27,
2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa,
respondent, and the Resolution of the COMELEC en banc denying herein petitioner’s Motion for
Reconsideration. The assailed Resolution denied due course to the certificate of candidacy of
petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur
Province in the May 14, 2001 elections, ordering that all votes cast in his favor shall not be counted,
and if he has been proclaimed winner, declaring said proclamation null and void.

The facts are fairly simple.

Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the
elections of 1992, 1995, and 1998. During petitioner’s third term, the Municipality of Digos was
declared a component city, to be known as the City of Digos. A plebiscite conducted on September
8, 2000 ratified Republic Act No. 8798 entitled, "An Act Converting the Municipality of Digos, Davao
del Sur Province into a Component City to be known as the City of Digos" or the Charter of the City
of Digos. This event also marked the end of petitioner’s tenure as mayor of the Municipality of Digos.
However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-
over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor.

On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001
elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already
served for three consecutive terms as mayor of the Municipality of Digos and is now running for the
first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the said
elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of
Candidacy and/ or For Disqualification1against petitioner Latasa. Respondent Sunga alleged therein
that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of
Digos City since petitioner had already been elected and served for three consecutive terms as
mayor from 1992 to 2001.

On March 5, 2001, petitioner Latasa filed his Answer,2 arguing that he did not make any false
representation in his certificate of candidacy since he fully disclosed therein that he had served as
mayor of the Municipality of Digos for three consecutive terms. Moreover, he argued that this fact
does not bar him from filing a certificate of candidacy for the May 14, 2001 elections since this will be
the first time that he will be running for the post of city mayor.

Both parties submitted their position papers on March 19, 2001.3

On April 27, 2001, respondent COMELEC’s First Division issued a Resolution, the dispositive portion
of which reads, as follows:

Wherefore, premises considered, the respondent’s certificate of candidacy should be cancelled for
being a violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local
Government Code of 1991.4

Petitioner filed his Motion for Reconsideration dated May 4, 2001,5 which remained unacted upon
until the day of the elections, May 14, 2001. On May 16, 2001, private respondent Sunga filed an Ex
Parte Motion for Issuance of Temporary Restraining Order Enjoining the City Board of Canvassers
From Canvassing or Tabulating Respondent’s Votes, and From Proclaiming Him as the Duly Elected
Mayor if He Wins the Elections.6 Despite this, however, petitioner Latasa was still proclaimed winner
on May 17, 2001, having garnered the most number of votes. Consequently, private respondent
Sunga filed, on May 27, 2001, a Supplemental Motion7 which essentially sought the annulment of
petitioner’s proclamation and the suspension of its effects.

On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor of
Digos City. It was only on August 27, 2002 that the COMELEC en banc issued a Resolution denying
petitioner’s Motion for Reconsideration.

Hence, this petition.

It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC8 that after an
elective official has been proclaimed as winner of the elections, the COMELEC has no jurisdiction to
pass upon his qualifications. An opposing party’s remedies after proclamation would be to file a
petition for quo warranto within ten days after the proclamation.

On the other hand, certain peculiarities in the present case reveal the fact that its very heart is
something which this Court considers of paramount interest. This Court notes from the very
beginning that petitioner himself was already entertaining some doubt as to whether or not he is
indeed eligible to run for city mayor in the May 14, 2001 elections. In his certificate of candidacy,
after the phrase "I am eligible", petitioner inserted a footnote and indicated:

Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor.9
*

Time and again, this Court has held that rules of procedure are only tools designed to facilitate the
attainment of justice, such that when rigid application of the rules tend to frustrate rather than
promote substantial justice, this Court is empowered to suspend their operation. We will not hesitate
to set aside technicalities in favor of what is fair and just.10

The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of
procedural rules.

The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or
not petitioner Latasa is eligible to run as candidate for the position of mayor of the newly-created City
of Digos immediately after he served for three consecutive terms as mayor of the Municipality of
Digos.
As a rule, in a representative democracy, the people should be allowed freely to choose those who
will govern them. Article X, Section 8 of the Constitution is an exception to this rule, in that it limits
the range of choice of the people.

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

An examination of the historical background of the subject Constitutional provision reveals that the
members of the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political power. In fact, they
rejected a proposal set forth by Commissioner Edmundo Garcia that after serving three consecutive
terms or nine years, there should be no further re-election for local and legislative officials.11 The
members, instead, adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election following the
expiration of the third consecutive term:

MR. MONSOD: Madam President, I was reflecting on this issue earlier and I asked to speak
because in this draft Constitution, we are recognizing people’s power. We have said that now there
is a new awareness, a new kind of voter, a new kind of Filipino. And yet at the same time, we are
prescreening candidates among whom they will choose. We are saying that this 48-member
Constitutional Commission has decreed that those who have served for a period of nine years are
barred from running for the same position.

The argument is that there may be other positions. But there are some people who are very skilled
and good at legislation, and yet are not of a national stature to be Senators. They may be perfectly
honest, perfectly competent and with integrity. They get voted into office at the age of 25, which is
the age we provide for Congressmen. And at 34 years old we put them into pasture.

Second, we say that we want to broaden the choices of the people. We are talking here only of
congressional or senatorial seats. We want to broaden the people’s choice but we are making
prejudgment today because we exclude a certain number of people. We are, in effect, putting an
additional qualification for office – that the officials must have not have served a total of more than a
number of years in their lifetime.

Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but
the future participation of these statesmen is limited. Their skills may be only in some areas, but we
are saying that they are going to be barred from running for the same position.

Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing
of his skills and competence, in intellectual combat, in concern and contact with the people, and here
we are saying that he is going to be barred from the same kind of public service.

I do not think it is in our place today to make such a very important and momentous decision with
respect to many of our countrymen in the future who may have a lot more years ahead of them in
the service of their country.

If we agree that we will make sure that these people do not set up structures that will perpetuate
them, then let us give them this rest period of three years or whatever it is. Maybe during that time,
we would even agree that their fathers or mothers or relatives of the second degree should not run.
But let us not bar them for life after serving the public for number of years.12

The framers of the Constitution, by including this exception, wanted to establish some safeguards
against the excessive accumulation of power as a result of consecutive terms. As Commissioner
Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and
frequent re-elections, officials from the President down to the municipal mayor tend to develop a
proprietary interest in their positions and to accumulate these powers and perquisites that permit
them to stay on indefinitely or to transfer these posts to members of their families in a subsequent
election. x x x 13
An elective local official, therefore, is not barred from running again in for same local government
post, unless two conditions concur: 1.) that the official concerned has been elected for three
consecutive terms to the same local government post, and 2.) that he has fully served three
consecutive terms.14

In the present case, petitioner states that a city and a municipality have separate and distinct
personalities. Thus they cannot be treated as a single entity and must be accorded different
treatment consistent with specific provisions of the Local Government Code. He does not deny the
fact that he has already served for three consecutive terms as municipal mayor. However, he
asserts that when Digos was converted from a municipality to a city, it attained a different juridical
personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be
construed as vying for the same local government post.

For a municipality to be converted into a city, the Local Government Code provides:

SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of barangays may be
converted into a component city it has an average annual income, as certified by the Department of
Finance, of at least Twenty million pesos (20,000,000.00) for the last two (2) consecutive years
based on 1991 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified
by the Land Management Bureau; or,

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as
certified by the National Statistics Office.

Provided, That, the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and
bounds. The requirement on land are shall not apply where the city proposed to be created is
composed of one (1) or more island. The territory need not be contiguous if it comprises two
(2) or more islands.

(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, transfers, and non-recurring income.15

Substantial differences do exist between a municipality and a city. For one, there is a material
change in the political and economic rights of the local government unit when it is converted from a
municipality to a city and undoubtedly, these changes affect the people as well.16 It is precisely for
this reason why Section 10, Article X of the Constitution mandates that no province, city,
municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially
altered, without the approval by a majority of the votes cast in a plebiscite in the political units
directly affected.

As may be gleaned from the Local Government Code, the creation or conversion of a local
government unit is done mainly to help assure its economic viability. Such creation or conversion is
based on verified indicators:

Section 7. Creation and Conversion. --- As a general rule, the creation of a local government unit or
its conversion from one level to another shall be based on verifiable indicators or viability and
projected capacity to provide services, to wit:

(a) Income. --- It must be sufficient, based on acceptable standards, to provide for all
essential government facilities and services and special functions commensurate with the
size of its population, as expected of the local government unit concerned;

(b) Population. --- It shall be determined as the total number of inhabitants within the
territorial jurisdiction of the local government unit concerned; and

(c) Land Area. --- It must be contiguous, unless it comprises two (2) or more islands or is
separated by a local government unit independent of the others; properly identified by metes
 and bounds with technical descriptions; and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF),
the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).17

On the other hand, Section 2 of the Charter of the City of Digos provides:

Section 2. The City of Digos --- The Municipality of Digos shall be converted into a component city to
be known as the City of Digos, hereinafter referred to as the City, which shall comprise the present
territory of the Municipality of Digos, Davao del Sur Province. The territorial jurisdiction of the City
shall be within the present metes and bounds of the Municipality of Digos. x x x

Moreover, Section 53 of the said Charter further states:

Section 53. Officials of the City of Digos. --- The present elective officials of the Municipality of Digos
shall continue to exercise their powers and functions until such a time that a new election is held and
the duly-elected officials shall have already qualified and assumed their offices. x x x.

As seen in the aforementioned provisions, this Court notes that the delineation of the metes and
bounds of the City of Digos did not change even by an inch the land area previously covered by the
Municipality of Digos. This Court also notes that the elective officials of the Municipality of Digos
continued to exercise their powers and functions until elections were held for the new city officials.

True, the new city acquired a new corporate existence separate and distinct from that of the
municipality. This does not mean, however, that for the purpose of applying the subject
Constitutional provision, the office of the municipal mayor would now be construed as a different
local government post as that of the office of the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants
of the municipality are the same as those in the city. These inhabitants are the same group of voters
who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are
also the same inhabitants over whom he held power and authority as their chief executive for nine
years.

This Court must distinguish the present case from previous cases ruled upon this Court involving the
same Constitutional provision.

In Borja, Jr. v. COMELEC,18 the issue therein was whether a vice-mayor who became the mayor by
operation of law and who served the remainder of the mayor’s term should be considered to have
served a term in that office for the purpose of the three-term limit under the Constitution. Private
respondent in that case was first elected as vice-mayor, but upon the death of the incumbent mayor,
he occupied the latter’s post for the unexpired term. He was, thereafter, elected for two more terms.
This Court therein held that when private respondent occupied the post of the mayor upon the
incumbent’s death and served for the remainder of the term, he cannot be construed as having
served a full term as contemplated under the subject constitutional provision. The term served must
be one "for which [the official concerned] was elected."

It must also be noted that in Borja, the private respondent therein, before he assumed the position of
mayor, first served as the vice-mayor of his local government unit. The nature of the responsibilities
and duties of the vice-mayor is wholly different from that of the mayor. The vice-mayor does not hold
office as chief executive over his local government unit. In the present case, petitioner, upon
ratification of the law converting the municipality to a city, continued to hold office as chief executive
of the same territorial jurisdiction. There were changes in the political and economic rights of Digos
as local government unit, but no substantial change occurred as to petitioner’s authority as chief
executive over the inhabitants of Digos.

In Lonzanida v. COMELEC,19 petitioner was elected and served two consecutive terms as mayor
from 1988 to 1995. He then ran again for the same position in the May 1995 elections, won and
discharged his duties as mayor. However, his opponent contested his proclamation and filed an
election protest before the Regional Trial Court, which ruled that there was a failure of elections and
declared the position of mayor vacant. The COMELEC affirmed this ruling and petitioner acceded to
the order to vacate the post. During the May 1998 elections, petitioner therein again filed his
certificate of candidacy for mayor. A petition to disqualify him was filed on the ground that he had
already served three consecutive terms. This Court ruled, however, that petitioner therein cannot be
considered as having been duly elected to the post in the May 1995 elections, and that said
petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of
office.

In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998
elections. Can he then be construed as having involuntarily relinquished his office by reason of the
conversion of Digos from municipality to city? This Court believes that he did involuntarily relinquish
his office as municipal mayor since the said office has been deemed abolished due to the
conversion. However, the very instant he vacated his office as municipal mayor, he also assumed
office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of
time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the
local government unit. He never ceased from discharging his duties and responsibilities as chief
executive of Digos.

In Adormeo v. COMELEC,20 this Court was confronted with the issue of whether or not an assumption
to office through a recall election should be considered as one term in applying the three-term limit
rule. Private respondent, in that case, was elected and served for two consecutive terms as mayor.
He then ran for his third term in the May 1998 elections, but lost to his opponent. In June 1998, his
opponent faced recall proceedings and in the recall elections of May 2000, private respondent won
and served for the unexpired term. For the May 2001 elections, private respondent filed his
certificate of candidacy for the office of mayor. This was questioned on the ground that he had
already served as mayor for three consecutive terms. This Court held therein that private respondent
cannot be construed as having been elected and served for three consecutive terms. His loss in the
May 1998 elections was considered by this Court as an interruption in the continuity of his service as
mayor. For nearly two years, private respondent therein lived as a private citizen. The same,
however, cannot be said of petitioner Latasa in the present case.

Finally, in Socrates v. COMELEC,21 the principal issue was whether or not private respondent Edward
M. Hagedorn was qualified to run during the recall elections. Therein respondent Hagedorn had
already served for three consecutive terms as mayor from 1992 until 2001 and did not run in the
immediately following regular elections. On July 2, 2002, the barangay officials of Puerto Princesa
convened themselves into a Preparatory Recall Assembly to initiate the recall of the incumbent
mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed his certificate
of candidacy for mayor in the recall election. A petition for his disqualification was filed on the ground
that he cannot run for the said post during the recall elections for he was disqualified from running
for a fourth consecutive term. This Court, however, ruled in favor of respondent Hagedorn, holding
that the principle behind the three-term limit rule is to prevent consecutiveness of the service of
terms, and that there was in his case a break in such consecutiveness after the end of his third term
and before the recall election.

It is evident that in the abovementioned cases, there exists a rest period or a break in the service of
the local elective official. In Lonzanida, petitioner therein was a private citizen a few months before
the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived
as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest
period during which the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local government unit.
1âwphi 1

This Court reiterates that the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served
for three consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over
the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the
very scenario sought to be avoided by the Constitution, if not abhorred by it.

Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC,22 he should be
deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held
in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate
with the highest number of votes to proclamation as the winner of the elections. As an obiter, the
Court merely mentioned that the rule would have been different if the electorate, fully aware in fact
and in law of a candidate’s disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the
electorate may be said to have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case, the eligible candidate
obtaining the next higher number of votes may be deemed elected. The same, however, cannot be
said of the present case.

This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an
ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to
hold office, does not entitle the candidate who garnered the second highest number of votes to be
declared elected. The same merely results in making the winning candidate’s election a nullity.23 In
the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the
25,335 votes cast for petitioner Latasa.24 The second placer is obviously not the choice of the people
in that particular election. In any event, a permanent vacancy in the contested office is thereby
created which should be filled by succession.25

WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 163295. January 23, 2006.*

FRANCIS G. ONG, petitioner,

vs.

JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS,

respondents.

G.R. No. 163354. January 23, 2006.*

ROMMEL G. ONG, petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION ON

ELECTIONS, respondents.

Election Law; Local Government Code; Term of Office; Requisites for the Three-
Term Limit for Elective Local Government Officials to Apply.—For the three-term
limit for elective local government officials to apply, two conditions or requisites must
concur, to wit:

(1) that the official concerned has been elected for three (3) consecutive terms in the
same local government post, and

(2) that he has fully served three (3) consecutive terms.

Same; Same; Same; Francis’s assumption of office as Mayor of San Vicente
Camarines Norte from July 1, 1998 to June 30, 2001 constitutes service for the full term
served in contemplation of the three-term limit prescribed by the constitutional and
statutory provisions.—There can be no dispute about petitioner Francis Ong having
been duly elected mayor of that municipality in the May 1995 and again in the May 2001
elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30,
2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term,
albeit there can also be no quibbling that Francis ran for mayor of the same municipality
in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of
a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The
question that begs to be addressed, therefore, is whether or not Francis’s assumption of
office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001,
may be considered as one full term service in the context of the consecutive three-term
limit rule. We hold that such assumption of office constitutes, for Francis, “service for the
full term,” and should be counted as a full term served in contemplation of the three-
term limit prescribed by the constitutional and statutory provisions, barring local elective
officials from being elected and serving for more than three consecutive term for the
same position.

Same; Same; Same; Petitioner Francis’ contention that he was only a presumptive
winner in the 1998 mayoralty derby as his proclamation was under protest did not make
him less than a duly elected mayor.—It is true that the RTC-Daet, Camarines Norte
ruled in Election Protest Case No. 6850, that it was Francis’ opponent (Alegre) who
“won” in the 1998 mayoralty race and, therefore, was the legally elected mayor of San
Vicente. However, that disposition, it must be stressed, was without practical and legal
use and value, having been promulgated after the term of the contested office has
expired. Petitioner Francis’ contention that he was only a presumptive winner in the
1998 mayoralty derby as his proclamation was under protest did not make him less than
a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San
Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his
assumption of office and his continuous exercise of the functions thereof from start to
finish of the term, should legally be taken as service for a full term in contemplation of
the three-term rule.

Same; Same; Same; Substitution of Candidate; A candidate whose certificate of

candidacy has been cancelled or not given due course cannot be substituted by another
belonging to the same political party as that of the former.—Not to be overlooked is the
Court’s holding in Miranda vs. Abaya, that a candidate whose certificate of candidacy
has been cancelled or not given due course cannot be substituted by another belonging
to the same political party as that of the former.

DECISION

GARCIA, J.:

Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and
set aside certain issuances of the Commission on Elections (COMELEC) en banc.

The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong
impugning the COMELEC en banc resolution1 dated May 7, 2004 in SPA Case No. 04-048, granting
private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution dated March
31, 20042 of the COMELEC’s First Division.

The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for
injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other things, to
stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en banc resolution
in SPA Case No. 04-048 pending the outcome of the petition in G.R. No. 163295.

Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions.

The recourse stemmed from the following essential and undisputed factual backdrop:

Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were
candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the May
10, 2004 elections. Francis was then the incumbent mayor.

On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny
Due Course and Cancel Certificate of Candidacy3 of Francis. Docketed as SPA Case No. 04-048,
the petition to disqualify was predicated on the three-consecutive term rule, Francis having,
according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have
assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms
corresponding to those elections.

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the
office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by
COMELEC winner in that contest. Alegre subsequently filed an election protest, docketed as
Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the
RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,4 albeit the decision
came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and
was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San
Vicente.

Acting on Alegre’s petition to disqualify and to cancel Francis’ certificate of candidacy for the May 10,
2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a
resolution5 dismissing the said petition of Alegre, rationalizing as follows:

We see the circumstances in the case now before us analogous to those obtaining in the sample
situations addressed by the Highest Court in the Borja case. Herein, one of the requisites for the
application of the three term rule is not present. Francis Ong might have indeed fully served the
mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from
1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet,
Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision
that Stanley Alegre was the "legally elected mayor in the 1998 mayoralty election in San Vicente,
Camarines Norte." This disposition had become final after the [COMELEC] dismissed the appeal
filed by Ong, the case having become moot and academic.
xxx xxx xxx

On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in
the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001
because "he was not duly elected to the post; he merely assumed office as a presumptive winner;
which presumption was later overturned … when [the RTC] decided with finality that [he] lost in the
May 1998 elections." (Words in bracket and emphasis in the original).

Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was
a misapplication of the three-term rule, as applied in the cited cases of Borja vs.
Comelec and Lonzanida vs. Comelec, infra.

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution6 reversing the
March 31, 2004 resolution of the COMELEC’s First Division and thereby (a) declaring Francis "as
disqualified to run for mayor of San Vicente, Camarines Norte in the …May 10, 2004"; (b) ordering
the deletion of Francis’ name from the official list of candidates; and (c) directing the concerned
board of election inspectors not to count the votes cast in his favor.

The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004
resolution, sending him posthaste to seek the assistance of his political party, the Nationalist
People’s Coalition, which immediately nominated his older brother, Rommel Ong (Rommel), as
substitute candidate. At about 5:05 p.m. of the very same day - which is past the deadline for filing a
certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as
substitute candidate for his brother Francis.

The following undisputed events then transpired:

1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due
Course to or Cancel Certificate of Rommel Ong.

2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter7 to Provincial
Election Supervisor (PES) of Camarines Norte Liza Z. Cariño and Acting Election Officer
Emily G. Basilonia in which he appealed that, owing to the COMELEC’s inaction on Alegre's
petition to cancel Rommel’s certificate of candidacy, the name "Rommel Ong" be included in
the official certified list of candidates for mayor of San Vicente, Camarines Norte. The
desired listing was granted by the PES Carino.

3. On May 10, 2004, Alegre wrote8 to then COMELEC Commissioner Virgilio Garcillano,
Commissioner-in-Charge for Regions IV and V, seeking clarification on the legality of the
action thus taken by the PES Cariño. Responding, Commissioner Garcillano issued a
Memorandum under date May 10, 20049 addressed to PES Liza D. Zabala-Cariño, ordering
her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated
on May 7, 2004.10 Said Memorandum partly stated:

The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law
Department], which he quote your stand, "that substitution is not proper if the certificate of the
substituted candidacy is denied due course. In the Resolution of the Commission En banc, the
Certificate of candidacy of Francis Ong was denied due course," and elaborated further that:

"x x x there is an existing policy of the Commission not to include the name of a substitute candidate
in the certified list of candidates unless the substitution is approved by the Commission.

In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong
Gan Ong, should be denied due course; and 2) the election officer be directed to delete his name
from the list of candidates."

The above position of the Commission was in line with the pronouncement of Supreme Court in
Miranda vs. Abaya (311 SCRA 617) which states:

"There can no valid substitution where a candidate is excluded not only by disqualification but also
by denial and cancellation of his certificate of candidacy."
In view thereof, you are hereby directed to faithfully implement the said Resolution of the
Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original;
words in bracket added].

4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman
of the Municipal Board of Canvasser of San Vicente issued an order enjoining all concerned
not to canvass the votes cast for Rommel, prompting the latter to file a protest with that
Board.11

5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning
candidate for the mayoralty post in San Vicente, Camarines Norte.12

On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R.
No. 163295. His brother Rommel’s petition in G.R. No. 163354 followed barely a week after.

In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were
consolidated.13

Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent
Alegre’s Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong, for
being moot and academic.14

The issues for resolution of the Court are:

In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing its en banc resolution dated May 7, 2004 declaring petitioner
Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004
elections and consequently ordering the deletion of his name from the official list of candidates so
that any vote cast in his favor shall be considered stray.

In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied
due course to Rommel’s certificate of candidacy in the same mayoralty election as substitute for his
brother Francis.

A resolution of the issues thus formulated hinges on the question of whether or not petitioner
Francis’s assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term
1998 to 2001 should be considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other
hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as
Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elect in the May 1998
election was contested and eventually nullified per the decision of the RTC of Daet, Camarines
Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs. Comelec15, that
a proclamation subsequently declared void is no proclamation at all and one assuming office on the
strength of a protested proclamation does so as a presumptive winner and subject to the final
outcome of the election protest.

The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987
Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 (b) of the Local Government Code restates the same rule as follows:

Sec. 43. Term of Office.

xxx xxx xxx

(b) No local elective official shall serve for more than three consecutive years in the same position.
Voluntary renunciation of the office for any length of time shall not be considered an interruption in
the continuity of service for the full term for which the elective official concerned was elected.

For the three-term limit for elective local government officials to apply, two conditions or requisites
must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms
in the same local government post, and (2) that he has fully served three (3) consecutive terms.16

With the view we take of the case, the disqualifying requisites are present herein, thus effectively
barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10,
2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected
mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July
1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy
revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran
for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001
mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San
Vicente. The question that begs to be addressed, therefore, is whether or not Francis’s assumption
of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be
considered as one full term service in the context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, "service for the full term", and should
be counted as a full term served in contemplation of the three-term limit prescribed by the
constitutional and statutory provisions, supra, barring local elective officials from being elected and
serving for more than three consecutive term for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,17 that it was
Francis’ opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally
elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical
and legal use and value, having been promulgated after the term of the contested office has expired.
Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as
his proclamation was under protest did not make him less than a duly elected mayor. His
proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the
1998 mayoralty election coupled by his assumption of office and his continuous exercise of the
functions thereof from start to finish of the term, should legally be taken as service for a full term in
contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view
would mean that Alegre would – under the three-term rule - be considered as having served a term
by virtue of a veritably meaningless electoral protest ruling, when another actually served such term
pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in, Lonzanida vs.
Comelec,18 citingBorja vs. Comelec19. In Lonzanida, petitioner Lonzanida was elected and served for
two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He
then ran again for the same position in the May 1995 elections, won and discharged his duties as
Mayor. However, his opponent contested his proclamation and filed an election protest before the
RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of
elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner
Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his
duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of
the same town. A petition to disqualify, under the three-term rule, was filed and was eventually
granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to
the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by
reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot
be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in
fact vacated] his post before the expiration of the term."

The difference between the case at bench and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of
"failure of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect
was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did
not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But more
importantly, here, there was actually no interruption or break in the continuity of Francis’ service
respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in
question; he never ceased discharging his duties and responsibilities as mayor of San Vicente,
Camarines Norte for the entire period covering the 1998-2001 term.

The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it
disqualified Francis from running in the May 10, 2004 elections for the mayoralty post of San Vicente
and denying due course to his certificate of candidacy by force of the constitutional and statutory
provisions regarding the three-term limit rule for any local elective official cannot be sustained. What
the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for
concurrence:

As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in

the Borja and Lonzanida cases in the instant petition will be erroneous because the factual milieu in
those cases is different from the one obtaining here. Explicitly, the three-term limit was not made
applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity
of service of the three consecutive terms. Here, Respondent Ong would have served continuously
for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply
discounted on the basis that he was not duly elected thereto on account of void proclamation
because it would have iniquitous effects producing outright injustice and inequality as it rewards a
legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in
the original)

Given the foregoing consideration, the question of whether or not then Commissioner Virgilio
Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering the
implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its finality20 is
now of little moment and need not detain us any longer.

Just as unmeritorious as Francis’ petition in G.R. No. 163295 is Rommel’s petition in G.R. No.
163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a
substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were,
existing COMELEC policy21 provides for the non-inclusion of the name of substitute candidates in the
certified list of candidates pending approval of the substitution.

Not to be overlooked is the Court’s holding in Miranda vs. Abaya,22 that a candidate whose certificate
of candidacy has been cancelled or not given due course cannot be substituted by another
belonging to the same political party as that of the former, thus:

While there is no dispute as to whether or not a nominee of a registered or accredited political party
may substitute for a candidate of the same party who had been disqualified for any cause, this does
not include those cases where the certificate of candidacy of the person to be substituted had been
denied due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate
may be validly substituted, there is no mention of the case where a candidate is excluded not only by
disqualification but also by denial and cancellation of his certificate of candidacy. Under the
foregoing rule, there can be no valid substitution for the latter case, much in the same way that a
nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not
be substituted. If the intent of the lawmakers were otherwise, they could have so easily and
conveniently included those persons whose certificates of candidacy have been denied due course
and/or cancelled under the provisions of Section 78 of the Code.

xxx xxx xxx

A person without a valid certificate of candidacy cannot be considered a candidate in much the same
way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the
imagination, be a candidate at all.

xxx xxx xxx

After having considered the importance of a certificate of candidacy, it can be readily understood
why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person
with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and
considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a
registered or accredited party may be substituted, there demonstrably cannot be any possible
substitution of a person whose certificate of candidacy has been cancelled and denied due course.

In any event, with the hard reality that the May 10, 2004 elections were already passé, Rommel
Ong’s petition in G.R. No. 163354 is already moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May
7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED.

Costs against petitioners.

SO ORDERED.

*G.R No. 149736 (Mendoza vs. Comelec, 2002) does not exist in
lawphil nor in ESCRA.

G.R. No. 167591. May 9, 2007.*

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE

GUZMAN, petitioners, vs.

COMELEC and MARINO “BOKING” MORALES, respondents.

G.R. No. 170577. May 9, 2007.*

ANTHONY D. DEE, petitioner, vs. COMELEC and MARINO “BOKING” MORALES,

respondents.

Election Law; Local Government Code; Term of Office; There is no reason why the
ruling in Ong v. Alegre, 479 SCRA 473 (2006), should not also apply to respondent
Morales who is similarly situated.—It bears stressing that in Ong v. Alegre, 479 SCRA
473 (2006), cited above, Francis Ong was elected and assumed the duties of the mayor
of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as
mayor in the May 1998 election was declared void by the RTC of Daet, Camarines
Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term
1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed,
there is no reason why this ruling should not also apply to respondent Morales who is
similarly situated.

Same; Same; Same; Fact that respondent was ousted as mayor in the electoral protest
case filed by petitioner Dee does not constitute an interruption in serving the full term.—
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He
assumed the position. He served as mayor until June 30, 2001. He was mayor for the
entire period notwithstanding the Decision of the RTC in the electoral protest case filed
by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v.
Alegre, 479 SCRA 473 (2006), such circumstance does not constitute an interruption in
serving the full term.

Same; Same; Same; Reason for the Maximum Term Limit Explained by the Court in
Latasa v. Comelec, 417 SCRA 601 (2003).—In Latasa v. Comelec, 417 SCRA 601
(2003), the Court explained the reason for the maximum term limit, thus: x x x This
Court reiterates that the framers of the Constitution specifically included an exception to
the people’s freedom to choose those who will govern them in order to avoid the evil of
a single person accumulating excessive power over a particular territorial jurisdiction as
a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as municipal
mayor would obviously defeat the very intent of the framers when they wrote this
exception. Should he be allowed another three consecutive term as mayor of the City of
Digos, petitioner would then be possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is
the very scenario sought to be avoided by the Constitution, if not abhorred by it.

Same; Same; Same; Same; Whether as “caretaker” or “de facto” officer, respondent
exercises the powers and enjoys the prerequisites of the office which enables him “to
stay on indefinitely.”—This is the very situation in the instant case. Respondent Morales
maintains that he served his second term (1998 to 2001) only as a “caretaker of the
office” or as a “de facto officer.” Section 8, Article X of the Constitution is violated and its
purpose defeated when an official serves in the same position for three consecutive
terms. Whether as “caretaker” or “de facto” officer, he exercises the powers and enjoys
the prerequisites of the office which enables him “to stay on indefinitely.”
Same; Same; Same; A second place candidate cannot be proclaimed as a substitute
winner.—In Labo v. Comelec, 211 SCRA 297 (1992), this Court has ruled that a second
place candidate cannot be proclaimed as a substitute winner, thus: The rule, therefore,
is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority
or defeated candidate cannot be deemed elected to the office.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8,
2005 of the COMELEC En Banc.

G.R. No. 167591

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and
MARINO "BOKING" MORALES

In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales
ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June
30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy.

On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with
the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent
Morales’ Certificate of Candidacy on the ground that he was elected and had served three previous
consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article
X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local
Government Code.

In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat
for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30,
2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a
"caretaker of the office" or as a "de facto officer" because of the following reasons:

a. He was not validly elected for the second term 1998 to 2001 since his proclamation as
mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its
Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision
became final and executory on August 6, 2001; and

b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16,
1999 to July 15, 1999.

On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent
Morales disqualified to run for the position of municipal mayor on the ground that he had already
served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May
7, 2004, he filed with the COMELEC En Banc a motion for reconsideration.

On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales’
motion for reconsideration and setting aside that of the Second Division. The COMELEC En Banc
held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared
respondent Morales’ proclamation void, his discharge of the duties in the Office of the Mayor in
Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three
consecutive terms has been severed.

Hence, this petition for certiorari.

G.R. No. 170577

ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES

On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for
the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for
mayor, filed with the RTC, Branch 61, Angeles City a petition for quo warranto against the said
respondent. Petitioner alleged that respondent Morales, having served as mayor for three
consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as
Civil Case No. 11503.

In his answer, respondent Morales raised the following defenses:

a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles
City declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner
Dee was then proclaimed the duly elected mayor; and

b. He was preventively suspended for six months by the Ombudsman, during the same term
in an anti-graft case, an interruption in the continuity of his service as municipal mayor of
Mabalacat.1

In its Decision dated November 22, 2004, the RTC dismissed petitioner Dee’s petition for quo
warranto on the ground that respondent Morales did not serve the three-term limit since he was not
the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998
to 2001, thus:

Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May
1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor
of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and
discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared
the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in
Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales,
and decided by RTC, Br. 57, Angeles City. x x x.

Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent
Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the
2004 elections. Consequently, his proclamation as such should be set aside. In a Resolution dated
July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal. It held that
respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998
to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He
only served as a caretaker, thus, his service during that term should not be counted.

On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration.
In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned
Resolution of the Second Division.

Hence, petitioner Dee’s instant petition for certiorari.

Both cases may be decided based on the same facts and issues.

It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the
following consecutive terms:

a) July 1, 1995 to June 30, 1998

b) July 1, 1998 to June 30, 2001

c) July 1, 2001 to June 30, 2004

d) July 1, 2004 to June 30, 2007

THE PRINCIPAL ISSUE. –

Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is
not his fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and
which he served, may not be counted since his proclamation was declared void by the RTC, Branch
57 of Angeles City.

Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same
issue in Ong v. Alegre2 with identical facts, thus:

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the
office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by
the COMELEC winner in the contest. Alegre subsequently filed an election protest, docketed as
Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the
RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision
came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and
was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San
Vicente.

xxx

A resolution of the issues thus formulated hinges on the question of whether or not petitioner
Francis’ assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998
to 2001 should be considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other
hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as
Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May
1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines
Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a
proclamation subsequently declared void is no proclamation at all and one assuming office on the
strength of a protested proclamation does so as a presumptive winner and subject to the final
outcome of the election protest.

xxx

For the three-term limit for elective local government officials to apply, two conditions or requisites
must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms
in the same local government post, and (2) that he has fully served three (3) consecutive terms.

With the view we take of the case, the disqualifying requisites are present herein, thus effectively
barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10,
2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected
mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July
1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy
revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran
for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001
mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San
Vicente. The question that begs to be addressed, therefore, is whether or not Francis’ assumption of
office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be
considered as one full term service in the context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, "service for the full term," and should
be counted as a full term served in contemplation of the three-term limit prescribed by the
constitutional and statutory provisions, supra, barring local elective officials from being elected and
serving for more than three consecutive terms for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was
Francis’ opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally
elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical
and legal use and value, having been promulgated after the term of the contested office has expired.
Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as
his proclamation was under protest did not make him less than a duly elected mayor. His
proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the
1998 mayoralty election coupled by his assumption of office and his continuous exercise of the
functions thereof from start to finish of the term, should legally be taken as service for a full term in
contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view
would mean that Alegre would-under the three-term rule-be considered as having served a term by
virtue of a veritably meaningless electoral protest ruling, when another actually served such term
pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in Lonzanida v.
Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and served for
two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He
then ran again for the same position in the May 1995 elections, won and discharged his duties as
Mayor. However, his opponent contested his proclamation and filed an election protest before the
RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was a failure of
elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner
Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his
duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of
the same town. A petition to disqualify, under the three-term rule, was filed and was eventually
granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to
the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term
by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida
"cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate
[and in fact vacated] his post before the expiration of the term."

The difference between the case at bench and Lonzanida is at once apparent. For one, in
Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of
"failure of election," and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect
was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida
did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as
a result of legal processes. In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more
importantly, here, there was actually no interruption or break in the continuity of Francis’ service
respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in
question; he never ceased discharging his duties and responsibilities as mayor of San Vicente,
Camarines Norte for the entire period covering the 1998-2001 term.

It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the
duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his
proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines
Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001
is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why
this ruling should not also apply to respondent Morales who is similarly situated.

Here, respondent Morales invoked not only Lonzanida v. COMELEC,3 but also Borja, Jr. v.
Commission on Elections4 which is likewise inapplicable. The facts in Borja are:

Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a
term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the
death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of
three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another
term of three years ending June 30, 1998.

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros
relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate
for mayor, sought Capco’s disqualification on the theory that the latter would have already served as
mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for
another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner
and declared private respondent Capco disqualified from running for reelection as mayor of Pateros.
However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the
decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x x x
This Court held that Capco’s assumption of the office of mayor upon the death of the incumbent may
not be regarded as a "term" under Section 8, Article X of the Constitution and Section 43 (b) of R.A.
No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30,
1992, a period of less than three years. Moreover, he was not elected to that position.

Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a
recall election for the remaining term is not the "term" contemplated under Section 8, Article X of the
Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court
observed, there was a "break" in the service of private respondent Ramon T. Talanga as mayor. He
was a "private citizen" for a time before running for mayor in the recall elections.

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the
position. He served as mayor until June 30, 2001. He was mayor for the entire period
notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting
him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,6 such circumstance does not
constitute an interruption in serving the full term.

Section 8, Article X of the Constitution can not be more clear and explicit –

The term of the office of elected local officials x x x, shall be three years and no such official shall
serve for more than three consecutive terms. x x x

Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:

No local official shall serve for more than three consecutive terms in the same position. x x x

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously
without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been
mayor of Mabalacat for twelve (12) continuous years.

In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus:

The framers of the Constitution, by including this exception, wanted to establish some safeguards
against the excessive accumulation of power as a result of consecutive terms. As Commissioner
Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and
frequent re-elections, officials from the President down to the municipal mayor tend to develop a
proprietary interest in their positions and to accumulate these powers and prerequisites that permit
them to stay on indefinitely or to transfer these posts to members of their families in a subsequent
election. x x x

xxx

It is evident that in the abovementioned cases, there exists a rest period or a break in the service of
local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the
next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as
private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest
period during which the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

This Court reiterates that the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served
for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers
when they wrote this exception. Should he be allowed another three consecutive term as mayor of
the City of Digos, petitioner would then be possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.

This is the very situation in the instant case. Respondent Morales maintains that he served his
second term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8,
Article X of the Constitution is violated and its purpose defeated when an official serves in the same
position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the
powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely".

Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.

G.R. No. 167591 –

Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003
should be cancelled. The effect of the cancellation of a Certificate of Candidacy is provided under
Sections 6 and 7 of R.A. No. 6646, thus:

SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is strong.

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. – The procedure
hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of
candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

in relation to Section 211 of the Omnibus Election Code, which provides:

SEC. 211. Rules for the appreciation of ballots. – In the reading and appreciation of ballots, every
ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The
board of election inspectors shall observe the following rules, bearing in mind that the object of the
election is to obtain the expression of the voter’s will:

xxx

19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be considered as a stray vote but it
shall not invalidate the whole ballot.

xxx

In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004
elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be
considered stray votes.

G.R. No. 170577 –

Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the
instant petition for quo warranto has become moot.

Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee
who shall serve for the remaining portion of the 2004 to 2007 term.

In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a
substitute winner, thus:

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the
eligible candidate receiving the next highest number of votes to be declared elected. A minority or
defeated candidate cannot be deemed elected to the office.

xxx

It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for
the disqualified candidate should, in effect, be considered null and void. This would amount to
disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the
people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their
franchise, and in the honest belief that Labo was then qualified to be the person to whom they would
entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be
disqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no
circumstances can minority or defeated candidate be deemed elected to the office. Surely, the
12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for
petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).

xxx

As a consequence of petitioner’s ineligibility, a permanent vacancy in the contested office has

occurred. This should now be filled by the vice-mayor in accordance with Section 44 of the Local
Government Code, to wit:

Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-
Mayor. – (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor
or the vice-mayor concerned shall become the governor or mayor. x x x

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

This Decision is immediately executory.

SO ORDERED.

G.R. No. 182088. January 30, 2009.*

ROBERTO L. DIZON, petitioner,

vs.

COMMISSION ON ELECTIONS and MARINO P. MORALES,

respondents.

Election Law; Selective Officials; Disqualification; Three-term Limit Rule;

Conditions for the application of the disqualification.—For purposes of determining the
resulting disqualification brought about by the three-term limit, it is not enough that an
individual has served three consecutive terms in an elective local office, he must also
have been elected to the same position for the same number of times. There should be
a concurrence of two conditions for the application of the disqualification: (1) that the
official concerned has been elected for three consecutive terms in the same local
government post and (2) that he has fully served three consecutive terms.

Same; Same; Same; Same; Involuntary severance from office for any length of time
short of the full term provided by law amounts to an interruption of continuity of
service.—Our ruling in the Rivera case served as Morales’ involuntary severance from
office with respect to the 2004-2007 term. Involuntary severance from office for any
length of time short of the full term provided by law amounts to an interruption of
continuity of service. Our decision in the Rivera case was promulgated on 9 May 2007
and was effective immediately. The next day, Morales notified the vice mayor’s office of
our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to
30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter
how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus,
Morales did not hold office for the full term of 1 July 2004 to 30 June 2007.

Same; Same; Same; Same; Morales’ occupancy of the position of mayor of Mabalacat
from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of
computing the three-term limit; The present 1 July 2007 to 30 June 2010 term is
effectively Morales’ first term for purposes of the three-term limit rule.—We concede that
Morales occupied the position of mayor of Mabalacat for the following periods: 1 July
1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1
July 2004 to 16 May 2007. However, because of his disqualification, Morales was not
the duly elected mayor for the 2004-2007 term. Neither did Morales hold the position of
mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full
term of 2004-2007 because he was ordered to vacate his post before the expiration of
the term. Morales’ occupancy of the position of mayor of Mabalacat from 1 July 2004 to
16 May 2007 cannot be counted as a term for purposes of computing the three-term
limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for
purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010
term is effectively Morales’ first term for purposes of the three-term limit rule.

DECISION

CARPIO, J.:

The Case
This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary restraining
order and writ of preliminary injunction under Rule 65 of the 1997 Rules of Civil Procedure. The
present petition seeks the reversal of the Resolution dated 27 July 2007 of the Commission on
Elections’ (COMELEC) Second Division which dismissed the petition to disqualify and/or to cancel
Marino P. Morales’ (Morales) certificate of candidacy, as well as the Resolution dated 14 February
2008 of the COMELEC En Banc which denied Roberto L. Dizon’s (Dizon) motion for reconsideration.

The Facts

The COMELEC Second Division stated the facts as follows:

Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the Municipality
of Mabalacat, Pampanga. Marino P. Morales, hereinafter referred to as respondent, is the incumbent
Mayor of the Municipality of Mabalacat, Pampanga.

Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga
during the 1995, 1998, 2001 and 2004 elections and has fully served the same. Respondent filed his
Certificate of Candidacy on March 28, 2007 again for the same position and same municipality.

Petitioner argues that respondent is no longer eligible and qualified to run for the same position for
the May 14, 2007 elections under Section 43 of the Local Government Code of 1991. Under the said
provision, no local elective official is allowed to serve for more than three (3) consecutive terms for
the same position.

Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of the
Municipality of Mabalacat, Pampanga because he was not elected for the said position in the 1998
elections. He avers that the Commission en banc in SPA Case No. A-04-058, entitled Atty. Venancio
Q. Rivera III and Normandick P. De Guzman vs. Mayor Marino P. Morales, affirmed the decision of
the Regional Trial Court of Angeles City declaring Anthony D. Dee as the duly elected Mayor of
Mabalacat, Pampanga in the 1998 elections.

Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as
Mayor of Mabalacat, Pampanga. Respondent further asserts that his election in 2004 is only for his
second term. Hence, the three term rule provided under the Local Government Code is not
applicable to him.

Respondent further argues that the grounds stated in the instant petition are not covered under
Section 78 of the Omnibus Election Code. Respondent further contend [sic] that even if it is covered
under the aforementioned provision, the instant petition failed to allege any material
misrepresentation in the respondent’s Certificate of Candidacy.1

The Ruling of the COMELEC Second Division

In its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of this
Court’s ruling in the consolidated cases of Atty. Venancio Q. Rivera III v. COMELEC and Marino
"Boking" Morales in G.R. No. 167591 and Anthony Dee v. COMELEC and Marino "Boking"
Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007. The pertinent portions of the
COMELEC Second Division’s ruling read as follows:

Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There was no
interruption of his second term from 1998 to 2001. He was able to exercise the powers and enjoy the
position of a mayor as "caretaker of the office" or a "de facto officer" until June 30, 2001
notwithstanding the Decision of the RTC in an electoral protest case. He was again elected as
mayor from July 1, 2001 to June 30, 2003 [sic].

It is worthy to emphasize that the Supreme Court ruled that respondent has violated the three-term
limit under Section 43 of the Local Government Code. Respondent was considered not a candidate
in the 2004 Synchronized National and Local Elections. Hence, his failure to qualify for the 2004
elections is a gap and allows him to run again for the same position in the May 14, 2007 National
and Local Elections.
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to
DENY the instant Petition to Cancel the Certificate of Candidacy and/or Petition for the
Disqualification of Marino P. Morales for lack of merit.2

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

The Ruling of the COMELEC En Banc

The COMELEC En Banc affirmed the resolution of the COMELEC Second Division.

The pertinent portions of the COMELEC En Banc’s Resolution read as follows:

Respondent’s certificate of candidacy for the May 2004 Synchronized National and Local Elections
was cancelled pursuant to the above-mentioned Supreme Court decision which was promulgated on
May 9, 2007. As a result, respondent was not only disqualified but was also not considered a
candidate in the May 2004 elections.

Another factor which is worth mentioning is the fact that respondent has relinquished the disputed
position on May 16, 2007. The vice-mayor elect then took his oath and has assumed office as mayor
of Mabalacat on May 17, 2007 until the term ended on June 30, 2007. For failure to serve for the full
term, such involuntary interruption in his term of office should be considered a gap which renders the
three-term limit inapplicable.

The three-term limit does not apply whenever there is an involuntary break. The Constitution does
not require that the interruption or hiatus to be a full term of three years. What the law requires is for
an interruption, break or a rest period from a candidate’s term of office "for any length of time." The
Supreme Court in the case of Latasa v. Comelec ruled:

Indeed, the law contemplates a rest period during which the local elective official steps down from
office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit.

In sum, the three-term limit is not applicable in the instant case for lack of the two conditions: 1)
respondent was not the duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term
primordially because he was not even considered a candidate thereat; and 2) respondent has failed
to serve the entire duration of the term of office because he has already relinquished the disputed
office on May 16, 2007 which is more than a month prior to the end of his supposed term.

xxx

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to

DENY the instant Motion for Reconsideration for LACK OF MERIT. The Resolution of the
Commission Second Division is hereby AFFIRMED.

SO ORDERED.3

The Issues

Dizon submits that the factual findings made in the Rivera case should still be applied in the present
case because Morales had, except for one month and 14 days, served the full term of 2004-2007.
Morales’ assumption of the mayoralty position on 1 July 2007 makes the 2007-2010 term Morales’
fifth term in office. Dizon raises the following grounds before this Court:

1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR

EXCESS OF ITS JURISDICTION WHEN IT RULED THAT RESPONDENT MORALES DID
NOT VIOLATE THE THREE-YEAR TERM LIMIT WHEN HE RAN AND WON AS MAYOR
OF MABALACAT, PAMPANGA DURING THE MAY 14, 2007 ELECTION.

2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR

EXCESS OF JURISDICTION WHEN IT RULED THAT DUE TO THIS HONORABLE
COURT’S RULING IN THE AFORESAID CONSOLIDATED CASES, RESPONDENT
MORALES’ FOURTH TERM IS CONSIDERED A GAP IN THE LATTER’S SERVICE WHEN
HE FILED HIS CERTIFICATE OF CANDIDACY FOR THE 2007 ELECTIONS.
 3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT THE
FOURTH TERM OF MORALES WAS INTERRUPTED WHEN HE "RELINQUISHED" HIS
POSITION FOR ONE MONTH AND 14 DAYS PRIOR TO THE MAY 14, 2007 ELECTION.4

The Ruling of the Court

The petition has no merit.

The present case covers a situation wherein we have previously ruled that Morales had been
elected to the same office and had served three consecutive terms, and wherein we disqualified and
removed Morales during his fourth term. Dizon claims that Morales is currently serving his fifth term
as mayor. Is the 2007-2010 term really Morales’ fifth term?

The Effect of our Ruling in the Rivera Case

In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We
cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation disqualified
Morales from being a candidate in the May 2004 elections. The votes cast for Morales were
considered stray votes. The dispositive portion in the Rivera case reads:

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

This Decision is immediately executory.

SO ORDERED.5

Article X, Section 8 of the 1987 Constitution reads:

The term of office of elective local officials, except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption
in the continuity of his service for the full term for which he was elected.

Section 43(b) of the Local Government Code restated Article X, Section 8 of the 1987 Constitution
as follows:

No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which the elective official concerned was elected.

For purposes of determining the resulting disqualification brought about by the three-term limit, it is
not enough that an individual has served three consecutive terms in an elective local office, he must
also have been elected to the same position for the same number of times.6 There should be a
concurrence of two conditions for the application of the disqualification: (1) that the official concerned
has been elected for three consecutive terms in the same local government post and (2) that he has
fully served three consecutive terms.7 lavvphil.net

In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive
terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and
1 July 2004 to 30 June 2007. We disqualified Morales from his candidacy in the May 2004 elections
because of the three-term limit. Although the trial court previously ruled that Morales’ proclamation
for the 1998-2001 term was void, there was no interruption of the continuity of Morales’ service with
respect to the 1998-2001 term because the trial court’s ruling was promulgated only on 4 July 2001,
or after the expiry of the 1998-2001 term.

Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to
the 2004-2007 term. Involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service.8 Our decision in the Rivera case
was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the
vice mayor’s office of our decision. The vice mayor assumed the office of the mayor from 17 May
2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter
how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales did not
hold office for the full term of 1 July 2004 to 30 June 2007.

2007-2010: Morales’ Fifth Term?

Dizon claims that the 2007-2010 term is Morales’ fifth term in office. Dizon asserts that even after
receipt of our decision on 10 May 2007, Morales "waited for the election to be held on 14 May 2007
to ensure his victory for a fifth term."9

We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1
July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July
2004 to 16 May 2007. However, because of his disqualification, Morales was not the duly elected
mayor for the 2004-2007 term. Neither did Morales hold the position of mayor of Mabalacat for the
full term. Morales cannot be deemed to have served the full term of 2004-2007 because he was
ordered to vacate his post before the expiration of the term. Morales’ occupancy of the position of
mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of
computing the three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a
gap for purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is
effectively Morales’ first term for purposes of the three-term limit rule.

Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy litigations. x
x x In other words, he was violating the rule on three-term limit with impunity by the sheer length of
litigation and profit from it even more by raising the technicalities arising therefrom."10 To this, we
quote our ruling in Lonzanida v. COMELEC:

The respondents harp on the delay in resolving the election protest between petitioner and his then
opponent Alvez which took roughly about three years and resultantly extended the petitioner’s
incumbency in an office to which he was not lawfully elected. We note that such delay cannot be
imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any
political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not
without legal recourse to move for the early resolution of the election protest while it was pending
before the regional trial court or to file a motion for the execution of the regional trial court’s decision
declaring the position of mayor vacant and ordering the vice-mayor to assume office while the
appeal was pending with the COMELEC. Such delay which is not here shown to have been
intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his
right to be elected and to serve his chosen local government post in the succeeding mayoral
election.11

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on

Elections En Banc dated 14 February 2008 as well as the Resolution of the Commission on
Elections’ Second Division dated 27 July 2007.

SO ORDERED.

G.R. No. 184082. March 17, 2009.*

NICASIO BOLOS, JR., petitioner,

vs.
 THE COMMISSION ON ELECTIONS and REY ANGELES
CINCONIEGUE, respondents.

Election Law; Municipal Corporations; Local Government Code; Term Limits; A

Punong Barangay, in running for and winning as Sangguniang Bayan member and
assuming said office is deemed to have voluntarily relinquished his office as Punong
Barangay.—It is undisputed that petitioner was elected as Punong Barangay for three
consecutive terms, satisfying the first condition for disqualification. What is to be
determined is whether petitioner is deemed to have voluntarily renounced his position
as Punong Barangay during his third term when he ran for and won as Sangguniang
Bayan member and assumed said office. The Court agrees with the COMELEC that
there was voluntary renunciation by petitioner of his position as Punong Barangay. x x x
Indeed, petitioner was serving his third term as Punong Barangay when he ran for
Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang
Bayan member, thus, voluntarily relinquishing his office as Punong Barangay which the
Court deems as a voluntary renunciation of said office.

Statutory Construction; Words and Phrases; The term “operation of law” is defined
as “a term describing the fact that rights may be acquired or lost by the effect of a legal
rule without any act of the person affected.”—Petitioner erroneously argues that when
he assumed the position of Sangguniang Bayan member, he left his post as Punong
Barangay by operation of law; hence, he did not fully serve his third term as Punong
Barangay. The term “operation of law” is defined by the Philippine Legal Encyclopedia
(by Jose Agaton R. Sibal, Copyright 1986), as “a term describing the fact that rights may
be acquired or lost by the effect of a legal rule without any act of the person affected.”
Blacks Law Dictionary (Sixth Edition, Copyright 1990) also defines it as a term that
“expresses the manner in which rights, and sometimes liabilities, devolve upon a person
by the mere application to the particular transaction of the established rules of law,
without the act or cooperation of the party himself.”

DECISION

PERALTA, J.:

This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the Commission on
Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the Resolutions promulgated on March 4, 2008 and August 7, 2008 holding
that petitioner Nicasio Bolos, Jr. is disqualified as a candidate for the position of Punong Barangay of
Barangay Biking, Dauis, Bohol in the October 29,
2007 Barangay and Sangguniang Kabataan Elections on the ground that he has served the three-
term limit provided in the Constitution and Republic Act (R.A.) No. 7160, otherwise known as the
Local Government Code of 1991.

The facts are as follows:

For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay
Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002.

In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for
Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1,
2004, leaving his post as Punong Barangay. He served the full term of the Sangguniang
Bayan position, which was until June 30, 2007.

Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking,
Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.

Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the
same office, filed before the COMELEC a petition for the disqualification of petitioner as candidate
on the ground that he had already served the three-term limit. Hence, petitioner is no longer allowed
to run for the same position in accordance with Section 8, Article X of the Constitution and Section
43 (b) of R.A. No. 7160.

Cinconiegue contended that petitioner’s relinquishment of the position of Punong Barangay in July
2004 was voluntary on his part, as it could be presumed that it was his personal decision to run as
municipal councilor in the May 14, 2004 National and Local Elections. He added that petitioner knew
that if he won and assumed the position, there would be a voluntary renunciation of his post
as Punong Barangay.

In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking,
Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002. However, he countered
that in the May 14, 2004 National and Local Elections, he ran and won as Municipal Councilor of
Dauis, Bohol. By reason of his assumption of office as Sangguniang Bayan member, his remaining
term of office as Punong Barangay, which would have ended in 2007, was left unserved. He argued
that his election and assumption of office as Sangguniang Bayan member was by operation of law;
hence, it must be considered as an involuntary interruption in the continuity of his last term of
service.

Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition
was heard by the Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the
evidence, records of the case, and the Hearing Officer’s action on the matter were endorsed to and
received by the Commission on November 21, 2007.

The issue before the COMELEC was whether or not petitioner’s election, assumption and discharge
of the functions of the Office of Sangguniang Bayan member can be considered as voluntary
renunciation of his office as Punong Barangay of Barangay Biking, Dauis, Bohol which will render
unbroken the continuity of his service as Punong Barangay for the full term of office, that is, from
2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have served
three consecutive terms and shall be disqualified to run for the same position in the October 29,
2007 elections. But if it is considered as an involuntary

renunciation, petitioner’s service is deemed to have been interrupted; hence, he is not barred from
running for another term.

In a Resolution1 dated March 4, 2008, the First Division of the COMELEC ruled that petitioner’s
relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his
assumption of office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, was a
voluntary renunciation of the Office of Punong Barangay. The dispositive portion of the Resolution
reads:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition.
Respondent NICASIO BOLOS, JR., having already served as Punong Barangay of Barangay Biking,
Dauis, Bohol for three consecutive terms is hereby DISQUALIFIED from being a candidate for the
same office in the October 29, 2007 Barangay and SK Elections. Considering that respondent had
already been proclaimed, said proclamation is hereby ANNULLED. Succession to said office shall
be governed by the provisions of Section 44 of the Local Government Code.2

Petitioner’s motion for reconsideration was denied by the COMELEC en banc in a Resolution 3 dated
August 7, 2008.

Hence, this petition for certiorari raising this lone issue:

WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN

EXCESS OF ITS JURISDICTION AMOUNTING TO LACK OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN DISQUALIFYING [PETITIONER] AS A CANDIDATE FOR PUNONG
BARANGAY IN THE OCTOBER 29, 2007 BARANGAY AND SANGGUNIANG KABATAAN
ELECTIONS AND, SUBSEQUENTLY, ANNULLING HIS PROCLAMATION.4

The main issue is whether or not there was voluntary renunciation of the Office of Punong
Barangay by petitioner when he assumed office as Municipal Councilor so that he is deemed to have
fully served his third term as Punong Barangay, warranting his disqualification from running for the
same position in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.

Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29,
2007 Barangayand Sangguniang Kabataan Elections since he did not serve continuously three
consecutive terms. He admits that in the 1994, 1997 and 2002 Barangay elections, he was elected
as Punong Barangay for three consecutive terms. Nonetheless, while serving his third term
as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1, 2004, he
assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred
that he served the full term as member of the Sangguniang Bayan until June 30, 2007. On October
29, 2007, he filed his Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC
gravely abused its discretion in disqualifying him as a candidate for Punong Barangay since he did
not complete his third term by operation of law.

The argument does not persuade.

The three-term limit for elective local officials is contained in Section 8, Article X of the Constitution,
which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years, and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

David v. Commission on Elections5 elucidates that the Constitution did not expressly prohibit
Congress from fixing any term of office for barangay officials, thereby leaving to the lawmakers full
discretion to fix such term in accordance with the exigencies of public service. The discussions in the
Constitutional Commission showed that the term of office of barangay officials would be "[a]s may be
determined by law," and more precisely, "[a]s provided for in the Local Government Code."6 Section
43(b) of the Local Government Code provides that barangay officials are covered by the three-term
limit, while Section 43(c)7 thereof states that the term of office of barangay officials shall be five (5)
years. The cited provisions read, thus:

Sec. 43. Term of Office. – x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which the elective official
concerned was elected.

(c) The term of barangay officials and members of the sangguniang kabataan shall be for
five (5) years, which shall begin after the regular election of barangay officials on the second
Monday of May 1997: Provided, That the sangguniang kabataan members who were elected
in the May 1996 elections shall serve until the next regular election of barangay officials.
Socrates v. Commission on Elections8 held that the rule on the three-term limit, embodied in the
Constitution and the Local Government Code, has two parts:

x x x The first part provides that an elective local official cannot serve for more than three
consecutive terms. The clear intent is that only consecutive terms count in determining the three-
term limit rule. The second part states that voluntary renunciation of office for any length of time
does not interrupt the continuity of service. The clear intent is that involuntary severance from office
for any length of time interrupts continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end
of the third consecutive term. 9

In Lonzanida v. Commission on Elections,10 the Court stated that the second part of the rule on the
three-term limit shows the clear intent of the framers of the Constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the
people’s choice and grant their elected official full service of a term. The Court held that two
conditions for the application of the disqualification must concur: (1) that the official concerned has
been elected for three consecutive terms in the same government post; and (2) that he has fully
served three consecutive terms.11

In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive
terms, satisfying the first condition for disqualification.

What is to be determined is whether petitioner is deemed to have voluntarily renounced his position
as Punong Barangay during his third term when he ran for and won as Sangguniang Bayan member
and assumed said office.

The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his
position as Punong Barangay.

The COMELEC correctly held:

It is our finding that Nicasio Bolos, Jr.’s relinquishment of the office of Punong Barangay of Biking,
Dauis, Bohol, as a consequence of his assumption to office as Sangguniang Bayan member of
Dauis, Bohol, on July 1, 2004, is a voluntary renunciation.

As conceded even by him, respondent (petitioner herein) had already completed two consecutive
terms of office when he ran for a third term in the Barangay Elections of 2002. When he filed his
certificate of candidacy for the Office of Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004
[elections], he was not deemed resigned. Nonetheless, all the acts attending his pursuit of his
election as municipal councilor point out to an intent and readiness to give up his post as Punong
Barangay once elected to the higher elective office, for it was very unlikely that respondent had filed
his Certificate of Candidacy for the Sangguniang Bayan post, campaigned and exhorted the
municipal electorate to vote for him as such and then after being elected and proclaimed, return to
his former position. He knew that his election as municipal councilor would entail abandonment of
the position he held, and he intended to forego of it. Abandonment, like resignation, is voluntary.12

Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang
Bayan member and, upon winning, assumed the position of Sangguniang Bayan member, thus,
voluntarily relinquishing his office as Punong Barangay which the Court deems as a voluntary
renunciation of said office.

Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member,
he left his post as Punong Barangay by

operation of law; hence, he did not fully serve his third term as Punong Barangay.

The term "operation of law" is defined by the Philippine Legal Encyclopedia13 as "a term describing
the fact that rights may be acquired or lost by the effect of a legal rule without any act of the person
affected." Black's Law Dictionary also defines it as a term that "expresses the manner in which
rights, and sometimes liabilities, devolve upon a person by the mere application to the particular
transaction of the established rules of law, without the act or cooperation of the party himself."14

An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v.

Commission on Elections.15 The respondent therein, Sesinando F. Potencioso, Jr., was elected and
served three consecutive terms as Municipal Councilor of Tuburan, Cebu in 1998-2001, 2001-2004,
and 2004-2007. However, during his second term, he succeeded as Vice-Mayor of Tuburan due to
the retirement of the Vice-Mayor pursuant to Section 44 of R.A. No. 7160.16 Potencioso’s assumption
of office as Vice-Mayor was considered an involuntary severance from his office as Municipal
Councilor, resulting in an interruption in his second term of service.17 The Court held that it could not
be deemed to have been by reason of voluntary renunciation because it was by operation of
law.18Hence, Potencioso was qualified to run as candidate for municipal councilor of the Municipality
of Tuburan, Cebu in the May 14, 2007 Synchronized National and Local Elections.

Further, in Borja, Jr. v. Commission on Elections,19 respondent therein, Jose T. Capco, Jr., was
elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30, 1992. On
September 2, 1989, Capco became Mayor, by operation of law, upon the death of the incumbent,
Cesar Borja. Thereafter, Capco was elected and served as Mayor for two more terms, from 1992 to
1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros in the May 11,
1998 election. Capco’s disqualification was sought on the ground that he would have already served
as Mayor for three consecutive terms by June 30, 1998; hence, he would be ineligible to serve for
another term. The Court declared that the term limit for elective local officials must be taken to refer
to the right to be elected as well as the right to serve the same elective position.20 The Court held
that Capco was qualified to run again as mayor in the next election because he was not elected to
the office of mayor in the first term but simply found himself thrust into it by operation of
law.21 Neither had he served the full term because he only continued the service, interrupted by the
death, of the deceased mayor.22 The vice-mayor’s assumption of the mayorship in the event of the
vacancy is more a matter of chance than of design.23 Hence, his service in that office should not be
counted in the application of any term limit.24

In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead
relinquished his office as Punong Barangay during his third term when he won and assumed office
as Sangguniang Bayan member of Dauis, Bohol, which is deemed a voluntary renunciation of the
Office of Punong Barangay.

In fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the Resolutions dated March 4, 2008 and August 7, 2008, disqualifying
petitioner from being a candidate for Punong Barangay in the October 29,
2007 Barangay and Sangguniang Kabataan Elections.

WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4, 2008 and
August 7, 2008 are hereby AFFIRMED. No pronouncement as to costs.

SO ORDERED.

COMMISSION ON ELECTIONS, petitioner,

vs.

CONRADO CRUZ, SANTIAGO P. GO, RENATO F. BORBON, LEVVINO

CHING et. al.

Election Law; Constitutional Law; Political Questions; Term of Office of Barangay

Officials; Congress has plenary authority under the Constitution to determine by
legislation not only the duration of the term of barangay officials but also the application
to them of a consecutive term limit.—As reflected in the above-quoted deliberations of
the 1987 Constitution, Congress has plenary authority under the Constitution to
determine by legislation not only the duration of the term of barangay officials, but also
the application to them of a consecutive term limit. Congress invariably exercised this
authority when it enacted no less than six (6) barangay-related laws since 1987.

Same; Same; Same; Same; Whatever Congress in its wisdom decides on the term of
office and term limitation are political questions beyond the pale of judicial scrutiny.—
Through all these statutory changes, Congress had determined at its discretion both the
length of the term of office of barangay officials and their term limitation. Given the
textually demonstrable commitment by the 1987 Constitution to Congress of the
authority to determine the term duration and limition of barangay officials under the
Constitution, we consider it established that whatever Congress, in its wisdom, decides
on these matters are political questions beyond the pale of judicial scrutiny, subject only
to the certiorari jurisdiction of the courts provided under Section 1, Article VIII of the
Constitution and to the judicial authority to invalidate any law contrary to the
Constitution.

Same; Same; Same; What are political questions.—Political questions refer “to those
questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government; it is concerned with issues
dependent upon the wisdom, not legality of a particular measure.” These questions,
previously impervious to judicial scrutiny can now be inquired into under the limited
window provided by Section 1, Article VIII.

Same; Same; Same; To justify its nullification, the breach of the Constitution must be
clear and unequivocal, not a doubtful or equivocal one as every law enjoys a strong
presumption of regularity.—Other than the Section 1, Article VIII route, courts can
declare a law invalid when it is contrary to any provision of the Constitution. This
requires the appraisal of the challenged law against the legal standards provided by the
Constitution, not on the basis of the wisdom of the enactment. To justify its nullification,
the breach of the Constitution must be clear and unequivocal, not a doubtful or
equivocal one, as every law enjoys a strong presumption of constitutionality. These are
the hurdles that those challenging the constitutional validity of a law must overcome.

Same; Same; Retroactivity of Laws; Retroactivity of laws is a matter of civil law, not of
a constitutional law as its governing law is the Civil Code, not the Constitution.—
Retroactivity of laws is a matter of civil law, not of a constitutional law, as its governing
law is the Civil Code, not the Constitution. Article 4 of the Civil Code provides that laws
shall have no retroactive effect unless the contrary is provided. The application of the
Civil Code is of course self-explanatory—laws enacted by Congress may permissibly
provide that they shall have retroactive effect. The Civil Code established a statutory
norm, not a constitutional standard.

Same; Same; Equal Protection Clause; Essentially, the equality guaranteed under
this clause is equality under the same conditions and among persons similarly
situated.—The equal protection guarantee under the Constitution is found under its
Section 2, Article III, which provides: “Nor shall any person be denied the equal
protection of the laws.” Essentially, the equality guaranteed under this clause is equality
under the same conditions and among persons similarly situated. It is equality among
equals, not similarity of treatment of persons who are different from one another on the
basis of substantial distinctions related to the objective of the law; when things or
persons are different in facts or circumstances, they may be treated differently in law.

DECISION

BRION, J.:

We resolve in this Decision the constitutional challenge, originally filed before the Regional Trial
Court of Caloocan City, Branch 128 (RTC), against the following highlighted portion of Section 2 of
Republic Act (RA) No. 9164 (entitled "An Act Providing for Synchronized Barangay and
Sangguniang Kabataan Elections, amending RA No. 7160, as amended, otherwise known as the
Local Government Code of 1991"):

Sec. 2. Term of Office. – The term of office of all barangay and sangguniang kabataan officials after
the effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than three (3) consecutive terms in the same
position: Provided, however, That the term of office shall be reckoned from the
1994 barangay elections. Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the elective official
was elected.

The RTC granted the petition and declared the challenged proviso constitutionally infirm. The
present petition, filed by the Commission on Elections (COMELEC), seeks a review of the RTC
decision.1

THE ANTECEDENTS
Before the October 29, 2007 Synchronized Barangay and Sangguniang Kabataan (SK) Elections,
some of the then incumbent officials of several barangays of Caloocan City2 filed with the RTC a
petition for declaratory relief to challenge the constitutionality of the above-highlighted proviso, based
on the following arguments:

I. The term limit of Barangay officials should be applied prospectively and not retroactively.

II. Implementation of paragraph 2 Section 2 of RA No. 9164 would be a violation of the equal
protection of the law.

III. Barangay officials have always been apolitical.

The RTC agreed with the respondents’ contention that the challenged proviso retroactively applied
the three-term limit for barangay officials under the following reasoning:

When the Local Government Code of 1991 took effect abrogating all other laws inconsistent
therewith, a different term was ordained. Here, this Court agrees with the position of the petitioners
that Section 43 of the Code specifically exempted barangay elective officials from the coverage of
the three (3) consecutive term limit rule considering that the provision applicable to these (sic) class
of elective officials was significantly separated from the provisions of paragraphs (a) and (b) thereof.
Paragraph (b) is indeed intended to qualify paragraph (a) of Section 43 as regards to (sic) all local
elective officials except barangay officials. Had the intention of the framers of the Code is (sic) to
include barangay elective officials, then no excepting proviso should have been expressly made in
paragraph (a) thereof or, by implication, the contents of paragraph (c) should have been stated
ahead of the contents of paragraph (b).

xxxx

Clearly, the intent of the framers of the constitution (sic) is to exempt the barangay officials from the
three (3) term limits (sic) which are otherwise applicable to other elected public officials from the
Members of the House of Representatives down to the members of
the sangguniang bayan/panlungsod. It is up for the Congress whether the three (3) term limit should
be applied by enacting a law for the purpose.

The amendment introduced by R.A. No. 8524 merely increased the term of office
of barangay elective officials from three (3) years to five (5) years. Like the Local Government Code,
it can be noted that no consecutive term limit for the election of barangay elective officials was fixed
therein.

The advent of R.A. 9164 marked the revival of the consecutive term limit for the election
of barangay elective officials after the Local Government Code took effect. Under the assailed
provision of this Act, the term of office of barangay elective officials reverted back to three (3) years
from five (5) years, and, this time, the legislators expressly declared that no barangay elective official
shall serve for more than three (3) consecutive terms in the same position. The petitioners are very
clear that they are not assailing the validity of such provision fixing the three (3) consecutive term
limit rule for the election of barangay elective officials to the same position. The particular provision
the constitutionality of which is under attack is that portion providing for the reckoning of the three (3)
consecutive term limit of barangay elective officials beginning from the 1994 barangay elections.

xxx

Section 2, paragraph 2 of R.A. 9164 is not a mere restatement of Section 43(c) of the Local
Government Code. As discussed above, Section 43(c) of the Local Government Code does not
provide for the consecutive term limit rule of barangay elective officials. Such specific provision of
the Code has in fact amended the previous enactments (R.A. 6653 and R.A. 6679) providing for the
consecutive term limit rule of barangay elective officials. But, such specific provision of the Local
Government Code was amended by R.A. 9164, which reverted back to the previous policy of fixing
consecutive term limits of barangay elective officials." 3

In declaring this retroactive application unconstitutional, the RTC explained that:

By giving a retroactive reckoning of the three (3) consecutive term limit rule for barangay officials to
the 1994 barangay elections, Congress has violated not only the principle of prospective application
of statutes but also the equal protection clause of the Constitution inasmuch as
the barangay elective officials were singled out that their consecutive term limit shall be counted
retroactively. There is no rhyme or reason why the consecutive limit for these barangay officials shall
be counted retroactively while the consecutive limit for other local and national elective officials are
counted prospectively. For if the purpose of Congress is [sic] to classify elective barangay officials as
belonging to the same class of public officers whose term of office are limited to three (3)
consecutive terms, then to discriminate them by applying the proviso retroactively violates the
constitutionally enshrined principle of equal protection of the laws.

Although the Constitution grants Congress the power to determine such successive term limit
of barangay elective officials, the exercise of the authority granted shall not otherwise transgress
other constitutional and statutory privileges.

This Court cannot subscribe to the position of the respondent that the legislature clearly intended
that the provision of RA No. 9164 be made effective in 1994 and that such provision is valid and
constitutional. If we allow such premise, then the term of office for those officials elected in the
1997 barangay elections should have ended in year 2000 and not year 2002 considering that RA
No. 9164 provides for a three-year term of barangay elective officials. The amendment introduced by
R.A. No. 8524 would be rendered nugatory in view of such retroactive application. This is absurd
and illusory.

True, no person has a vested right to a public office, the same not being property within the
contemplation of constitutional guarantee. However, a cursory reading of the petition would show
that the petitioners are not claiming vested right to their office but their right to be voted upon by the
electorate without being burdened by the assailed provision of the law that, in effect, rendered them
ineligible to run for their incumbent positions. Such right to run for office and be voted for by the
electorate is the right being sought to be protected by assailing the otherwise unconstitutional
provision.

Moreover, the Court likewise agrees with the petitioners that the law violated the one-act-one subject
rule embodied in the Constitution. x x x x The challenged law’s title is "AN ACT PROVIDING FOR
THE SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS, AMENDING
REPUBLIC ACT 7160 OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991
AND FOR OTHER PURPOSES." x x x x

xxxx

To this court, the non-inclusion in the title of the act on the retroactivity of the reckoning of the term
limits posed a serious constitutional breach, particularly on the provision of the constitution [sic] that
every bill must embrace only one subject to be expressed in the title thereof.

x x x the Court is of the view that the affected barangay officials were not sufficiently given notice
that they were already disqualified by a new act, when under the previous enactments no such
restrictions were imposed.

Even if this Court would apply the usual test in determining the sufficiency of the title of the bill, the
challenged law would still be insufficient for how can a retroactivity of the term limits be germane to
the synchronization of an election x x x x.4

The COMELEC moved to reconsider this decision but the RTC denied the motion. Hence, the
present petition on a pure question of law.

The Petition

The COMELEC takes the position that the assailed law is valid and constitutional. RA No. 9164 is an
amendatory law to RA No. 7160 (the Local Government Code of 1991 or LGC) and is not a penal
law; hence, it cannot be considered an ex post facto law. The three-term limit, according to the
COMELEC, has been specifically provided in RA No. 7160, and RA No. 9164 merely restated the
three-term limitation. It further asserts that laws which are not penal in character may be applied
retroactively when expressly so provided and when it does not impair vested rights. As there is no
vested right to public office, much less to an elective post, there can be no valid objection to the
alleged retroactive application of RA No. 9164.
The COMELEC also argues that the RTC’s invalidation of RA No. 9164 essentially involves the
wisdom of the law – the aspect of the law that the RTC has no right to inquire into under the
constitutional separation of powers principle. The COMELEC lastly argues that there is no violation
of the one subject-one title rule, as the matters covered by RA No. 9164 are related; the assailed
provision is actually embraced within the title of the law.

THE COURT’S RULING

We find the petition meritorious. The RTC legally erred when it declared the challenged proviso
unconstitutional.

Preliminary Considerations

We find it appropriate, as a preliminary matter, to hark back to the pre-1987 Constitution history of
the barangaypolitical system as outlined by this Court in David v. COMELEC,5 and we quote:

As a unit of government, the barangay antedated the Spanish conquest of the Philippines. The word
"barangay" is derived from the Malay "balangay," a boat which transported them (the Malays) to
these shores. Quoting from Juan de Plasencia, a Franciscan missionary in 1577, Historian Conrado
Benitez wrote that the barangay was ruled by a dato who exercised absolute powers of government.
While the Spaniards kept the barangay as the basic structure of government, they stripped
the dato or rajah of his powers. Instead, power was centralized nationally in the governor general
and locally in the encomiendero and later, in the alcalde mayor and the gobernadorcillo.
The datoor rajah was much later renamed cabeza de barangay, who was elected by the local
citizens possessing property. The position degenerated from a title of honor to that of a "mere
government employee. Only the poor who needed a salary, no matter how low, accepted the post."

After the Americans colonized the Philippines, the barangays became known as "barrios." For some
time, the laws governing barrio governments were found in the Revised Administrative Code of 1916
and later in the Revised Administrative Code of 1917. Barrios were granted autonomy by the original
Barrio Charter, RA 2370, and formally recognized as quasi-municipal corporations by the Revised
Barrio Charter, RA 3590. During the martial law regime, barrios were "declared" or renamed
"barangays" -- a reversion really to their pre-Spanish names -- by PD. No. 86 and PD No. 557. Their
basic organization and functions under RA 3590, which was expressly "adopted as
the Barangay Charter," were retained. However, the titles of the officials were changed to
"barangay captain," "barangaycouncilman," "barangay secretary" and "barangay treasurer."

Pursuant to Sec. 6 of Batas Pambansa Blg. 222, "a Punong Barangay (Barangay Captain) and
six Kagawads ngSangguniang Barangay (Barangay Councilmen), who shall constitute the presiding
officer and members of the Sangguniang Barangay (Barangay Council) respectively" were first
elected on May 17, 1982. They had a term of six years which began on June 7, 1982.

The Local Government Code of 1983 also fixed the term of office of local elective officials at six
years. Under this Code, the chief officials of the barangay were the punong barangay, six
elective sangguniang barangay members, the kabataang barangay chairman, a barangay secretary
and a barangay treasurer.

B.P. Blg. 881, the Omnibus Election Code, reiterated that barangay officials "shall hold office for six
years," and stated that their election was to be held "on the second Monday of May nineteen
hundred and eighty eight and on the same day every six years thereafter." [Emphasis supplied.]

The 1987 Philippine Constitution extended constitutional recognition to barangays under Article X,
Section 1 by specifying barangays as one of the territorial and political subdivisions of the country,
supplemented by Section 8 of the same Article X, which provides:

SEC. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected. [Emphasis
supplied.]

The Constitutional Commission’s deliberations on Section 8 show that the authority of Congress to
legislate relates not only to the fixing of the term of office of barangay officials, but also to the
application of the three-term limit. The following deliberations of the Constitutional Commission are
particularly instructive on this point:

MR. NOLLEDO: One clarificatory question, Madam President. What will be the term of the
office of barangayofficials as provided for?

MR. DAVIDE: As may be determined by law.

MR. NOLLEDO: As provided for in the Local Government Code?

MR. DAVIDE: Yes.

xxx xxx xxx

THE PRESIDENT: Is there any other comment? Is there any objection to this proposed new
section as submitted by Commissioner Davide and accepted by the Committee?

MR. RODRIGO: Madam President, does this prohibition to serve for more than three
consecutive terms apply to barangay officials?

MR. DAVIDE: Madam President, the voting that we had on the terms of office did not include
the barangayofficials because it was then the stand of the Chairman of the Committee on
Local Governments that the term of barangay officials must be determined by law. So it is
now for the law to determine whether the restriction on the number of reelections will be
included in the Local Government Code.

MR. RODRIGO: So that is up to Congress to decide.

MR. DAVIDE: Yes.

MR. RODRIGO: I just wanted that clear in the record."6 [Emphasis supplied.]

After the effectivity of the 1987 Constitution, the barangay election originally scheduled by Batas
Pambansa Blg. 8817 on the second Monday of May 1988 was reset to "the second Monday of
November 1988 and every five years thereafter by RA No. 6653."8 Section 2 of RA No. 6653
changed the term of office of barangay officials and introduced a term limitation as follows:

SEC. 2. The term of office of barangay officials shall be for five (5) years from the first day of
January following their election. Provided, however, That no kagawad shall serve for more than two
(2) consecutive terms. [Emphasis supplied]

Under Section 5 of RA No. 6653, the punong barangay was to be chosen by seven kagawads from
among themselves, and they in turn, were to be elected at large by the barangay electorate.
The punong barangay, under Section 6 of the law, may be recalled for loss of confidence by an
absolute majority vote of the Sangguniang Barangay, embodied in a resolution that shall necessarily
include the punong barangay’s successor.

The election date set by RA No. 6653 on the second Monday of November 1988 was postponed yet
again to March 28, 1989 by RA No. 6679 whose pertinent provision states:

SEC. 1. The elections of barangay officials set on the second Monday of November 1988 by
Republic Act No. 6653 are hereby postponed and reset to March 28, 1989. They shall serve a term
which shall begin on the first day of May 1989 and ending on the thirty-first day of May 1994.

There shall be held a regular election of barangay officials on the second Monday of May 1994 and
on the same day every five (5) years thereafter. Their term shall be for five (5) years which shall
begin on the first day of June following the election and until their successors shall have been
elected and qualified: Provided, That no barangayofficial shall serve for more than three (3)
consecutive terms.

The barangay elections shall be nonpartisan and shall be conducted in an expeditious and
inexpensive manner.
Significantly, the manner of election of the punong barangay was changed –

Section 5 of the law provided that while the seven kagawads were to be elected by the registered
voters of the barangay, "(t)he candidate who obtains the highest number of votes shall be the
punong barangay and in the event of a tie, there shall be a drawing of lots under the supervision of
the Commission on Elections."

More than two (2) years after the 1989 barangay elections, RA No. 7160 (the LGC) introduced the
following changes in the law:

SEC. 41. Manner of Election. -- (a) The x x x punong barangay shall be elected at large x x x by the
qualified voters" therein.

SEC. 43. Term of Office. - (a) The term of office of all local elective officials elected after the
effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or such date as
may be provided for by law, except that of elective barangay officials: Provided, That all local officials
first elected during the local elections immediately following the ratification of the 1987 Constitution
shall serve until noon of June 30, 1992.

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which the elective official
concerned was elected.

(c) The term of office of barangay officials and members of the sangguniang kabataan shall
be for three (3) years, which shall begin after the regular election of barangay officials on the
second Monday of May 1994.

SEC. 387. Chief Officials and Offices. -- (a) There shall be in each barangay a punong barangay,
seven (7) sangguniang barangay members, the sangguniang kabataan chairman,
a barangay secretary and a barangaytreasurer.

xxxxxxxxx

SEC. 390. Composition. -- The Sangguniang barangay, the legislative body of the barangay, shall be
composed of the punong barangay as presiding officer, and the seven (7) regular sanguniang
barangay members elected at large and the sanguniang kabataan chairman as members.
[Emphasis supplied.]

This law started the direct and separate election of the punong barangay by the "qualified voters" in
the barangayand not by the seven (7) kagawads from among themselves.9

Subsequently or on February 14, 1998, RA No. 8524 changed the three-year term of office
of barangay officials under Section 43 of the LGC to five (5) years. On March 19, 2002, RA No. 9164
introduced the following significant changes: (1) the term of office of barangay officials was again
fixed at three years on the reasoning that the barangay officials should not serve a longer term than
their supervisors;10 and (2) the challenged proviso, which states that the 1994 election shall be the
reckoning point for the application of the three-term limit, was introduced. Yet another change was
introduced three years after or on July 25, 2005 when RA No. 9340 extended the term of the then
incumbent barangay officials – due to expire at noon of November 30, 2005 under RA No. 9164 – to
noon of November 30, 2007. The three-year term limitation provision survived all these changes.

Congress’ Plenary Power to Legislate Term Limits for Barangay Officials and Judicial Power

In passing upon the issues posed to us, we clarify at the outset the parameters of our powers.

As reflected in the above-quoted deliberations of the 1987 Constitution, Congress has plenary
authority under the Constitution to determine by legislation not only the duration of the term
of barangay officials, but also the application to them of a consecutive term limit. Congress invariably
exercised this authority when it enacted no less than six (6) barangay-related laws since 1987.

Through all these statutory changes, Congress had determined at its discretion both the length of
the term of office of barangay officials and their term limitation. Given the textually demonstrable
commitment by the 1987 Constitution to Congress of the authority to determine the term duration
and limition of barangay officials under the Constitution, we consider it established that whatever
Congress, in its wisdom, decides on these matters are political questions beyond the pale of judicial
scrutiny,11 subject only to the certiorari jurisdiction of the courts provided under Section 1, Article VIII
of the Constitution and to the judicial authority to invalidate any law contrary to the Constitution.12

Political questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government; it is concerned with issues
dependent upon the wisdom, not legality of a particular measure."13 These questions, previously
impervious to judicial scrutiny can now be inquired into under the limited window provided by Section
1, Article VIII. Estrada v. Desierto14 best describes this constitutional development, and we quote:

To a great degree, the 1987 Constitution has narrowed the reach of the political doctrine when it
expanded the power of judicial review of this court not only to settle actual controversies involving
rights which are legally demandable and enforceable but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt
not’s" of the Constitution directed against the exercise of its jurisdiction. With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. xxxx

Thus, we can inquire into a congressional enactment despite the political question doctrine, although
the window provided us is narrow; the challenge must show grave abuse of discretion to justify our
intervention.

Other than the Section 1, Article VIII route, courts can declare a law invalid when it is contrary to any
provision of the Constitution. This requires the appraisal of the challenged law against the legal
standards provided by the Constitution, not on the basis of the wisdom of the enactment. To justify
its nullification, the breach of the Constitution must be clear and unequivocal, not a doubtful or
equivocal one, as every law enjoys a strong presumption of constitutionality.15 These are the hurdles
that those challenging the constitutional validity of a law must overcome.

The present case, as framed by the respondents, poses no challenge on the issue of grave abuse of
discretion. The legal issues posed relate strictly to compliance with constitutional standards. It is
from this prism that we shall therefore resolve this case.

The Retroactive Application Issue

a. Interpretative / Historical Consideration

The respondents’ first objection to the challenged proviso’s constitutionality is its purported
retroactive application of the three-term limit when it set the 1994 barangay elections as a reckoning
point in the application of the three-term limit.

The respondents argued that the term limit, although present in the previous laws, was not in RA No.
7160 when it amended all previous barangay election laws. Hence, it was re-introduced for the first
time by RA No. 9164 (signed into law on March 19, 2002) and was applied retroactively when it
made the term limitation effective from the 1994 barangay elections. As the appealed ruling quoted
above shows, the RTC fully agreed with the respondents’ position.

Our first point of disagreement with the respondents and with the RTC is on their position that a
retroactive application of the term limitation was made under RA No. 9164. Our own reading shows
that no retroactive application was made because the three-term limit has been there all along as
early as the second barangay law (RA No. 6679) after the 1987 Constitution took effect; it was
continued under the LGC and can still be found in the current law. We find this obvious from a
reading of the historical development of the law.

The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it
imposed a two-consecutive term limit. After only six months, Congress, under RA No. 6679 (1988),
changed the two-term limit by providing for a three-consecutive term limit. This consistent imposition
of the term limit gives no hint of any equivocation in the congressional intent to provide a term
limitation. Thereafter, RA No. 7160 – the LGC – followed, bringing with it the issue of whether it
provided, as originally worded, for a three-term limit for barangay officials. We differ with the RTC
analysis of this issue.

Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is divided into several
chapters dealing with a wide range of subject matters, all relating to local elective officials, as
follows: a. Qualifications and Election (Chapter I); b. Vacancies and Succession (Chapter II), c.
Disciplinary Actions (Chapter IV) and d. Recall (Chapter V). Title II likewise contains a chapter on
Local Legislation (Chapter III).

These Title II provisions are intended to apply to all local elective officials, unless the contrary is
clearly provided. A contrary application is provided with respect to the length of the term of office
under Section 43(a); while it applies to all local elective officials, it does not apply
to barangay officials whose length of term is specifically provided by Section 43(c). In contrast to this
clear case of an exception to a general rule, the three-term limit under Section 43(b) does not
contain any exception; it applies to all local elective officials who must perforce
include barangay officials.

An alternative perspective is to view Sec. 43(a), (b) and (c) separately from one another as
independently standing and self-contained provisions, except to the extent that they expressly relate
to one another. Thus, Sec. 43(a) relates to the term of local elective officials,
except barangay officials whose term of office is separately provided under Sec. 43(c). Sec. 43(b),
by its express terms, relates to all local elective officials without any exception. Thus, the term
limitation applies to all local elective officials without any exclusion or qualification.

Either perspective, both of which speak of the same resulting interpretation, is the correct legal
import of Section 43 in the context in which it is found in Title II of the LGC.
1avv phi 1

To be sure, it may be argued, as the respondents and the RTC did, that paragraphs (a) and (b) of
Section 43 are the general law for elective officials (other than barangay officials); and paragraph (c)
is the specific law on barangayofficials, such that the silence of paragraph (c) on term limitation
for barangay officials indicates the legislative intent to exclude barangay officials from the application
of the three-term limit. This reading, however, is flawed for two reasons.

First, reading Section 43(a) and (b) together to the exclusion of Section 43(c), is not justified by the
plain texts of these provisions. Section 43(a) plainly refers to local elective officials, except
elective barangay officials. In comparison, Section 43(b) refers to all local elective officials without
exclusions or exceptions. Their respective coverages therefore vary so that one cannot be said to be
of the same kind as the other. Their separate topics additionally strengthen their distinction; Section
43(a) refers to the term of office while Section 43(b) refers to the three-term limit. These differences
alone indicate that Sections 43(a) and (b) cannot be read together as one organic whole in the way
the RTC suggested. Significantly, these same distinctions apply between Sec. 43(b) and (c).

Second, the RTC interpretation is flawed because of its total disregard of the historical background
of Section 43(c) – a backdrop that we painstakingly outlined above.

From a historical perspective of the law, the inclusion of Section 43(c) in the LGC is an absolute
necessity to clarify the length of term of barangay officials. Recall that under RA No. 6679, the term
of office of barangay officials was five (5) years. The real concern was how Section 43 would
interface with RA No. 6679. Without a categorical statement on the length of the term of office
of barangay officials, a general three-year term for all local elective officials under Section 43(a),
standing alone, may not readily and completely erase doubts on the intended abrogation of the 5-
year term for barangay officials under RA No. 6679. Thus, Congress added Section 43(c) which
provided a categorical three-year term for these officials. History tells us, of course, that the
unequivocal provision of Section 43(c) notwithstanding, an issue on what is the exact term of office
of barangay officials was still brought to us via a petition filed by no less than the President of
the Liga ng Mga Barangay in 1997. We fully resolved the issue in the cited David v. Comelec.

Section 43(c) should therefore be understood in this context and not in the sense that it intended to
provide the complete rule for the election of barangay officials, so that in the absence of any term
limitation proviso under this subsection, no term limitation applies to barangay officials. That
Congress had the LGC’s three-term limit in mind when it enacted RA No. 9164 is clear from the
following deliberations in the House of Representatives (House) on House Bill No. 4456 which later
became RA No. 9164:

MARCH 5, 2002:

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Majority Leader.

REP. ESCUDERO. Mr. Speaker, next to interpellate is the Gentleman from Zamboanga City. I ask
that the Honorable Lobregat be recognized.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). The Honorable Lobregat is recognized.

REP. LOBREGAT. Thank you very much, Mr. Speaker. Mr. Speaker, this is just …

REP. MACIAS. Willingly to the Gentleman from Zamboanga City.

REP. LOBREGAT. … points of clarification, Mr. Speaker, the term of office. It says in Section 4, "The
term of office of all Barangay and sangguniang kabataan officials after the effectivity of this Act shall
be three years." Then it says, "No Barangay elective official shall serve for more than three (3)
consecutive terms in the same position."

Mr. Speaker, I think it is the position of the committee that the first term should be reckoned from
election of what year, Mr. Speaker?

REP. MACIAS. After the adoption of the Local Government Code, Your Honor. So that the first
election is to be reckoned on, would be May 8, 1994, as far as the Barangay election is concerned.

REP. LOBREGAT. Yes, Mr. Speaker. So there was an election in 1994.

REP. MACIAS. Then an election in 1997.

REP. LOBREGAT. There was an election in 1997. And there will be an election this year …

REP. LOBREGAT. … election this year.

REP. MACIAS. That is correct. This will be the third.

xxx xxx xxx

REP. SUMULONG. Mr. Speaker.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.) The Honorable Sumulong is recognized.

REP. SUMULONG. Again, with the permission of my Chairman, I would like to address the question
of Congressman Lobregat.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Please proceed.

REP. SUMULONG. With respect to the three-year consecutive term limits of Barangay Captains that
is not provided for in the Constitution and that is why the election prior to 1991 during the enactment
of the Local Government Code is not counted because it is not in the Constitution but in the Local
Government Code where the three consecutive term limits has been placed. [Emphasis supplied.]

which led to the following exchanges in the House Committee on Amendments:

March 6, 2002

COMMITTEE ON AMENDMENTS

REP. GONZALES. May we now proceed to committee amendment, if any, Mr. Speaker.
THE DEPUTY SPEAKER (Rep. Gonzalez). The Chair recognizes the distinguished Chairman of the
Committee on Suffrage and Electoral Reforms.

REP. SYJUCO. Mr. Speaker, on page 2, line 7, after the word "position", substitute the period (.) and
add the following: PROVIDED HOWEVER THAT THE TERM OF OFFICE SHALL BE RECKONED
FROM THE 1994 BARANGAY ELECTIONS. So that the amended Section 4 now reads as follows:

"SEC. 4. Term of Office. – The term of office of all barangay and sangguniang kabataan officials
after the effectivity of this Act shall be three (3) years.

No barangay elective local official shall serve for more than three (3) consecutive terms in the same
position COLON (:) PROVIDED, HOWEVER, THAT THE TERM OF OFFICE SHALL BE
RECKONED FROM THE 1994 BARANGAY ELECTIONS. Voluntary renunciation of office for any
length of time shall not be considered as an interruption in the continuity of service for the full term
for which the elective official was elected.

The House therefore clearly operated on the premise that the LGC imposed a three-term limit
for barangay officials, and the challenged proviso is its way of addressing any confusion that may
arise from the numerous changes in the law.

All these inevitably lead to the conclusion that the challenged proviso has been there all along and
does not simply retroact the application of the three-term limit to the barangay elections of 1994.
Congress merely integrated the past statutory changes into a seamless whole by coming up with the
challenged proviso.

With this conclusion, the respondents’ constitutional challenge to the proviso – based on retroactivity
– must fail.

b. No Involvement of Any Constitutional Standard

Separately from the above reason, the constitutional challenge must fail for a more fundamental
reason – the respondents’ retroactivity objection does not involve a violation of any constitutional
standard.

Retroactivity of laws is a matter of civil law, not of a constitutional law, as its governing law is the
Civil Code,16 not the Constitution. Article 4 of the Civil Code provides that laws shall have no
retroactive effect unless the contrary is provided. The application of the Civil Code is of course self-
explanatory – laws enacted by Congress may permissibly provide that they shall have retroactive
effect. The Civil Code established a statutory norm, not a constitutional standard.

The closest the issue of retroactivity of laws can get to a genuine constitutional issue is if a law’s
retroactive application will impair vested rights. Otherwise stated, if a right has already vested in an
individual and a subsequent law effectively takes it away, a genuine due process issue may arise.
What should be involved, however, is a vested right to life, liberty or property, as these are the ones
that may be considered protected by the due process clause of the Constitution. 1 a vv p h i 1

In the present case, the respondents never raised due process as an issue. But even assuming that
they did, the respondents themselves concede that there is no vested right to public office.17 As the
COMELEC correctly pointed out, too, there is no vested right to an elective post in view of the
uncertainty inherent in electoral exercises.

Aware of this legal reality, the respondents theorized instead that they had a right to be voted upon
by the electorate without being burdened by a law that effectively rendered them ineligible to run for
their incumbent positions. Again, the RTC agreed with this contention.

We do not agree with the RTC, as we find no such right under the Constitution; if at all, this claimed
right is merely a restatement of a claim of vested right to a public office. What the Constitution clearly
provides is the power of Congress to prescribe the qualifications for elective local posts;18 thus, the
question of eligibility for an elective local post is a matter for Congress, not for the courts, to decide.
We dealt with a strikingly similar issue in Montesclaros v. Commission on Elections19 where we ruled
that SK membership – which was claimed as a property right within the meaning of the Constitution
– is a mere statutory right conferred by law. Montesclaros instructively tells us:
Congress exercises the power to prescribe the qualifications for SK membership. One who is no
longer qualified because of an amendment in the law cannot complain of being deprived of a
proprietary right to SK membership. Only those who qualify as SK members can contest, based on a
statutory right, any act disqualifying them from SK membership or from voting in the SK elections.
SK membership is not a property right protected by the Constitution because it is a mere statutory
right conferred by law. Congress may amend at any time the law to change or even withdraw the
statutory right.

A public office is not a property right. As the Constitution expressly states, a "[P]ublic office is a
public trust." No one has a vested right to any public office, much less a vested right to an
expectancy of holding a public office. In Cornejo v. Gabriel, decided in 1920, the Court already ruled:

Again, for this petition to come under the due process of law prohibition, it would be necessary to
consider an office a "property." It is, however, well settled x x x that a public office is not
property within the sense of the constitutional guaranties of due process of law, but is a public
trust or agency. x x x The basic idea of the government x x x is that of a popular representative
government, the officers being mere agents and not rulers of the people, one where no one man or
set of men has a proprietary or contractual right to an office, but where every officer accepts office
pursuant to the provisions of the law and holds the office as a trust for the people he represents.

Petitioners, who apparently desire to hold public office, should realize from the very start that no one
has a proprietary right to public office. While the law makes an SK officer an ex-officio member of a
local government legislative council, the law does not confer on petitioners a proprietary right or
even a proprietary expectancy to sit in local legislative councils. The constitutional principle of a
public office as a public trust precludes any proprietary claim to public office. Even the State policy
directing "equal access to opportunities for public service" cannot bestow on petitioners a proprietary
right to SK membership or a proprietary expectancy to ex-officio public offices.

Moreover, while the State policy is to encourage the youth’s involvement in public affairs, this policy
refers to those who belong to the class of people defined as the youth. Congress has the power to
define who are the youth qualified to join the SK, which itself is a creation of Congress. Those who
do not qualify because they are past the age group defined as the youth cannot insist on being part
of the youth. In government service, once an employee reaches mandatory retirement age, he
cannot invoke any property right to cling to his office. In the same manner, since petitioners are now
past the maximum age for membership in the SK, they cannot invoke any property right to cling to
their SK membership. [Emphasis supplied.]

To recapitulate, we find no merit in the respondents’ retroactivity arguments because: (1) the
challenged proviso did not provide for the retroactive application to barangay officials of the three-
term limit; Section 43(b) of RA No. 9164 simply continued what had been there before; and (2) the
constitutional challenge based on retroactivity was not anchored on a constitutional standard but on
a mere statutory norm.

The Equal Protection Clause Issue

The equal protection guarantee under the Constitution is found under its Section 2, Article III, which
provides: "Nor shall any person be denied the equal protection of the laws." Essentially, the equality
guaranteed under this clause is equality under the same conditions and among persons similarly
situated. It is equality among equals, not similarity of treatment of persons who are different from one
another on the basis of substantial distinctions related to the objective of the law; when things or
persons are different in facts or circumstances, they may be treated differently in law.20

Appreciation of how the constitutional equality provision applies inevitably leads to the conclusion
that no basis exists in the present case for an equal protection challenge. The law can
treat barangay officials differently from other local elective officials because the Constitution itself
provides a significant distinction between these elective officials with respect to length of term and
term limitation. The clear distinction, expressed in the Constitution itself, is that while the Constitution
provides for a three-year term and three-term limit for local elective officials, it left the length of term
and the application of the three-term limit or any form of term limitation for determination by
Congress through legislation. Not only does this disparate treatment recognize substantial
distinctions, it recognizes as well that the Constitution itself allows a non-uniform treatment. No equal
protection violation can exist under these conditions.
From another perspective, we see no reason to apply the equal protection clause as a standard
because the challenged proviso did not result in any differential treatment between barangay officials
and all other elective officials. This conclusion proceeds from our ruling on the retroactivity issue that
the challenged proviso does not involve any retroactive application.

Violation of the Constitutional

One Subject- One Title Rule

Every bill passed by the Congress shall embrace only one subject which shall be expressed in the
title thereof. Fariñas v. Executive Secretary21 provides the reasons for this constitutional requirement
and the test for its application, as follows:

The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as
well as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an
act relating to its subject finding expression in its title.

To determine whether there has been compliance with the constitutional requirement that the subject
of an act shall be expressed in its title, the Court laid down the rule that –

Constitutional provisions relating to the subject matter and titles of statutes should not be so
narrowly construed as to cripple or impede the power of legislation. The requirement that the subject
of an act shall be expressed in its title should receive a reasonable and not a technical construction.
It is sufficient if the title be comprehensive enough reasonably to include the general object which a
statute seeks to effect, without expressing each and every end and means necessary or convenient
for the accomplishing of that object. Mere details need not be set forth. The title need not be an
abstract or index of the Act.

xxxx

x x x This Court has held that an act having a single general subject, indicated in the title, may
contain any number of provisions, no matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may be considered in furtherance of such
subject by providing for the method and means of carrying out the general subject.

xxxx

x x x Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be
embraced in its title is to apprise the legislators of the purposes, the nature and scope of its
provisions, and prevent the enactment into law of matters which have not received the notice, action
and study of the legislators and the public.

We find, under these settled parameters, that the challenged proviso does not violate the one
subject-one title rule.

First, the title of RA No. 9164, "An Act Providing for

Synchronized Barangay and Sangguniang Kabataang Elections, amending Republic Act No. 7160,
as amended, otherwise known as the Local Government Code of 1991," states the law’s general
subject matter – the amendment of the LGC to synchronize the barangay and SK elections and for
other purposes. To achieve synchronization of the barangay and SK elections, the reconciliation of
the varying lengths of the terms of office of barangay officials and SK officials is necessary. Closely
related with length of term is term limitation which defines the total number of terms for which
a barangay official may run for and hold office. This natural linkage demonstrates that term limitation
is not foreign to the general subject expressed in the title of the law.

Second, the congressional debates we cited above show that the legislators and the public they
represent were fully informed of the purposes, nature and scope of the law’s provisions. Term
limitation therefore received the notice, consideration, and action from both the legislators and the
public.

Finally, to require the inclusion of term limitation in the title of RA No. 9164 is to make the title an
index of all the subject matters dealt with by law; this is not what the constitutional requirement
contemplates.
WHEREFORE, premises considered, we GRANT the petition and accordingly AFFIRM the
constitutionality of the challenged proviso under Section 2, paragraph 2 of Republic Act No. 9164.
Costs against the respondents.

SO ORDERED.

G.R. No. 196804. October 9, 2012.*

MAYOR BARBARA RUBY C. TALAGA, petitioner,

vs.

COMMISSION ON ELECTIONS and RODERICK A. ALCALA,

respondents.

G.R. No. 197015. October 9, 2012.*

PHILIP M. CASTILLO, petitioner, vs. COMISSION ON ELECTIONS, BARBARA RUBY

TALAGA and RODERICK A. ALCALA, respondents.

Election Law; Certificates of Candidacy; Purposes of the Requirement for the Filing
of Certificates of Candidacy and in Fixing the Time Limit for Filing Them.—The evident
purposes of the requirement for the filing of CoCs and in fixing the time limit for
filing them are, namely:

(a) to enable the voters to know, at least 60 days prior to the regular election, the
candidates from among whom they are to make the choice; and

(b) to avoid confusion and inconvenience in the tabulation of the votes cast. If the law
does not confine to the duly-registered candidates the choice by the voters, there may
be as many persons voted for as there are voters, and votes may be cast even for
unknown or fictitious persons as a mark to identify the votes in favor of a candidate for
another office in the same election.

Same; Remedies to Prevent a Candidate from Running in an Electoral Race.—There

are two remedies available to prevent a candidate from running in an electoral race.
One is through a petition for disqualification and the other through a petition to deny due
course to or cancel a certificate of candidacy. The Court differentiated the two remedies
in Fermin v. Commission on Elections, 574 SCRA 782 (2008), thuswise: x x x [A]
petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
[Omnibus Election Code], or Section 40 of the [Local Government Code]. On the other
hand, a petition to deny due course to or cancel a CoC can only be grounded on a
statement of a material representation in the said certificate that is false. The petitions
also have different effects. While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, the person whose certificate is cancelled
or denied due course under Section 78 is not treated as a candidate at all, as if he/she
never filed a CoC.

Same; Substitution of Candidates; Omnibus Election Code (OEC); In the event that
a candidate is disqualified to run for a public office, or dies, or withdraws his Certificate
of Candidacy before the elections, Section 77 of the Omnibus Election Code provides
the option of substitution.—In the event that a candidate is disqualified to run for a
public office, or dies, or withdraws his CoC before the elections, Section 77 of the
Omnibus Election Code provides the option of substitution, to wit: Section 77.
Candidates in case of death, disqualification or withdrawal.—If after the last day for the
filing of certificates of candidacy, an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause, only a person belonging
to, and certified by, the same political party may file a certificate of candidacy to replace
the candidate who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate of candidacy for the
office affected in accordance with the preceding sections not later than mid-day of the
day of the election. If the death, withdrawal or disqualification should occur between the
day before the election and mid-day of election day, said certificate may be filed with
any board of election inspectors in the political subdivision where he is a candidate, or,
in the case of candidates to be voted for by the entire electorate of the country, with the
Commission.

Same; Same; Certificate of Candidacy; A cancelled Certificate of Candidacy does not

give rise to a valid candidacy, there can be no valid substitution of the candidate under
Section 77 of the Omnibus Election Code; Likewise, a candidate who has not withdrawn
his Certificate of Candidacy in accordance with Section 73 of the Omnibus Election
Code may not be substituted.—Considering that a cancelled CoC does not give rise to a
valid candidacy, there can be no valid substitution of the candidate under Section 77 of
the Omnibus Election Code. It should be clear, too, that a candidate who does not file a
valid CoC may not be validly substituted, because a person without a valid CoC is not
considered a candidate in much the same way as any person who has not filed a CoC
is not at all a candidate. Likewise, a candidate who has not withdrawn his CoC in
accordance with Section 73 of the Omnibus Election Code may not be substituted. A
withdrawal of candidacy can only give effect to a substitution if the substitute candidate
submits prior to the election a sworn CoC as required by Section 73 of the Omnibus
Election Code.

Same; Omnibus Election Code (OEC); A Section 78 petition should not be

interchanged or confused with a Section 68 petition. The remedies under the two
sections are different, for they are based on different grounds, and can result in different
eventualities.—It is underscored, however, that a Section 78 petition should not be
interchanged or confused with a Section 68 petition. The remedies under the two
sections are different, for they are based on different grounds, and can result in different
eventualities. A person who is disqualified under Section 68 is prohibited to continue as
a candidate, but a person whose CoC is cancelled or denied due course under Section
78 is not considered as a candidate at all because his status is that of a person who has
not filed a CoC. Miranda v. Abaya 311 SCRA 617 (1999), has clarified that a candidate
who is disqualified under Section 68 can be validly substituted pursuant to Section 77
because he remains a candidate until disqualified; but a person whose CoC has been
denied due course or cancelled under Section 78 cannot be substituted because he is
not considered a candidate.

Same; Three-Term Limit Rule; No local elective official shall serve for more than three
(3) consecutive terms in the same position.—To be sure, the cause of Ramon’s
ineligibility (i.e., the three-term limit) is enforced both by the Constitution and statutory
law. Article X, Section 8 of the 1987 Constitution provides: Section 8. The term of office
of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was
elected. Section 43 of the Local Government Code reiterates the constitutional three-
term limit for all elective local officials, to wit: Section 43. Term of Office.—(a) x x x (b)
No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected.

Same; Same; The objective of imposing the three-term limit rule was “to avoid the evil
of a single person accumulating excessive power over a particular territorial jurisdiction
as a result of a prolonged stay in the same office.”—The objective of imposing the
three-term limit rule was “to avoid the evil of a single person accumulating excessive
power over a particular territorial jurisdiction as a result of a prolonged stay in the same
office.” The Court underscored this objective in Aldovino, Jr. v. Commission on
Elections, 609 SCRA 234 (2009), stating: x x x [T]he framers of the Constitution
specifically included an exception to the people’s freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating excessive power
over a particular territorial jurisdiction as a result of a prolonged stay in the same office.
To allow petitioner Latasa to vie for the position of city mayor after having served for
three consecutive terms as a municipal mayor would obviously defeat the very intent of
the framers when they wrote this exception. Should he be allowed another three
consecutive terms as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and inhabitants for
a total of eighteen consecutive years. This is the very scenario sought to be avoided by
the Constitution, if not abhorred by it.

Same; Second-Placer Doctrine; The candidate obtaining the second highest number
of votes for the contested office could not assume the office despite the disqualification
of the first placer because the second placer was “not the choice of the sovereign will.”
Surely, the Supreme Court explained, a minority or defeated candidate could not be
deemed elected to the office.—Castillo could not assume the office for he was only a
second placer. Labo, Jr. should be applied. There, the Court emphasized that the
candidate obtaining the second highest number of votes for the contested office could
not assume the office despite the disqualification of the first placer because the second
placer was “not the choice of the sovereign will.” Surely, the Court explained, a minority
or defeated candidate could not be deemed elected to the office. There was to be no
question that the second placer lost in the election, was repudiated by the electorate,
and could not assume the vacated position. No law imposed upon and compelled the
people of Lucena City to accept a loser to be their political leader or their representative.
Same; Same; The only time that a second placer is allowed to take the place of a
disqualified winning candidate is when two requisites concur, namely:

(a) the candidate who obtained the highest number of votes is disqualified; and

(b) the electorate was fully aware in fact and in law of that candidate’s disqualification as
to bring such awareness within the realm of notoriety but the electorate still cast the
plurality of the votes in favor of the ineligible candidate.—The only time that a second
placer is allowed to take the place of a disqualified winning candidate is when two
requisites concur, namely: (a) the candidate who obtained the highest number of votes
is disqualified; and (b) the electorate was fully aware in fact and in law of that
candidate’s disqualification as to bring such awareness within the realm of notoriety but
the electorate still cast the plurality of the votes in favor of the ineligible candidate.
Under this sole exception, the electorate may be said to have waived the validity and
efficacy of their votes by notoriously misapplying their franchise or throwing away their
votes, in which case the eligible candidate with the second highest number of votes may
be deemed elected.

Same; Substitution of Candidates; The COMELEC En Banc properly disqualified

Barbara Ruby from assuming the position of Mayor of Lucena City because:

(1) there was no valid candidate for her to substitute due to Ramon’s ineligibility;

(2) Ramon did not voluntarily withdraw his Certificate of Candidacy before the elections;
and

(3) She was not an additional candidate for the position of Mayor of Lucena City
because her filing of her Certificate of Candidacy on May 4, 2010 was beyond the
period fixed by law.—The COMELEC En Banc properly disqualified Barbara Ruby from
assuming the position of Mayor of Lucena City. To begin with, there was no valid
candidate for her to substitute due to Ramon’s ineligibility. Also, Ramon did not
voluntarily withdraw his CoC before the elections in accordance with Section 73 of the
Omnibus Election Code. Lastly, she was not an additional candidate for the position of
Mayor of Lucena City because her filing of her CoC on May 4, 2010 was beyond the
period fixed by law. Indeed, she was not, in law and in fact, a candidate. A permanent
vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should
be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:

Section 44. Permanent Vacancies in the Office of the Governor, Vice-Governor,

Mayor, and Vice-Mayor.—If a permanent vacancy occurs in the Office of the governor
or mayor, the vice-governor or vice-mayor concerned shall become the governor or
mayor.

DECISION

BERSAMIN, J.:

In focus in these consolidated special civil actions are the disqualification of a substitute who was
proclaimed the winner of a mayoralty election; and the ascertainment of who should assume the
office following the substitute’s disqualification.

The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution issued
on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the dispositive
portion of which states:

WHEREFORE, judgment is hereby rendered:

1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second
Division;

2. GRANTING the petition in intervention of Roderick A. Alcala;

3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as mayor of

Lucena City and CANCELLING the Certificate of Canvass and Proclamation issued therefor;

4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the
functions of the Office of the Mayor;

5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44 of
the Local Government Code;

6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution to
the Office of the President of the Philippines, the Department of Interior and Local
Government, the Department of Finance and the Secretary of the Sangguniang Panglunsod
of Lucena City.

Let the Department of Interior and Local Government and the Regional Election Director of Region
IV of COMELEC implement this resolution.

SO ORDERED.1

Antecedents

On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo
(Castillo) respectively filed their certificates of candidacy (CoCs) for the position of Mayor of Lucena
City to be contested in the scheduled May 10, 2010 national and local elections.2

Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was eligible for
the office he was seeking to be elected to.

Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition denominated
as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of Candidacy of Ramon
Y. Talaga, Jr. as Mayor for Having Already Served Three (3) Consecutive Terms as a City Mayor of
Lucena, which was docketed as SPA 09-029 (DC).4 He alleged

therein that Ramon, despite knowing that he had been elected and had served three consecutive
terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010
national and local elections.

The pertinent portions of Castillo’s petition follow:

 1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao Crossing,
Lucena City but may be served with summons and other processes of this Commission at
the address of his counsel at 624 Aurora Blvd., Lucena City 4301;

2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of
Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the City Mayor,
City Hall, Lucena City, where he may be served with summons and other processes of this
Commission;

3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the 2007
local elections, is running for city mayor of Lucena under the Liberal party this coming 10
May 2010 local elections and has filed his certificate of candidacy for city mayor of Lucena;

4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local
elections based on the records of the Commission on Elections of Lucena City and had fully
served the aforesaid three (3) terms without any voluntary and involuntary interruption;

5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October 2005,
the public service as city mayor of the respondent is continuous and uninterrupted under the
existing laws and jurisprudence;

6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of the
respondent, hence, such act is outrightly unconstitutional, illegal, and highly immoral;

7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for City
Mayor of Lucena for this coming 10 May 2010 national and local elections;

8. Under the Constitution and existing Election Laws, New Local Government Code of the
Philippines, and jurisprudence the respondent is no longer entitled and is already disqualified
to be a city mayor for the fourth consecutive term;

9. The filing of the respondent for the position of city mayor is highly improper, unlawful and
is potentially injurious and prejudicial to taxpayers of the City of Lucena; and

10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City based
on the existing law and jurisprudence.5

The petition prayed for the following reliefs, to wit:

WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed
by the respondent be denied due course to or cancel the same and that he be declared as a
disqualified candidate under the existing Election Laws and by the provisions of the New Local
Government Code.6 (Emphasis supplied.)

Ramon countered that that the Sandiganbayan had preventively suspended him from office during
his second and third terms; and that the three-term limit rule did not then apply to him pursuant to
the prevailing jurisprudence7 to the effect that an involuntary separation from office amounted to an
interruption of continuity of service for purposes of the application of the three-term limit rule.

In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary incapacity,
was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on December 30,
2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve, taking into account the
intervening ruling in Aldovino. Relevant portions of his Manifestation with Motion to Resolve are
quoted herein, viz:

4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City, the
rule that ‘where the separation from office is caused by reasons beyond the control of the officer –
i.e. involuntary – the service of term is deemed interrupted’ has not yet been overturned by the new
ruling of the Supreme Court. As a matter of fact, the prevailing rule then of the Honorable
Commission in [sic] respect of the three (3)-term limitation was its decision in the case of Aldovino,
et al. vs. Asilo where it stated:

"Thus, even if respondent was elected during the 2004 elections, which was supposedly his third
and final term as city councilor, the same cannot be treated as a complete service or full term in
office since the same was interrupted when he was suspended by the Sandiganbayan Fourth
Division. And the respondent actually heeded the suspension order since he did not receive his
salary during the period October 16-31 and November 1-15 by reason of his actual suspension from
office. And this was further bolstered by the fact that the DILG issued a

Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)

5. Clearly, there was no misrepresentation on the part of respondent as would constitute a ground
for the denial of due course to and/or the cancellation of respondent’s certificate of candidacy at the
time he filed the same. Petitioner’s ground for the denial of due course to and/or the cancellation of
respondent’s certificate of candidacy thus has no basis, in fact and in law, as there is no ground to
warrant such relief under the Omnibus Election Code and/or its implementing laws.

6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the three
(3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for the position of
Mayor of Lucena City having served three (3) (albeit interrupted) terms as Mayor of Lucena City prior
to the filing of his certificate of candidacy for the 2010 elections.

7. In view of the foregoing premises and new jurisprudence on the matter, respondent respectfully
submits the present case for decision declaring him as DISQUALIFIED to run for the position of
Mayor of Lucena City.9

Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in the
May 10, 2010 national and local elections, Ramon did not withdraw his CoC.

Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division issued a
Resolution on April 19, 2010,10 disposing as follows:

WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly, Ramon
Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for the 10 May
2010 National and Local Elections.

SO ORDERED.

Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010 Resolution of
the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4, 2010 an Ex-parte
Manifestation of Withdrawal of the Pending Motion for Reconsideration.12 At 4:30 p.m. on the same
date, Barbara Ruby filed her own CoC for Mayor of Lucena City in substitution of Ramon, attaching
thereto the Certificate of Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the
party that had nominated Ramon.13

On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of Withdrawal,
declared the COMELEC First Division’s Resolution dated April 19, 2010 final and executory.14

On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the votes
cast in his favor were counted in favor of Barbara Ruby as his substitute candidate, resulting in
Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s 39,615 votes.15

Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the suspension of
Barbara Ruby’s proclamation.16

It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its Law
Department,17gave due course to Barbara Ruby’s CoC and CONA through Resolution No. 8917,
thereby including her in the certified list of candidates.18 Consequently, the CBOC proclaimed
Barbara Ruby as the newly-elected Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute Ramon
because his CoC had been cancelled and denied due course; and Barbara Ruby could not be
considered a candidate because the COMELEC En Banc had approved her substitution three days
after the elections; hence, the votes cast for Ramon should be considered stray.

In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained the
validity of her substitution. She countered that the COMELEC En Banc did not deny due course to or
cancel Ramon’s COC, despite a declaration of his disqualification, because there was no finding that
he had committed misrepresentation, the ground for the denial of due course to or cancellation of his
COC. She prayed that with her valid substitution, Section 12 of Republic Act No. 9006 22 applied,
based on which the votes cast for Ramon were properly counted in her favor.

On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought to
intervene,23positing that he should assume the post of Mayor because Barbara Ruby’s substitution
had been invalid and Castillo had clearly lost the elections.

On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and Alcala’s
petition-in-intervention,24 holding:

In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis for
the proclamation of Ruby on that date. He, however, failed to file any action within the prescribed
period either in the Commission or the Supreme Court assailing the said resolution. Thus, the said
resolution has become final and executory. It cannot anymore be altered or reversed.

xxxx

x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was actually
for the disqualification of Ramon for having served three consecutive terms, which is a ground for his
disqualification under the Constitution in relation to Section 4(b)3 of Resolution 8696. There was no
mention therein that Ramon has committed material representation that would be a ground for the
cancellation or denial of due course to the CoC of Ramon under Section 78 of the Omnibus Election
Code. The First Division, in fact, treated the petition as one for disqualification as gleaned from the
body of the resolution and its dispositive portion quoted above. This treatment of the First Division of
the petition as one for disqualification only is affirmed by the fact that its members signed Resolution
No. 8917 where it was clearly stated that the First Division only disqualified Ramon.

Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable. Ramon
was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered as stray votes
but should be counted in favor of Ruby since the substituted and the substitute carry the same
surname – Talaga, as provided in Section 12 of Republic Act No. 9006.

xxxx

Moreover, there is no provision in the Omnibus Election Code or any election laws for that matter
which requires that the substitution and the Certificate of Candidacy of the substitute should be
approved and given due course first by the Commission or the Law Department before it can be
considered as effective. All that Section 77 of the Omnibus Election Code as implemented by
Section 13 of Resolution No. 8678 requires is that it should be filed with the proper office. The
respondent is correct when she argued that in fact even the BEI can receive a CoC of a substitute
candidate in case the cause for the substitution happened between the day before the election and
mid-day of election day. Thus, even if the approval of the substitution was made after the election,
the substitution became effective on the date of the filing of the CoC with the Certificate of
Nomination and Acceptance.

There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of Lucena
City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation, thus, of Ruby
as mayor elect of Lucena City is in order. Hence, we find no cogent reason to annul the proclamation
of respondent Barbara Ruby C. Talaga as the duly elected Mayor of the City of Lucena after the
elections conducted on May 10, 2010.25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En Banc
issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second Division’s
ruling.26

Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a hearing as
a mere incident of the COMELEC’s ministerial duty to receive the COCs of substitute candidates; (b)
Resolution No. 8917 was based on the wrong facts; and (c) Ramon’s disqualification was resolved
with finality only on May 5, 2010, the COMELEC En Banc concluded that Barbara Ruby could not
have properly substituted Ramon but had simply become an additional candidate who had filed her
COC out of time; and held that Vice Mayor Alcala should succeed to the position pursuant to Section
44 of the Local Government Code (LGC).27

Issues

The core issue involves the validity of the substitution by Barbara Ruby as candidate for the position
of Mayor of Lucena City in lieu of Ramon, her husband.

Ancillary to the core issue is the determination of who among the contending parties should assume
the contested elective position.

Ruling

The petitions lack merit.

1.

Existence of a valid CoC is a condition

sine qua non for a valid substitution

The filing of a CoC within the period provided by law is a mandatory requirement for any person to
be considered a candidate in a national or local election. This is clear from Section 73 of the
Omnibus Election Code, to wit:

Section 73. Certificate of candidacy — No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.

Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:

Section 74. Contents of certificate of candidacy.—The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for said
office; if for Member of the Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to
the best of his knowledge. x x x

The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for filing
them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular election, the
candidates from among whom they are to make the choice; and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. If the law does not confine to the duly-registered
candidates the choice by the voters, there may be as many persons voted for as there are voters,
and votes may be cast even for unknown or fictitious persons as a mark to identify the votes in favor
of a candidate for another office in the same election.28 Moreover, according to Sinaca v. Mula,29 the
CoC is:

x x x in the nature of a formal manifestation to the whole world of the candidate’s political creed or
lack of political creed. It is a statement of a person seeking to run for a public office certifying that he
announces his candidacy for the office mentioned and that he is eligible for the office, the name of
the political party to which he belongs, if he belongs to any, and his post-office address for all
election purposes being as well stated.

Accordingly, a person’s declaration of his intention to run for public office and his affirmation that he
possesses the eligibility for the position he seeks to assume, followed by the timely filing of such
declaration, constitute a valid CoC that render the person making the declaration a valid or official
candidate.

There are two remedies available to prevent a candidate from running in an electoral race. One is
through a petition for disqualification and the other through a petition to deny due course to or cancel
a certificate of candidacy. The Court differentiated the two remedies in Fermin v. Commission on
Elections,30 thuswise:

x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a petition
to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While a
person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the
person whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.31

Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code (i.e.,
prohibited acts of candidates, and the fact of a candidate’s permanent residency in another country
when that fact affects the residency requirement of a candidate) are separate and distinct from the
grounds for the cancellation of or denying due course to a COC (i.e., nuisance candidates under
Section 69 of the Omnibus Election Code; and material misrepresentation under Section 78 of the
Omnibus Election Code), the Court has recognized in Miranda v. Abaya32that the following
circumstances may result from the granting of the petitions, to wit:

(1) A candidate may not be qualified to run for election but may have filed a valid CoC;

(2) A candidate may not be qualified and at the same time may not have filed a valid CoC;
and

(3) A candidate may be qualified but his CoC may be denied due course or cancelled.

In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his CoC
before the elections, Section 77 of the Omnibus Election Code provides the option of substitution, to
wit:

Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last day for the
filing of certificates of candidacy, an official candidate of a registered or accredited political party
dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the
same political party may file a certificate of candidacy to replace the candidate who died, withdrew or
was disqualified. The substitute candidate nominated by the political party concerned may file his
certificate of candidacy for the office affected in accordance with the preceding sections not later
than mid-day of the day of the election. If the death, withdrawal or disqualification should occur
between the day before the election and mid-day of election day, said certificate may be filed with
any board of election inspectors in the political subdivision where he is a candidate, or, in the case of
candidates to be voted for by the entire electorate of the country, with the Commission.

Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a

candidate, Section 77 of the Omnibus Election Code unequivocally states that only an official
candidate of a registered or accredited party may be substituted.

Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no valid
substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear, too,
that a candidate who does not file a valid CoC may not be validly substituted, because a person
without a valid CoC is not considered a candidate in much the same way as any person who has not
filed a CoC is not at all a candidate.34

Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus
Election Code may not be substituted. A withdrawal of candidacy can only give effect to a
substitution if the substitute candidate submits prior to the election a sworn CoC as required by
Section 73 of the Omnibus Election Code.35

2.

Declaration of Ramon’s disqualification

rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted

In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition to
deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code.

In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on
the lack of qualifications but on a finding that the candidate made a material representation that is
false, which may relate to the qualifications required of the public office he/she is running for. It is
noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks.
Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory
provisions on qualifications or eligibility for public office. If the candidate subsequently states a
material representation in the CoC that is false, the COMELEC, following the law, is empowered to
deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section
78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of
the winning candidate.

Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely: (a)
Ramon made a false representation in his CoC; (b) the false representation referred to a material
matter that would affect the substantive right of Ramon as candidate (that is, the right to run for the
election for which he filed his certificate); and (c) Ramon made the false representation with the
intention to deceive the electorate as to his qualification for public office or deliberately attempted to
mislead, misinform, or hide a fact that would otherwise render him ineligible.37 The petition expressly
challenged Ramon’s eligibility for public office based on the prohibition stated in the Constitution and
the Local Government Code against any person serving three consecutive terms, and specifically
prayed that "the Certificate of Candidacy filed by the respondent Ramon be denied due course to or
cancel the same and that he be declared as a disqualified candidate."38

The denial of due course to or the cancellation of the CoC under Section 78 involves a finding not
only that a person lacks a qualification but also that he made a material representation that is
false.39 A petition for the denial of due course to or cancellation of CoC that is short of the
requirements will not be granted. In Mitra v. Commission on Elections,40 the Court stressed that there
must also be a deliberate attempt to mislead, thus:

The false representation under Section 78 must likewise be a "deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of
the requirement, it must be made with the intention to deceive the electorate as to the would-be
candidate’s qualifications for public office. Thus, the misrepresentation that Section 78 addresses
cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to
deceive is patently absent, or where no deception on the electorate results. The deliberate character
of the misrepresentation necessarily follows from a consideration of the consequences of any
material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he
cannot serve; in both cases, he can be prosecuted for violation of the election laws.

It is underscored, however, that a Section 78 petition should not be interchanged or confused with a
Section 68 petition. The remedies under the two sections are different, for they are based on
different grounds, and can result in different eventualities.41 A person who is disqualified under
Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied
due course under Section 78 is not considered as a candidate at all because his status is that of a
person who has not filed a CoC.42 Miranda v. Abaya43 has clarified that a candidate who is disqualified
under Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate
until disqualified; but a person whose CoC has been denied due course or cancelled under Section
78 cannot be substituted because he is not considered a candidate. 1âw phi 1

To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by the
Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 of the Local Government Code reiterates the constitutional three-term limit for all elective
local officials, to wit:

Section 43. Term of Office. – (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected. (Emphasis supplied.)

The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office." The Court underscored this objective in Aldovino, Jr. v. Commission on
Elections,44 stating:

x x x The framers of the Constitution specifically included an exception to the people’s freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same
office. To allow petitioner Latasa to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive terms as mayor of the
City of Digos, petitioner would then be possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.

To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from
asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his
CoC was invalid and ineffectual ab initio for containing the incurable defect consisting in his false
declaration of his eligibility to run. The invalidity and inefficacy of his CoC made his situation even
worse than that of a nuisance candidate because the nuisance candidate may remain eligible
despite cancellation of his CoC or despite the denial of due course to the CoC pursuant to Section
69 of the Omnibus Election Code.45

Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to
Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid,
considering that for all intents and purposes the COMELEC’s declaration of his disqualification had
the effect of announcing that he was no candidate at all.

We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda v.
Abaya aptly put it:

Even on the most basic and fundamental principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be substituted, for how can a person take the
place of somebody who does not exist or who never was. The Court has no other choice but to rule
that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a
valid certificate of candidacy seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in
the first place because, if the disqualified candidate did not have a valid and seasonably filed
certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he
cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called
"substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing
thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our
Constitution.47 (Emphasis supplied)

3.

Granting without any qualification of petition in

SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC

That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether his CoC
should be deemed cancelled or not.

In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not given
due course and/or cancelled." The COMELEC categorically granted "the petition" and then
pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified." The

Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel
Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The Court explained:

The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by
the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due
course and cancelled.

The Court rules that it was.

Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the
position of Mayor for the City of Santiago be not given due course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the Comelec
ruled favorably in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition.
Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of
mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No.
98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was
GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply
ruled over and above the granting of the specific prayer for denial of due course and cancellation of
the certificate of candidacy. x x x.49

xxxx

x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019
is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo,
pp. 26-31). There is likewise no question that the said petition was GRANTED without any
qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any
further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition
was granted and that the certificate of candidacy of Jose "Pempe" Miranda was denied due course
and cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of
cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to
any qualification.

Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC) specifically
sought both the disqualification of Ramon and the denial of due course to or cancellation of his CoC,
the COMELEC categorically stated in the Resolution dated April 19, 2010 that it was granting the
petition. Despite the COMELEC making no finding of material misrepresentation on the part of
Ramon, its granting of Castillo’s petition without express qualifications manifested that the
COMELEC had cancelled Ramon’s CoC based on his apparent ineligibility. The Resolution dated
April 19, 2010 became final and executory because Castillo did not move for its reconsideration, and
because Ramon later withdrew his motion for reconsideration filed in relation to it.

4.

Elected Vice Mayor must succeed

and assume the position of Mayor
due to a permanent vacancy in the office

On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the
doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to the
elections.52 Instead, he cites Cayat v. Commission on Elections,53where the Court said:

x x x In Labo there was no final judgment of disqualification before the elections. The doctrine on the
rejection of the second placer was applied in Labo and a host of other cases because the judgment
declaring the candidate’s disqualification in Labo and the other cases had not become final before
the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the
second placer have one common essential condition — the disqualification of the candidate had not
become final before the elections. This essential condition does not exist in the present case.

Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the 11
May 1992 elections. On election day itself, Labo was still legally a candidate. In the present case,
Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day,
Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy for Mayor of Buguias,
Benguet was legally non-existent in the 10 May 2004 elections.

The law expressly declares that a candidate disqualified by final judgment before an election cannot
be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:

Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be

counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension
of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis
added)

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the elections,
which is the situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the
first situation is categorical: a candidate disqualified by final judgment before an election cannot be
voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became
final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in
Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng’s
proclamation is proper because he was the sole and only candidate, second to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the position
of Mayor of Lucena City for having obtained the highest number of votes among the remaining
qualified candidates.

It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon
disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s Resolution No. 8804,55 a
decision or resolution of a Division becomes final and executory after the lapse of five days following
its promulgation unless a motion for reconsideration is seasonably filed. Under Section 8, Rule 20 of
Resolution No. 8804, the decision of the COMELEC En Banc becomes final and executory five days
after its promulgation and receipt of notice by the parties.

The COMELEC First Division declared Ramon disqualified through its Resolution dated April 19,
2010, the copy of which Ramon received on the same date.56 Ramon filed a motion for
reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC Resolution No.
8696,58 but withdrew the motion on May 4, 2010,59ostensibly to allow his substitution by Barbara
Ruby. On his part, Castillo did not file any motion for reconsideration. Such circumstances indicated
that there was no more pending matter that could have effectively suspended the finality of the ruling
in due course. Hence, the Resolution dated April 19, 2010 could be said to have attained finality
upon the lapse of five days from its promulgation and receipt of it by the parties. This happened
probably on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on the
withdrawal by Ramon of his motion for reconsideration through the May 5, 2010 Resolution declaring
the April 19, 2010 Resolution of the COMELEC First Division final and executory.

Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming final prior
to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor. Barbara Ruby’s filing of
her CoC in substitution of Ramon significantly differentiated this case from the factual circumstances
obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was disqualified on April 17,
2004, and his disqualification became final before the May 10, 2004 elections. Considering that no
substitution of Cayat was made, Thomas R. Palileng, Sr., his rival, remained the only candidate for
the mayoralty post in Buguias, Benguet. In contrast, after Barbara Ruby substituted Ramon, the May
10, 2010 elections proceeded with her being regarded by the electorate of Lucena City as a bona
fide candidate. To the electorate, she became a contender for the same position vied for by Castillo,
such that she stood on the same footing as Castillo. Such standing as a candidate negated Castillo’s
claim of being the candidate who obtained the highest number of votes, and of being consequently
entitled to assume the office of Mayor.

Indeed, Castillo could not assume the office for he was only a second placer. Labo, Jr. should be
1âwphi1

applied. There, the Court emphasized that the candidate obtaining the second highest number of
votes for the contested office could not assume the office despite the disqualification of the first
placer because the second placer was "not the choice of the sovereign will."60 Surely, the Court
explained, a minority or defeated candidate could not be deemed elected to the office.61 There was to
be no question that the second placer lost in the election, was repudiated by the electorate, and
could not assume the vacated position.62 No law imposed upon and compelled the people of Lucena
City to accept a loser to be their political leader or their representative.63

The only time that a second placer is allowed to take the place of a disqualified winning candidate is
when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is
disqualified; and (b) the electorate was fully aware in fact and in law of that candidate’s
disqualification as to bring such awareness within the realm of notoriety but the electorate still cast
the plurality of the votes in favor of the ineligible candidate.64 Under this sole exception, the electorate
may be said to have waived the validity and efficacy of their votes by notoriously misapplying their
franchise or throwing away their votes, in which case the eligible candidate with the second highest
number of votes may be deemed elected.65 But the exception did not apply in favor of Castillo simply
because the second element was absent. The electorate of Lucena City were not the least aware of
the fact of Barbara Ruby’s ineligibility as the substitute. In fact, the COMELEC En Banc issued the
Resolution finding her substitution invalid only on May 20, 2011, or a full year after the decisions.

On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming the
position of Mayor of Lucena City. To begin with, there was no valid candidate for her to substitute
due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC before the elections in
accordance with Section 73 of the Omnibus Election Code. Lastly, she was not an additional
candidate for the position of Mayor of Lucena City because her filing of her CoC on May 4, 2010 was
beyond the period fixed by law. Indeed, she was not, in law and in fact, a candidate.66
A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should
be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:67

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-
Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or
vice-mayor concerned shall become the governor or mayor. x x x

WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the
Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to pay
the costs of suit.

SO ORDERED.

G.R. No. 134213. July 20, 1999.*

ROMEO J. GAMBOA, JR., petitioner,

vs.

MARCELO AGUIRRE, JR., and JUAN Y. ARANETA, respondents.

Local Government Code; Absence; A Vice-Governor who is concurrently an Acting

Governor is actually a quasi-Governor; For purposes of exercising his legislative
prerogatives and powers, he is deemed as a non-member of the SP for the time
being.—It is correct that when the Vice-Governor exercises the “powers and duties” of
the Office of the Governor, he does not assume the latter office. He only “acts” as the
Governor but does not “become” the Governor. His assumption of the powers, duties
and functions of the provincial Chief Executive does not create a permanent vacuum or
vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor
abandon his position and title as Vice-Governor by merely becoming an Acting
Governor, (not Governor) or by merely exercising the powers and duties of the higher
office. But the problem is, while in such capacity, does he temporarily relinquish the
powers, functions, duties and responsibilities of the Vice-Governor, including the power
to preside over the sessions of the SP? Sad to say the new Local Government Code is
silent on this matter, yet this query should be answered in the positive. A Vice-Governor
who is concurrently an Acting Governor is actually a quasi-Governor. This means, that
for purposes of exercising his legislative prerogatives and powers, he is deemed as a
non-member of the SP for the time being. By tradition, the offices of the provincial
Governor and Vice-Governor are essentially executive in nature, whereas plain
members of the provincial board perform functions partaking of a legislative character.
This is because the authority vested by law in the provincial boards involves primarily a
delegation of some legislative powers of Congress.

Same; Same; It can be said that the designation, appointment or assumption of the
Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in
the office of the Vice-Governor during such contingency.—Although it is difficult to lay
down a definite rule as to what constitutes absence, yet this term should be reasonably
construed to mean “effective” absence, that is, one that renders the officer concerned
powerless, for the time being, to discharge the powers and prerogatives of his office.
There is no vacancy whenever the office is occupied by a legally qualified incumbent. A
sensu contrario, there is a vacancy when there is no person lawfully authorized to
assume and exercise at present the duties of the office. By virtue of the foregoing
definition, it can be said that the designation, appointment or assumption of the Vice-
Governor as the Acting Governor creates a corresponding temporary vacancy in the
office of the Vice-Governor during such contingency. Considering the silence of the law
on the matter, the mode of succession provided for permanent vacancies, under the
new Code, in the office of the ViceGovernor may likewise be observed in the event of
temporary vacancy occurring in the same office. This is so because in the eyes of the
law, the office to which he was elected was left barren of a legally qualified person to
exercise the duties of the office of the ViceGovernor.

Same; Same; Being the Acting Governor, the Vice-Governor cannot continue to
simultaneously exercise the duties of the latter office, since the nature of the duties of
the provincial Governor call for a full-time occupant to discharge them; The continuity of
the Acting Governor’s (Vice-Governor) powers as presiding officer of the SP is
suspended so long as he is in such capacity.—Being the Acting Governor, the Vice-
Governor cannot continue to simultaneously exercise the duties of the latter office, since
the nature of the duties of the provincial Governor call for a full-time occupant to
discharge them. Such is not only consistent with but also appears to be the clear
rationale of the new Code wherein the policy of performing dual functions in both offices
has already been abandoned. To repeat, the creation of a temporary vacancy in the
office of the Governor creates a corresponding temporary vacancy in the office of the
Vice-Governor whenever the latter acts as Governor by virtue of such temporary
vacancy. This event constitutes an “inability” on the part of the regular presiding officer
(Vice Governor) to preside during the SP sessions, which thus calls for the operation of
the remedy set in Article 49(b) of the Local Government Code—concerning the election
of a temporary presiding officer. The continuity of the Acting Governor’s (Vice-Governor)
powers as presiding officer of the SP is suspended so long as he is in such capacity.
Under Section 49(b), “(i)n the event of the inability of the regular presiding officer to
preside at the sanggunian session, the members present and constituting a quorum
shall elect from among themselves a temporary presiding officer.”

YNARES-SANTIAGO, J.:

The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the Acting
Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)?

The facts are not in dispute. 1âw phi1.nêt

In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents
Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros Occidental Governor, Vice-Governor
and SP members, respectively. Sometime in August of 1995, the governor designated petitioner as
Acting Governor for the duration of the former's official trip abroad until his return. When the SP held
its regular session on September 6, 1995, respondents questioned the authority of petitioner to
preside therein in view of his designation as Acting Governor and asked him to vacate the Chair.
The latter, however, refused to do so. In another session, seven (7) members of the SP voted to
allow petitioner to continue presiding while four (4) others voted against with one (1) abstention. On
September 22, 1995, respondents filed before the lower court a petition for declatory relief and
prohibition. In the meantime, on October 2, 1995, the Governor re-assumed his office. Later, the trial
court rendered a decision and declared petitioner as "temporarily legally incapacitated to preside
over the sessions of the SP during the period that he is the Acting Governor." 1 Aggrieved, petitioner
filed a petition for review raising the issue earlier mentioned. Although this case is dismissible for
having become moot and academic considering the expiration in 1998 of the terms of office of the
local officials involved herein, the Court nonetheless proceeds to resolve this common controversy
but novel issue under the existing laws on local government.

Sec. 49(a) and 466(a) (1) of Republic Act (R.A.) No. 7160 otherwise known as the Local
Government Code of 1991, provide that the Vice-Governor shall be the presiding officer of the
SP.2 In addition to such function, he "become(s)" 3the Governor and "assume(s)" 4 the higher office
for the unexpired term of his predecessor, in case of "permanent vacancy" therein. When the
vacancy, however, is merely temporary, the Vice-Governor "shall automatically exercise the powers
(subject to certain limitations) and perform the duties and functions" 5 of the Governor. It may be
noted that the code provides only for modes of succession in case of permanent vacancy in the
office of the Governor and the Vice-Governor (whether single or simultaneously) as well as in case
of a temporary vacancy in the office of the Governor. But, no such contingency is provided in case of
temporary vacancy in the office of the Vice-Governor, just like the 1983 Local Government Code. 6

It is correct that when the Vice-Governor exercises the "powers and duties" of the Office of the
Governor, he does not assume the latter office. He only "acts" as the Governor but does not
"become" the Governor. His assumption of the powers, duties and functions of the provincial Chief
Executive does not create a permanent vacuum or vacancy in his position as the Vice-Governor.
Necessarily, he does not relinquish nor abandon his position and title as Vice-Governor by merely
becoming an Acting Governor, (not Governor) or by merely exercising the powers and duties of the
higher officer. But the problem is, while in such capacity, does he temporarily relinquish the powers,
functions, duties and responsibilities of the Vice-Governor, including the power to preside over the
sessions of the SP?

Sad to say the new Local Government Code is silent on this matter, yet this query should be
answered in the positive. A Vice-Governor who is concurrently an Acting Governor is actually a
quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and powers,
he is deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial
Governor and Vice-Governor are essentially executive in nature, whereas plain members of the
provincial board perform functions partaking of a legislative character. This is because the authority
vested by law in the provincial boards involves primarily a delegation of some legislative powers of
Congress. 7 Unlike under the old Code, where the Governor is not only the provincial Chief
Executive, 8but also the presiding officer of the local legislative body, 9 the new Code delineated the
union of the executive-legislative powers in the provincial, city and municipal levels except in the
Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the SP and is
no longer considered a member thereof. 10 This is clear from the law, when it provides that "local
legislative power shall be vested in the
SP," 11 which is "the legislative body of the province," and enumerates therein membership consisting
of the:

1.) Vice-Governor, as presiding officer,

2.) regular elective SP members,

3.) three elective sectoral representatives, and

4.) those ex-officio members, namely:

a.) president of the provincial chapter of the liga ng mga barangay,

b.) president of the panlalawigang pederasyon ng mga sangguniang

kabataan,

c.) president of the provincial federation of sangguniang members of

municipalities and component cities. 12

None being included in the enumeration, the Governor is deemed excluded applying the rule in legal
hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local
executive power in the province is vested alone in the Governor. 13 Consequently, the union of
legislative-executive powers in the office of the local chief executive under the former Code has
been disbanded, so that either department now comprises different and non-intermingling official
personalities with the end in view of ensuring a better delivery of public service and provide a system
of check and balance between the two.

It has been held that if a Mayor who is out of the contrary is considered "effectively absent", the Vice-
Mayor should discharge the duties of the mayor during the latter's absence. 14 This doctrine should
equally apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is
difficult to lay down a definite rule as to what constitutes absence, yet this term should be reasonably
construed to mean "effective" absence, 15 that is, one that renders the officer concerned powerless,
for the time being, to discharge the powers and prerogatives of his office. 16 There is no vacancy
whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a
vacancy when there is no person lawfully authorized to assume and exercise at present the duties of
the office. 17By virtue of the foregoing definition, it can be said that the designation, appointment or
assumption of the Vice-Governor as the Acting Governor creates a corresponding temporary
vacancy in the office of the Vice-Governor during such contingency. Considering the silence of the
law on the matter, the mode of succession provided for permanent vacancies, under the new Code,
in the office of the Vice-Governor may likewise be observed in the event of temporary vacancy
occurring in the same office. 18 This is so because in the eyes of the law, the office to which he was
elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-
Governor.

Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties
of the latter office, since the nature of the duties of the provincial Governor call for a full-time
occupant to discharge them. 19Such is not only consistent with but also appears to be the clear
rationale of the new Code wherein the policy of performing dual functions in both offices has already
been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor
creates a corresponding temporary vacancy in the office of the Vice-Governor whenever the latter
acts as Governor by virtue of such temporary vacancy. This event constitutes an "inability" on the
part of the regular presiding officer (Vice Governor) to preside during the SP sessions, which thus
calls for the operation of the remedy set in Article 49(b) of the Local Government Code —
concerning the election of a temporary presiding officer. The continuity of the Acting Governor's
(Vice Governor) powers as presiding officer of the SP is suspended so long as he is in such
capacity. Under Section 49(b), "(i)n the event of the inability of the regular presiding officer to preside
at the sanggunian session, the members present and constituting a quorum shall elect from among
themselves a temporary presiding officer." 20

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

G.R. No. 93252. August 5, 1991.*

RODOLFO T. GANZON, petitioner,

vs.

THE HONORABLE COURT OF APPEALS, and LUIS T. SANTOS,

respondents.

G.R. No. 93746. August 5, 1991.*

MARY ANN RIVERA ARTIEDA, petitioner, vs. HON. LUIS SANTOS, in his capacity as
Secretary of the Department of Local Government, NICANOR M. PATRICIO, in his
capacity as Chief, Legal Service of the Department of Local Government, and
SALVADOR CABALUNA, JR., respondents.

G.R. No. 95245. August 5, 1991.*

RODOLFO T. GANZON, petitioner, vs. THE HONORABLE COURT OF APPEALS, and

LUIS T. SANTOS, in his capacity as the Secretary of the Department of Local
Government, respondents.

Local Governments; Power to discipline local officials.—It is the considered opinion

of the Court that notwithstanding the change in the constitutional language, the charter
did not intend to divest the legislature of its right—or the President of her prerogative as
conferred by existing legislation to provide administrative sanctions against local
officials. It is our opinion that the omission (of “as may be provided by law”) signifies
nothing more than to underscore local governments ‘autonomy from congress and to
break Congress’ “control” over local governments affairs. The Constitution did not,
however, intend, for the sake of local autonomy, to deprive the legislature of all authority
over municipal corporations, in particular, concerning discipline.
Same; Same; Local autonomy explained.—It is noteworthy that under the Charter,
“local autonomy” is not instantly self-executing, but subject to, among other things, the
passage of a local government code, a local tax law, income distribution legislation, and
a national representation law, and measures designed to realize autonomy at the local
level. It is also noteworthy that in spite of autonomy, the Constitution places the local
governments under the general supervision of the Executive. It is noteworthy finally, that
the Charter allows Congress to include in the local government code provisions for
removal of local officials, which suggest that Congress may exercise removal powers,
and as the existing Local Government Code has done, delegate its exercise to the
President.

Same; Same; Supervision and control, meaning of.—The petitioners are under the
impression that the Constitution has left the President mere supervisory powers, which
supposedly excludes the power of investigation, and denied her control, which allegedly
embraces disciplinary authority. It is a mistaken impression because legally,
“supervision” is not incompatible with disciplinary authority. x x x “Control” has been
defined as “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 substitute the
judgment of the former for test of the latter.” “Supervision” on the other hand means
“overseeing or the power or authority of an officer to see that subordinate officers
perform their duties.”

Same; Same; Suspension.—The successive sixty-day suspensions imposed on Mayor

Rodolfo Ganzon is albeit another matter. What bothers the Court, and what indeed
looms very large, is the fact that since the Mayor is facing ten administrative charges,
the Mayor is in fact facing the possibility of 600 days of suspension, in the event that all
ten cases yield prima facie findings. The Court is not of course tolerating misfeasance in
public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly
another question to make him serve 600 days of suspension, which is effectively, to
suspend him out of office. x x x.

Same; Same; Same.—The plain truth is that this Court has been ill at ease with
suspensions, x x x because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, x x x is simply “to prevent the accused
from hampering the normal cause of the investigation with his influence and authority
over possible witnesses” or to keep him off “the records and other evidence.” It is a
means, and no more, to assist prosecutors in firming up a case, if any, against an erring
local official. Under the Local Government Code, it can not exceed sixty days, which is
to say that it need not be exactly sixty days long if a shorter period is otherwise
sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved
their purpose in a shorter span.

SARMIENTO, J.:

The petitioners take common issue on the power of the President (acting through the Secretary of
Local Government), to suspend and/or remove local officials.

The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the
Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.

The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number,
filed against him by various city officials sometime in 1988, on various charges, among them, abuse
of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable
violation of the Constitution, and arbitrary detention.1 The personalities involved are Joceleehn
Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza,
Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and
Pancho Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of
the respondent Court of Appeals.2 We quote:

xxx xxx xxx

In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health,
Office of Iloilo City charged that due to political reasons, having supported the rival
candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an excuse the exigency
of the service and the interest of the public, pulled her out from rightful office where her
qualifications are best suited and assigned her to a work that should be the function of a non-
career service employee. To make matters worse, a utility worker in the office of the Public
Services, whose duties are alien to the complainant's duties and functions, has been detailed
to take her place. The petitioner's act are pure harassments aimed at luring her away from
her permanent position or force her to resign.

In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to
perform task not befitting her position as Assistant City Health Officer of Iloilo City; that her
office was padlocked without any explanation or justification; that her salary was withheld
without cause since April 1, 1988; that when she filed her vacation leave, she was given the
run-around treatment in the approval of her leave in connivance with Dr. Rodolfo Villegas
and that she was the object of a well-engineered trumped-up charge in an administrative
complaint filed by Dr. Rodolfo Villegas (Annex B).

On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and
complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia
Pedondo are members of the Sangguniang Panglunsod of the City of Iloilo. Their complaint
arose out from the case where Councilor Larry Ong, whose key to his office was
unceremoniously and without previous notice, taken by petitioner. Without an office,
Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other
complainants sympathized with him and decided to do the same. However, the petitioner,
together with its fully-armed security men, forcefully drove them away from Plaza Libertad.
Councilor Ong denounced the petitioner's actuations the following day in the radio station
and decided to hold office at the Freedom Grandstand at Iloilo City and there were so many
people who gathered to witness the incident. However, before the group could reach the
area, the petitioner, together with his security men, led the firemen using a firetruck in dozing
water to the people and the bystanders.
 Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by
former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges filed
against him and no warrant of arrest was issued, Erbite was arrested and detained at the
City Jail of Iloilo City upon orders of petitioner. In jail, he was allegedly mauled by other
detainees thereby causing injuries He was released only the following day.3

The Mayor thereafter answered4 and the cases were shortly set for hearing. The opinion of the Court
of Appeals also set forth the succeeding events:

xxx xxx xxx

The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21,
1988 at the Regional Office of the Department of Local Government in Iloilo City. Notices,
through telegrams, were sent to the parties (Annex L) and the parties received them,
including the petitioner. The petitioner asked for a postponement before the scheduled date
of hearing and was represented by counsel, Atty. Samuel Castro. The hearing officers, Atty.
Salvador Quebral and Atty. Marino Bermudez had to come all the way from Manila for the
two-day hearings but was actually held only on June 20,1988 in view of the inability and
unpreparedness of petitioner's counsel.

The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again,
the petitioner attempted to delay the proceedings and moved for a postponement under the
excuse that he had just hired his counsel. Nonetheless, the hearing officers denied the
motion to postpone, in view of the fact that the parties were notified by telegrams of the
scheduled hearings (Annex M).

In the said hearings, petitioner's counsel cross-examined the complainants and their
witnesses.

Finding probable grounds and reasons, the respondent issued a preventive suspension
order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days.

Then the next investigation was set on September 21, 1988 and the petitioner again asked
for a postponement to September 26,1988. On September 26, 1988, the complainants and
petitioner were present, together with their respective counsel. The petitioner sought for a
postponement which was denied. In these hearings which were held in Mala the petitioner
testified in Adm. Case No. C-10298 and 10299.

The investigation was continued regarding the Malabor case and the complainants testified
including their witnesses.

On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the
October 24, 1988 hearing to November 7 to 11, 1988 which was granted. However, the
motion for change of venue as denied due to lack of funds. At the hearing on November 7,
1988, the parties and counsel were present. Petitioner reiterated his motion to change venue
and moved for postponement anew. The counsel discussed a proposal to take the deposition
of witnesses in Iloilo City so the hearing was indefinitely postponed. However, the parties
failed to come to terms and after the parties were notified of the hearing, the investigation
was set to December 13 to 15, 1988.

The petitioner sought for another postponement on the ground that his witnesses were sick
or cannot attend the investigation due to lack of transportation. The motion was denied and
the petitioner was given up to December 14, 1988 to present his evidence.

On December 14,1988, petitioner's counsel insisted on his motion for postponement and the
hearing officers gave petitioner up to December 15, 1988 to present his evidence. On
December 15, 1988, the petitioner failed to present evidence and the cases were considered
submitted for resolution.

In the meantime, a prima facie evidence was found to exist in the arbitrary detention case
filed by Pancho Erbite so the respondent ordered the petitioner's second preventive
suspension dated October 11, 1988 for another sixty (60) days. The petitioner was able to
 obtain a restraining order and a writ of preliminary injunction in the Regional Trial Court,
Branch 33 of Iloilo City. The second preventive suspension was not enforced.5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against
the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City,
where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP
No. 16417, an action for prohibition, in the respondent Court of Appeals.

Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively
suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating
meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced
CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition,6 (Malabor it is to be noted,
is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)

On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417.
On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a
Resolution dated January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda,
who had been similary charged by the respondent Secretary, to this Court.

On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from
implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two
decisions.

In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of
January 15, 1991, we gave due course thereto.

Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in
hearing the ten cases against him, had denied him due process of law and that the respondent
Secretary had been "biased, prejudicial and hostile" towards him7 arising from his (Mayor Ganzon's)
alleged refusal to join the Laban ng Demokratikong Pilipino party8 and the running political rivalry
they maintained in the last congressional and local elections;9 and his alleged refusal to operate a
lottery in Iloilo City.10 He also alleges that he requested the Secretary to lift his suspension since it
had come ninety days prior to an election (the barangay elections of November 14,
1988),11 notwithstanding which, the latter proceeded with the hearing and meted out two more
suspension orders of the aforementioned cases.12 He likewise contends that he sought to bring the
cases to Iloilo City (they were held in Manila) in order to reduce the costs of proceeding, but the
Secretary rejected his request.13 He states that he asked for postponement on "valid and
justifiable"14 grounds, among them, that he was suffering from a heart ailment which required
confinement; that his "vital"15 witness was also hospitalized16 but that the latter unduly denied his
request.17

Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local
Government is devoid, in any event, of any authority to suspend and remove local officials, an
argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746).

As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what
manner the Mayor might have been deprived of his rights by the respondent Secretary. His claims
that he and Secretary Luis-Santos were (are) political rivals and that his "persecution" was politically
motivated are pure speculation and although the latter does not appear to have denied these
contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would have
under less political circumstances, considering furthermore that "political feud" has often been a
good excuse in contesting complaints.

The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted
to seduce him to join the administration party and to operate a lottery in Iloilo City. Again, although
the Secretary failed to rebut his allegations, we can not accept them, at face value, much more, as
judicial admissions as he would have us accept them 18 for the same reasons above-stated and
furthermore, because his say so's were never corroborated by independent testimonies. As a
responsible public official, Secretary Santos, in pursuing an official function, is presumed to be
performing his duties regularly and in the absence of contrary evidence, no ill motive can be
ascribed to him.

As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the
hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds
the question to be moot and academic since we have in fact restrained the Secretary from further
hearing the complaints against the petitioners.19

As to his request, finally, for postponements, the Court is afraid that he has not given any compelling
reason why we should overturn the Court of Appeals, which found no convincing reason to overrule
Secretary Santos in denying his requests. Besides, postponements are a matter of discretion on the
part of the hearing officer, and based on Mayor Ganzon's above story, we are not convinced that the
Secretary has been guilty of a grave abuse of discretion.

The Court can not say, under these circumstances, that Secretary Santos' actuations deprived
Mayor Ganzon of due process of law.

We come to the core question: Whether or not the Secretary of Local Government, as the
President's alter ego, can suspend and/or remove local officials.

It is the petitioners' argument that the 1987 Constitution20 no longer allows the President, as the 1935
and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials.
According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local
government units and second, by deleting the phrase21 as may be provided by law to strip the
President of the power of control over local governments. It is a view, so they contend, that finds
support in the debates of the Constitutional Commission. The provision in question reads as follows:

Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions.22

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:

Sec. 10. The President shall have control of all the executive departments, bureaus, or
offices, exercise general supervision over all Local governments as may be provided by law,
and take care that the laws be faithfully executed.23

The petitioners submit that the deletion (of "as may be provided by law") is significant, as their
argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may
provide for it any longer.

It is to be noted that in meting out the suspensions under question, the Secretary of Local
Government acted in consonance with the specific legal provisions of Batas Blg. 337, the Local
Government Code, we quote:

Sec. 62. Notice of Hearing. — Within seven days after the complaint is filed, the Minister of
local Government, or the sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within seven days from receipt of said complaint,
and commence the hearing and investigation of the case within ten days after receipt of such
answer of the respondent. No investigation shall be held within ninety days immediately prior
to an election, and no preventive suspension shall be imposed with the said period. If
preventive suspension has been imposed prior to the aforesaid period, the preventive
suspension shall be lifted.24

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the
Minister of Local Government if the respondent is a provincial or city official, by the provincial
governor if the respondent is an elective municipal official, or by the city or municipal mayor if
the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined, when
there is reasonable ground to believe that the respondent has committed the act or acts
complained of, when the evidence of culpability is strong, when the gravity of the offense so
warrants, or when the continuance in office of the respondent could influence the witnesses
or pose a threat to the safety and integrity of the records and other evidence. In all cases,
preventive suspension shall not extend beyond sixty days after the start of said suspension.
 (3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office
without prejudice to the continuation of the proceedings against him until its termination.
However ' if the delay in the proceedings of the case is due to his fault, neglect or request,
the time of the delay shall not be counted in computing the time of suspension.25

The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in
deleting the phrase "as may be provided by law" intend to divest the President of the power to
investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed
Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the
constitutional language?

It is the considered opinion of the Court that notwithstanding the change in the constitutional
language, the charter did not intend to divest the legislature of its right or the President of her
prerogative as conferred by existing legislation to provide administrative sanctions against local
officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more
than to underscore local governments' autonomy from congress and to break Congress' "control"
over local government affairs. The Constitution did not, however, intend, for the sake of local
autonomy, to deprive the legislature of all authority over municipal corporations, in particular,
concerning discipline.

Autonomy does not, after all, contemplate making mini-states out of local government units, as in the
federal governments of the United States of America (or Brazil or Germany), although Jefferson is
said to have compared municipal corporations euphemistically to "small republics." 26 Autonomy, in
the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the
legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to
wean local government units from over-dependence on the central government.

It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject
to, among other things, the passage of a local government code,27 a local tax law,28 income
distribution legislation,29 and a national representation law,30 and measures31 designed to realize
autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places
the local government under the general supervision of the Executive. It is noteworthy finally, that the
Charter allows Congress to include in the local government code provisions for removal of local
officials, which suggest that Congress may exercise removal powers, and as the existing Local
Government Code has done, delegate its exercise to the President. Thus:

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and
operation of the local units.32

As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub
silencio, the objective of the framers to strengthen local autonomy by severing congressional control
of its affairs, as observed by the Court of Appeals, like the power of local legislation. 33 The
Constitution did nothing more, however, and insofar as existing legislation authorizes the President
(through the Secretary of Local Government) to proceed against local officials administratively, the
Constitution contains no prohibition.

The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her control,
which allegedly embraces disciplinary authority. It is a mistaken impression because legally,
"supervision" is not incompatible with disciplinary authority as this Court has held,34 thus:

xxx xxx xxx

It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had
occasion to discuss the scope and extent of the power of supervision by the President over
local government officials in contrast to the power of control given to him over executive
officials of our government wherein it was emphasized that the two terms, control and
supervision, are two different things which differ one from the other in meaning and extent.
Thus in that case the Court has made the following digression: "In administration law
 supervision means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them the former may take such
action or step as prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify of set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter." But from this pronouncement it cannot be reasonably
inferred that the power of supervision of the President over local government officials does
not include the power of investigation when in his opinion the good of the public service so
requires, as postulated in Section 64(c) of the Revised Administrative Code. ...35

xxx xxx xxx

"Control" has been defined as "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 substitute the judgment of the
former for test of the latter."36"Supervision" on the other hand means "overseeing or the power or
authority of an officer to see that subordinate officers perform their duties.37 As we held,38 however,
"investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The
impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson
v. Roque,39 Hebron v. Reyes,40 and Mondano v. Silvosa,41 and possibly, a fourth one, Pelaez v.
Auditor General.42 In Lacson, this Court said that the President enjoyed no control powers but only
supervision "as may be provided by law,"43 a rule we reiterated in Hebron, and Mondano. In Pelaez,
we stated that the President "may not . . . suspend an elective official of a regular municipality or
take any disciplinary action against him, except on appeal from a decision of the corresponding
provincial board."44 However, neither Lacsonnor Hebron nor Mondano categorically banned the Chief
Executive from exercising acts of disciplinary authority because she did not exercise control powers,
but because no law allowed her to exercise disciplinary authority. Thus, according to Lacson:

The contention that the President has inherent power to remove or suspend municipal
officers is without doubt not well taken. Removal and suspension of public officers are
always controlled by the particular law applicable and its proper construction subject to
constitutional limitations.45

In Hebron we stated:

Accordingly, when the procedure for the suspension of an officer is specified by law, the
same must be deemed mandatory and adhered to strictly, in the absence of express or clear
provision to the contrary-which does not et with respect to municipal officers ...46

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial supervision over
municipal officials in the provincial governor who is authorized to "receive and investigate
complaints made under oath against municipal officers for neglect of duty, oppression,
corruption or other form of maladministration of office, and conviction by final judgment of
any crime involving moral turpitude." And if the charges are serious, "he shall submit written
charges touching the matter to the provincial board, furnishing a copy of such charges to the
accused either personally or by registered mail, and he may in such case suspend the officer
(not being the municipal treasurer) pending action by the board, if in his opinion the charge
by one affecting the official integrity of the officer in question." Section 86 of the Revised
Administration Code adds nothing to the power of supervision to be exercised by the
Department Head over the administration of ... municipalities ... . If it be construed that it
does and such additional power is the same authority as that vested in the Department Head
by section 79(c) of the Revised Administrative Code, then such additional power must be
deemed to have been abrogated by Section 110(l), Article VII of the Constitution.47

xxx xxx xxx

In Pelaez, we stated that the President can not impose disciplinary measures on local officials
except on appeal from the provincial board pursuant to the Administrative Code.48

Thus, in those case that this Court denied the President the power (to suspend/remove) it was not
because we did not think that the President can not exercise it on account of his limited power, but
because the law lodged the power elsewhere. But in those cases ii which the law gave him the
power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him.49
The Court does not believe that the petitioners can rightfully point to the debates of the
Constitutional Commission to defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would
exclude the power of removal from the President,50 Commissioner Blas Ople would not.51

The Court is consequently reluctant to say that the new Constitution has repealed the Local
Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible
terms and one may stand with the other notwithstanding the stronger expression of local autonomy
under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg.
337 is still in force and effect.52

As the Constitution itself declares, local autonomy means "a more responsive and accountable local
government structure instituted through a system of decentralization."53 The Constitution as we
observed, does nothing more than to break up the monopoly of the national government over the
affairs of local governments and as put by political adherents, to "liberate the local governments from
the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and
inter-dependence between the central administration and local government units, or otherwise, to
user in a regime of federalism. The Charter has not taken such a radical step. Local governments,
under the Constitution, are subject to regulation, however limited, and for no other purpose than
precisely, albeit paradoxically, to enhance self- government.

As we observed in one case,54 decentralization means devolution of national administration but not
power to the local levels. Thus:

Now, autonomy is either decentralization of administration or decentralization of power.

There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of government
power and in the process to make local governments "more responsive and accountable,"
and "ensure their fullest development as self-reliant communities and make them more
effective partners in the pursuit of national development and social progress." At the same
time, it relieves the central government of the burden of managing local affairs and enables it
to concentrate on national concerns. The President exercises "general supervision" over
them, but only to "ensure that local affairs are administered according to law." He has no
control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the
favor of local governments units declared to be autonomous, In that case, the autonomous
government is free to chart its own destiny and shape its future with minimum intervention
from central authorities. According to a constitutional author, decentralization of power
amounts to "self-immolation," since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency.55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter.
What bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing
ten administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in
the event that all ten cases yield prima faciefindings. The Court is not of course tolerating
misfeasance in public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly
another question to make him serve 600 days of suspension, which is effectively, to suspend him out
of office. As we held:56

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office
does not expire until 1986. Were it not for this information and the suspension decreed by
the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have
been all this while in the full discharge of his functions as such municipal mayor. He was
elected precisely to do so. As of October 26, 1983, he has been unable to. it is a basic
assumption of the electoral process implicit in the right of suffrage that the people are entitled
to the services of elective officials of their choice. For misfeasance or malfeasance, any of
them could, of course, be proceeded against administratively or, as in this instance,
criminally. In either case, Ms culpability must be established. Moreover, if there be a criminal
action, he is entitled to the constitutional presumption of innocence. A preventive suspension
may be justified. Its continuance, however, for an unreasonable length of time raises a due
process question. For even if thereafter he were acquitted, in the meanwhile his right to hold
office had been nullified. Clearly, there would be in such a case an injustice suffered by him.
Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga They
 were deprived of the services of the man they had elected to serve as mayor. In that sense,
to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had
outrun the bounds of reason and resulted in sheer oppression. A denial of due process is
thus quite manifest. It is to avoid such an unconstitutional application that the order of
suspension should be lifted.57

The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and
so also, because it is out of the ordinary to have a vacancy in local government. The sole objective
of a suspension, as we have held,59 is simply "to prevent the accused from hampering the normal
cause of the investigation with his influence and authority over possible witnesses" 60 or to keep him
off "the records and other evidence.61

It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local
official. Under the Local Government Code, it can not exceed sixty days,62 which is to say that it need
not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that
it ought to be lifted if prosecutors have achieved their purpose in a shorter span.

Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held
to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption
of innocence unless and until found guilty.

Suspension finally is temporary and as the Local Government Code provides, it may be imposed for
no more than sixty days. As we held,63 a longer suspension is unjust and unreasonable, and we
might add, nothing less than tyranny.

As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor
Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to
make, to all intents and purposes, his suspension permanent.

It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been
proven. Worse, any absolution will be for naught because needless to say, the length of his
suspension would have, by the time he is reinstated, wiped out his tenure considerably.

The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that
justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive
suspensions when apparently, the respondent Secretary has had sufficient time to gather the
necessary evidence to build a case against the Mayor without suspending him a day longer. What is
intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor
piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could
have pursued a consolidated effort.

We reiterate that we are not precluding the President, through the Secretary of Interior from
exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that
power oppressively, and needless to say, with a grave abuse of discretion.

The Court is aware that only the third suspension is under questions, and that any talk of future
suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to
serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the
corner (which amounts to a violation of the Local Government Code which brings to light a pattern of
suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply
foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act.

As we said, we can not tolerate such a state of affairs.

We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and
lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the seven
remaining charges are concerned, we are urging the Department of Local Government, upon the
finality of this Decision, to undertake steps to expedite the same, subject to Mayor Ganzon's usual
remedies of appeal, judicial or administrative, or certiorari, if warranted, and meanwhile, we are
precluding the Secretary from meting out further suspensions based on those remaining complaints,
notwithstanding findings of prima facie evidence.

In resume the Court is laying down the following rules:

1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of
power, in which local officials remain accountable to the central government in the manner the law
may provide;

2. The new Constitution does not prescribe federalism;

3. The change in constitutional language (with respect to the supervision clause) was meant but to
deny legislative control over local governments; it did not exempt the latter from legislative
regulations provided regulation is consistent with the fundamental premise of autonomy;

4. Since local governments remain accountable to the national authority, the latter may, by law, and
in the manner set forth therein, impose disciplinary action against local officials;

5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify
"control" (which the President does not have);

6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no
longer be suspended for the offenses he was charged originally; provided:

a) that delays in the investigation of those charges "due to his fault, neglect or request, (the
time of the delay) shall not be counted in computing the time of suspension. [Supra, sec.
63(3)]

b) that if during, or after the expiration of, his preventive suspension, the petitioner commits
another or other crimes and abuses for which proper charges are filed against him by the
aggrieved party or parties, his previous suspension shall not be a bar to his being
preventively suspended again, if warranted under subpar. (2), Section 63 of the Local
Government Code.

WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining
Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED, provided that the
1âwphi1

petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any
of the remaining administrative charges pending against him for acts committed prior to August 11,
1988. The Secretary of Interior is ORDERED to consolidate all such administrative cases pending
against Mayor Ganzon.

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs.

SO ORDERED.

G.R. No. 131255. May 20, 1998.*

HON. EDUARDO NONATO JOSON, in his capacity as the Governor of

the Province of Nueva Ecija, petitioner,

vs.

EXECUTIVE SECRETARY RUBEN D. TORRES, the DEPARTMENT OF

THE INTERIOR & LOCAL GOVERNMENTS, represented by
SECRETARY ROBERT Z. BARBERS and UNDERSECRETARY
MANUEL R. SANCHEZ, MR. OSCAR C. TINIO, in his capacity as
 Provincial Vice-Governor of Nueva Ecija, and MR. LORETO P.
PANGILINAN, MR. CRISPULO S. ESGUERRA, MS. SOLITA C.
SANTOS, MR. VICENTE C. PALILIO and MR. NAPOLEON G.
INTERIOR, in their capacity as Provincial Board Members of Nueva
Ecija, respondents.

Administrative Law; Public Officers; Verification; An administrative complaint

against an erring elective official must be verified and filed with the proper government
office.—An administrative complaint against an erring elective official must be verified
and filed with the proper government office. A complaint against an elective provincial or
city official must be filed with the Office of the President. A complaint against an elective
municipal official must be filed with the Sangguniang Panlalawigan while that of a
barangay official must be filed before the Sangguniang Panlungsod or Sangguniang
Bayan.

Same; Same; Same; The lack of verification is a mere formal defect.—Assuming,

nonetheless, that the letter-complaint was unverified when submitted to the Office of the
President, the defect was not fatal. The requirement of verification was deemed waived
by the President himself when he acted on the complaint. Verification is a formal, not
jurisdictional requisite. Verification is mainly intended to secure an assurance that the
allegations therein made are done in good faith or are true and correct and not mere
speculation. The lack of verification is a mere formal defect. The court may order the
correction of the pleading, if not verified, or act on the unverified pleading if the
attending circumstances are such that a strict compliance with the rule may be
dispensed with in order that the ends of justice may be served.

Same; Same; Jurisdiction over administrative disciplinary actions against elective local
officials is lodged in two authorities: the Disciplining Authority and the Investigating
Authority.—Jurisdiction over administrative disciplinary actions against elective local
officials is lodged in two authorities: the Disciplining Authority and the Investigating
Authority. This is explicit from A.O. No. 23. Pursuant to these provisions, the Disciplining
Authority is the President of the Philippines, whether acting by himself or through the
Executive Secretary. The Secretary of the Interior and Local Government is the
Investigating Authority, who may act by himself or constitute an Investigating
Committee. The Secretary of the DILG, however, is not the exclusive Investigating
Authority. In lieu of the DILG Secretary, the Disciplining Authority may designate a
Special Investigating Committee.

Same; Same; Power of the President over administrative disciplinary cases against
elective local officials is derived from his power of general supervision over local
governments.—The power of the President over administrative disciplinary cases
against elective local officials is derived from his power of general supervision over local
governments. The power of supervision means “overseeing or the authority of an officer
to see that the subordinate officers perform their duties.” If the subordinate officers fail
or neglect to fulfill their duties, the official may take such action or step as prescribed by
law to make them perform their duties. The President’s power of general supervision
means no more than the power of ensuring that laws are faithfully executed, or that
subordinate officers act within the law. Supervision is not incompatible with discipline.
And the power to discipline and ensure that the laws be faithfully executed must be
construed to authorize the President to order an investigation of the act or conduct of
local officials when in his opinion the good of the public service so requires.

Same; Same; Power to discipline evidently includes the power to investigate.—The

power to discipline evidently includes the power to investigate. As the Disciplining
Authority, the President has the power derived from the Constitution itself to investigate
complaints against local government officials. A.O. No. 23, however, delegates the
power to investigate to the DILG or a Special Investigating Committee, as may be
constituted by the Disciplining Authority. This is not undue delegation, contrary to
petitioner Joson’s claim. The President remains the Disciplining Authority. What is
delegated is the power to investigate, not the power to discipline.

Same; Same; The power of the DILG to investigate administrative complaints is based
on the alter-ego principle or the doctrine of qualified political agency.—Moreover, the
power of the DILG to investigate administrative complaints is based on the alter-ego
principle or the doctrine of qualified political agency. Thus: “Under this doctrine, which
recognizes the establishment of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in
cases where the Chief Executive is required by the Constitution or law to act in person
or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the Secretaries of such
departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumptively the acts of the Chief
Executive.”

Same; Same; Strictly applying the rules, the Office of the President did not comply with
the provisions of A.O. No. 23.—In the case at bar, petitioner claims that the DILG
Secretary usurped the power of the President when he required petitioner to answer the
complaint. Undisputably, the letter-complaint was filed with the Office of the President
but it was the DILG Secretary who ordered petitioner to answer. Strictly applying the
rules, the Office of the President did not comply with the provisions of A.O. No. 23. The
Office should have first required petitioner to file his answer. Thereafter, the complaint
and the answer should have been referred to the Investigating Authority for further
proceedings. Be that as it may, this procedural lapse is not fatal. The filing of the answer
is necessary merely to enable the President to make a preliminary assessment of the
case. The President found the complaint sufficient in form and substance to warrant its
further investigation. The judgment of the President on the matter is entitled to respect
in the absence of grave abuse of discretion.

Same; Same; Officials deserve to be cleared expeditiously if they are innocent, also
expeditiously if guilty, so that the business of government will not be prejudiced.—
Petitioner should know that the formal investigation of the case is required by law to be
finished within one hundred twenty (120) days from the time of formal notice to the
respondent. The extensions petitioner requested consumed fifty-five (55) days of this
period. Petitioner, in fact, filed his answer nine (9) months after the first notice. Indeed,
this was more than sufficient time for petitioner to comply with the order to file answer.
The speedy disposition of administrative complaints is required by public service. The
efficiency of officials under investigation is impaired when a case hangs over their
heads. Officials deserve to be cleared expeditiously if they are innocent, also
expeditiously if guilty, so that the business of government will not be prejudiced.
Same; Same; Suspension; Instances where preventive suspension may be imposed
by the Disciplining Authority.—In sum, preventive suspension may be imposed by the
Disciplining Authority at any time

(a) after the issues are joined;

(b) when the evidence of guilt is strong; and

(c) given the gravity of the offense, there is great probability that the respondent, who
continues to hold office, could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence.

Same; Same; Same; Rejection of petitioner’s right to a formal investigation denied him
procedural due process.—The rejection of petitioner’s right to a formal investigation
denied him procedural due process. Section 5 of A.O. No. 23 provides that at the
preliminary conference, the Investigating Authority shall summon the parties to consider
whether they desire a formal investigation. This provision does not give the Investigating
Authority the discretion to determine whether a formal investigation would be
conducted. The records show that petitioner filed a motion for formal investigation.

Same; Same; Same; An erring elective local official has rights akin to the constitutional
rights of an accused.—An erring elective local official has rights akin to the
constitutional rights of an accused. These rights are essentially part of procedural
due process. The local elective official has the

(1) right to appear and defend himself in person or by counsel;

(2) the right to confront and cross-examine the witnesses against him; and

(3) the right to compulsory attendance of witness and the production of documentary
evidence. These rights are reiterated in the Rules Implementing the Local Government
Code and in A.O. No. 23. Well to note, petitioner formally claimed his right to a formal
investigation after his Answer Ad Cautelam has been admitted by Undersecretary
Sanchez.

Same; Same; Same; Petitioner’s right to a formal investigation was not satisfied when
the complaint against him was decided on the basis of position papers; Administrative
disciplinary proceedings against elective government officials are not exactly similar to
those against appointive officials.—Petitioner’s right to a formal investigation was not
satisfied when the complaint against him was decided on the basis of position papers.
There is nothing in the Local Government Code and its Implementing Rules and
Regulations nor in A.O. No. 23 that provide that administrative cases against elective
local officials can be decided on the basis of position papers. A.O. No. 23 states that the
Investigating Authority may require the parties to submit their respective memoranda
but this is only after formal investigation and hearing. A.O. No. 23 does not authorize
the Investigating Authority to dispense with a hearing especially in cases involving
allegations of fact which are not only in contrast but contradictory to each other. These
contradictions are best settled by allowing the examination and cross-examination of
witnesses. Position papers are often-times prepared with the assistance of lawyers and
their artful preparation can make the discovery of truth difficult. The jurisprudence cited
by the DILG in its order denying petitioner’s motion for a formal investigation applies to
appointive officials and employees. Administrative disciplinary proceedings against
elective government officials are not exactly similar to those against appointive officials.
In fact, the provisions that apply to elective local officials are separate and distinct from
appointive government officers and employees.

PUNO, J.:

The case at bar involves the validity of the suspension from office of petitioner Eduardo Nonato
Joson as Governor of the province of Nueva Ecija. Private respondent Oscar C. Tinio is the Vice-
Governor of said province while private respondents Loreto P. Pangilinan, Crispulo S. Esguerra,
Solita C. Santos, Vicente C. Palilio and Napoleon Interior are members of the Sangguniang
Panlalawigan.

On September 17, 1996, private respondents filed with the Office of the President a letter-complaint
dated September 13, 1997 charging petitioner with grave misconduct and abuse of authority. Private
respondents alleged that in the morning of September 12, 1996, they were at the session hall of the
provincial capitol for a scheduled session of the Sangguniang Panlalawigan when petitioner
belligerently barged into the Hall; petitioner angrily kicked the door and chairs in the Hall and uttered
threatening words at them; close behind petitioner were several men with long and short firearms
who encircled the area. Private respondents claim that this incident was an offshoot of their
resistance to a pending legislative measure supported by petitioner that the province of Nueva Ecija
obtain a loan of P150 million from the Philippine National Bank; that petitioner's acts were intended
to harass them into approving this loan; that fortunately, no session of the Sangguniang
Panlalawigan was held that day for lack of quorum and the proposed legislative measure was not
considered; that private respondents opposed the loan because the province of Nueva Ecija had an
unliquidated obligation of more than P70 million incurred without prior authorization from the
Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier disclosed that
the province could not afford to contract another obligation; that petitioner's act of barging in and
intimidating private respondents was a serious insult to the integrity and independence of the
Sangguniang Panlalawigan; and that the presence of his private army posed grave danger to private
respondents' lives and safety. Private respondents prayed for the suspension or removal of
petitioner; for an emergency audit of the provincial treasury of Nueva Ecija; and for the review of the
proposed loan in light of the financial condition of the province, to wit:

In this regard, we respectfully request for the following assistance from your good office:

1. To immediately suspend Governor N. [sic] Joson considering the actual dangers that we
are facing now, and provide adequate police security detail for the Sangguniang
 Panlalawigan of Nueva Ecija. Should the evidence warrant after investigation, to order his
removal from office.

2. To conduct an emergency audit of the provincial treasury of Nueva Ecija by the auditors
from the Commission on Audit Central Office with adequate police security assistance.
Should the evidence so warrant, to file necessary charges against responsible and
accountable officers.

3. To advise the Philippine National Bank to review the capability of the province of Nueva
Ecija to secure more loans and the feasibility of the same in the light of the present financial
condition of the province. Or if said loan will be contrary to sound banking practice,
recommend its disapproval.1

The letter-complaint was submitted with the joint affidavit of Elnora Escombien and Jacqueline Jane
Perez, two (2) employees of the Sangguniang Panlalawigan who witnessed the incident. The letter
was endorsed by Congressmen Eleuterio Violago and Pacifico Fajardo of the Second and Third
Districts of Nueva Ecija, former Congressman Victorio Lorenzo of the Fourth District, and Mayor
Placido Calma, President of the Mayors' League of said province.2

The President acted on the complaint by writing on its margin the following:

17 Sep 96

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

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

FIDEL V. RAMOS

(Signed).3

President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of the
members of the Sangguniang Panlalawigan to approve the proposed loan, did not appear to justify
"the use of force, intimidation or armed followers." He thus instructed the then Secretary of the
Interior and Local Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive and
investigative actions," but to "[b]reak not the peace."

The letter-complaint together with the President's marginal notes were sent to Secretary Robert Z.
Barbers on September 20, 1996. Acting upon the instructions of the President, Secretary Barbers
notified petitioner of the case against him 4 and attached to the notice a copy of the complaint and its
annexes. In the same notice, Secretary Barbers directed petitioner "to submit [his] verified/sworn
answer thereto, not a motion to dismiss, together with such documentary evidence that [he] has in
support thereof, within fifteen (15) days from receipt. 5

Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and summoned petitioner and
private respondents to a conference to settle the controversy. The parties entered into an agreement
whereby petitioner promised to maintain peace and order in the province while private respondents
promised to refrain from filing cases that would adversely affect their peaceful co-existence.6

The peace agreement was not respected by the parties and the private respondents reiterated their
letter-complaint. Petitioner was again ordered to file his answer to the letter-complaint within fifteen
days from receipt. Petitioner received a copy of this order on November 13, 1996. On the same day,
petitioner requested for an extension of thirty (30) days to submit his answer because he was "trying
to secure the services of legal counsel experienced in administrative law practice.7 The Department
of the Interior and Local Government (DILG), acting through Director Almario de los Santos, Officer-
In-Charge of the Legal Service, granted the motion, with the thirty-day extension to be reckoned,
however, from November 13, 1996, i.e., the day petitioner received the order to answer.8

In a letter dated December 9, 1996, petitioner moved for another extension of thirty (30) days to file
his answer. He stated that he had already sent letters to various law firms in Metro Manila but that
he had not yet contracted their services; that the advent of the Christmas season kept him busy with
"numerous and inevitable official engagements."9 The DILG granted the request for extension "for
the last time up to January 13 only."10

On January 7, 1997, petitioner requested for another extension of thirty (30) days to file his answer.
According to him, the Christmas season kept him very busy and preoccupied with his numerous
official engagements; that the law firms he invited to handle his case have favorably replied but that
he needed time to confer with them personally; and that during this period, he, with the help of his
friends, was exploring the possibility of an amicable settlement of the case.11 The DILG granted
petitioner's request "for the last time" but gave him an extension of only ten (10) days from January
13, 1997 to January 23, 1997. The DILG also informed him that his "failure to submit answer will be
considered a waiver and that the plaintiff [shall] be allowed to present his evidence ex parte."12

Petitioner moved for reconsideration of the order. He reiterated his prayer for an extension of thirty
(30) days on the following grounds: (a) that he was still in the process of choosing competent and
experienced counsel; (b) that some law firms refused to accept his case because it was perceived to
be politically motivated; and (c) the multifarious activities, appointments and official functions of his
office hindered his efforts to secure counsel of
choice.13

Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting Secretary of the
DILG, issued an order declaring petitioner in default and to have waived his right to present
evidence. Private respondents were ordered to present their evidence ex-parte. The order reads as
follows:

ORDER

It appearing that respondent failed to submit his answer to the complaint despite the grant to
him of three (3) extensions, such unreasonable failure is deemed a waiver of his right to
present evidence in his behalf pursuant to Section 4, Rule 4 of Administrative Order No. 23
dated December 17, 1992, as amended.

Respondent is hereby declared in default, meanwhile, complainants are directed to present

their evidence ex-parte. However, considering the prohibition on the conduct of
administrative investigation due to the forthcoming barangay elections, complainants will be
notified on the date after the barangay election for them to present their evidence.

SO ORDERED.14

Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar & Asuncion,
representing petitioner, filed with the DILG an "Entry of Appearance with Motion for Time to File
Answer Ad Cautelam."

Petitioner received a copy of the order of default on May 2, 1997. Through counsel, he moved for
reconsideration. On May 19, 1997, Undersecretary Sanchez reconsidered the order of default in the
interest of justice. He noted the appearance of petitioner's counsel and gave petitioner "for the last
time" fifteen (15) days from receipt to file his answer.15

On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's counsel, whose
office is in Manila, should have received a copy of the May 19, 1997 order ten days after mailing on
May 27, 1997. Since petitioner still failed to file his answer, he was deemed to have waived his right
to present evidence in his behalf. Undersecretary Sanchez reinstated the order of default and
directed private respondents to present their evidence ex-parte on July 15, 1997.16

The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to Dismiss." Petitioner
alleged that the letter-complaint was not verified on the day it was filed with the Office of the
President; and that the DILG had no jurisdiction over the case and no authority to require him, to
answer the complaint.

On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of the order of June
23, 1997 reinstating the order of default. Petitioner also prayed that the hearing on the merits of the
case be held in abeyance until after the "Motion to Dismiss" shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary Ruben Torres
issued an order, by authority of the President, placing petitioner under preventive suspension for
sixty (60) days pending investigation of the charges against him.17

Secretary Barbers directed the Philippine National Police to assist in the implementation of the order
of preventive suspension. In petitioner's stead, Secretary Barbers designated Vice-Governor Oscar
Tinio as Acting Governor until such time as petitioner's temporary legal incapacity shall have ceased
to exist.18

Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of Appeals challenging
the order of preventive suspension and the order of default.19

Meanwhile, the proceedings before the DILG continued. On August 20, 1997, Undersecretary
Sanchez issued an order denying petitioner's "Motion to Dismiss" and " Urgent Ex-Parte Motion for
Reconsideration." In the same order, he required the parties to submit their position papers within an
inextendible period of ten days from receipt after which the case shall be deemed submitted for
resolution, to wit:

WHEREFORE, for lack of merit, both motions are denied. However, for this office to have a
better appreciation of the issues raised in the instant case, the parties, through their
respective counsels are hereby directed to submit their position papers within a period of ten
(10) days from receipt hereof, which period is inextendible, after which the case is deemed
submitted for resolution.20

On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of Preventive Suspension."
On September 10, 1997, petitioner followed this with a "Motion to Lift Default Order and Admit
Answer Ad Cautelam."21 Attached to the motion was the "Answer Ad Cautelam".22 and sworn
statements of his witnesses. On the other hand, complainants (private respondents herein)
manifested that they were submitting the case for decision based on the records, the complaint and
affidavits of their witnesses.23

In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12, 1996, while he
was at his district office in the town of Munoz, he received a phone call from Sangguniang
Panlalawigan member Jose del Mundo. Del Mundo, who belonged to petitioner's political party,
informed him that Vice-Governor Tinio was enraged at the members of the Sangguniang
Panlalawigan who were in petitioner's party because they refused to place on the agenda the
ratification of the proposed P150 million loan of the province. Petitioner repaired to the provincial
capitol to advise his party-mates on their problem and at the same time attend to his official
functions. Upon arrival, he went to the Session Hall and asked the members present where Vice-
Governor Tinio was. However, without waiting for their reply, he left the Hall and proceeded to his
office.

Petitioner claimed that there was nothing in his conduct that threatened the members of the
Sangguniang Panlalawigan or caused alarm to the employees. He said that like Vice-Governor
Tinio, he was always accompanied by his official security escorts whenever he reported for work. He
also alleged that the joint affidavit of Elnora Escombien and Jacqueline Jane Perez was false.
Escombien was purportedly not inside the session hall during the incident but was at her desk at the
office and could not in any way have seen petitioner in the hall. To attest to the truth of his
allegations, petitioner submitted three (3) joint affidavits — two (2) affidavits executed by six (6) and
ten (10) employees, respectively, of the provincial government, and a third by four members of the
Sangguniang Panlalawigan.24

On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of the order of
August 20, 1997 denying his motion to dismiss. The "Urgent Motion for Reconsideration" was
rejected by Undersecretary Sanchez on October 8, 1997. Undesecretary Sanchez, however, granted
the "Motion to Lift Default Order and to Admit Answer Ad Cautelam" and admitted the "Answer Ad
Cautelam" as petitioner's position paper pursuant to the order of August 20, 1997.25

On October 15, 1997, petitioner filed a "Motion to Conduct Formal Investigation." Petitioner prayed
that a formal investigation of his case be conducted pursuant to the provisions of the Local
Government Code of 1991 and Rule 7 of Administrative Order No. 23; and that this be held at the
province of Nueva Ecija.26 On October 29, 1997, petitioner submitted a "Manifestation and Motion"
before the DILG reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's petition.27

Hence this recourse.

The proceedings before the DILG continued however. In an order dated November 11, 1997, the
DILG denied petitioner's "Motion to Conduct Formal Investigation" declaring that the submission of
position papers substantially complies with the requirements of procedural due process in
administrative proceedings.28

A few days after filing the petition before this Court, petitioner filed a "Motion for Leave to File Herein
Incorporated Urgent Motion for the Issuance of a Temporary Restraining Order and/or a Writ of
Preliminary Injunction." Petitioner alleged that subsequent to the institution of this petition, the
Secretary of the Interior and Local Governments rendered a resolution on the case finding him guilty
of the offenses charged.29 His finding was based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the affidavits of complainants' witnesses to be
"more natural, reasonable and probable" than those of herein petitioner Joson's.30

On January 8, 1998, the Executive Secretary, by authority of the President, adopted the findings and
recommendation of the DILG Secretary. He imposed on petitioner the penalty of suspension from
office for six (6) months without pay, to wit:

WHEREFORE, as recommended by the Secretary of the Interior and Local Government,

respondent Nueva Ecija Governor Eduardo Nonato Joson is hereby found guilty of the
offenses charged and is meted the penalty of suspension from office for a period of six (6)
months without pay.31

On January 14, 1998, we issued a temporary restraining order enjoining the implementation of the
order of the Executive Secretary.

On January 19, 1998, private respondents submitted a Manifestation informing this Court that the
suspension of petitioner was implemented on January 9, 1998; that on the same day, private
respondent Oscar Tinio was installed as Acting Governor of the province; and that in view of these
events, the temporary restraining order had lost its purpose and effectivity and was
fait accompli.32 We noted this Manifestation.

In his petition, petitioner alleges that:

I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT RULES OF

PROCEDURE AND EVIDENCE SHOULD NOT BE STRICTLY APPLIED IN THE
ADMINISTRATIVE DISCIPLINARY AND CLEARLY PUNITIVE PROCEEDINGS IN THE
CASE AGAINST PETITIONER GOVERNOR EDNO JOSON;

II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE ALTER-EGO

PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS THE SECRETARY OF THE DILG
WHO WAS EXERCISING THE POWERS OF THE PRESIDENT WHICH ARE CLEARLY
VESTED BY LAW ONLY UPON HIM OR THE EXECUTIVE SECRETARY.

III THE COURT OF APPEALS ERRED IN RULING THAT THE PETITIONER WAS
PROPERLY DECLARED IN DEFAULT WHEN HE FILED A MOTION TO DISMISS
INSTEAD OF AN ANSWER, AS DIRECTED BY THE DILG, BECAUSE A MOTION TO
DISMISS BASED ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic]
PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES.

IV THE COURT OF APPEALS ERRED IN RULING THAT THE IMPOSITION OF

PREVENTIVE SUSPENSION AGAINST THE PETITIONER WAS PROPER BECAUSE
THERE WAS NO JOINDER OF ISSUES YET UPON ITS IMPOSITION AND THERE WAS
NO EVIDENCE OF GUILT AGAINST PETITIONER.33

In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary
Restraining Order and/or a Writ of Preliminary Injunction," petitioner also claims that:

I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA ISSUED PURSUANT

THERETO (i.e., ANNEXES "C," "D," "E," "F," AND "G" HEREOF) WERE ISSUED WITH
 UNDUE HASTE, IN VIOLATION OF THE PERTINENT PROVISIONS OF THE 1991 LOCAL
GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO. 23, AND IN COMPLETE
DISREGARD OF PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS.

II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF JANUARY 8, 1998

(ANNEX "C" HEREOF) BY THE PUBLIC RESPONDENTS ENTITLES PETITIONER TO
THE IMMEDIATE ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF
PRELIMINARY INJUNCTION HEREIN PRAYED FOR.34

We find merit in the petition.

Administrative disciplinary proceedings against elective local officials are governed by the Local
Government Code of 1991, the Rules and Regulations Implementing the Local Government Code of
1991, and Administrative Order No. 23 entitled "Prescribing the Rules and Procedures on the
Investigation of Administrative Disciplinary Cases Against Elective Local Officials of Provinces,
Highly Urbanized Cities, Independent Component Cities, and Cities and Municipalities in
Metropolitan Manila."35 In all matters not provided in A.O. No. 23, the Rules of Court and the
Administrative Code of 1987 apply in a suppletory character.36

Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates the grounds for
which an elective local official may be disciplined, suspended or removed from office. Section 60
reads:

Sec. 60. Grounds for Disciplinary Actions. — An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by at

least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlunsod, sangguniang bayan,
and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by
order of the proper court.

When an elective local official commits an act that falls under the grounds for disciplinary action, the
administrative complaint against him must be verified and filed with any of the following:

Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint against any
erring local elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the
President.
 (b) A complaint against any elective official of a municipality shall be filed before the
sangguniang panlalawigan whose decision may be appealed to the Office of the President;
and

(c) A complaint against any elective barangay official shall be filed before the sangguniang
panlungsod or sangguniang bayan concerned whose decision shall be final and executory.37

An administrative complaint against an erring elective official must be verified and filed with the
proper government office. A complaint against an elective provincial or city official must be filed with
the Office of the President. A complaint against an elective municipal official must be filed with the
Sangguniang Panlalawigan while that of a barangay official must be filed before the Sangguniang
Panlungsod or Sangguniang Bayan.

In the instant case, petitioner Joson is an elective official of the province of Nueva Ecija. The letter-
complaint against him was therefore properly filed with the Office of the President. According to
petitioner, however, the letter-complaint failed to conform with the formal requirements set by the
Code. He alleges that the complaint was not verified by private respondents and was not supported
by the joint affidavit of the two witnesses named therein; that private respondents later realized these
defects and surreptitiously inserted the verification and sworn statement while the complaint was still
pending with the Office of the President.38 To prove his allegations, petitioner submitted: (a) the
sworn statement of private respondent Solita C. Santos attesting to the alleged fact that after the
letter-complaint was filed, Vice-Governor Tinio made her and the other members of the Sangguniang
Panlalawigan sign an additional page which he had later notarized; and (b) the fact that the
verification of the letter-complaint and the joint affidavit of the witnesses do not indicate the
document, page or book number of the notarial register of the notary public before whom they were
made.39

We find no merit in the contention of the petitioner. The absence of the document, page or book
number of the notarial register of the subscribing officer is insufficient to prove petitioner's claim. The
lack of these entries may constitute proof of neglect on the part of the subscribing officer in
complying with the requirements for notarization and proper verification. They may give grounds for
the revocation of his notarial commission.40 But they do not indubitably prove that the verification was
inserted or intercalated after the letter-complaint was filed with the Office of the President.

Nor is the fact of intercalation sufficiently established by the affidavit of Solita C. Santos. Private
respondent Santos was one of the signatories to the letter-complaint. In her affidavit, she prayed that
she be dropped as one of the complainants since she had just joined the political party of petitioner
Joson. She decided to reveal the intercalation because she was disillusioned with the "dirty tactics"
of Vice-Governor Tinio to grab power from petitioner Joson.41 Private respondent Santos cannot in
anyway be considered an unbiased witness. Her motive and change of heart render her affidavit
suspect.

Assuming, nonetheless, that the letter-complaint was unverified when submitted to the Office of the
President, the defect was not fatal. The requirement of verification was deemed waived by the
President himself when he acted on the complaint.

Verification is a formal, not jurisdictional requisite.42 Verification is mainly intended to secure an

assurance that the allegations therein made are done in good faith or are true and correct and not
mere speculation.43The lack of verification is a mere formal defect.44 The court may order the
correction of the pleading, if not verified, or act on the unverified pleading if the attending
circumstances are such that a strict compliance with the rule may be dispensed with in order that the
ends of justice may be served.45

II

In his second assigned error, petitioner questions the jurisdiction and authority of the DILG Secretary
over the case. He contends that under the law, it is the Office of the President that has jurisdiction
over the letter-complaint and that the Court of Appeals erred in applying the alter-ego principle
because the power to discipline elective local officials lies with the President, not with the DILG
Secretary.

Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two
authorities: the Disciplining Authority and the Investigating Authority. This is explicit from A.O. No.
23, to wit:
 Sec. 2. Disciplining Authority. All administrative complaints, duly verified, against elective
local officials mentioned in the preceding Section shall be acted upon by the President. The
President, who may act through the Executive Secretary, shall hereinafter be referred to as
the Disciplining Authority.

Sec. 3. Investigating Authority. The Secretary of the Interior and Local Government is hereby
designated as the Investigating Authority. He may constitute an Investigating Committee in
the Department of the Interior and Local Government for the purpose.

The Disciplining Authority may, however, in the interest of the service, constitute a Special
Investigating Committee in lieu of the Secretary of the Interior and Local Government.46

Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether
acting by himself or through the Executive Secretary. The Secretary of the Interior and Local
Government is the Investigating Authority, who may act by himself or constitute an Investigating
Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu
of the DILG Secretary, the Disciplinary Authority may designate a Special Investigating Committee.

The power of the President over administrative disciplinary cases against elective local officials is
derived from his power of general supervision over local governments. Section 4, Article X of the
1987 Constitution provides:

Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions.47

The power of supervision means "overseeing or the authority of an officer to see that the subordinate
officers perform their duties."48 If the subordinate officers fail or neglect to fulfill their duties, the
official may take such action or step as prescribed by law to make them perform their duties. 49 The
President's power of general supervision means no more than the power of ensuring that laws are
faithfully executed, or that subordinate officers act within the law.50 Supervision is not incompatible
with discipline.51 And the power to discipline and ensure that the laws be faithfully executed must be
construed to authorize the President to order an investigation of the act or conduct of local officials
when in his opinion the good of the public service so requires.52 Thus:

Independently of any statutory provision authorizing the President to conduct an investigation

of the nature involved in this proceeding, and in view of the nature and character of the
executive authority with which the President of the Philippines is invested, the constitutional
grant to him of power to exercise general supervision over all local governments and to take
care that the laws be faithfully executed must be construed to authorize him to order an
investigation of the act or conduct of the petitioner herein. Supervision is not a meaningless
thing. It is an active power. It is certainly not withou t limitation, but it at least implies authority
to inquire into facts and conditions in order to render the power real and effective. If
supervision is to be conscientious and rational, and not automatic and brutal, it must be
founded upon a knowledge of actual facts and conditions disclosed after careful study and
investigation.53

The power to discipline evidently includes the power to investigate. As the Disciplining Authority, the
President has the power derived from the Constitution itself to investigate complaints against local
government officials. A.O. No. 23, however, delegates the power to investigate to the DILG or a
Special Investigating Committee, as may be constituted by the Disciplining Authority. This is not
undue delegation, contrary to petitioner Joson's claim. The President remains the Disciplining
Authority. What is delegated is the power to investigate, not the power to discipline.54

Moreover, the power of the DILG to investigate administrative complaints is based on the alter-ego
principle or the doctrine of qualified political agency. Thus:

Under this doctrine, which recognizes the establishment of a single executive, all executive
and administrative organizations are adjuncts of the Executive Department, the heads of the
various executive departments are assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the Constitution or law to act in person or
the exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
 departments, and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the
Chief Executive presumptively the acts of the Chief Executive.55

This doctrine is corollary to the control power of the President.56 The power of control is provided in
the Constitution, thus:

Sec. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.57

Control is said to be the very heart of the power of the presidency.58 As head of the Executive
Department, the President, however, may delegate some of his powers to the Cabinet members
except when he is required by the Constitution to act in person or the exigencies of the situation
demand that he acts personally.59 The members of Cabinet may act for and in behalf of the President
in certain matters because the President cannot be expected to exercise his control (and
supervisory) powers personally all the time. Each head of a department is, and must be, the
President's alter ego in the matters of that department where the President is required by law to
exercise authority.60

The procedure how the Disciplining and Investigating Authorities should exercise their powers is
distinctly set forth in the Local Government Code and A.O. No. 23. Section 62 of the Code provides:

Sec. 62. Notice of Hearing. — (a) Within seven (7) days after the administrative complaint is
filed, the Office of the President or the sanggunian concerned, as the case may be, shall
require the respondent to submit his verified answer within fifteen (15) days from receipt
thereof, and commence investigation of the case within ten (10) days after receipt of such
answer of the respondent.

xxx xxx xxx

Sections 1 and 3, Rule 561 of A.O. No. 23 provide:

Sec. 1. Commencement. Within forty-eight (48) hours from receipt of the answer, the
Disciplining Authority shall refer the complaint and answer, together with their attachments
and other relevant papers, to the Investigating Authority who shall commence the
investigation of the case within ten (10) days from receipt of the same.

xxx xxx xxx

Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and answer, the
Investigating Authority shall determine whether there is a prima facie case to warrant the
institution of formal administrative proceedings.

When an administrative complaint is therefore filed, the Disciplining Authority shall issue an order
requiring the respondent to submit his verified answer within fifteen (15) days from notice. Upon filing
of the answer, the Disciplining Authority shall refer the case to the Investigating Authority for
investigation.

In the case at bar, petitioner claims that the DILG Secretary usurped the power of the President
when he required petitioner to answer the complaint. Undisputably, the letter-complaint was filed
with the Office of the President but it was the DILG Secretary who ordered petitioner to answer.

Strictly applying the rules, the Office of the President did not comply with the provisions of A.O. No.
23. The Office should have first required petitioner to file his answer. Thereafter, the complaint and
the answer should have been referred to the Investigating Authority for further proceedings. Be that
as it may, this procedural lapse is not fatal. The filing of the answer is necessary merely to enable
the President to make a preliminary assessment of the case.62 The President found the complaint
sufficient in form and substance to warrant its further investigation. The judgment of the President on
the matter is entitled to respect in the absence of grave abuse of discretion.

III
In his third assigned error, petitioner also claims that the DILG erred in declaring him in default for
filing a motion to dismiss. He alleges that a motion to dismiss is not a pleading prohibited by the law
or the rules and therefore the DILG Secretary should have considered it and given him time to file
his answer.

It is true that a motion to dismiss is not a pleading prohibited under the Local Government Code of
1991 nor in A.O. No. 23. Petitioner, however, was instructed not to file a motion to dismiss in the
order to file answer. Thrice, he requested for extension of time to file his answer citing as reasons
the search for competent counsel and the demands of his official duties. And, thrice, his requests
were granted. Even the order of default was reconsidered and petitioners was given additional time
to file answer. After al the requests and seven months later, he filed a motion to dismiss!

Petitioner should know that the formal investigation of the case is required by law to be finished
within one hundred twenty (120) days from the time of formal notice to the respondent. The
extensions petitioners requested consumed fifty-five (55) days of this period.63 Petitioner, in fact, filed
his answer nine (9) months after the first notice. Indeed, this was more than sufficient time for
petitioner to comply with the order to file answer.

The speedy disposition of administrative complaints is required by public service. The efficiency of
officials under investigation is impaired when a case hangs over their heads. Officials deserve to be
cleared expeditiously if they are innocent, also expeditiously if guilty, so that the business of
government will not be prejudiced.64

IV

In view of petitioner's inexcusable failure to file answer, the DILG did not err in recommending to the
Disciplining Authority his preventive suspension during the investigation. Preventive suspension is
authorized under Section 63 of the Local Government Code, viz:

Sec. 63. Preventive Suspension. — (a) Preventive suspension may be imposed:

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

xxx xxx xxx

(b) Preventive suspension may be imposed at any time after the issues are joined, when the
evidence of guilt is strong, and given the gravity of the offense, there is great probability that
the continuance in office of the respondent could influence the witnesses or pose a threat to
the safety and integrity of the records and other evidence; Provided, That, any single
preventive suspension of local elective officials shall not extend beyond sixty (60)
days: Provided, further, That in the event that several administrative cases are filed against
an elective official, he cannot be preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds existing and known at the time of the first
suspension.

xxx xxx xxx

In sum, preventive suspension may be imposed by the Disciplining Authority at any time (a) after the
issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense,
there is great probability that the respondent, who continues to hold office, could influence the
witnesses or pose a threat to the safety and integrity of the records and other evidence.

Executive Secretary Torres, on behalf of the President, imposed preventive suspension on petitioner
Joson after finding that:

xxx xxx xxx

DILG Secretary Robert Z. Barbers, in a memorandum for the President, dated 23 June 1997,
recommends that respondent be placed under preventive suspension considering that all the
requisites to justify the same are present. He stated therein that:
 "Preventive suspension may be imposed at any time after the issues are
joined, that is, after respondent has answered the complaint, when the
evidence of guilt is strong and, given the gravity of the offense, there is a
great possibility that the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence (Sec. 3, Rule 6 of Administrative Order No. 23).

The failure of respondent to file his answer despite several opportunities

given him is construed as a waiver of his right to present evidence in his
behalf (Sec. 4, Rule 4 of Administrative Order No. 23). The requisite of
joinder of issues is squarely met with respondent's waiver of right to submit
his answer. The act of respondent in allegedly barging violently into the
session hall of the Sangguniang Panlalawigan in the company of armed men
constitutes grave misconduct. The allegations of complainants are bolstered
by the joint-affidavit of two (2) employees of the Sangguniang Panlalawigan.
Respondent who is the chief executive of the province is in a position to
influence the witnesses. Further, the history of violent confrontational politics
in the province dictates that extreme precautionary measures be taken."

Upon scrutiny of the records and the facts and circumstances attendant to this case, we
concur with the findings of the Secretary of the Interior and Local Government and find merit
in the aforesaid recommendation.

WHEREFORE, and as recommended by the Department of the Interior and Local

Government, respondent EDUARDO N. JOSON, Governor of Nueva Ecija, is hereby placed
under PREVENTIVE SUSPENSION FOR A PERIOD OF SIXTY (60) DAYS, effective 11 July
1997, pending investigation of the charges filed against him.

SO ORDERED.65

Executive Secretary Torres found that all the requisites for the imposition of preventive suspension
had been complied with. Petitioner's failure to file his answer despite several opportunities given him
was construed as a waiver of his right to file answer and present evidence; and as a result of this
waiver, the issues were deemed to have been joined. The Executive Secretary also found that the
evidence of petitioner Joson's guilt was strong and that his continuance in office during the pendency
of the case could influence the witnesses and pose a threat to the safety and integrity of the
evidence against him.

We now come to the validity of the January 8, 1998 Resolution of the Executive Secretary finding
petitioner guilty as charged and imposing on him the penalty of suspension from office for six (6)
months from office without pay.

Petitioner claims that the suspension was made without formal investigation pursuant to the
provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To Conduct Formal Investigation" three
months before the issuance of the order of suspension and this motion was denied by the DILG for
the following reasons:

On November 19, 1997, complainants, through counsel, filed a Manifestation calling our
attention to the Decision dated October 24, 1997 of the Court of Appeals, Fifth Division in
CA-G.R. SP No. 44694, entitled "Eduardo Nonato Joson versus Executive Secretary Ruben
D. Torres, et. al." In the aforestated decision, the Court of Appeals resolved to sustain the
authority of this Department to investigate this administrative case and has likewise validated
the order of default as well as the order of preventive suspension of the respondent.

We offer no objection and concur with the assertion of respondent that he has the right for
the conduct of formal investigation. However, before there shall be a formal investigation,
joinder of issues must already be present or respondent's answer has already been filed. In
the case at bar, the admission of respondent's answer after having been declared in default
was conditioned on the fact of submission of position papers by the parties, after which, the
case shall be deemed submitted for resolution. Respondent, instead of submitting his
position paper filed his subject motion while complainants manifested to forego the
 submission of position paper and submit the case for resolution on the basis of the pleadings
on hand.

Settled is the rule that in administrative proceedings, technical rules of procedure and
evidence are not strictly applied (Concerned Officials of the Metropolitan Waterworks and
Sewerage System v. Vasquez, 240 SCRA 502). The essence of due process is to be found
in the reasonable opportunity to be heard and to submit evidence one may have in support of
one's defense (Tajonera v. Lamaroza, 110 SCRA 438). To be heard does not only mean
verbal arguments in court; one may be heard also through pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, is accorded, there is no denial of
procedural due process (Juanita Y. Say, et. al; vs. IAC, G.R. No. 73451). Thus, when
respondent failed to submit his position paper as directed and insisted for the conduct of
formal investigation, he was not denied of his right of procedural process.

WHEREFORE, the Motion for the Conduct of Formal Investigation, for lack of merit, is
DENIED.

SO ORDERED.66

The denial of petitioner's Motion to Conduct Formal Investigation is erroneous. Petitioner's right to a
formal investigation is spelled out in the following provisions of A.O. No. 23, viz:

Sec. 3 Evaluation. Within twenty (20) days from receipt of the complaint and answer, the
Investigating Authority shall determine whether there is a prima facie case to warrant the
institution of formal administrative proceedings.

Sec. 4. Dismissal motu proprio. If the Investigating Authority determines that there is
no prima faciecase to warrant the institution of formal administrative proceedings, it shall,
within the same period prescribed under the preceding Section, submit its recommendation
to the Disciplining Authority for the motu proprio dismissal of the case, together with the
recommended decision, resolution, and order.

Sec. 5. Preliminary conference. If the Investigating Authority determines that there is prima
facie case to warrant the institution of formal administrative proceedings, it shall, within the
same period prescribed under the preceding Section, summon the parties to a preliminary
conference to consider the following:

a) whether the parties desire a formal investigation or are willing to submit

the case for resolution on the basis of the evidence on record; and

b) If the parties desire a formal investigation, to consider the simplification of

issues, the possibility of obtaining stipulation or admission of facts and of
documents, specifically affidavits and depositions, to avoid unnecessary
proof, the limitation of number of witnesses, and such other matters as may
be aid the prompt disposition of the case.

The Investigating Authority shall encourage the parties and their counsels to enter, at any
stage of the proceedings, into amicable settlement, compromise and arbitration, the terms
and conditions of which shall be subject to the approval of the Disciplining Authority.

After the preliminary conference, the Investigating Authority shall issue an order reciting the
matters taken up thereon, including the facts stipulated and the evidences marked, if any.
Such order shall limit the issues for hearing to those not disposed of by agreement or
admission of the parties, and shall schedule the formal investigation within ten (10) days
from its issuance, unless a later date is mutually agreed in writing by the parties concerned.67

The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam where he
disputed the truth of the allegations that he barged into the session hall of the capitol and committed
physical violence to harass the private respondents who were opposed to any move for the province
to contract a P150 million loan from PNB. In his Order of October 8, 1997, Undersecretary Sanchez
admitted petitioner's Answer Ad Cautelam but treated it as a position paper. On October 15, 1997,
petitioner filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on October
29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary Barbers found petitioner
guilty as charged on the basis of the parties' position papers. On January 8, 1998, Executive
Secretary Torres adopted Secretary Barbers' findings and recommendations and imposed on
petitioner the penalty of six (6) months suspension without pay.

The rejection of petitioner's right to a formal investigation denied him procedural due process.
Section 5 of A.O. No. 23 provides that at the preliminary conference, the Investigating Authority shall
summon the parties to consider whether they desire a formal investigation. This provision does not
give the Investigating Authority the discretion to determine whether a formal investigation would be
conducted. The records show that petitioner filed a motion for formal investigation. As respondent,
he is accorded several rights under the law, to wit:

Sec. 65. Rights of Respondent. — The respondent shall be accorded full opportunity to
appear and defend himself in person or by counsel, to confront and cross-examine the
witnesses against him, and to require the attendance of witnesses and the production of
documentary evidence in his favor through compulsory process of subpoena or subpoena
duces tecum.

An erring elective local official has rights akin to the constitutional rights of an accused.68 These rights
are essentially part of procedural due process.69 The local elective official has the (1) the right to
appear and defend himself in person or by counsel; (2) the right to confront and cross-examine the
witnesses against him; and (3) the right to compulsory attendance of witness and the production of
documentary evidence. These rights are reiterated in the Rules Implementing the Local Government
Code70 and in A.O. No. 23. 71Well to note, petitioner, formally claimed his right to a formal
investigation after his Answer Ad Cautelamhas been admitted by Undersecretary Sanchez.

Petitioner's right to a formal investigation was not satisfied when the complaint against him was
decided on the basis of position papers. There is nothing in the Local Government Code and its
Implementing Rules and Regulations nor in A.O. No. 23 that provide that administrative cases
against elective local officials can be decided on the basis of position papers. A.O. No. 23 states that
the Investigating Authority may require the parties to submit their respective memoranda but this is
only after formal investigation and hearing.72A.O. No. 23 does not authorize the Investigating
Authority to dispense with a hearing especially in cases involving allegations of fact which are not
only in contrast but contradictory to each other. These contradictions are best settled by allowing the
examination and cross-examination of witnesses. Position papers are often-times prepared with the
assistance of lawyers and their artful preparation can make the discovery of truth difficult. The
jurisprudence cited by the DILG in its order denying petitioner's motion for a formal investigation
applies to appointive officials and employees. Administrative disciplinary proceedings against
elective government officials are not exactly similar to those against appointive officials. In fact, the
provisions that apply to elective local officials are separate and distinct from appointive government
officers and employees. This can be gleaned from the Local Government Code itself.

In the Local Government Code, the entire Title II of Book I of the Code is devoted to elective officials.
It provides for their qualifications and
election,73 vacancies and succession,74 local legislation,75 disciplinary
actions,76 and recall.77 Appointive officers and employees are covered in Title III of Book I of the Code
entitled "Human Resources and Development." All matters pertinent to human resources and
development in local government units are regulated by "the civil service law and such rules and
regulations and other issuances promulgated thereto, unless otherwise provided in the Code." 78 The
"investigation and adjudication of administrative complaints against appointive local officials and
employees as well as their suspension and removal" are "in accordance with the civil service law
and rules and other pertinent laws," the results of which "shall be reported to the Civil Service
Commission."79

It is the Administrative Code of 1987, specifically Book V on the Civil Service, that primarily governs
appointive officials and employees. Their qualifications are set forth in the Omnibus Rules
Implementing Book V of the said Code. The grounds for administrative disciplinary action in Book V
are much more in number and are specific than those enumerated in the Local Government Code
against elective local officials.80 The disciplining authority in such actions is the Civil Service
Commission.81 although the Secretaries and heads of agencies and instrumentalities, provinces, cities
and municipalities are also given the power to investigate and decide disciplinary actions against officers
and employees under their jurisdiction.82When a complaint is filed and the respondent answers, he must
"indicate whether or not he elects a formal investigation if his answer is not considered satisfactory."83 If
the officer or employee elects a formal investigation, the direct evidence for the complainant and the
respondent "consist[s] of the sworn statement and documents submitted in support of the complaint and
answer, as the case may be, without prejudice to the presentation of additional evidence deemed
necessary . . ., upon which the cross-examination by respondent and the complainant, respectively, is
based."84 The investigation is conducted without adhering to the technical rules applicable in judicial
proceedings."85 Moreover, the appointive official or employee may be removed or dismissed summarily if
(1) the charge is serious and the evidence of guilt is strong; (2) when the respondent is a recidivist; and
(3) when the respondent is notoriously undesirable.86

The provisions for administrative disciplinary actions against elective local officials are markedly
different from appointive officials.87 The rules on the removal and suspension of elective local officials
are more stringent. The procedure of requiring position papers in lieu of a hearing in administrative cases
is expressly allowed with respect to appointive officials but not to those elected. An elective official,
elected by popular vote, is directly responsible to the community that elected him. The official has a
definite term of office fixed by law which is relatively of short duration. Suspension and removal from
office definitely affects and shortens this term of office. When an elective official is suspended or
removed, the people are deprived of the services of the man they had elected. Implicit in the right of
suffrage is that the people are entitled to the services of the elective official of their choice. 88 Suspension
and removal are thus imposed only after the elective official is accorded his rights and the evidence
against him strongly dictates their imposition.

IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent Executive
Secretary is declared null and void and is set aside. No Cost.

SO ORDERED.

G.R. Nos. 117589-92. May 22, 1996.

Salalima

vs.

Guingona, Jr.,

Administrative Law; Municipal Corporations; Local Government Code; Local

Government Units; Suspension; Words and Phrases; An administrative offense
means every act or conduct or omission which amounts to, or constitutes, any of the
grounds for disciplinary action.—This provision sets the limits to the penalty of
suspension, viz., it should not exceed six months or the unexpired portion of the term of
office of the respondent for every administrative offense. An administrative offense
means every act or conduct or omission which amounts to, or constitutes, any of the
grounds for disciplinary action. The offenses for which suspension may be imposed are
enumerated in Section 60 of the Code.

Same; Same; Same; Same; Same; There is no grave abuse of discretion in imposing
the penalty of suspension, although the aggregate thereof exceeds six months and the
unexpired portion of the elective officials’ term of office where the suspension imposed
for each administrative offense does not exceed six months and there is an express
provision that the successive service of the suspension should not exceed the
unexpired portion of their term of office.—Assuming then that the findings and
conclusions of the Office of the President in each of the subject four administrative
cases are correct, it committed no grave abuse of discretion in imposing the penalty of
suspension, although the aggregate thereof exceeded six months and the unexpired
portion of the petitioners’ term of office. The fact remains that the suspension imposed
for each administrative offense did not exceed six months and there was an express
provision that the successive service of the suspension should not exceed the
unexpired portion of the term of office of the petitioners. Their term of office expired at
noon of 30 June 1995. And this Court is not prepared to rule that the suspension
amounted to the petitioners’ removal from office.

Same; Same; Same; Same; Same; Removal; The Office of the President is without
any power to remove elected officials, and the grant under Article 125, Rule XIX of the
Rules and Regulations implementing the Local Government Code of 1991 to the
“disciplining authority” of the power to remove elective local officials is clearly beyond
the authority of the Oversight Committee that prepared the Rules and Regulations.—
The Office of the President is without any power to remove elected officials, since such
power is exclusively vested in the proper courts as expressly provided for in the last
paragraph of the aforequoted Section 60. Parenthetically, it may be observed that
Article 125, Rule XIX of the Rules and Regulations implementing the Local Government
Code of 1991 grants to the disciplining authority the power to remove an elective local
official. Paragraph (b) of the said Article provides as follows: (b) An elective local official
may be removed from office on the grounds enumerated in paragraph (a) of this Article
[The grounds enumerated in Section 60, The Local Government Code of 1991] by order
of the proper court or the disciplining authority whichever first acquires jurisdiction to the
exclusion of the other. (emphasis supplied) This grant to the “disciplining authority” of
the power to remove elective local officials is clearly beyond the authority of the
Oversight Committee that prepared the Rules and Regulations. It is settled that no rule
or regulation may alter, amend, or contravene a provision of law, like the Local
Government Code. Implementing rules should conform, not clash, with the law that they
implement, for a regulation which operates to create a rule out of harmony with the
statute is a nullity. (Regidor vs. Chiongbian, 173 SCRA 507 [1989]).
Same; Same; Same; Same; Taxation; When a province sells at public auction the
delinquent properties, it acts not only in its own behalf but also in behalf of the
municipalities concerned.—Hence, when the Province sold at public auction the
delinquent properties consisting of buildings, machines, and similar improvements, it
was acting not only in its own behalf but also in behalf of the municipalities concerned.
And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the
Provincial Treasurer, is duty bound to collect taxes throughout the province, including
the national, provincial, and municipal taxes and other revenues authorized by law.
Moreover, under Section 73 of the Real Property Tax Code, the provincial or city
treasurer is the one authorized to advertise the sale at public auction of the entire
delinquent real property, except real property mentioned in Subsection (a) of Section
40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to
buy the delinquent real property in the name of the province if there is no bidder or if the
highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale.

Same; Same; Same; Same; Where the province buys the delinquent properties sold in
a public auction to satisfy unpaid real estate taxes and penalties, the municipalities
entitled to taxes on said properties may be considered co-owners of such properties to
the extent of their respective shares in the real property taxes and the penalties
thereon.—Since in this case, there was no bidder, the provincial treasurer could buy, as
he did, the delinquent properties in the name of the province for the amount of taxes,
penalties due thereon, and the costs of sale, which included the amounts of taxes due
the municipalities concerned. It is therefore wrong for the petitioners to say that the
subject NPC properties are exclusively owned by the Province. The Municipalities of
Tiwi and Daraga may be considered co-owners thereof to the extent of their respective
shares in the real property taxes and the penalties thereon.

Same; Same; Same; Same; Where the province allows the redemption of delinquency
property, it should share with the municipalities concerned those amounts paid by the
taxpayer in the same manner and proportion as if the taxes had been paid in regular
course.—It is conceded that under Section 78 of the Real Property Tax Code,
redemption of delinquency property must be made within one year from the date of
registration of sale of the property. The auction sale of the NPC properties was held on
30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only
on 29 July 1992 that the NPC offered to repurchase its former properties by paying its
tax liabilities. When the Province accepted the offer, it virtually waived the one-year
redemption period. And having thus allowed the NPC to redeem the subject properties
and having received part of the redemption price, the Province should have shared with
the municipalities concerned those amounts paid by the NPC in the manner and
proportion as if the taxes had been paid in regular course conformably with Section
87(c) of the Real Property Tax Code.

Same; Same; Same; Same; “Doctrine of Forgiveness or Condonation”; Public

officials cannot be subject to disciplinary action for administrative misconduct committed
during a prior term.—We agree with the petitioners that Governor Salalima could no
longer be held administratively liable in O.P. Case No. 5450 in connection with the
negotiated contract entered into on 6 March 1992 with RYU Construction for additional
rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held
administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the
retainer contract with Atty. Jesus Cornago and the Cortes and Reyna Law Firm. This is
so because public officials cannot be subject to disciplinary action for administrative
misconduct committed during a prior term, as held in Pascual vs. Provincial Board of
Nueva Ecija and Aguinaldo vs. Santos.

Same; Same; Same; Same; Same; The doctrine of forgiveness or condonation is not
only founded on the theory that an official’s reelection expresses the sovereign will of
the electorate to forgive or condone any act or omission constituting a ground for
administrative discipline which was committed during his previous term but is also
dictated by public policy; The doctrine cannot, however, apply to criminal acts which the
reelected official may have committed during his previous term.—The rule adopted in
Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good
law. Such a rule is not only founded on the theory that an official’s reelection expresses
the sovereign will of the electorate to forgive or condone any act or omission
constituting a ground for administrative discipline which was committed during his
previous term. We may add that sound policy dictates it. To rule otherwise would open
the floodgates to exacerbating endless partisan contests between the reelected official
and his political enemies, who may not stop to hound the former during his new term
with administrative cases for acts alleged to have been committed during his previous
term. His second term may thus be devoted to defending himself in the said cases to
the detriment of public service. This doctrine of forgiveness or condonation cannot,
however, apply to criminal acts which the reelected official may have committed during
his previous term.
DAVIDE, JR., J.:p

Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent
Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the
petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P.
Case No. 5470; (b) grave abuse of authority under Section 60 (e) of the Local Government Code of 1991 (R.A. No. 7160) in O.P. Case No.
5469; (c) oppression and abuse of authority under Section 60 (c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority
and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to
be served successively but not to go beyond their respective unexpired terms in accordance with Section 66 (b) of R.A. No. 7160.

Prefacing the petition with a claim that the challenged administrative order is "an oppressive and
capricious exercise of executive power," the petitioners submit that:

I.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO

T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS
FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN
VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY
AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO
NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE.

II.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO

T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS
GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE
MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,471.74 PAID BY NAPOCOR
TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF
AGREEMENT DATED JULY 29, 1992.

III.

THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE

OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE
PROVISIONS OF THE LOCAL GOVERNMENT CODE:

A. WHAT WERE NOT COMPLAINED OF;

B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND

C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE

ALREADY COVERED BY PRESCRIPTION.

IV.

THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT

PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT
NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT
SITTING EN BANC.

We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far
submitted, after due consideration of the satisfactory explanation of the petitioners that his case has
not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the
Office of the Solicitor General that this case be resolved on the merits. In seeking a resolution of this
case on the merits, the office of the Solicitor General invites the attention of the Court to the
following:

(a) While the periods of suspension have been served by petitioners and that some
of them have even been elected to other government positions, there is the primary
issue of whether the suspensions were valid and grounded on sufficient cause.
 (b) If the suspensions are found to be valid, petitioners are not entitled to
reimbursement of salaries during their suspension period.

(c) If upheld, Administrative Order No. 15, would be used as a strong ground in filing
cases against petitioners for violations of the Anti Graft and Corrupt Practices Act.

(d) Corollary [sic] to these issues is the issue of the interpretation and application of
the [R]eal Property Tax Code and the Local Government Code under the
circumstances of this case.

(e) The resolution of these issues would finally put to rest whether respondents acted
with grave abuse of discretion amounting to lack of jurisdiction for having suspended
petitioners on the basis of their findings in the four (4) administrative cases filed
against the petitioners.

The factual antecedents are not complicated.

Sometime in 1993, several administrative complaints against the petitioners, who were elective
officials of the Province of Albay, were filed with the Office of the President and later docketed as
O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the President issued Administrative
Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its
findings and recommendations.

The Ad Hoc committee was composed of Undersecretary Victor R. Sumulong of the Department of
the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and
Presidential Assistant Angel V. Saldivar.

On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the
Office of the President.

On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval
the following pertinent findings and recommendations of the Committee; thus:

The finding of the Ad-Hoc Committee in OP Case Nos. 547(1, 5469, 5471 and 5450
are as follows

I. OP Case No. 5470

This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against
Albay Governor Romeo Salalima, Vice-Governor Danilo Azaña, and Albay
Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia,
Clenio Cabredo, Vicente Go [S]r., Jesus Marcellana, Ramon Fernandez, Jr. Masikap
Fontilla, and Wilbor Rontas.

Docketed as OP Case No. 5470, the complaint charges the respondents for
malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of
Republic Act (RA) No. 7160, otherwise known as the "Local Government Code."

The antecedent facts are as follows:

On 4 June 1990, the Supreme Court in the case entitled "National Power Corporation
(NPC) v. The Province of Albay, et al.", G.R. No. 87479 rendered judgment (Exhs. D
to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties
in Albay covering the period 11 June 1984 to 10 March 1987.

Citing the fact that its tax exemption privileges had been revoked, the Supreme Court
held that NPC's real properties, consisting mainly of geothermal plants in Tiwi and
substation facilities in Daraga, are subject to real estate tax in accordance with
Presidential Decree (PD) No. 464, as amended, otherwise known as the "Real
Property Tax Decree."
Earlier, said properties were sold at an auction sale conducted by the Province of
Albay (the "Province") to satisfy NPC's tax liabilities. Being the sole bidder at the
auction, the Province acquired ownership over said properties.

On 29 July 1992, the NPC through then President Pablo Malixi and the Province
represented by respondent Salalima, entered into a Memorandum of agreement
("MOA") [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then
estimated at P214,845,104.76.

Under the MOA, the parties agreed that:

— the actual amount collectible from NPC will have to be

recomputed/revalidated;

— NPC shall make an initial payment of P17,763,000.00 upon

signing of the agreement;

— the balance of the recomputed/revalidated amount (less the

aforesaid initial payment), shall be paid in twenty-four (24) equal
monthly installments to commence in September 1992; and

— ownership over the auctioned properties shall revert to NPC upon

satisfaction of the tax liabilities.

On 3 August 1992, Mayor Corral formally requested the Province through respondent
Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where
NPC's properties are located ("concerned barangays") relative to the payments made
by NPC (Exh. B).

On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution
No. 12-91 (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold
a joint session with the former together with Mayor Corral and the Sangguniang
Pambarangays of the concerned barangays, for the purpose of discussing the
distribution or application of the NPC payments.

On 10 August 1992, respondent Salalima replied that the request cannot be granted
as the initial payment amounting to P17,763,000.00 was only an "earnest money"
and that the total amount to be collected from NPC was still being validated (Exh. 1).

Not satisfied with respondent Salalima's response, Mayor Corral complained to NPC
about the Province's failure to remit Tiwi's and the concerned barangays' shares in
the payments made by NPC (Exh. 50-C).

On 14 August 1992, President Malixi informed respondent Salalima that the

representatives of both NPC and the Province have reconciled their accounts and
determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20).

Due to the brewing misunderstanding between Tiwi and the concerned barangays on
the one hand, and the Province on the other, and so as not to be caught in the
middle of the controversy, NPC requested a clarification from the Office of the
President as to the scope and extent of the shares of local government units in real
estate tax collections (Exh. 6 to 6-A).

Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92

dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5 November 1992
(Exh. S) appropriating P9,778,932.57 and P17,663,431.58 or a total of
P27,442,364.15 from the general fund to satisfy "prior years" obligations and to
implement certain projects of the Province. These resolutions were approved by
respondent Salalima on 22 October 1992 and 6 November 1992, respectively.

On 3 December 1992, the Office of the President through Chief Presidential Legal
Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province
merely recognized and established NPC's tax liability. He further clarified that the
sharing scheme and those entitled to the payments to be made by NPC under the
MOA should be that provided under the law, and since Tiwi is entitled to share in said
tax liabilities, NPC may remit such share directly to Tiwi. The pertinent portion of
Chief Presidential Legal Counsel Carpio's letter dated 3 December 1992 (Exhs. H to
H-1) addressed to President Malixi reads:

xxx xxx xxx

The Memorandum of Agreement entered into by the Province of

Albay and NPC merely enunciates the tax liability of NPC. The
Memorandum of Agreement does not provide for the manner of
payment of NPC's liability. Thus, the manner of payment as provided
for by law shall govern. In any event, the Memorandum of Agreement
cannot amend the law allowing the payment of said taxes to the
Municipality of Tiwi.

The decision in the case of NPC v. Province of Albay (186 SCRA

198), likewise, only establishes the liability of NPC for real property
taxes but does not specifically provide that said back taxes be paid
exclusively to Albay province.

Therefore, it is our opinion that the NPC may pay directly to the
municipality of Tiwi the real property taxes accruing to the same.

Please be guided accordingly.

Because of this opinion, President Malixi, through a letter dated 9 December 1992
(Exh. I to I-1), informed Mayor Corral and respondent Salalima that starting with the
January 1993 installment, NPC will directly pay Tiwi its share in the payments under
the MOA. He also invited the parties to a clarificatory meeting on 17 December 1992
at his Quezon City office to discuss the matter in detail.

Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as
respondent Salalima was indisposed. President Malixi then provided Mayor Corral
with schedules (Exhs. J to J-2) of the payments already made by NPC under the
MOA and the computation and the distribution of shares.

As of 9 December 1992, payments made by NPC to the Province reached

P40,724,471.74, broken down as follows:

Payment Dates Amount

July 29, 1992 P 17,763,000.00

Sept. 3, 1992 4,660,255.80

Oct. 5, 1992 6,820,480.02

Nov. 5, 1992 5,740,367.96

Dec. 9, 1992 5,740,367.96

——————

Total P 40,724,471.74

On 19 December 1992, in an apparent reaction to NPC's decision to directly remit to

Tiwi its share in the payments made and still to be made pursuant to the MOA, the
Albay Sangguniang Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1),
which, among others:
 — authorized the Provincial Treasurer upon the direction of the
Provincial Governor to sell the real properties (acquired by the
Province at the auction sale) at a public auction, and to cause the
immediate transfer thereof to the winning bidder; and

— declared as forfeited in favor of the Province, all the payments

already made by NPC under the MOA.

Realizing from the actuations of the respondents that Tiwi's share in the
P40,724,471.74 payments already made by NPC will not be forthcoming, Mayor
Corral filed the present complaint with the Office of the President on 25 January
1993.

In determining whether the respondents are guilty of the charges against them, the
threshold issue of whether the payments to be made by NPC under the MOA should
accrue solely and exclusively in favor of the Province, must first be resolved.

Sections 38, 39, 41, 86 and 87 of PD No. 464, as amended, prescribe the authority
of local government units to levy real property tax as well as the sharing scheme
among local government units including the national government with respect
thereto. Said provisions read:

Sec. 38. Incidence of Real Property Tax. — There shall be levied,

assessed, and collected in all provinces, cities and municipalities an
annual ad valorem tax on real property, such as land, buildings,
machinery and the improvements affixed or attached to real property
not hereinafter specifically exempted.

Sec. 39. Rates of Levy. — The provincial, city or municipal board or

council shall fix a uniform rate of real property tax applicable to their
respective localities as follows:

(1) In the case of a province, the tax shall be fixed by ordinance of the
provincial board at the rate of not less than one-fourth of one percent
but not more than one-half of one percent of the assessed value of
real property;

(2) In the case of a city, the tax shall be fixed by ordinance of the
municipal board or city council at the rate of not less than one-half of
one percent but not more than two percent of the assessed value of
real property; and

(3) In the case of a municipality, the tax shall be fixed by ordinance of

the municipal council subject to the approval of the provincial board at
the rate of not less than one-fourth of one percent but not more than
one-half of one percent of the assessed value of real property.

Sec. 41. An additional one percent tax on real property for the Special
Education Fund. — There is hereby imposed an annual tax of one
percent on real property to accrue to the Special Education
Fund created under Republic Act No. 5447, which shall be in addition
to the basic real property tax which local governments are authorized
to levy, assess and collect under this Code; Provided, That real
property granted exemption under Section 40 of this code shall also
be exempt from the imposition accruing to the Special Education
Fund. (as amended by PD No. 1913).

Sec. 86. Distribution of proceeds. — (a) The proceeds of the real

property tax, except as otherwise provided in this Code, shall accrue
to the province, city or municipality where the property subject to the
tax is situated and shall be applied by the respective local
government unit for its own use and benefit.
 (b) Barrio shares in real property tax collections. — The annual
shares of the barrios in real property tax collections shall be as
follows:

(1) Five percent of the real property tax collections of the province
and another five percent of the collections of the municipality shall
accrue to the barrio where the property subject to the tax is situated.

(2) In the case of the city, ten percent of the collections of the tax
shall likewise accrue to the barrio where the property is situated.

xxx xxx xxx

Sec. 87. Application of proceeds. — (a) The proceeds of the real

property tax pertaining to the city and to the municipality shall accrue
entirely to their respective general funds. In the case of the province,
one-fourth thereof shall accrue to its road and bridge fund and
remaining three-fourths of its general fund.

(b) The entire proceeds of the additional one percent

real property tax Levied for the Special Education
Fund created under R.A. No. 6447 collected in the
province or city on real property situated in their
respective territorial jurisdictions shall be distributed
as follows:

(1) Collections in the provinces: Fifty-five percent shall accrue to the

municipality where the property subject to the tax is situated; twenty-
five percent shall accrue to the province;and twenty percent shall be
remitted to the Treasurer of the Philippines. (as amended by PD No.
1969).

xxx xxx xxx

(c) The proceeds of all delinquent taxes and penalties, as well as the
income realized from the use, lease or other disposition of real
property acquired by the province or city at a public auction in
accordance with the provisions of this Code, and the proceeds of the
sale of the delinquent real property or of the redemption thereof, shall
accrue to the province, city or municipality in the same manner and
proportion as if the tax or taxes had been paid in regular course.

xxx xxx xxx (Emphasis supplied)

The foregoing provisions clearly show that local government units may levy and
collect real property tax ranging from a low of one-fourth of one percent (0.25%) to a
high of two percent (2.0%) of the assessed value of real property depending on the
local government unit levying the same. It is likewise clear that a province, a
municipality and a city may each separately levy said tax on real property located
within their respective jurisdictions but not exceeding the rates prescribed under Sec.
39 of PD No. 464.

And apart from said basic tax; the law authorizes the collection of an additional tax
equivalent to one percent (1.0%) of the assessed value of the real property to accrue
to the Special Education Fund (SEF).

In accordance with the authority confirmed upon them by PD No. 464, the following
tax resolutions or ordinances were passed:

By the province —

Resolution No. 30, series of 1974, of the Provincial Board of Albay, enacting
Provincial Tax Ordinance No. 4 whose Section 1, provides:
 There shall be levied, assessed and collected an annual ad valorem
tax on real properties including improvements thereon equivalent
to one-half of one percent of the assessed value of real property.

By the Municipality of Tiwi —

Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose
Section 2 provides:

That the tax rate of real property shall be one-half of one percent of
the assessed value of real property.

By the Municipality of Daraga —

Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay,
whose Section 3 provides:

Rates of Levy — The tax herein levied is hereby fixed at one-half of

one percent (1/2 of 1%) of the assessed value of real property. (see
Exhs. 50-G; Emphasis supplied).

Applying said rates of levy, the real property taxes collectible from the NPC are:

1. A basic tax of 1%, levied by the Province (0.5%) and Tiwi (0.5%)
on the one hand; and the Province (0.5%) and Daraga (0.5%) on the
other; and

2. The additional 1% tax pertaining to the SEF.

or a total of 2.0% on the assessed value of NPC's real properties.

On the other hand, sharing on said taxes, shall be as follows:

1. On the basic tax:

Province 47.5%

Municipality 47.5%

Barangay 5.0%

———

Total 100.0%

2. On the additional tax pertaining to the SEF:

Province 25.0%

Municipality 55.0%

National Government 20.0%

———

Total 100.0%

In real terms, the P40,724,471.74 in payments earlier made by NPC should be

shared by the Province, Tiwi and Daraga, the concerned barangays and the national
government, as follows:
Province Municipalities Barangay Natl. Govt.

Basic Tax

P 9,672,062.04 9,672,062.04 1,018,111.79 none

SEF

4,072,447.18 10,181,117.93 none 6,108,670.76

————— ————— ————— —————

Total

P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76

=========== ========== ========= =========

This shows that the Province is entitled only to P13,744,509.21 of the

P40,724,471.74 aggregate payments by NPC. On the other hand, the balance of
P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned
barangays and the national government.

The Province maintains, however, that considering that it acquired ownership over
the properties of NPC subject matter of the auction, all the payments to be made by
NPC under the MOA should accrue exclusively to the Province.

This is untenable. The law clearly provides that "the proceeds of

all the delinquent taxes and penalties as well as the income realized from the . . .
disposition of real property acquired by the province or city at a public auction . . .,
and the sale of delinquent property or the redemption thereof shall accrue to the
province, city or municipality in the same manner and proportion as if the tax or taxes
have been paid in the regular course" (Sec. 87(c) supra.).

It is immaterial that the Province was the highest bidder and eventually became the
owner of the properties sold at the auction sale. What is essential is that the
proceeds of the re-sale of said properties acquired by the Province, be distributed in
the same manner and proportion among the rightful beneficiaries thereof as provided
by law.

This was the import and essence of Chief Presidential Legal Counsel Carpio's
opinion when he stated that the sharing scheme provided by law cannot be amended
by a mere agreement between the taxpayer, in this case NPC, and the collecting
authority, in this instance, the Province of Albay.

Likewise, it is axiomatic that while "contracting parties may establish stipulations,

clauses, terms and conditions as they may deem convenient", they may not do so if
these are "contrary to law, morals, good customs, public order or public policy" (Art
1306, New Civil Code.).

Also relevant to the discussion are the following provisions of the Local Government
Code of 1991:

Sec. 307. Remittance of Government Monies to the Local Treasury.

— Officers of local government authorized to receive and collect
monies arising from taxes, revenues, or receipts of any kind shall
remit the full amount received and collected to the treasury of such
Local government unit which shall be credited to the particular
account or accounts to which the monies in question properly belong.

Sec. 308. Local Funds. — Every local government unit shall maintain
a General Fund which shall be used to account for such monies and
 resources as may be received by and disbursed from the local
treasury. The General Fund shall consist of monies and resources of
the local government which are available for the payment of
expenditures, obligations or purposes not specifically declared by law
as accruing and chargeable to, or payable from any other fund.

Sec. 309. Special Funds. — There shall be maintained in every

provincial, city, or municipal treasury the following special funds:

(a) Special Education Fund (SEF) shall consist of the respective

shares of provinces, cities, municipalities and barangays in the
proceeds of the additional tax on real propertyto be appropriated for
purposes prescribed in Section 272 of this Code; and

(b) Trust Funds shall consist of private and public monies which have
officially come into the possession of the local government or of a
local government official as trustee, agent or administrator, or which
have been received as a guaranty for the fulfillment of some
obligation. A trust fund shall only be used for the specific purpose for
which it was created or for which it came into the possession of the
Local government unit. (Emphasis supplied).

These provisions are restatements of Sec. 3(4) and (5) of PD No. 1445 and both
Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise
known as the "Administrative Code of 1987."

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the
concerned barangays and the national government in the payments made by NPC
under the MOA, should be, as they are in fact, trust funds. As such, the Province
should have, upon receipt of said payments, segregated and lodged in special
accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the
national government for eventual remittance to said beneficiaries. Said shares
cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the
Province cannot utilize said amounts for its own benefit or account (see also Sec. 86,
PD No. 464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi

and Daraga, the concerned barangays and the national government, cannot be
appropriated nor disbursed by the Province for the payment of its own expenditures
or contractual obligations.

However, in total disregard of the law, the Province treated the P40,724,471.74 NPC
payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its
general fund. No trust liability accounts were created in favor of the rightful
beneficiaries thereof as required by law.

Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAG) of
the Commission on Audit (COA) further support our findings, thus —

xxx xxx xxx

Part II. Findings and Observations

The audit findings, which are discussed in detail in the attached report, are
summarized below:

1. The remittances of the NPC of the P40,724,471.74 from July to

December 1992 representing partial payments of real tax
delinquencies from June 22, 1984 to March 10, 1989, were not
shared with the Municipalities of Tiwi, Daraga, and the concerned
barangays and the National Government in violation of PD 464. The
Memorandum of Agreement entered into between the Province of
Albay and Napocor cannot amend the provisions of PD 464 which
 specifies the sharing scheme of the real property tax among the
province, city or municipality where the property subject to tax is
situated and the National Government.

xxx xxx xxx

2. The collection of P40,724,471.74 was fully treated as surplus

adjustment (Account 7-92-419) being prior years income, without
creating a trust liability for the municipality and barangays concerned
and national government. As of December 31, 1992, the balance of
the account was only P25,668,653.12 thus, stressing that
P15,255,818.62 was spent. . . . Under the General Fund, cash
available was only P4,921,353.44 leaving practically no cash to
answer for the shares of the Municipalities of Tiwi and Daraga and
their barangays where the properties are located. (pp. 4 and 16;
(Emphasis supplied).

xxx xxx xxx

As pointed our earlier, the Province was entitled only to P13,744,509.21 of the
P40,724,471.74 in payments made by NPC. Thus, it may only appropriate and
disburse P13,744,509.21. Any disbursements exceeding this amount would therefore
be illegal.

This Committee particularly notes the factual finding of COA that as of 31 December
1992, the actual cash balance of the Province's general fund was only
P4,921,353.44. This means that of the P40,724,471.74 actually paid by the NPC and
lodged in the Province's general fund, P35,803,118.30 was disbursed or spent by the
Province. This exceeds the P13,744,509.21 share of the Province by
P22,058,609.09.

The foregoing may be illustrated as follows:

NPC Payments received by

the Province P40,724,471.74

Less Actual Cash Balance

general fund

as of 12-31-92 4,921,353.44

——————

P35,803,118.30

===========

Less Share of the Province 13,744,509.21

Amount Illegally Disbursed

by the Province P22,058,609.09

===========

We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as
forfeited in favor of the Province the entire amount of P40,724,471.74 paid by NPC to
be patently illegal as it unlawfully deprives Tiwi and Daraga, the barangays
concerned, and the national government of their rightful shares in said payments.
Being illegal, said ordinance may not be used or relied upon by the respondents to
justify the disbursements of funds in excess of their share.
Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements
considering that the appropriations made thereunder totalling P27,442,364.51 are to
be funded by the P40,724,471.74 "surplus adjustment" that includes the "trust funds"
not belonging to the Province. Even assuring that Resolution No. 178-92 authorizing
the expenditure of P9,778,912.57 were to be taken from the Province's share
amounting to P13,744,509.21, the rest of the disbursements still have no legal basis.
Clearly, this is violative of the fundamental rule that "(n)o money shall be paid out of
the local treasury except in pursuance of an appropriation ordinance or law" (par [a],
Sec. 305, Republic Act No. 7160).

Respondents raise the common defense that the findings obtained in SAO Report
No. 93-11 are not yet final as they have filed an appeal therefrom.

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the
respondents to COA merely involve questions of law, i.e., as to whether the Province
alone should be entitled to the payments made by NPC under the MOA, and whether
the shares of Tiwi and Daraga, the concerned barangays, and the national
government, should be held in trust for said beneficiaries.

Considering that the factual findings under SAO Report 93-11 are not disputed, this
Committee has treated said factual findings as final or, at the very least, as
corroborative evidence.

Respondents' contention that COA's factual findings, contained in SAO Report No.
93-11 cannot be considered in this investigation is untenable. For no administrative
or criminal investigation can proceed, if a respondent is allowed to argue that a
particular COA finding is still the subject of an appeal and move that the resolution of
such administrative or criminal case be held in abeyance. This will inevitably cause
unnecessary delays in the investigation of administrative and criminal cases since an
appeal from a COA finding may be brought all the way up to the Supreme Court.

Besides, the matters raised by the respondents on appeal involve only

conclusions/interpretation of law. Surely, investigative bodies, such as COA, the
Ombudsman and even this Committee, are empowered to make their own
conclusions of law based on a given set of facts.

Finally, sufficient evidence has been adduced in this case apart from the factual
findings contained in SAO Report, 93-11 to enable this Committee to evaluate the
merits of the instant complaint.

We also reject respondent Azaña's defense that since he did not participate in the
deliberation and passage of Resolution No. 09-92, merely signing the same as
presiding officer of the Sangguniang Panlalawigan, and only certifying that the same
had been passed, he did not incur any administrative liability.

The fact remains that as presiding officer of the Sangguniang Panlalawigan and
being the second highest official of the Province, respondent Azaña is jointly
responsible with other provincial officials in the administration of fiscal and financial
transactions of the Province. As presiding officer of the Sangguniang Panlalawigan,
respondent Azaña has a duty to see to it that resolutions or ordinances passed are
within the bounds of the law. He cannot merely preside over the sessions of the
Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or
ordinances being proposed or deliberated upon by his colleagues.

This collective responsibility is provided under Secs. 304 and 305 of Republic Act.
No. 7160, thus —

Sec. 304. Scope. — This Title shall govern the conduct and
management of financial affairs, transactions and operations of
provinces, cities, municipalities, and barangays.
 Sec. 305. Fundamental Principles. — The financial affairs,
transactions, and operations of local government units shall be
governed by the following fundamental principles:

xxx xxx xxx

(1) Fiscal responsibility shall be shared by all those exercising

authority over the financial affairs, transactions, and operations of
local government units; and

xxx xxx xxx (Emphasis supplied)

It cannot be denied that the Sangguniang Panlalawigan has control over the
Province's "purse" as it may approve or not resolutions or ordinances generating
revenue or imposing taxes all well as appropriating and authorizing the disbursement
of funds to meet operational requirements or for the prosecution of projects.

Being entrusted with such responsibility, the provincial governor, vice-governor and
the members of the Sangguniang Panlalawigan, must always be guided by the so-
called "fundamental" principles enunciated under the Local Government Code, i.e.,
"No money shall be paid out of the local treasury except in pursuance of an
appropriations ordinance or law; local revenue is generated only from sources
authorized by law or ordinance and collection thereof shall at all times be
acknowledged properly; all monies officially received by a local government officer in
any capacity or on any occasion shall be accounted for as local funds, unless
otherwise provided by law; and trust funds in the local treasury shall not be paid out
except in fulfillment of the purposes for which the trust was created or the funds
received" (Sec. 305, R.A. 7160).

All the respondents could not claim ignorance of the law especially with respect to
the provisions of PD No. 464 that lay down the sharing scheme among local
government units concerned and the national government, for both the basic real
property tax and additional tax pertaining to the Special Education Fund. Nor can
they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC
considering that the Province is only entitled to a portion thereof and that the balance
was merely being held in trust for the other beneficiaries.

As a public officer, respondent Azaña (and the other respondents as well) has a duty
to protect the interests not only of the Province but also of the municipalities of Tiwi
and Daraga and even the national government. When the passage of an illegal or
unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding
officer has a duty to act accordingly, but actively opposing the same by temporarily
relinquishing his chair and participating in the deliberations. If his colleagues insist on
its passage, he should make known his opposition thereto by placing the same on
record. No evidence or any sort was shown in this regard by respondent Azaña.

Clearly, all the respondents have, whether by act or omission, denied the other
beneficiaries of their rightful shares in the tax delinquency payments made by the
NPC and caused the illegal forfeiture, appropriation and disbursement of funds not
belonging to the Province, through the passage and approval of Ordinance No. 09-92
and Resolution Nos. 178-92 and 204-92.

The foregoing factual setting shows a wanton disregard of law on the part of the
respondents tantamount to abuse of authority. Moreover, the illegal disbursements
made can qualify as technical malversation.

This Committee, thus, finds all the respondents guilty of abuse of authority, and
acccordingly, recommends the imposition of the following penalties of suspension
without pay:

a. Respondent Salalima — five (5)

months; and
b. All the other

respondents — four (4)

months each.

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay Governor Romeo
Salalima, Vice-Governor Danilo Azaña, Albay Sangguniang Panlalawigan Members
Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo,
Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao
relative to the retainer contract for legal services entered into between the Province
of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law
Firm, on the other, and the disbursement of public fund in payment thereof. The
complaint was docketed as OP Case No. 5469.

The antecedent facts are as follows.

Because of the refusal by the National Power Corporation ("NPC") to pay real
property taxes assessed by the Province of Albay ("the Province") covering the
period from 11 June 1984 up to 10 March 1987 amounting to P214,845,184.76, the
Province sold at public auction the properties of NPC consisting of geothermal power
plants, buildings, machinery and other improvements located at Tiwi and Daraga,
Albay. The Province was the sole and winning bidder at the auction sale.

As NPC failed to redeem its properties sold at the auction, the Province petitioned
the Regional Trial Court in Tabaco, Albay to issue a writ of possession over the
same.

Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed
as G.R. No. 87479, questioning the validity of the auction sale conducted by the
Province. NPC claims, inter alia, that its properties are not subject to real property
tax.

On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the
Province, filed it; comment on the NPC petition with the Supreme Court.

On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-
89 (Exhs. B to B-1) authorizing respondent Governor to engage the services of a
Manila-based law firm to handle the case against NPC.

On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the
Supreme Court as collaborating counsel for the Province in G.R. No. 87479. The
entry of appearance of Atty. Cornago bore the conformity of respondent Governor.

On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm
sent respondent Governor a letter (Exhs. D to D-1) informing him that Atty. Jesus R.
Cornago, as collaborating counsel for the Province, has filed a memorandum with the
Supreme Court, suggesting that a retainer agreement be signed between the
Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the
other hand, and setting forth the conditions of the retainer agreement, thus:

As collaborating counsels for the respondents in the aforementioned

case, our law firm and that of Atty. Jesus R. Cornago request that you
pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00)
PESOS, while the aforementioned case is pending in the Supreme
Court. Thereafter, we will charge you a contingent fee equivalent to
eighteen percent (18%) of the value of the property subject matter of
the case which is P214 million, payable to us in the event that we
obtain a favorable judgment for you from the Supreme Court in the
case. Xerox expenses for copies of motions, memorandum and other
matters to be filed with the Supreme Court in the case, together with
 xerox copies of documentary evidence, as well as mailing expenses,
will be for your account also.

On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-
90 (Exhs. C to C-1) authorizing respondent Governor to sign and confirm the retainer
contract with the Cortes & Reyna Law Firm.

Respondent Salalima signed the retainer agreement.

On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition
and upholding the validity of the auction sale conducted by the province to answer for
NPC's tax liabilities.

Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-1)

were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago:

Particulars Claimant/Payee Amount

Disbursement Cortes & Reyna P 60,508.75

Voucher (DV No. 4,

Jan. 8, 1990 Check No.
931019

DV No. 1889 Atty. Antonio Jose Cortes P 1,421,040.00

Aug. 13, 1992;

Check No. 236063-S

DV No. 1890 Atty. Jesus R. Cornago P 1,736,300.00

Aug. 13, 1992;

Check No. 236064-S

DV No. 2151 Atty. Antonio Jose Cortes P 838,851.44

Sept. 28, 1992;

Check No. 238174-S

DV No. 2226 Atty. Antonio Jose Cortes P 886,662.40

Oct. 8, 1992;
Check No. 239528-S

DV No. 2227 Atty. Jesus R. Cornago P 341,024.00

Oct. 8, 1992;
Check No. 239529-S

DV No. 2474 Atty. Jesus R. Cornago P 287,018.40

Nov. 6, 1992;
Check No. 250933

DV No. 2475 Atty. Antonio Jose Cortes P 746,247.83

Dec. 9, 1992;
Check No. 253163

DV No. 2751 Atty. Antonio Jose Cortes P 747,247.84

Dec. 9, 1992;
Check No. 253163

DV No. 2752 Atty. Jesus R. Cornago P 267,018.40

Dec. 9, 1992;
Check No. 253164

——————

TOTAL P 7,380,410.31

Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaña.
The rest were approved by respondent Governor.

In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances
dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent
Governor that payments made by the Province as attorney's fees amounting to
P7,380,410.31 have been disallowed by the Commission on Audit (COA) with the
following notation:

The disbursement vouchers detailed hereunder represent payments

for attorney's fees of Cortes & Reyna Law Office for Legal services
rendered re: G.R. No. 87479 "NAPOCOR, Petitioner vs. The
Province of Albay, et al., Respondent," Supreme Court, en banc.
Total payments of P7,380,410.31 are disallowed for lack of the
requisite "prior written conformity and acquiescence of the Solicitor
General . . . as well as the written concurrence of the Commission on
Audit" as provided for and required under COA Circular No. 86-255
dated April 2, 1986, re: "Inhibition against employment by
government: agencies and instrumentalities . . . of private lawyers to
handle their legal cases," viz.

The complaint alleges that by entering into the retainer agreement with private
lawyers and paying P7,380,410.31 to the said private lawyers, respondents violated
several provisions of law which warrants the imposition of administrative penalties
against them. It is to be noted that respondents Victoria, Reyeg, Cabredo,
Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when
Resolution No. 129 was passed. However, the complaint alleges that these
respondents were named in the complaint because they approved the supplemental
budget/appropriation ordinances providing for the payment of the attorney's fees.

The sole issue in this case is whether or not respondents have incurred
administrative liability in entering into the retainer agreement with Atty. Cornago and
the Cortes & Reyna Law Firm and in making payments pursuant to said agreement
for purposes of the case filed by NPC with the Supreme Court against the province.

We find merit in the complaint and hold that under the circumstances surrounding the
transaction in question, the respondents abused their authority.

Sec. 481 of the Local Government Code (RA. No. 7160) requires the appointment of
a legal officer for the province whose functions include the following:

Represent the local government unit in all civil actions and special
proceedings wherein the local government unit or any official thereof,
in his official capacity is a party; Provided, That, in actions or
proceeding where a component city or municipality is a party adverse
to the provincial government or to another component city or
municipality, a special legal officer may be employed to represent the
adverse party.
The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93 Phil
173 (1953), that local governments [sic] units cannot be represented by private
lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus:

Under the law, the Provincial Fiscal of Bulacan and his assistants are
charged with the duty to represent the province and any municipality
thereof in all civil actions . . .

It would seem clear that the Provincial Fiscal is the only counsel who
can rightfully represent the plaintiffs and therefore, Attys. Alvir and
Macapagal [the private lawyers hired by the Province of Bulacan]
have no standing in the case. The appeal herein interposed in behalf
of the plaintiffs cannot therefore be maintained.

This ruling applies squarely to the case at hand because Sec. 481 of the Local
Government Code is based on Sec. 1681 of the Revised Administrative Code which
was the subject of interpretation in the abovecited case of Municipality of Bocaue, et
al. v. Manotok.

In hiring private lawyers to represent the Province of Albay, respondents exceeded

their authority and violated the abovequoted section of the Local Government Code
and the doctrine laid down by the Supreme Court.

Moreover, the entire transaction was attended by irregularities. First, the

disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the
Provincial Auditor on the ground that these were made without the prior written
conformity of the Solicitor General and the written concurrence of the Commission on
Audit (COA) as required by COA Circular No. 86-255 dated 2 April 1986.

The respondents attempted to dispute this finding by presenting the Solicitor

General's conformity dated 15 July 3993. This conformity was, however obtained
after the disbursements were already made in 1990 and 1992. What is required by
COA Circular No. 85-255 is a prior written conformity and acquiescence of the
Solicitor General.

Another irregularity in the transaction concerns the lawyers. Resolution No. 01-90
authorized the respondent Governor to sign and confirm a retainer contract for legal
services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon
City. The retainer contract signed by respondent Governor was, however, not only
with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca
Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and
the Cortes & Reyna Law Firm are two separate entities is evident from the retainer
contract itself:

As collaborating counsels for the respondents in the aforementioned

case, our law firm and that of Atty. Jesus R. Cornago request that you
pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00)
PESOS, while the aforementioned case is pending in the Supreme
Court. Thereafter, we will charge you a contingent fee equivalent to
eighteen percent (18%) of the value of the property subject matter of
the case which is P214 Million, payable to us in the event we obtain a
favorable judgment for you from the Supreme Court in the case.
Xerox expenses for copies of motions, memorandum and other
matters to be filed with the Supreme Court in the case, together with
xerox copies of documentary evidence, as well as mailing expenses,
will be for your account also.

xxx xxx xxx

With my conformity:

(Sgd) GOV. ROMEO R. SALALIMA

Province of Albay

(emphasis supplied.)

In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but
also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under
Resolution No. 01-90.

Complicating further the web of deception surrounding the transaction is the fact that
it was only Atty. Cornago who appeared as collaborating counsel of record of the
Province in the Supreme Court case (G R. No. 87479). We quote the entry of
appearance of Atty. Cornago in full in said case:

APPEARANCE

COMES NOW, the undersigned counsel, and to this Honorable

Supreme Court, respectfully enters his appearance as counsel for the
respondents in the above-entitled case, in collaboration with Atty.
Romulo L. Ricafort, counsel of record for the respondents. This
appearance bears the conformity of the respondent Gov. Romeo R.
Salalima, as shown by his signature appearing at the space indicated
below. In this connection, it is respectfully requested that, henceforth,
the undersigned counsel be furnished with a copy of all notices,
orders, resolutions and other matters that may be issued in this case
at its office address indicated below.

Quezon City, for Manila, August 24, 1989.

With my conformity:

(Sgd) ROMEO R. SALALIMA

Respondent

Office of the Governor of Albay

Legaspi City

Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993,
noted that the Province is represented in the Supreme Court by Attys. Ricafort
Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm, thus:

Incidentally, a check with our office records of the case G.R. No.
87479 reveals that the Province of Albay and its officials named
respondents therein were represented in the Supreme Court by Atty.
Romulo Ricafort the Province's Legal Officer II, and Attys. Jesus R.
Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas
Morato Avenue, Quezon City; no appearance was entered therein by
the Cortes & Reyna Law Firm. (Emphasis supplied.)

Furthermore, the memorandum with the Supreme Court filed for the Province was
signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the
Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No.
87479. And yet, six of the ten checks paid by the Province and amounting to more
than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty.
Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes &
Reyna Law Firm although the latter did not appear as counsel for the Province in the
Supreme Court in G.R. No. 87479.

Finally, the attorney's fees agreed upon by respondent Salalima and confirmed by
the other respondents are not only unreasonable but also unconscionable. The
contingent fee of 18% of the "P214 million" claim of the Province against NPC
amounts to P38.5 million. The word "unconscionable", as applied to attorney's fee,
"means nothing more than that the fee contracted for, standing alone and
unexplained would be sufficient to show that an unfair advantage had been taken of
the client, or that a legal fraud had been taken of the client, or that a legal fraud had
been perpetrated on him." (Moran, Comments on the Rules of Court, Vol. 6, p. 236.)

The Province has a legal officer, Atty. Ricafort, who had already filed a comment on
NPC's petition against the Province. The comment filed by Atty. Ricafort already
covers the basic issues raised in the petition. When Atty. Cornago filed an
appearance and subsequently a memorandum for the Province, the petition was
already been given due course by the Supreme Court and the only pleading to be
filed by the parties before the Court would issue its decision was a memorandum.
Surely, one memorandum could not be worth P38.5 million.

Furthermore, the professional character and social standing of Atty. Cornago are not
such as would merit a P38.5 million fee for the legal services rendered for the
Province. During the hearing, respondent Governor admitted that he had hired Atty.
Cornago because they were schoolmates at San Beda College, thus:

SECRETARY CORONA:

May I ask a question Governor, what was your basis for choosing this
particular law office? Why not ACCRA, why not Sycip Salazar, why
not Carpio Villaraza, why this particular Law office? Frankly, I never
heard of this law office. Who recommended it?

GOVERNOR SALALIMA:

Atty. Cornago was then a graduate of San Beda and I am a graduate

of San Beda.

SECRETARY CORONA:

Were you classmates?

GOVERNOR SALALIMA:

No.

SECRETARY CORONA:

How many years apart were you?

GOVERNOR SALALIMA:

Two (2) years.

SECRETARY CORONA:

So, you knew each other from the law school?

GOVERNOR SALALIMA:

Yes.

SECRETARY CORONA:

Were you members of the same fraternity in San Beda?

GOVERNOR SALALIMA:

Yes.
 (TSN, 12 July 1992, pp. 27-29.)

It is evident that respondent Governor hired Atty. Cornago not on the basis of his
competency and standing in the legal community but purely for personal reasons.
Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit
P38.5 million for one memorandum, which, in this case, it had not even filed because
it was not the counsel of record. Hence, considering the labor and time involved, the
skill and experience called for in the performance of the services and the
professional character and social standing of the lawyers, the attorney's fee of P38.5
million is unconscionable. By allowing such scandalously exorbitant attorney's fees
which is patently disadvantageous to the government, respondents betrayed a
personal bias to the lawyers involved and committed abuse of authority.

Parenthetically, the retainer contract containing such exorbitant attorney's fees may
also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985)
prohibiting irregular, unnecessary, excessive or extravagant expenditures or uses of
funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act.

Finally, the Committee again applies in this case, as was applied in OP Case No.
5470, the rule of joint responsibility as enunciated under Sec. 305 (1) of the Local
Government Code.

In view of the foregoing, the Committee holds that respondents committed abuse of
authority under Sec. 60(e) of the Local Government Code for the following:

1. Hiring private lawyers, in violation of Sec. 481 of the Local

Government Code, to handle the case of the Province of Albay before
the Supreme Court in G.R. No. 87479;

2. Disbursing public money in violation of COA rules and regulations;

3. Paying the Cortes & Reyna Law Firm public money although it was
only Atty. Cornago who was the counsel of record of the Province of
Albay in the Supreme Court case;

4. Authorizing an unconscionable and grossly disadvantageous

attorney's fees of P38.5 million; and

5. Additionally, as to respondent Governor, entering into a retainer

agreement not only with the Cortes & Reyna Law Firm but also with
Atty. Cornago, thus exceeding his authority under Resolution No. 01-
90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the Committee
recommends that the following penalties of suspensions without pay be meted out:

a. Respondent Salalima — six (6) months;

and Azaña each; and

b. All the other

respondents — four (4) months

each.

III. OP Case No. 5471

This refers to the administrative complaint filed by the Tiwi Mayor Naomi Corral
against Albay Governor Romeo Salalima, Albay Sangguniang Panlalawigan
Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus Marcellana, Nemesio
Baclao, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., Wilbor Rontas
and Clenio Cabredo, and Tiwi Vice-Mayor Rodolfo Benibe for "abuse of authority and
oppression" under Sec. 60 (c) and (e) of RA No. 7160.

The antecedent facts are as follows:

On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi
Sangguniang Bayan charged herein respondent Governor Salalima and Vice-
Governor Azaña for abuse of authority, misconduct in office and oppression. This
administrative complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case
No. P-8-93), arose from the refusal of said respondents to remit Tiwi's share in the
P40,724,471.74 tax delinquency payments made by NPC. This case was
subsequently substituted by OP Case No. 5470 filed on 25 January 1993 which now
included as respondents Albay Sangguniang Panlalawigan Members Victoria,
Reyeg, Osia, Cabredo, Go, Marcellana, Fernandez, Fontanilla, and Rontas.

Subsequently, Mayor Corral became the subject of several administrative and

criminal complaints filed by certain individuals with the following offices:

a. Achilles Berces v. Mayor Naomi Corral

(1) Albay Sangguniang Panlalawigan, Adm. Case No. 02-92

(2) Albay Sangguniang Panlalawigan, Adm. Case No. 05-92

(3) Office of the Ombudsman, OMB Adm. Case No. 1930163

(4) Office of the Ombudsman, OMB Case No. 0930682

(5) Office of the Ombudsman, OMB-092-3008

b. Muriel Cortezano v. Mayor Naomi Corral

(6) Albay Sangguniang Panlalawigan, Adm. Case No. 10-93

(7) Office of the Ombudsman, OMB-0-92-3000

c. Amelia Catorce v. Mayor Naomi Corral

(8) Albay Sangguniang Panlalawigan, Adm. Case No. 09-93

d. Aida Marfil v. Mayor Naomi Corral

(9) Albay Sangguniang Panlalawigan, Adm. Case No. 07-93

(10) Office of the Ombudsman, OMB Case No. 5-93-0110

e. Rodolfo Belbis v. Mayor Naomi Corral

(11) Albay Sangguniang Panlalawigan, Adm. Case No. 06-93

(12) Office of the Ombudsman, OMB Case No. 0-93-0098

f. Kin. Juan Victoria, et al. v. Mayor Naomi Corral

(13) Office of the Prosecutor, I.S. No. 93-046 (for Libel), Legaspi City

g. Governor Romeo Salalima, et al. v. Mayor Naomi Corral

(14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi City
(15) Office of the Prosecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi City

or a total of fifteen (15) cases.

On 7 January 1993, the respondent-members of the Sangguniang Panlalawigan

passed Omnibus Resolution No. 2 recommending that Mayor Corral be placed under
preventive suspension for sixty (60) days pending the resolution of Adm. Case No.
05-92 (Exh. 18).

On 11 January 1993, respondent Salalima approved said resolution and, on the

same date, officially directed herein respondent Tiwi Vice-Mayor Benibe to assume
the office and discharge the functions of Tiwi Mayor (Exh. 18).

On 21 January 1993, Department of the Interior and Local Government (DILG)

Secretary Rafael Alunan III directed the lifting of the 11 January 1993 suspension
order issued by respondent Salalima. In his letter to Mayor Corral (Exh. C), he
stated, thus:

Considering that the preventive suspension imposed upon you by

Governor Romeo R. Salalima of that province, was issued after the
latter's refusal to accept your answer, therefore, the issuance of
subject order of preventive suspension is premature, the issues
having not been joined.

In view thereof, the Order of Preventive Suspension dated 11

January 1993, issued by Governor Salalima, is hereby lifted.

On 26 January 1993, the Office of the President (OP), acting in OP Case No. 4982,
after finding that "the evidence of guilt is strong, and given the gravity of the offense
and the great probability that the continuance in office of respondent Governor
Romeo R. Salalima would influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence," placed respondent Salalima under
preventive suspension for sixty (60) days (Exhs. D to D-2).

Respondent Salalima subsequently sought the reversal of the OP Order dated 26

January 1993 but the same was dismissed by the Supreme Court on 26 May 1993 in
the case entitled "Salalima v. the Hon. Executive Secretary," G.R. No. 108585 (Exh.
E).

On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents from
hearing the six cases filed against her with the Sangguniang Panlalawigan (Adm.
Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93 and 10-93) asserting her constitutional
right to due process of law. This motion was however denied with the respondent-
members of the Sangguniang Panlalawigan assuming jurisdiction over the cases.

After conducting marathon hearings, respondent-members of the Sangguniang

Panlalawigan rendered judgments against Mayor Corral and imposing, among
others, the following penalties of suspension:

1. In Adm. Case No. 02-92 — suspension for two (2) months (see Decision dated 1
July 1993, [Exhs. F to F-2]);

2. In Adm Case No. 05-92 — suspension for three (3) months (see Resolution dated
5 July 1993, [Exhs. G to 6-2]);

3. In Adm Case No. 06-93 and 07-93 — suspension for one (1) month (see
Resolution dated 8 July 1993, [Exhs. H to H-3]); and

4. In Adm Case No. 10-93 — suspension for the period of unexpired term (see
Resolution dated 9 July 1993, [Exhs. I to I-21).

On 22 July 1993, respondent Salalima issued a directive addressed to the Provincial

Treasurer, Provincial Auditor, PNP Provincial Director, Provincial Assessor,
Provincial Accountant, Provincial Budget Officer, Provincial DILG Officer, the
Sangguniang Panlalawigan and Provincial Prosecutor enjoining them to assist in the
implementation of the decisions suspending Mayor Corral "by decreeing directives to
your subordinate officials in Tiwi, Albay to strictly adhere thereto."

Subsequently, Mayor Corral interposed appeals from the decisions of respondent-

members of the Sangguniang Panlalawigan suspending her from office to the OP
(docketed as OP Case Nos. 5337 and 5345) with a prayer that the implementation of
said decisions be stayed.

On 28 July 1993, the OP ordered the suspension/stay of execution of the decisions

in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to 5-2).

Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution of the

decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K to K-1).

Also, with respect to Adm. Case Nos. 6-93 and 7-93, the Civil Service Commission
(CSC) issued Resolution Nos. 93-005 (dated 5 January 1993) and 92-817 (dated 4
March 1993), which provided the bases and justifications for the acts of Mayor Corral
complained of in these two (2) cases. The Supreme Court subsequently affirmed
said CSC resolutions (Exhs. L to L-2).

In the multiple charges for libel and perjury against Mayor Corral, arising from her
complaint in OP Case No. 5470, filed with the Regional Trial Court of Legaspi City,
the Supreme Court ordered the lower court to cease and desist from proceeding with
the case in a resolution dated 16 September 1993 (Exhs. Q to Q-2).

In determining whether respondents are guilty of the charges levelled against them,
the following issue has to be resolved, i.e., whether the conduct of the proceedings in
the administrative cases filed and the series of suspension orders imposed by the
respondent-members of the Sangguniang Panlalawigan on Mayor Corral constitute
oppression and abuse of authority?

Oppression" has been defined as an "act of cruelty, severity, unlawful exaction,

domination or excessive use of authority." (Ochate v. Ty Deling, L-13298, March 30,
1959, 105 Phil. 384, 390.).

"Abuse" means "to make excessive or improper use of a thing, or to employ it in a

manner contrary to the natural or legal rules for its use. To make an extravagant or
excessive use, as to abuse one's authority" (Black's Law Dictionary <5th Ed.>, 11). It
includes "misuse" (City of Baltimore v. Cornellsville & S.P. Ry, Co. 6 Phils. 190, 191,
3 Pitt 20, 23).

Moreover, Section 63(d) of RA No. 7160 expressly states that, "[a]ny abuse of the
exercise of the powers of preventive suspension shall be penalized as abuse of
authority."

Now, does the above narration of facts show commission by respondents of the
administrative offenses complained of?

A review of the proceedings reveal that the same were marked by haste and
arbitrariness. This was evident from the start when Mayor Corral was preventively
suspended (in Adm. Case No. 05-92) even before she could file her answer. In the
other cases, respondent-members of Sangguniang Panlalawigan ruled that Mayor
Corral had waived her right to adduce evidence in her defense.

Consequently, respondents did not also fully evaluate the evidences presented to
support the charges made. As such, all the decisions of respondents suspending
Mayor Corral were ordered lifted suspended by the DILG and OP. Thus, even the
cases filed with the Office of the Ombudsman, which were based on the same
incidents complained of in the said administrative cases, were subsequently
dismissed.
Respondents should have inhibited themselves from assuming jurisdiction over said
cases (Adm Case Nos. 02-92, O6-92, 06-93, 07-93, 09-93, and 10-93) as timely
moved by Mayor Corral considering that they were the respondents in various
administrative complaints she earlier filed with the OP and with the DILG starting with
OP Case No. 4892. However, despite the violation of due process resulting from their
collective acts, respondents, in their determination and eagerness to suspend and
harass Mayor Corral, proceeded to hear and decide said cases.

The OP has no jurisdiction over administrative complaints filed against elective

municipal officials. Under Sec. 61(b) of RA No. 7160, "[a] complaint against any
elective official of a municipality shall be filed before the Sangguniang Panlalawigan
whose decision may be appealed to the Office of the President."

WHEREFORE, the charges against Vice Mayor Benibe are dismissed. However, all
the other respondents herein are found guilty of oppression and abuse of authority
under Section 60 (c) and (e) of RA No. 7160. Accordingly, it is recommended that
each of them be meted the penalty of four (4) months suspension without pay.

IV. OP Case No. 5450.

This refers to the administrative charges filed by Tabaco Mayor Antonio Demetriou
against Governor Romeo Salalima for violation of — Section 60, pars. (c) and (d) of
the Local Government Code, Section 3, par. (g) of Republic Act No. 3019, and the
provisions of PD No. 1594, as amended.

This case was filed with the Office of the President (OP) on 18 October 1993 and
docketed as OP Case No. 5450.

The facts as found by this Committee are as follows:

On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh. A, par.
1).

On 26 September 1990, the OP advised Mayor Demetriou and respondent Salalima

that the P12.0 Million in Budgetary Assistance to Local (Government Units (BALGU)
funds earlier remitted by the national government to the Province, should be used for
the rehabilitation of the Tabaco Public Market, and that the project should be
implemented by the Provincial Governor in consultation with the Mayor of Tabaco
(Exh.. 37).

On 8 May 1991, a public bidding was conducted by the Albay Provincial Government
for the repair and rehabilitation of the Tabaco Public Market (Exh. A, par. 1)

On 29 May 1991, the Province represented by respondent Salalima and RYU

Construction entered into a contract for P6,783,737.59 for said repair and
rehabilitation (Exh. H). Among others, the contract stipulated that the contracted work
should be completed in 150 days.

The contractor started the project on 1 July 1991 and completed the same on 2 June
1992 (Exh. 41).

On 6 March 1992, the Province represented by respondent Salalima entered into

another contract (Exh. I) for P4,304,474.00 with RYU Construction for additional
repair and rehabilitation works for the Tabaco Public Market. The terms and
conditions of this contract are the same as those stipulated in the 29 May 1991
contract except for the construction period which is only for 90 days.

Construction of the second project commenced on 27 March 1992 and was

completed on 2 June 1992 (Exh. 42).

In his complaint, Mayor Demetriou alleged that despite the delay in the completion of
work under the first contract, liquidated damages were not imposed on, nor collected
from, RYU Construction by the Province. Moreover, he claims that the second
contract with RYU Construction was entered into in violation of PD No. 1594 as RYU
incurred delay with respect to the first contract.

We find merit in the complaint:

Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item IB of the
Implementing Rules and Regulations (IRR) of PD No. 1594, as amended, read:

CI 3 — LIQUIDATED DAMAGES.

1. Where the contractor refuses or fails to satisfactorily complete the work within the
specified contract time, plus any time extension duly granted and is hereby in default
under the contract, the contractor shall pay the Government for Liquidated damages,
and not by way of penalty, an amount to be determined in accordance with the
following formula for each calendar day of delay, until the work is completed and
accepted or taken over by the Government:

xxx xxx xxx

2. To be entitled to such Liquidated, damages, the Government does not have to

prove that it has incurred actual damages. Such amount shall be deducted from any
money due or which may become due the contractor under the contract and/or
collect such Liquidated damages from the retention money or other securities posted
the contractor whichever is convenient to the Government.

CI — Extension of Contract time.

1. Should the amount of additional work of any kind or other special circumstances of
any kind whatsoever occur such as to fairly entitle the contractor to an extension of
contract time, the Government shall determine the amount of such extension;
provided that the Government is not bound to take into account any claim for an
extension of time unless the contractor has prior to the expiration of the contract time
and within thirty (30) calendar days after such work has been commenced or after
the circumstances leading to such claim have arisen, delivered to the Government
notices in order that it could have investigated them at that time. Failure to provide
such notice shall constitute a waiver by the contractor of any claim. Upon receipt of
full and detailed particulars, the Government shall examine the facts and extend of
the delay and shall extend the contract title for completing the contract work when, in
the Government's opinion, the finding of facts justify an extension.

xxx xxx xxx

IB 10.4.2 — By Negotiated Contract

1. Negotiated contract may be entered into only where any of the exists and the
implementing following conditions office/agency/corporation is not capable of
undertaking the project by administration:

xxx xxx xxx

c Where the subject project is adjacent or contiguous to an ongoing project and it

could be economical prosecuted by the same contractor, in which case, direct
negotiation may be undertaken with the said contractor at the same unit prices
adjusted to price levels prevailing at the time of negotiation using parametric
formulae herein prescribed without the 5% deduction and contract conditions, less
mobilization cost, provided that he has no negative slippage and has demonstrated a
satisfactory performance. (Emphasis supplied).

xxx xxx xxx

A reading of items CI 8 and CI 11 above shows that the collection of liquidated

damages is mandatory in cases of delay unless there are valid orders of extension of
contract work given by the Government.
Under the 29 May 1991 contract, the repair works should have been completed on
26 December 1991 since the project was started on 1 July. But then the project was
finished only on 2 June 1992.

This is confirmed by the COA through CAO Report No. 93-11 (Exh. N), thus —

. . . The project was completed only on June 2, 1992 or a delay of

132 working days, as shown in the following tabulation:

Billing As of Days Lapsed % Accomplished

First Dec. 2, 1991 130 26.48

Second Jan. 8, 1992 187 53.19

Third Feb. 10, 1992 100 75.23

Final June 2, 1992 202 100.00.

In view of the delays in project completion the Team requested from

the Provincial Engineer any copy of the order suspending and
resuming the work (suspension and resume order) since the same
was not, attached to the claims of the contractor or paid vouchers.
Unfortunately the Provincial Engineer could not provide said
document at the Engineering Office had not issued any. In effect.
there was no basis for the extension of contract time and the
contractor should have been considered as behind schedule in the
performance of the contract. Despite its deficiency, no liquidated
damages was ever imposed against the contractor. (pp. 25-26)
[emphasis supplied]

Respondent Salalima failed to submit an evidence concerning any order issued by

the Provincial Government extending RYU Construction's contract.

The law requires that requests for contract extension as well as the orders granting
the same must be made and given prior to the expiration of the contract. The
rationale for this requirement is obviously to prevent a contractor from justifying any
"delay" after the contract expires.

Before signing the 6 March 1992 contract, which was entered into on a negotiated
basis and not through bidding, respondent Salalima should have inquired whether or
not RYU Construction incurred negative slippage. Had he done so, the matter of
imposing and collecting liquidated damages would have been given appropriate
attention. This is aggravated by the fact that respondent knew that RYU Construction
was the contractor for the original rehabilitation and repair work for the Tabaco Public
market being the signatory to the first contract.

Clearly, therefore, there was a failure on the part of the Province to impose and
collect liquidated damages from the erring contractor, RYU Construction.

Going to the second charge, we find that respondent Salalima unmistakably violated
the provision of PD No. 1594, as amended.

Fundamental is the rule that government contracts especially infrastructure contracts

are awarded only through bidding. As explicitly ordained by Sec. 4 of PD No. 1594,
construction projects shall generally be undertaken by contract after "competitive
bidding". By its very nature and characteristic, a competitive public bidding aims to
protect the public interest by giving the public the best possible advantages through
open competition. At the same time, bidding seeks to prevent or curtail favoritism,
fraud and corruption in the award of the contract which otherwise might prevail were
the government official concerned is vested with the full or absolute authority to
select the prospective contractor (Fernandez, Treatise on Government Contracts
Under Philippine Law, 1991 Ed. citing Caltex Phil., Inc. v. Delgado Bros. 96 Phil. 368;
 San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v. Hernandez, 66
Phil. 68).

This is precisely the reason why negotiated contracts can be resorted to only in a few
instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR' of PD
No. 1594, supra. However, said proviso requires that the contractor had not incurred
negative slippage and has demonstrated a satisfactory performance.

And since RYU Construction incurred negative slippage with respect to the repair
works under the 29 May 1991 contract as found by COA, it was anomalous for the
Province through respondent Salalima to enter into a negotiated contract with said
contractor for additional repair and rehabilitation work; for the Tabaco public market.
Failing to comply with the requirements of law, the 6 March 1992 contract is clearly
irregular, if not illegal.

Finally, said contract may also be violative of the following: (a) COA Circular No. 85-
55-A (dated 8 September 1985) prohibiting irregular expenditures or uses of funds;
and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act.

Premises considered, this Committee finds the respondent guilty of abuse of

authority and gross negligence. Accordingly, it is recommended that the penalty of
suspension without pay be meted out on respondents Salalima for five (5) months.
(pp. 2-35).

The President then concluded and disposed as follows:

After a careful review of the cases, I agree with and adopt the findings and
recommendations of the Ad-Hoc Committee, supported as they are by the evidence
on record.

WHEREFORE, the following penalties are meted out on each of the respondents, to
wit:

In OP Case No. 5470 —

a. Governor Romeo Salalima — suspension without pay for five (5) months;

b. Vice-Governor Danilo Azana, Albay Sangguniang Panlalawigan members Juan

Victoria, Lorenzo Reyeg, Arturo Osia, CLenio Cabredo, Vicente Go, Sr., Jesus
Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas —
suspension without pay for four (4) months.

In OP Case No. 5469 —

a. Governor Romeo Salalima and Vice-Governor Danilo Azaña — suspension

without pay for six (6) months; and

b. Albay Sangguniang members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana,

Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go,
Sr., and Nemesio Baclao — suspension without pay for four (4) months;

In OP Case No. 5471 —

a. Governor Romeo Salalima and Albay Sangguniang members Juan Victoria,

Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo,
Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao —
suspension without pay for four (4) months;.

In OP Case No. 5450 —

a. Governor Romeo Salalima — suspension without pay for five (5) months.
 The suspension imposed on respondents shall be served successively but shall not
exceed their respective unexpired terms, in accordance with the limitation imposed
under Section 66 (b) of the Local Government Code.

It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of its
substantive aspect is challenged in this petition. The petitioners mentioned it only in their claim of
prematurity of Administrative Order No. 153 in view of their appeal from Special Audit Office (SAO)
Report No. 93-11 to the COA en banc. O. P. Case No. 5471 is the administrative complaint, filed by
Tiwi Mayor Corral against the petitioners for abuse of authority and oppression in connection with
their conduct in the several administrative cases filed by certain individuals against Mayor Corral. It
has no logical nexus to the appeal. The decision then in O.P. Case No. 5471 stands unchallenged in
this petition.

As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may be
reformulated in this wise:

I. Did the Office of the President act with grave abuse of discretion amounting to lack
or excess of jurisdiction in suspending the petitioners for periods ranging from twelve
to twenty months?

II. Did the Office of the President commit grave abuse of discretion in deciding O.P.
cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners' appeal to
the COA en banc from Special Audit Office (SAO) Report No. 93-11 and the
Certificate of Settlement and Balances (CSB)?

III. Did the Office of the President commit grave abuse of discretion in holding the
petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its rightful
shore in the P40,724,471.74 which the Province of Albay had received from the NPC
under the Memorandum of Agreement?

IV. Did the Office of the President commit grave abuse of discretion in suspending in
O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May
1992, for an alleged administrative offense committed during his first term; and in
suspending in O.P. Case No. 5469 the other petitioners, some of whom were elected
and others reelected on 11 May 1992, for an alleged administrative offense
committed in 1989?

V. Did the Office of the President commit grave abuse of discretion in holding the
petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section 60
(e) of the Local Government Code of 1991 although they were charged under
Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local
Government? Code of 1991, thereby depriving them of due process of law?

We shall take up these issues in the order they are presented.

Anent the first issue, the petitioners contend that the challenged administrative order deprived them
of their respective offices without procedural and substantive due process. Their suspensions
ranging from twelve months to twenty months or for the entire duration of their unexpired term, which
was then only seven months, constituted permanent disenfranchisement or removal from office in
clear violation of Section 60 of R.A. No. 7160 which mandates that an elective local official may be
removed from office by order of the court.

The Comment of the Solicitor General is silent on this issue. However, respondents Mayor Corral
and newly appointed provincial officials maintain that the suspension imposed upon the petitioners in
each of the four cases was within the limits provided for in Section 66(b) of R.A. No. 7160 and that
the Aggregate thereof ranging from twelve months to twenty months, but not to exceed the
unexpired portion of the petitioners term of office, did not change its nature as to amount to removal.

Section 66(b, of R.A. No. 7160 expressly provides:

Sec. 66. Form and Notice of Decision. — . . .

 (b) The penalty of suspension shall not exceed the unexpired term of the respondent
or a period of six (6) months for every administrative offense, nor shall said penalty
be a bar to the candidacy of the respondent so suspended as long as he meet the
qualifications for the office.

This provision sets the limits to the penalty of suspension , viz., it should not exceed six
months or the unexpired portion of the term of office of the respondent for every
administrative offense. An administrative offense means every act or conduct or omission
which amounts to, or constitutes, every of the grounds or disciplinary action. The offenses for
which suspension may be imposed are enumerated in Section 60 of the Code, which reads:

Sec. 60. Grounds for Disciplinary Action. — An elective local official may be
disciplined, suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of

duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by

at Least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the
case of members of the sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;

g) Acquisition for, or acquisition of, foreign citizenship or residence or the status ,e an

immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated
above by order of the proper court

Assuming then that the findings and conclusions of the Office of the President in each of the subject
four administrative cases are correct, it committed no grave abuse of discretion in imposing the
penalty of suspension, although the aggregate thereof exceeded six months and the unexpired
portion of the petitioners' term of office. The fact remains that the suspension imposed for each
administrative offense did not exceed six months and there was an express provision that the
successive service of the suspension should not exceed the unexpired portion of the term of office of
the petitioners. Their term of office expired at noon of 30 June 1995.2 And this Court is not prepared
to rule that the suspension to the petitioners' removal office.3

II

Petitioners contend that the decisions in O.P. Cases Nos. 5450, 5470, and 5471 are predicated on
SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the
CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with,
and pending resolution by, the Commission on Audit En Banc, they are not yet final, conclusive, and
executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report
and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA
Chairman had already reversed the recommendation in the SAO Report No. 93-11 that the
Provincial Government of Albay should share with the Municipality of Tiwi the P40,724,471.74
representing payments of the NPC as of December 1992. They then submit that Administrative
Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to
the COA en banc from SAO Report No. 93-11 and the CSB.

This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the Committee
explained as follows:
 It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the
respondents to COA merely involve questions of law, i.e., as to whether the Province
alone should be entitled to the payments made by NPC under the MOA, and whether
the shares of Tiwi and Daraga, the concerned barangays, and the national
government, should be held in trust for said beneficiaries.

Considering that the factual findings under SAO Report 93-11 are not disputed, this
Committee has treated said factual findings as final or, as the very least, as
corroborative evidence.

Respondents' contention that COA's factual finding, as contained in SAO Report No.
93-11 cannot be considered in this investigation is untenable. For no administrative
and criminal investigation can proceed, if a respondent is allowed to argue that a
particular COA finding is still the subject of an appeal and move that the resolution of
such administrative or criminal case be held it abeyance. This will inevitably cause
unnecessary delays in the investigation of administrative and criminal cases since an
appeal from a COA finding may be brought all the way up to the Supreme Court.

Besides, the matters raised by the respondents on appeal involve only

conclusions/interpretation, of law. Surely, investigative bodies, such as COA, the
Ombudsman and even this Committee, are empowered to make their own
conclusions of law based on a given set of facts.

Finally, sufficient evidence has been adduced in this case apart from the factual
findings contained in SAO Report No. 93-11 to enable this Committee to evaluate the
merits of the instant complaint.

The alleged appeal from the CSB is unclear From the records, and in light of the foregoing statement
of the Ad HocCommittee it is obvious that such appeal was not raised.

We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to the
investigation and resolution of their administrative cases.

It may be further stressed that a special audit has a different purpose in line with the constitutional
power, authority, and duty of the COA under Section 2, Subdivision D, Article IX of the Constitution
"to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held intrust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned
or controlled corporations with original charters" and its "exclusive authority . . . to define the scope
of its audit and examination, establish the techniques and methods required therefor, and
promulgate accounting aid auditing rules and regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or
uses of government funds and properties."4

III

As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province of Albay
from the NPC represents part of the price paid for properties owned by the province in a corporate
capacity and repurchased by the former owner. It constitutes payment of a debt and net of a tax,
which debt "arose from. and was a consequence of the Memorandum of agreement dated May 29,
1992." They further contend that the Memorandum of Agreement (MOA) partakes of a deed of sale.
And nowhere in the Real Property Tax Code (P.D. No. 464)5 is there any provision requiring
provinces to share with the municipalities the proceeds of a private sale. What are required to be
shared are only the collections of real property taxes and Special Education Fund (SBF); proceeds
of delinquent taxes and penalties, or of the sale of delinquent real property, or of the redemption
thereof; and income realized from the use, lease, or disposition of real property seized by the
province.

It must be recalled that in August 1992, Governor Salalima and NPC President; Pablo Malixi, were
already agreed that the basic tax due from the NPC was P207,375,774.72.6 But later, Malixi informed
the former that upon recomputation of the real property tax payable to the Province of Albay at the
minimum of one-fourth of one percent pursuant to Section 39(1) of the Real Property Tax Code, the
NPC came up with an adjusted figure of P129,609,859.20.7 Governor Salalima then explained that
one percent was applied in the computation for the reconciled figure of P207,375,774.72 because
the one-half percent imposed by the respective ordinances of the municipalities where the
delinquent properties are located was added to the one-half percent imposed by the tax ordinance of
the Province. His reply reads as follows:

Hon Pablo V. Malixi

President, National Power
Corporation
Diliman, Quezon City.

Dear President Malixi:

As suggested in your letter of August 31, 1992, we are very pleased to furnish you
herewith the certified true copies of the local tax ordinances which served as our
basis in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit:

(a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting
Provincial Tax Ordinance No. 4, whose Section I, provides:

"There shall be levied, assessed and collected as annual ad

valorem tax on real properties including improvements thereon
equivalent to one half of one percent, of the assessed value of real
property."

(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay,
whose Section 2 provides:

"That the tax rate of real property shall be one-half of one percent of
the assessed value of real property."

(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay,
whose Section 3 provides:

"Rates of Levy — The tax herein levied is hereby fixed at one-half of

one percent (1/2 of 1%) of the assessed value of the real property.

These tax ordinances were in pursuance to Sec. 39 (1) (3) of PD 464, the applicable
law during the period 1984 to 1987. By adding the one half percent imposed in the
tax Ordinance of Tiwi to the one half percent also imposed in the Provincial Tax
Ordinance, we have a total of one percent which we used as the rate of levy in
computing the basic tax due on the real properties in Tiwi.

On the real properties in Daraga, we also added the one-half percent imposed by the
Daraga Tax Ordinance to the one-half percent of the Provincial Tax Ordinance.

The additional tax of one percent for the Special Educational Fund (SEF) was
imposed pursuant to Section 41 of PD 464, which provides as follows:

"There is hereby imposed annual tax of one percent on real property

to accrue to the Special Educational Fund created under Republic Act
No. 5447, which shall be in addition to the basic real property tax
which local governments are authorized to levy, assess and collect
under this Code; . . . "

We hope that the foregoing clarification will settle whatever doubt there is on why we
applied 1% for basic tax and another 1% for SEF in arriving at
P207,375,774.72.8 (emphasis supplied).

The petitioners even emphasized in the instant petition that "Governor Salalima specifically
included the amounts due to the Municipalities of Tiwi and Daraga in asking Napocor to
settle its obligations." In other words, the original claim of P214,845,184.76 or the reconciled
figure of P207,375,774.72 representing real property taxes from 11 June 1984 to 10 March
1987 already covered the real property taxes payable to the municipalities concerned.
Hence, when the Province sold at public auction the delinquent properties consisting of
buildings, machines, and similar improvements, it was acting not only in its own behalf but
also in behalf of the municipalities concerned. And rightly so, because under Section 60 of
P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound collect taxes
throughout the province, including the national, provincial, and municipal taxes and other
revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the
provincial or city treasurer is the one authorized to advertise the sale at public auction of the
entire delinquent real property, except real property mentioned in Subsection (a) of Section
40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to buy
the delinquent real property in the name of the province if there is no bidder or if the highest
bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale.9

Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the
delinquent properties in the name of the province for the amount of taxes, penalties due
thereon, and the costs of sale, which included the amounts of taxes due the municipalities
concerned. It is therefore wrong for the petitioners to say that the subject NPC properties are
exclusively owned by the Province. The Municipalities of Tiwi and Daraga may be
considered co-owners thereof to the extent of their respective shares in the real property
taxes and the penalties thereon.

It must further be noted that it is the provincial treasurer who has charge of the delinquent
real property acquired by the province. 10 He is also the one whom the delinquent taxpayer or
any person holding a lien or claim to the property deal with in case the latter wishes to
redeem the property. 11 He is also the one authorized to effect the resale at public auction of
the delinquent property. 12 Thus, the municipalities concerned had to depend on him for the
effective collection of real property taxes payable to them. Accordingly, when the Province
entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the
municipalities concerned. And whatever benefits that might spring from that agreement
should also be shared with the latter.

The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale.
Hereinbelow is the pertinent portion of that agreement:

WHEREAS, the Supreme Court ruled in the NATIONAL POWER CORPORATION

VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that NAPOCOR is liable to
pay Realty Tax for its properties in the municipalities of Tiwi and Daraga, Albay for
the period June 11, 1984 to March 10, 1987;

WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the
PROVINCE OF ALBAY;

WHEREAS, there is a need to further validate/reconcile the computation of

the realty tax in the total amount of P214,845,184.76;

NOW, THEREFORE, in view of the foregoing premises and for and in consideration
of the mutual covenant and stipulations hereinafter provided, the parties hereto have
agreed as follows:

1. NAPOCOR will make an initial payment of P17,783,000.00 receipt

of which is hereby/acknowledged.

2. The balance of the validated/reconciled amount of the real

estate taxes will be paid in 24 equal monthly installments, payable
within the first five (5) working days of the month. The first monthly
installment will commence in September 1992.

3. Should NAPOCOR default in any monthly installment, the balance

will immediately become due and demandable.

4. NAPOCOR will pay such other taxes and charges, such as the
franchise tax as provided for in the Local Government Code of 1991.
 5. In consideration of settlement of NAPOCOR's tax Liability, the
PROVINCE OF ALBAY hereby waives its claim of ownership over
NAPOCOR' properties subject in G.R. No. 87479 upon full payment
of the balance due to the PROVINCE OF ALBAY. 13 (emphasis
supplied).

The tenor of the abovequoted agreement shows that the intention of the parties was for the
redemption of the subject properties in that the Province would waive ownership over the
properties "in consideration of settlement of Napocor's tax liability.

Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public
auction may be redeemed by paying the total amount of taxes and penalties due up to the
date of redemption, costs of sale, and the interest at 20% of the purchase price.

The petitioners are estopped from claiming that the amounts received by the Province from
the NPC constitute payments of a debt under the MOA or of contract price in a private sale.
They constitute redemption price or payments of NPC's tax liabilities. This is evident from the
MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer,
which reads:

Date: July 29, 1992

Received from National Power Corp.
Manila.

In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos

Philippine Currency P17,763,030.00

In payment of the following:

For Partial Payment = P17,763,000.00

of Realty Tax Delinquency of Case No. 87479, NPC vs. Province of Albay.

Total P17,763,000.00.

Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which
provides: "That the installments paid by said corporation for the months of September to
December 1992, representing partial payments of the principal tax due are declared forfeited
in favor of the Provincial Government of Albay."

Moreover, in Resolution No. 197-92, the petitioners referred as "tax benefits" the shares of
certain municipalities and barangays from the amount paid by the NPC under the MOA. The
resolution reads in part as follows:

WHEREAS, by virtue of the Memorandum agreement, signed by the petitioner,

Province of Albay and respondent-oppositor, National Power Corporation (NPC), the
latter have agreed and paid an initial payment to the Province of Albay;

WHEREAS, the sharing based on the Local Government Code of 1991, the
municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and
P4,416.82 respectively and the barangays Bay in Lingao to P319.00 and Tagoytoy in
Malinao to P981.00,

WHEREAS, these tax benefits due them are not enough to pursue a worthwhile
project in said municipalities and barangays considering the present economic
situation. 15 (emphasis supplied).

As pointed out by the respondents, if the MOA was merely for the repurchase by NPC of its
properties from Albay, what could have been executed was a simple deed of absolute sale in
favor of NPC at an agreed price not necessarily P214 million which was the total amount of
the realty tax in arrears. Additionally, there would have been no need for the parties "to
further validate/reconcile the tax computation of the realty tax in the total amount of
P214,845,184,76."
Clearly, the P40,724,471.74 paid by the NPC to the Province pursuant to the MOA was part
of the redemption price or of the realty taxes in arrears.

It is conceded that under Section 78 of the Real Property Tax Code, redemption of
delinquency property must be made within one year from the date of registration of sale of
the property. The auction sale of the NPC properties was held on 30 March 1989 and
declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the
NPC offered to repurchase its former properties by paying its tax liabilities. When the
Province accepted the offer, it virtually waived the one-year redemption period. And having
thus allowed the MPC to redeem the subject properties and having received part of the
redemption price, the Province should have shared with the municipalities concerned those
amounts paid by the NPC in the same manner and proportion as if the taxes had been paid
in, regular course conformably with Section 87(c) of the Real Property Tax Code, which
provides:

(c) the proceeds of all delinquent taxes and penalties, as well as the income realized
from the use, lease or other disposition of real property acquired by the province or
city at a public auction in accordance with the provisions of this Code, and the
proceeds of the sale of the delinquent real property or of the redemption thereof shall
accrue to the province, city or municipality in the same proportion as if the tax or
taxes had been paid in regular course.

As early as 3 August 1992, respondent Mayor Corral had already made a written demand for
payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor
Salalima refused saying that the initial check of P17,763,000.00 was merely an "earnest
money." Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No.
197-92 giving some local government units, where smaller portions of the delinquent
properties are situated, shares from the payments made by the NPC under the MOA..

The petitioners cannot claim to have acted in good faith in refusing to give the municipalities
of Tiwi and Daraga their share. As pointed out by the Office of the Solicitor General, the
petitioners were aware of the local tax ordinances passed by the respective Sangguniang
Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in
their respective localities. Petitioner Salalima had even quoted the said ordinances in his
letter to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the
petitioners averred in the instant petition that "Governor Salalima specifically included the
amounts due to the municipalities of Tiwi and Daraga in asking NPC to settle its obligations."

When doubt arose as to whether the municipalities concerned are entitled to share in the
amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory
relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31
December 1992, the province had already disbursed or spent a large part of the NPC
payments. As found by COA, "of the P40,724,471.74 actually paid by the NPC and lodged in
the province's general fund, P35,803,118.300 was disbursed or spent by the Province."

If petitioners were really in good faith, they should have held the shares of Tiwi and
Daraga in trust 16pursuant to Section 309 (b) of the Local Government Code of 1991, which
provides:

Trust funds shall consist of private and public monies which have officially come into
the possession of the local government or of a local government official as trustee,
agent or administrator . . . A trust fund shall only be used for the specific purpose for
which it came into the possession of the local government unit.

As pointed out by the Ad Hoc Committee in its report, which was adopted by the Office of the
President:

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the
concerned barangays and the national government in the payments made by NPC
under the MOA, should be, as they are in fact, trust funds. As such, the Province
should have, upon receipt of said payments, segregated and lodged in special
accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the
national government for eventual remittance to said beneficiaries. Said shares
cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the
 Province cannot utilize said amounts for its own benefit or account (see also Sec. 86,
PD No. 464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi

and Daraga, the concerned barangays and the national government, cannot be
appropriated nor disbursed by the Province for the payment of its own expenditures
or contractual obligations.

However, in total disregard of the law, the Province treated the P40,724,471.74 NPC
payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its
general fund. No trust liability accounts were created in favor of the rightful
beneficiaries thereof as required by law.

We cannot therefore fault the public respondents with grave abuse of discretion in holding
the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi
and Daraga the amount of P40,724,471.74 paid by the NPC.

IV

We agree with the petitioners that Governor Salalima could no longer be held
administratively liable in C.P. Case No. 5450 in connection with the negotiated contract
entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the
Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case
No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus
Cornago and the Corte's and Reyna Law Firm. This is so because public officials cannot be
subject to disciplinary action for administrative misconduct committed during a prior term, as
held in Pascual vs. Provincial Board of Nueva Ecija 17 and Aguinaldo
vs. Santos. In Pascual, this Court ruled:
18

We now come to one main issue of the controversy — the legality of disciplining an
elective municipal official for a wrongful act committed by him during his immediately
preceding term of office.

In the absence of any precedent in this jurisdiction, we have resorted to American

authorities. We found that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in part, to a divergence
of views with respect to the question of whether the subsequent election or
appointment condones the prior misconduct. The weight of authority, however,
seems to incline to the rule denying the right to remove one from office because of
misconduct during a prior term, to which we fully subscribe.

Offenses committed, or acts done, during previous term are generally

held not to furnish cause for removal and this is especially true where
the constitution provides that the penalty in proceedings for removal
shall not extend beyond the removal from office, and disqualification
from holding office for the term for which the office was elected or
appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401;
Montgomery vs. Nowell, 40 S W. 2d 418; People ex rel. Bagshaw vs.
Thompson, 130 P. 2d 237; Board of Com'rs of Kingfisher County vs.
Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A.
67; State vs. Ward, 43 S.V. 2d. 217).

The underlying theory is that each term is separate from other terms, and that the
reelection to office operates as a condonation of the officer's previous misconduct to
the extent of cutting off the right to remove him therefor (43 Am. Jur. p.
45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.. (NS) 553. As
held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559,
50 LRA (NS) 553 —

The Court should never remove a public officer for acts done prior to
his present term of office. To do otherwise would be to deprive the
people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with
knowledge of his life and character, and that they disregarded or
 forgave his faults or misconduct, if he had been guilty of any. It is not
for the court, by reason of such faults or misconduct to practically
overrule the will of the people.

This Court reiterated this rule in Aguinaldo and explicitly stated therein:

Clearly then, the rule is that a public official can not be removed for administrative
misconduct committed during a prior term, since his re-election to office operates a
condonation of the officer's previous misconduct to the extent of cutting off the right
to remove him therefor. The foregoing rule, however, finds no application to criminal
cases pending against petitioners for acts he may have committed during the failed
coup.

However, the Office of the Solicitor General maintains that Aguinaldo does not apply
because the case against the official therein was already pending when he filed his
certificate of candidacy for his reelection bid. It is of the view that an official's reelection
renders moot and academic an administrative complaint against him for acts done during his
previous term only if the complaint was filed before his reelection. The fine distinction does
not impress us. The rule makes no distinction. As a matter of fact, in Pascual the
administrative complaint against Pascual for acts committed during his first term as Mayor of
San Jose, Nueva Ecija, was filed only a year after he was reelected.

The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned,
is still a good law. Such a rule is not only founded on the theory that an official's reelection
expresses the sovereign will of the electorate to forgive or condone any act or omission
constituting a ground for administrative discipline which was committed during his previous
term. We may add that sound public policy dictates it. To rule otherwise would open the
floodgates to exacerbating endless partisan contests between the reelected official and his
political enemies, who may not stop to hound the former during his new term with
administrative cases for acts alleged to have been committed during his previous term. His
second term may thus be devoted to defending himself in the said cases to the detriment of
public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal
acts which the reelected official may have committed during his previous term.

We thus rule that any administrative liability which petitioner Salalima might have incurred in
the execution of the retainer contract in O.P. Case No. 5469 and the incidents related
therewith and in the execution on 6 March 1992 of a contract for additional repair and
rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed
extinguished by his reelection in the 11 May 1992 synchronized elections. So are the
liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who
signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract
in question and who were reelected in the 1992 elections. This is, however, without prejudice
to the institution of appropriate civil and criminal cases as may be warranted by the attendant
circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who
became members of the Sangguniang Panlalawigan only after their election in 1992, they
could not beheld administratively liable in O.P. case No. 5469, for they had nothing to do with
the said resolution which was adopted in April 1989 yet.

Having thus held that the petitioners could no longer be administratively liable in O.P. Case
No. 5469, we find it unnecessary to delve into, and pass upon, the fifth issue.

WHEREFORE, the instant special action for certiorari is hereby partly GRANTED. That part
of the challenged Administrative Order No. 153 imposing the penalty of suspension on
petitioner Governor Romeo Salalima in O.P. Cases Nos. 5450 and 5469 and on petitioners
Vice Governor Danilo Azaña and Sangguniang Panlalawigan Members Juan Victoria,
Lorenzo Reyeg, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr.,
Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No. 5469 are hereby
ANNULLED and SET ASIDE, without prejudice to the filing of appropriate civil or criminal
actions against them if warranted by the attendant circumstances.

No pronouncement as to costs.

SO ORDERED.
 G.R. No. 112099. February 21, 1995.*

ACHILLES C. BERCES, SR., petitioner,

vs.

HON. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR., CHIEF

PRESIDENTIAL LEGAL COUNSEL ANTONIO CARPIO and MAYOR
NAOMI C. CORRAL OF TIWI, ALBAY, respondents.

Statutory Construction; Repealing clause of Section 530(f), R.A. No. 7160 is not an
express repeal of Section 6 of Administrative Order No. 18.—The aforementioned
clause is not an express repeal of Section 6 of Administrative Order No. 18 because it
failed to identify or designate the laws or executive orders that are intended to be
repealed.

Same; Repeal by implication is not favored.—If there is any repeal of Administrative

Order No. 18 by R.A. No. 7160, it is through implication though such kind of repeal is
not favored (The Philippine American Management Co., Inc. v. The Philippine American
Management Employees Association, 49 SCRA 194 [1973]). There is even a
presumption against implied repeal.

Same; In the absence of an express repeal, a subsequent law cannot be construed as

repealing a prior law unless an irreconcilable inconsistency and repugnancy exists in
the terms of the new and old laws.—An implied repeal predicates the intended repeal
upon the condition that a substantial conflict must be found between the new and prior
laws. In the absence of an express repeal, a subsequent law cannot be construed as
repealing a prior law unless an irreconcilable inconsistency and repugnancy exists in
the terms of the new and old laws (Iloilo Palay and Corn Planters Association, Inc. v.
Feliciano, 13 SCRA 377 [1965]). The two laws must be absolutely incompatible
(Compania General de Tabacos v. Collector of Customs, 46 Phil. 8 [1924]). There must
be such a repugnancy between the laws that they cannot be made to stand together.

Same; Provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative

Order No. 18 are not irreconcilably inconsistent and repugnant.—We find that the
provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No. 18
are not irreconcilably inconsistent and repugnant and the two laws must in fact be read
together.

Same; If the intention of Congress was to repeal Section 6 of Administrative Order No.
18, it could have used more direct language expressive of such intention.—The first
sentence of Section 68 merely provides that an "appeal shall not prevent a decision
from becoming final or executory." As worded, there is room to construe said provision
as giving discretion to the reviewing officials to stay the execution of the appealed
decision. There is nothing to infer therefrom that the reviewing officials are deprived of
the authority to order a stay of the appealed order. If the intention of Congress was to
repeal Section 6 of Administrative Order No. 18, it could have used more direct
language expressive of such intention.

Same; The term "shall" may be read either as mandatory or directory.—The term
"shall" may be read either as mandatory or directory depending upon a consideration of
the entire provision in which it is found, its object and the consequences that would
follow from construing it one way or the other (c/! De Mesa v. Mencias, 18 SCRA 533
[1966]). In the case at bench, there is no basis to justify the construction of the word as
mandatory.

QUIASON, J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court with
prayer for mandatory preliminary injunction, assailing the Orders of the Office of the President as
having been issued with grave abuses of discretion. Said Orders directed the stay of execution of
the decision of the Sangguniang Panlalawigan suspending the Mayor of Tiwi, Albay from office.

Petitioner filed two administrative cases against respondent Naomi C. Corral, the incumbent Mayor
of Tiwi, Albay with the Sangguniang Panlalawigan of Albay, to wit:

(1) Administrative Case No. 02-92 for abuse of authority and/or oppression for non-
payment of accrued leave benefits due the petitioner amounting to P36,779.02.

(2) Administrative Case No. 05-92 for dishonesty and abuse of authority for installing
a water pipeline which is being operated, maintained and paid for by the municipality
to service respondent's private residence and medical clinic.

On July 1, 1993, the Sangguniang Panlalawigan disposed the two Administrative cases in the
following manner:

(1) Administrative Case No. 02-92

 ACCORDINGLY, respondent Mayor Naomi C. Corral of Tiwi, Albay, is hereby
ordered to pay Achilles Costo Berces, Sr. the sum of THIRTY-SIX THOUSAND AND
SEVEN HUNDRED SEVENTY-NINE PESOS and TWO CENTAVOS (P36,779.02)
per Voucher No. 352, plus legal interest due thereon from the time it was approved in
audit up to final payment, it being legally due the Complainant representing the
money value of his leave credits accruing for services rendered in the municipality
from 1988 to 1992 as a duly elected Municipal Councilor. IN ADDITION, respondent
Mayor NAOMI C. CORRAL is hereby ordered SUSPENDED from office as Municipal
Mayor of Tiwi, Albay, for a period of two (2) months, effective upon receipt hereof for
her blatant abuse of authority coupled with oppression as a public example to deter
others similarly inclined from using public office as a tool for personal vengeance,
vindictiveness and oppression at the expense of the Taxpayer (Rollo, p. 14).

(2) Administrative Case No. 05-92

WHEREFORE, premises considered, respondent Mayor NAOMI C. CORRAL of Tiwi,

Albay, is hereby sentenced to suffer the penalty of SUSPENSION from office as
Municipal Mayor thereof for a period of THREE (3) MONTHS beginning after her
service of the first penalty of suspension ordered in Administrative Case No. 02-92.
She is likewise ordered to reimburse the Municipality of Tiwi One-half of the amount
the latter have paid for electric and water bills from July to December 1992, inclusive
(Rollo, p. 16).

Consequently, respondent Mayor appealed to the Office of the President questioning the decision
and at the same time prayed for the stay of execution thereof in accordance with Section 67(b) of the
Local Government Code, which provides:

Administrative Appeals. — Decision in administrative cases may, within thirty (30)

days from receipt thereof, be appealed to the following:

xxx xxx xxx

(b) The Office of the President, in the case of decisions of the

sangguniang panlalawigan and the sangguniang panglungsod of
highly urbanized cities and independent component cities.

Acting on the prayer to stay execution during the pendency of the appeal, the Office of the President
issued an Order on July 28, 1993, the pertinent portions of which read as follows:

xxx xxx xxx

The stay of the execution is governed by Section 68 of R.A. No. 7160 and Section 6
of Administrative Order No. 18 dated 12 February 1987, quoted below:

Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from
becoming final or executory. The respondent shall be considered as having been
placed under preventive suspension during the pendency of an appeal in the events
he wins such appeal. In the event the appeal results in an exoneration, he shall be
paid his salary and such other emoluments during the pendency of the appeal (R.A.
No. 7160).

Sec. 6 Except as otherwise provided by special laws, the execution of the

decision/resolution/order appealed from is stayed upon filing of the appeal within the
period prescribed herein. However, in all cases, at any time during the pendency of
the appeal, the Office of the President may direct or stay the execution of the
decision/resolution/order appealed from upon such terms and conditions as it may
deem just and reasonable (Adm. Order No. 18).

xxx xxx xxx

After due consideration, and in the light of the Petition for Review filed before this
Office, we find that a stay of execution pending appeal would be just and reasonable
to prevent undue prejudice to public interest.
 WHEREFORE, premises considered, this Office hereby orders the suspension/stay
of execution of:

a) the Decision of the Sangguniang Panlalawigan of Albay in

Administrative Case No. 02-92 dated 1 July 1993 suspending Mayor
Naomi C. Corral from office for a period of two (2) months, and

b) the Resolution of the Sangguniang Panlalawigan of Albay in

Administrative Case. No. 05-92 dated 5 July 1993 suspending Mayor
Naomi C. Corral from office for a period of three (3) months (Rollo,
pp. 55-56).

Petitioner then filed a Motion for Reconsideration questioning the aforesaid Order of the Office of the
President.

On September 13, 1990, the Motion for Reconsideration was denied.

Hence, this petition.

II

Petitioner claims that the governing law in the instant case is R.A. No. 7160, which contains a
mandatory provision that an appeal "shall not prevent a decision from becoming final and executory."
He argues that administrative Order No. 18 dated February 12, 1987, (entitle "Prescribing the Rules
and Regulations Governing Appeals to Office the President") authorizing the President to stay the
execution of the appealed decision at any time during the pendency of the appeal, was repealed by
R.A. No. 7160, which took effect on January 1, 1991 (Rollo, pp. 5-6).

The petition is devoid of merit.

Petitioner invokes the repealing clause of Section 530 (f), R.A. No. 7160, which provides:

All general and special laws, acts, city charters, decrees, executive orders,
administrative regulations, part or parts thereof, which are incosistent with any of the
provisions of this Code, are hereby repealed or modified accordingly.

The aforementioned clause is not an express repeal of Section 6 of Administrative Order No. 18
because it failed to identify or designate the laws or executive orders that are intended to be
repealed (cf. I Sutherland, Statutory Construction 467 [1943]).

If there is any repeal of Administrative Order No. 18 by R.A. No. 7160, it is through implication
though such kind of repeal is not favored (The Philippine American Management Co., Inc. v. The
Philippine American Management Employees Association, 49 SCRA 194 [1973]). There is even a
presumption against implied repeal.

An implied repeal predicates the intended repeal upon the condition that a substantial conflict must
be found between the new and prior laws. In the absence of an express repeal, a subsequent law
cannot be construed as repealing a prior law unless an irreconcible inconsistency and repugnancy
exists in the terms of the new and old laws (Iloilo Palay and Corn Planters Association, Inc. v.
Feliciano, 13 SCRA 377 [1965]). The two laws must be absolutely incompatible (Compania General
de Tabacos v. Collector of Customs, 46 Phil. 8 [1924]). There must be such a repugnancy between
the laws that they cannot be made to stand together (Crawford, Construction of Statutes 631 [1940]).

We find that the provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No.
18 are not irreconcillably inconsistent and repugnant and the two laws must in fact be read together.

The first sentence of Section 68 merely provides that an "appeal shall not prevent a decision from
becoming final or executory." As worded, there is room to construe said provision as giving
discretion to the reviewing officials to stay the execution of the appealed decision. There is nothing
to infer therefrom that the reviewing officials are deprived of the authority to order a stay of the
appealed order. If the intention of Congress was to repeal Section 6 of Administrative Order No. 18,
it could have used more direct language expressive of such intention.
The execution of decisions pending appeal is procedural and in the absence of a clear legislative
intent to remove from the reviewing officials the authority to order a stay of execution, such authority
can provided in the rules and regulations governing the appeals of elective officials in administrative
cases.

The term "shall" may be read either as mandatory or directory depending upon a consideration of the
entire provisions in which it is found, its object and the consequences that would follow from
construing it one way or the other (cf. De Mesa v. Mencias, 18 SCRA 533 [1966]). In the case at
bench, there is no basis to justify the construction of the word as mandatory.

The Office of the President made a finding that the execution of the decision of the Sagguniang
Panlalawigan suspending respondent Mayor from office might be prejudicial to the public interest.
Thus, in order not to disrupt the rendition of service by the mayor to the public, a stay of the
execution of the decision is in order.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 117618. March 29, 1996.*

VIRGINIA MALINAO, petitioner,

vs.

HON. LUISITO REYES, in his capacity as Governor of the Province of

Marinduque, SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and
WILFREDO RED, in his capacity as Mayor of Sta. Cruz, Marinduque,
respondents.

Administrative Law; Local Governments; To render a decision in administrative

cases involving elective local officials, the decision of the Sanggunian must thus be in
“writing stating clearly and distinctly the facts and the reasons for such decision.”—In
order to render a decision in administrative cases involving elective local officials, the
decision of the Sanggunian must thus be “in writing stating clearly and distinctly the
facts and the reasons for such decision.” What the Sanggunian, therefore, did on
August 12, 1994 was not to render a decision.

Same; Same; The so-called “Decision” prepared by Sanggunian Member Rodrigo V.

Sotto on September 5, 1994 cannot be regarded as the decision of the Sanggunian for
lack of the signatures of the requisite majority.—Neither may the so-called “Decision”
prepared by Sanggunian Member Rodrigo V. Sotto on September 5, 1994 be regarded
as the decision of the Sanggunian for lack of the signatures of the requisite majority.
Like the procedure in the Supreme Court, the voting following the deliberation of the
members of the Sanggunian did not necessarily constitute their decision unless this was
embodied in an opinion prepared by one of them and concurred in by the others, in the
same way that the voting following the deliberation on a case in the Supreme Court
becomes its decision only after the opinion prepared by a Justice is concurred in by
others composing the majority. Until they have signed the opinion and the decision is
promulgated, the Justices are free to change their votes.

Same; Same; Suspension; Reelection of respondent abates any administrative

disciplinary proceedings against him.—Pursuant to §66(b) of the Code, the penalty of
suspension cannot exceed the unexpired term of the respondent or a period of six (6)
months for every administrative offense. On the other hand, any administrative

disciplinary proceeding against respondent is abated if in the meantime he is reelected,

because his reelection results in a condonation of whatever misconduct he might have
committed during his previous term.

Remedial Law; Special Civil Action; Certiorari; A prime specification of the writ of
certiorari is that there is no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law.— Petitioner brought this case by way of petition for certiorari
and mandamus. A prime specification of the writ of certiorari, however, is that there is
no appeal nor any plain, speedy and adequate remedy in the ordinary course of law
available to petitioner. But, in the case at bar, petitioner could have appealed the
decision of the Sanggunian to the Office of the President as provided in §67(b) of the
Local Government Code.

MENDOZA, J.:p

This is a petition for certiorari and mandamus to annul the decision dated October 21, 1994 of the Sangguniang Panlalawigan of Marinduque,
dismissing the administrative case filed by petitioner against respondent Mayor Wilfredo Red of Sta. Cruz, Marinduque. The ground for the
present petition is that the same body already found respondent Mayor guilty of abuse of authority in removing petitioner from her post as
Human Resource Manager without due process in another decision which is now final and executory.

The facts are as follows:

Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz, Marinduque. Respondent
Mayor filed a case against her in the Office of the Ombudsman for gross neglect of duty, inefficiency
and incompetence. While the case was pending, he appointed a replacement for petitioner.

On February 24, 1994 petitioner filed an administrative case, docketed as Administrative Case No,
93-03, against respondent Mayor in the Sangguniang Panlalawigan of Marinduque, charging him
with abuse of authority and denial of due process.
On August 12, 1994, the case was taken up in executive session of the Sanggunian. The transcript
of stenographic notes of the session1 shows that the Sanggunian, by the vote of 5 to 3 of its
members, found respondent Mayor guilty of the charge and imposed on him the penalty of one-
month suspension.

The result of the voting was subsequently embodied in a "Decision" dated September 5,
1994,2 signed by only one member of the Sanggunian, Rodrigo V. Sotto, who did so as "Presiding
Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan." Copies of the "Decision" were
served on respondent Mayor Red as well as on respondent Governor Luisito Reyes On September
12, 1994.

On September 14, 1994, respondent Mayor filed a manifestation3 before the Sanggunian,
questioning the "Decision" on the ground that it was signed by Sotto alone, "apparently acting in his
capacity and designated as "Presiding Chairman, Blue Ribbon Committee, Sangguniang
Panlalawigan." He contended that because of this the decision could only be considered as a
recommendation of the Blue Ribbon Committee and he was not bound thereby.

On September 13, 1994, respondent Mayor sought the opinion of the Secretary of the Department of
the Interior and Local Government regarding the validity of the "Decision."

In his letter dated September 14, 1994,4 DILG Secretary Rafael M. Alunan III opined that the "
'decision' alluded to does not appear to be in accordance with Section 66 of the Local Government
Code of 1991 and settled jurisprudence" since

in the instant case, the purported decision of the Blue Ribbon Committee should
have been submitted to, approved and/or adopted by the Sangguniang Panlalawigan
as a collegial body inasmuch as the Sangguniang Panlalawigan has the
administrative jurisdiction to take cognizance thereof in conformity with Section 61
and Section 66 of the Code. It is not for the said committee to decide on the merits
thereof, more so to impose the suspension, as its duty and function is purely
recommendatory. If it were at all the intention of the Sangguniang Panlalawigan to
adopt entirely the recommendation of the Blue Ribbon Committee, it should have so
stated and the members of the Sangguniang Panlalawigan, who may have
affirmatively voted thereon or participated in its deliberations, should have affixed
their respective signatures on whatever decision that could have been arrived at. . . .

On the other hand petitioner sent a letter5 on October 14, 1994 to respondent Governor Reyes,
demanding that the "Decision" suspending respondent Mayor from office be implemented without
further delay.

In his letter dated October 20, 1994,6 respondent Governor informed the Sanggunian that he agreed
with the opinion of the DILG for which reason he could not implement the "Decision" in question.

On October 21, 1994,7 the Sanggunian, voting 7 to 2, acquitted respondent Mayor of the charges
against him. The vote was embodied in a Decision of the same date, which was signed by all
members who had thus voted.8

Hence this petition.

I. Petitioner's basic contention is that inasmuch as the "Decision" of September 5, 1994 had become
final and executory, for failure of respondent Mayor to appeal, it was beyond the power of the
Sanggunian to render another decision on October 21, 1994 which in effect reversed the first
decision.

These contentions are without merit. What petitioner claims to be the September 5, 1994 "Decision"
of the Sangguniang Panlalawigan bore the signature of only one member (Rodrigo V. Sotto) who
signed the "Decision" as "Presiding Chairman, Blue Ribbon Committee, Sangguniang
Panlalawigan." Petitioner claims that at its session on August 12, 1994, the Sanggunian by the vote
of five members against three found respondent Mayor guilty of having removed petitioner as
Human Resources Officer III without due process and that this fact is shown in the minutes of the
session of the Sanggunian. The minutes referred to read in pertinent part as follows:
KGD. SOTTO –– No if he [respondent Mayor] is acquitted, then let's acquit it.
Whatever is the decision everybody goes to the majority.

(There was nominal voting from the Sangguniang Panlalawigan member. For NOT
GUILTY OR GUILTY)

KGD. ZOLETA –– I vote not guilty.

KGD. MUHI –– Guilty.

KGD. LIM –– Not guilty.

KGD. RAZA –– First I would like to say that I will decide on the merit of the case. The
fact that the Civil Service ordered the reinstatement wherein Virginia Malinao is
included, only means that the Supreme Court duly constituted has found the merit of
the decision of the Civil Service.

I vote that the Mayor is guilty.

KGD. PINAROC –– Guilty.

KGD. DE LUNA –– Guilty, there is no due process and to protect the integrity of the
Sangguniang Panlalawigan.

KGD. LAGRAN –– Guilty.

KGD. ZOLETA –– My reason for voting "not guilty" is that the mayor acted in good
faith, he just followed the order of the reorganization recommended by the Placement
Committee.

KGD. REJANO –– The order of the reorganization was given by the Civil Service
Commission and based on the contention made by Kgd. Palamos that since there
should be reorganization to be conducted by the Civil Service Commission the mayor
was supposed to go on with that reorganization and based on the reorganization
there should be a screening committee to check whether the employees are really
working efficiently. Based on the case that has been given to Mrs. Malinao, based on
the witnesses, Ligeralde, Monterozo and Pastrana and then decided that Mayor Red
has done in good faith.

So I vote Not Guilty.

Five (5) voted GUILTY:

Kgd. Muhi

Kgd. Raza

Kgd. Pinaroc

Kgd. Lagran

Kgd. De Luna

Three (3) voted NOT GUILTY:

Kgd. Rejano

Kgd. Zoleta

Kgd. Lim
 KGD. SOTTO –– Punishment . . .

Censure? Reprimand? Suspension?.

KGD. LAGRAN –– I suggest that only those who voted "guilty" should vote as to
what punishment should be given.

KGD. LIM –– All the members should be given the right to vote.

(THE VOTING PROCEEDED.)

Kgd. Muhi –– Suspension

Kgd. Raza –– Suspension

Kgd. Pinaroc –– Suspension

Kgd. Lagran –– Suspension

Kgd. de Luna –– Suspension

KGD. ZOLETA –– Since we voted "not guilty" therefore "no punishment."

KGD. REJANO –– "No punishment"

KGD. LIM –– "No punishment"

KGD. SOTTO –– How many months?

KGD. MUHI –– One month.

KGD. RAZA –– One month.

KGD. PINAROC –– One month.

KGD. LAGRAN –– One month.

KGD. DE LUNA –– One month.

KGD SOTTO –– Be it on record that on August 12, 1994 during the Executive
Session of the Sangguniang Panlalawigan en banc the respondent is hereby found
"guilty."

Effective upon receipt of the Decision, copy furnished: the counsel for Respondent,
the Counsel for Complainant, the Municipal Treasurer, Sta. Cruz, Marinduque, the
Provincial Auditor, the Civil Service Commission, Boac, Marinduque, the DILG, Boac,
Marinduque, the Provincial Governor.

Contrary to petitioner's claim, what the minutes only show is that on August 12, 1994 the
Sanggunian took a vote on the administrative case of respondent Mayor and not that it then
rendered a decision as required by §66 (a) of the Local Government Code (R.A. No. 7160) which
provides as follows:

§66. Form and Notice of Decision. –– (a) The investigation of the case shall be
terminated within ninety (90) days from the start thereof. Within thirty (30) days after
the end of the investigation, the Office of the President or the sanggunian concerned
shall render a decision in writing stating clearly and distinctly the facts and the
reasons for such decision. Copies of said decision shall immediately be furnished the
respondent and all interested parties.
 In order to render a decision in administrative cases involving elective local officials, the
decision of the Sanggunian must thus be "in writing stating clearly and distinctly the facts and
the reasons for such decision." What the Sanggunian, therefore, did on August 12, 1994 was
not to render a decision.

Neither may the so-called "Decision" prepared by Sanggunian Member Rodrigo V. Sotto on
September 5, 1994 be regarded as the decision of the Sanggunian for lack of the signatures of the
requisite majority. Like the procedure in the Supreme Court, the voting following the deliberation of
the members of the Sanggunian did not necessarily constitute their decision unless this was
embodied in an opinion prepared by one of them and concurred in by the others, in the same way
that the voting following the deliberation on a case in the Supreme Court becomes its decision only
after the opinion prepared by a Justice is concurred in by others composing the majority. Until they
have signed the opinion and the decision is promulgated, the Justices are free to change their
votes.9

Indeed, in his comment 10 in this case, Member Sotto admits that the draft decision he prepared had
only his signature "due to the reluctance of some Kagawads to affix their signatures." Consequently
the draft never became a decision. It is noteworthy that the draft was signed by Member Sotto in his
capacity as "Presiding Chairman of the Blue Ribbon Committee of the Sangguniang Panlalawigan"
and that it did not provide spaces for the signatures of other members of the Sanggunian had it been
intended that it be signed by them. This fact led the DILG to conclude that the draft was simply the
report and recommendation of the Blue Ribbon Committee to the Sanggunian.

Now, as already stated, the Sanggunian, at its session on October 21, 1994, took another vote and,
7 to 2, decided to dismiss the case against respondent Mayor. This time its decision was made in
writing, stating the facts and the law on which it was based, and it was signed by the members
taking part in the decision. This, and not the so-called decision of September 5, 1994, is the decision
of the Sanggunian.

Petitioner complains that no notice of the session by the Sanggunian on October 21, 1994 was given
to her. None was really required to be given to her. The deliberation of the Sanggunian was an
internal matter.

II. Petitioner brought this case by way of petition for certiorari and mandamus. A prime specification
of the writ of certiorari, however, is that there is no appeal nor any plain, speedy and adequate
remedy in the ordinary course of law available to petitioner. But, in the case at bar, petitioner could
have appealed the decision of the Sanggunian to the Office of the President as provided in §67(b) of
the Local Government Code.

III. At all events, this case is now moot and academic as a result of the expiration of respondent's
term during which the act complained of was allegedly committed, and further proceedings against
respondent Mayor are barred by his reelection on May 8, 1995.

Pursuant to §66(b) of the Code, the penalty of suspension cannot exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense. On the other hand, any
administrative disciplinary proceeding against respondent is abated if in the meantime he is
reelected, because his reelection results in a condonation of whatever misconduct he might have
committed during his previous term.11

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

G.R. No. 170626. March 3, 2008.*

THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO

MARCOS, MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA
VIZCAYA represented by BARANGAY KAGAWAD JOSE CENEN
 SANTOS, MARIO BACUD, WALTER FRANCISCO, ROSITA
SEBASTIAN, LAURETA CABAUATAN, CECILIA ALINDAYU and MELY
SIMANGAN, petitioners,

vs.

PUNONG BARANGAY SEVERINO MARTINEZ, respondent.

Administrative Law; Local Government Code; Pertinent legal provisions and cases
decided by the Court firmly establish that the Sangguniang Bayan is not empowered to
remove an elective local official from office.—The pivotal issue in this case is whether or
not the Sangguniang Bayan may remove Martinez, an elective local official, from office.
The pertinent legal provisions and cases decided by this Court firmly establish that the
Sangguniang Bayan is not empowered to do so.

Same; Same; The Office of the President is without any power to remove elected
officials, since the power is exclusively vested in the proper courts.—In Salalima v.
Guingona, Jr., 257 SCRA 55 (1996), the Court en banc categorically ruled that the
Office of the President is without any power to remove elected officials, since the power
is exclusively vested in the proper courts as expressly provided for in the last paragraph
of Section 60 of the Local Government Code. It further invalidated Article 125, Rule XIX
of the Rules and Regulations Implementing the Local Government Code of 1991.

Same; Same; The Sangguniang Panlungsod or Sangguniang Bayan cannot order the
removal of an erring elective barangay official from office, as the courts are exclusively
vested with this power under Section 60 of the Local Government Code; The most
extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose
on the erring elective barangay official is suspension.—As the law stands, Section 61 of
the Local Government Code provides for the procedure for the filing of an administrative
case Sangguniang Barangay of Don Mariano Marcos,Bayombong, Nueva Vizcaya vs.
Martinez against an erring elective barangay official before the Sangguniang
Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or
Sangguniang Bayan cannot order the removal of an erring elective barangay official
from office, as the courts are exclusively vested with this power under Section 60 of the
Local Government Code. Thus, if the acts allegedly committed by the barangay official
are of a grave nature and, if found guilty, would merit the penalty of removal from office,
the case should be filed with the regional trial court. Once the court assumes
jurisdiction, it retains jurisdiction over the case even if it would be subsequently
apparent during the trial that a penalty less than removal from office is appropriate. On
the other hand, the most extreme penalty that the Sangguniang Panlungsod or
Sangguniang Bayan may impose on the erring elective barangay official is suspension;
if it deems that the removal of the official from service is warranted, then it can resolve
that the proper charges be filed in court.

Same; Doctrine of Exhaustion of Administrative Remedies; The doctrine of

exhaustion of administrative remedies calls for resort first to the appropriate
administrative authorities in the resolution of a controversy falling under their jurisdiction
before the same may be elevated to the courts of justice for review.—The doctrine of
exhaustion of administrative remedies calls for resort first to the appropriate
administrative authorities in the resolution of a controversy falling under their jurisdiction
before the same may be elevated to the courts of justice for review. Non-observance of
the doctrine results in lack of a cause of action, which is one of the grounds allowed by
the Rules of Court for the dismissal of the complaint.

Same; Same; Instances when the doctrine may be dispensed with and judicial action
may be validly resorted to immediately.—The doctrine of exhaustion of administrative
remedies, which is based on sound public policy and practical consideration, is not
inflexible. There are instances when it may be dispensed with and judicial action may be
validly resorted to immediately. Among these exceptions are:

1) where there is estoppel on the part of the party invoking the doctrine;

2) where the challenged administrative act is patently illegal, amounting to lack of

jurisdiction;

3) where there is unreasonable delay or official inaction that will irretrievably prejudice
the complainant;

4) where the amount involved is relatively small as to make the rule impractical and
oppressive;

5) where the question raised is purely legal and will ultimately have to be decided by the
courts of justice;
6) where judicial intervention is urgent;

7) where its application may cause great and irreparable damage;

8) where the controverted acts violate due process;

9) when the issue of non-exhaustion of administrative remedies has been rendered

moot;

10) where there is no other plain, speedy and adequate remedy;

11) when strong public interest is involved; and

13) in quo warranto proceedings.

Same; Same; Where the case involves only legal questions, the litigant need not
exhaust all administrative remedies before such judicial relief can be sought; A legal
question is properly addressed to a regular court of justice rather than to an
administrative body.—This Court in Castro v. Gloria, 363 SCRA 417 (2001), declared
that where the case involves only legal questions, the litigant need not exhaust all
administrative remedies before such judicial relief can be sought. The reason behind
providing an exception to the rule on exhaustion of administrative remedies is that
issues of law cannot be resolved with finality by the administrative officer. Appeal to the
administrative officer would only be an exercise in futility. A legal question is properly
addressed to a regular court of justice rather than to an administrative body.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Orders
dated 20 October 20051 and 30 November 20052 of the Regional Trial Court (trial court), Branch 27,
of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its assailed Orders, the trial court
ruled that the Sangguniang Bayan of Bayombong, Neuva Vizcaya (Sangguniang Bayan), exceeded
its jurisdiction when it imposed upon respondent Severino Martinez the administrative penalty of
removal from office.

Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos,
Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as such under
pertinent laws of the Republic of the Philippines. Respondent Martinez is the incumbent Punong
Barangay of the said local government unit.3

On 5 November 2004, Martinez was administratively charged with Dishonesty and Graft and
Corruption by petitioner through the filing of a verified complaint before the Sangguniang Bayan as
the disciplining authority over elective barangay officials pursuant to Section 614 of Rep. Act No.
7160, otherwise known as the Local Government Code. Petitioner filed with the Sangguniang Bayan
an Amended Administrative Complaint against Martinez on 6 December 2004 for Dishonesty,
Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act.5 Petitioner alleged
that Martinez committed the following acts:
 1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste
management project since 2001 particularly the sale of fertilizer derived from composting.

2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken
from garbage collection.

3. Using the garbage truck for other purposes like hauling sand and gravel for private
persons without monetary benefit to the barangay because no income from this source
appears in the year end report even if payments were collected x x x.

4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare
parts of the garbage truck instead of using the money or income of said truck from the
garbage fees collected as income from its Sold Waste Management Project. x x x.

5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a

cash advance was made by the respondent for the said purpose, he, however, did not attend
said seminar because on the dates when he was supposed to be on seminar they saw him in
the barangay. x x x.

6. That several attempts to discuss said problem during sessions were all in vain because
respondent declined to discuss it and would adjourn the session.x x x.6

Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December
2004, Martinez was declared by the Sangguniang Bayan as in default. Pending the administrative
proceedings, Martinez was placed under preventive suspension for 60 days or until 8 August 2005.7

On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed upon Martinez the
penalty of removal from office.8

The Decision dated 28 July 2005 was conveyed to the Municipal Mayor of Bayombong, Nueva Ecija,
Severino Bagasao, for its implementation. On 3 August 2005, Municial Mayor Bagasao issued a
Memorandum, wherein he stated that the Sanggunaing Bayan is not empowered to order Martinez’s
removal from service. However, the Decision remains valid until reversed and must be executed by
him. For the meantime, he ordered the indefinite suspension of Martinez since the period of appeal
had not yet lapsed.9 The dispositive portion of the said Memorandum states that:10

The FOREGOING considered come AUGUST 8, 2005, respondent SEVERINO D.

MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the Office
of the Punong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and
for complainant JOSE CENEN SANTOS to CONTINUE assuming and discharging the
functions of the said office in ACTING CAPACITY pursuant to the provisions of Sections 67
and 68 of Republic Act No. 7160.

On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary
Restraining Order and Preliminary Injunction before the trial court against petitioner, the
Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision dated 28 July 2005
of the Sangguniang Bayan. This case was docketed as Special Civil Action No. 6727, which was
initially heard by Branch 28, but later raffled to Branch 27 of the trial court.11

On 20 October 2005, the trial court issued an Order declaring the Decision of the Sangguniang
Bayan and the Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not
the petitioner, are empowered to remove an elective local official from office, in accordance with
Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan removing
Martinez from service is void. As a consequence, Mayor Bagasao cannot prevent Martinez from
assuming his office on the basis of a void order. The trial court further ruled that Martinez properly
availed himself of the remedy of Special Civil Action, where the order assailed was a patent nullity.12

On 10 November 2005, petitioner filed a Motion for Reconsideration13 of the trial court’s Order dated
10 October 2005. The trial court denied the said motion in another Order dated 30 November 2005.14

Hence, the present petition was filed.

Although Martinez’s term as Punong Baranggay expired upon the holding of the 29 October 2007
Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot
and academic, the Court will nevertheless settle a legal question that is capable of repetition yet
evading review.15

The pivotal issue in this case is whether or not the Sangguniang Bayan may remove Martinez, an
elective local official, from office. The pertinent legal provisions and cases decided by this Court
firmly establish that the Sanggunaing Bayan is not empowered to do so.

Section 60 of the Local Government Code conferred upon the courts the power to remove elective
local officials from office:

Section 60. Grounds for Disciplinary Actions.—An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:

x x x x.

An elective local official may be removed from office on the grounds enumerated above by
order of the proper court. (Emphasis provided.)

During the deliberations of the Senate on the Local Government Code,16 the legislative intent to
confine to the courts, i.e., regional trial courts, the Sandiganbayan and the appellate courts,
jurisdiction over cases involving the removal of elective local officials was evident:

Senator Pimentel. This has been reserved, Mr. President, including the issue of whether or
not the Department Secretary or the Office of the President can suspend or remove an
elective official.

Senator Saguisag. For as long as that is open for some later disposition, may I just add the
following thought: It seems to me that instead of identifying only the proper regional
trial court or the Sandiganbayan, and since we know that in the case of a regional trial
court, particularly, a case may be appealed or may be the subject of an injunction, in
the framing of this later on, I would like to suggest that we consider replacing the
phrase "PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN" simply by
"COURTS." Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang
Sandiganbayan.

Senator Pimentel. "OR THE PROPER COURT."

Senator Saguisag. "OR THE PROPER COURT."

Senator Pimentel. Thank you. We are willing to accept that now, Mr. President.

Senator Saguisag. It is to be incorporated in the phraseology that we will craft to capture the
other ideas that have been elevated. (Emphasis provided.)

In Salalima v. Guingona, Jr.,17 the Court en banc categorically ruled that the Office of the President is
without any power to remove elected officials, since the power is exclusively vested in the proper
courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code.
It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local
Government Code of 1991, which provided that:

Article 125. Grounds for Disciplinary Actions. x x x.

x x x x.

(b) An elective local official may be removed from office on the grounds enumerated in
paragraph (a) of this Article by order of the proper court or the disciplining authority
whichever first acquires jurisdiction to the exclusion of the other.

The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and
Regulations of the Local Government Code exceeded its authority when it granted to the
"disciplining authority" the power to remove elective officials, a power which the law itself granted
only to the proper courts. Thus, it is clear that under the law, the Sangguniang Bayan is not vested
with the power to remove Martinez.

Petitioner contends that administrative cases involving elective barangay officials may be filed with,
heard and decided by the Sangguniang Panlungsod or Sangguniang Bayan concerned, which can,
thereafter, impose a penalty of removal from office. It further claims that the courts are merely tasked
with issuing the order of removal, after the Sangguniang Panlungsod or Sangguniang Bayan finds
that a penalty of removal is warranted.18

The aforementioned position put forward by the petitioner would run counter to the rationale for
making the removal of elective officials an exclusive judicial prerogative. In Pablico v.
Villapando,19 the court declared that:

It is beyond cavil, therefore, that the power to remove erring elective local officials from
service is lodged exclusively with the courts. Hence, Article 124 (sic 125)20 (b), Rule XIX, of
the Rules and Regulations Implementing the Local Government Code, insofar as it vests
power on the "disciplining authority" to remove from office erring elective local officials, is
void for being repugnant to the last paragraph of Section 60 of the Local Government Code
of 1991. The law on suspension or removal of elective public officials must be strictly
construed and applied, and the authority in whom such power of suspension or removal is
vested must exercise it with utmost good faith, for what is involved is not just an ordinary
public official but one chosen by the people through the exercise of their constitutional right
of suffrage. Their will must not be put to naught by the caprice or partisanship of the
disciplining authority. Where the disciplining authority is given only the power to suspend
and not the power to remove, it should not be permitted to manipulate the law by usurping
the power to remove. (Emphasis supplied.)

The rule which confers to the proper courts the power to remove an elective local official from office
is intended as a check against any capriciousness or partisan activity by the disciplining authority.
Vesting the local legislative body with the power to decide whether or not a local chief executive may
be removed from office, and only relegating to the courts a mandatory duty to implement the
decision, would still not free the resolution of the case from the capriciousness or partisanship of the
disciplining authority. Thus, the petitioner’s interpretation would defeat the clear intent of the law.

Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing
arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable
breach of the doctrine on separation of powers, thus placing the courts under the orders of the
legislative bodies of local governments. The courts would be stripped of their power of review, and
their discretion in imposing the extreme penalty of removal from office is thus left to be exercised by
political factions which stand to benefit from the removal from office of the local elective official
concerned, the very evil which Congress sought to avoid when it enacted Section 60 of the Local
Government Code.

Congress clearly meant that the removal of an elective local official be done only after a trial before
the appropriate court, where court rules of procedure and evidence can ensure impartiality and
fairness and protect against political maneuverings. Elevating the removal of an elective local official
from office from an administrative case to a court case may be justified by the fact that such removal
not only punishes the official concerned but also, in effect, deprives the electorate of the services of
the official for whom they voted.

As the law stands, Section 61 of the Local Government Code provides for the procedure for the filing
of an administrative case against an erring elective barangay official before the Sangguniang
Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan
cannot order the removal of an erring elective barangay official from office, as the courts are
exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts
allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit
the penalty of removal from office, the case should be filed with the regional trial court. Once the
court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently
apparent during the trial that a penalty less than removal from office is appropriate. On the other
hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may
impose on the erring elective barangayofficial is suspension; if it deems that the removal of the
official from service is warranted, then it can resolve that the proper charges be filed in court.
Petitioner alleged that an interpretation which gives the judiciary the power to remove local elective
officials violates the doctrine of separation of powers. This allegation runs contrary to the 1987
Constitution itself, as well as jurisprudence.

The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of
the courts to determine in an appropriate action the validity of acts of the political departments. It
speaks of judicial prerogative in terms of duty.21 Paragraph 2, Section 1, Article VIII of the 1987
Constitution, provides that:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
provided.)

The doctrine of separation of powers is not absolute in its application; rather, it should be applied in
accordance with the principle of checks and balances. The removal from office of elective officials
must not be tainted with partisan politics and used to defeat the will of the voting public. Congress
itself saw it fit to vest that power in a more impartial tribunal, the court. Furthermore, the local
government units are not deprived of the right to discipline local elective officials; rather, they are
prevented from imposing the extreme penalty of dismissal.

Petitioner questions the Decision dated 20 October 2005 of the trial court for allowing the petition
filed before it as an exception to the doctrine of exhaustion of administrative remedies. If, indeed, the
Sangguniang Bayan had no power to remove Martinez from office, then Martinez should have
sought recourse from the Sangguniang Panlalawigan. This Court upholds the ruling of the trial court.

The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate
administrative authorities in the resolution of a controversy falling under their jurisdiction before the
same may be elevated to the courts of justice for review. Non-observance of the doctrine results in
lack of a cause of action, which is one of the grounds allowed by the Rules of Court for the dismissal
of the complaint.22

The doctrine of exhaustion of administrative remedies, which is based on sound public policy and
practical consideration, is not inflexible. There are instances when it may be dispensed with and
judicial action may be validly resorted to immediately. Among these exceptions are: 1) where there
is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative
act is patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable delay or
official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is
relatively small as to make the rule impractical and oppressive; 5) where the question raised is
purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial
intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where
the controverted acts violate due process; 9) when the issue of non-exhaustion of administrative
remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy;
11) when strong public interest is involved; and 13) in quo warrantoproceedings.23

As a general rule, no recourse to courts can be had until all administrative remedies have been
exhausted. However, this rule is not applicable where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially
judicial.

In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued
the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal
and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order
to annul the said Order of the Sangguniang Bayan.24 Thus, his direct recourse to regular courts of
justice was justified.

In addition, this Court in Castro v. Gloria25 declared that where the case involves only legal
questions, the litigant need not exhaust all administrative remedies before such judicial relief can be
sought. The reason behind providing an exception to the rule on exhaustion of administrative
remedies is that issues of law cannot be resolved with finality by the administrative officer. Appeal to
the administrative officer would only be an exercise in futility. A legal question is properly addressed
to a regular court of justice rather than to an administrative body.26
In the present case, Martinez raised before the trial court the sole issue of whether the Sangguniang
Bayan has jurisdiction over a case involving the removal of a local elective official from office. 27 In
Martinez’s petition before the trial court, only a legal question was raised, one that will ultimately be
resolved by the courts. Hence, appeal to the administrative officer concerned would only be
circuitous and, therefore, should no longer be required before judicial relief can be sought.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of the
Bayombong RTC in Special Civil Action No. 6727 is AFFIRMED.

SO ORDERED.

G.R. No. 153475. November 13, 2002.*

ATTY. MIGUEL M. LINGATING, petitioner,

vs.

COMMISSION ON ELECTIONS and CESAR B. SULONG, respondents.

Election Law; Administrative Law; Local Government Code; The rule that an
elective local officer, who is removed before the expiration of the term for which he was
elected, is disqualified from being a candidate for a local elective position does not
apply where the decision of the Sangguniang Panlalawigan finding a local mayor guilty
of dishonesty, falsification and malversation of public funds has not become final.—
Petitioner contends that the COMELEC en banc erred in applying the ruling in
Aguinaldo v. Commission on Elections in holding that the reelection of respondent
Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the
misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of
Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections in which we
held that an elective local executive officer, who is removed before the expiration of the
term for which he was elected, is disqualified from being a candidate for a local elective
position under §40(b) of the Local Government Code. x x x However, Reyes cannot be
applied to this case because it appears that the 1992 decision of the Sangguniang
Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and
malversation of public funds, has not until now become final. The records of this case
show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in
AC No. 12-91 on February 4, 1992, a copy of which was received by respondent Sulong
on February 17, 1992; that on February 18, 1992, he filed a “motion for reconsideration
and/or notice of appeal”; that on February 27, 1992, the Sangguniang Panlalawigan,
required Jim Lingating, the complainant in AC No. 12-91, to comment; and that the
complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang
Panlalawigan resolved respondent’s motion. The filing of his motion for reconsideration
prevented the decision of Sangguniang Panlalawigan from becoming final.

Same; Same; Same; Pleadings and Practice; While R.A. No. 7160 on disciplinary
actions is silent on the filing of a motion for reconsideration, the same cannot be
interpreted as a prohibition against the filing of such a motion.—While R.A. No. 7160 on
disciplinary actions is silent on the filing of a motion for reconsideration, the same
cannot be interpreted as a prohibition against the filing of a motion for reconsideration.
Thus, it was held that a party in a disbarment proceeding under Rule 139-B, 512(c) can
move for a reconsideration of a resolution of the Integrated Bar of the Philippines
although Rule 139-B does not so provide: Although Rule 139-B, §12(c) makes no
mention of a motion for reconsideration, nothing in its text or history suggests that such
motion is prohibited. It may therefore be filed . . . . Indeed, the filing of such motion
should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion
of administrative remedies, to afford the agency rendering the judgment [an] opportunity
to correct any error it may have committed through a misapprehension of facts or
misappreciation of evidence.

Same; Same; Same; Where there was failure of the Sangguniang Panlalawigan to
resolve a local official’s motion for reconsideration before the elections, it is unfair to the
electorate to be told after they have voted for said official that after all he is disqualified,
especially so where at the time of the election, the decision sought to be reconsidered
had been rendered nearly ten years ago.—Indeed, considering the failure of the
Sangguniang Panlalawigan to resolve respondent’s motion, it is unfair to the electorate
to be told after they have voted for respondent Sulong that after all he is disqualified,
especially since, at the time of the elections on May 14, 2001, the decision of the
Sangguniang Panlalawigan had been rendered nearly ten years ago.

DECISION

MENDOZA, J.:

This is a petition for certiorari to set aside the resolution,1 dated April 4, 2002, of the Commission on
Elections (COMELEC) en banc, reversing the resolution,2 dated August 1, 2001, of its First Division
and dismissing the petition for disqualification filed by petitioner Miguel M. Lingating against
respondent Cesar B. Sulong as candidate for mayor of Lapuyan, Zamboanga del Sur in the May 14,
2001 elections.
On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for
the disqualification of respondent Sulong, pursuant to §40(b) of Republic Act No. 7160 (Local
Government Code), which disqualifies from running for any elective local position "those removed
from office as a result of an administrative case."3 It appears that respondent Sulong had previously
won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995
elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during
his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan
and several other individuals,4 was administratively charged (AC No. 12-91) with various
offenses,5 and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur
found him guilty of the charges and ordered his removal from office. Petitioner claimed that this
decision had become final and executory, and consequently the then vice-mayor of Lapuyan,
Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992.6

Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He
averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for
reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the
Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on
respondent Sulong’s motion for reconsideration and/or notice of appeal; that the said complainant
had not yet complied therewith and his (respondent Sulong’s) motion had consequently remained
pending. Respondent Sulong denied he had been removed from office by virtue of the decision in
AC No. 12-91.

After the parties had filed their memoranda, the case was submitted for resolution. Because the
COMELEC was unable to render judgment before the elections of May 14, 2001, respondent Sulong
was voted for in the elections, receiving 4,882 votes as against the 3,611 votes for petitioner. On
May 16, 2001, respondent Sulong was proclaimed by the Municipal Board of Canvassers of
Lapuyan as the duly elected mayor of that municipality.

In a resolution dated August 1, 2001, the COMELEC’s First Division declared respondent Cesar B.
Sulong disqualified. It held:

Section 40(b) of the Local Government Code is clear that any person removed from office by reason
of an administrative case is disqualified from running for any elective local office.

From such point, it is clear that Respondent Sulong was declared guilty of having violated the Anti-
Graft and Corrupt Practices Act by the Sangguniang Panlalawigan of Zamboanga del Sur. . .which. .
.has become final and executory, thereby depriving him of his right to run for public office.

....

WHEREFORE, in the light of the foregoing, this Commission hereby resolves to GRANT this Petition
and DISQUALIFY Respondent Cesar B. Sulong to run for Municipal mayor for Lapuyan, Zamboanga
del Sur in the May 14, 2001 Elections in violation of Section 40[b] of the Local Government Code.7

Respondent Sulong filed a motion for reconsideration citing a certification, dated August 7, 2001, of
Provincial Secretary of Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC No.
12-91 "has not become final and executory as the final disposition thereof was overtaken by the local
elections of May 1992." He reiterated his claim that at no time had he been removed by virtue of the
said decision.8

Petitioner filed an opposition contending, among other things, that the fact that Zamboanga del Sur
Governor Ariosa had ordered the enforcement of the decision signified that respondent Sulong’s
motion for reconsideration and/or notice of appeal had not been given due course by the
Sangguniang Panlalawigan; and that respondent Sulong’s claim that he had not been removed from
office was belied by the fact that he (respondent Sulong) brought charges against Vicente Imbing for
Usurpation of Official Functions (I.S. No. 92-35), in support of which respondent Sulong attested
under oath that Imbing had succeeded him as mayor of Lapuyan.9

In a separate motion, petitioner prayed that the resolution of August 1, 2001 be executed and that he
be installed as mayor of Lapuyan in view of private respondent’s disqualification. On August 30,
2001, the COMELEC’s First Division denied petitioner’s motion for execution on the ground that the
disqualification of an elected candidate does not entitle the candidate who obtained the second
highest number of votes to occupy the office vacated.10 Petitioner then filed a motion for
reconsideration of this order.11
On April 4, 2002, the COMELEC en banc issued its resolution subject of the petition in this case,
reversing the resolution, dated August 1, 2001, of its First Division insofar as it found respondent
Sulong disqualified from running as mayor. It held:

The only issue in this case is whether or not the foregoing decision [in AC No. 12-91], assuming it
has become final and executory, constitutes a ground for the disqualification of herein respondent-
movant as a candidate in the elections [of May 14, 2001].

The records of the case reveal that the decision of the Sangguniang Panlalawigan was promulgated
on February [4], 1992 finding respondent Sulong "guilty of dishonesty, falsification of public
documents, malversation. . ."

In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan, Zamboanga del
Sur despite the decision of the Sangguniang dismissing him from office. In the 1995 May elections,
respondent Sulong ran and won the mayoralty elections of Lapuyan, Zamboanga del Sur.

While it is true that one of the disqualifications from running in an elective position is removal from
office as a result of an administrative case, said provision no longer applies if the candidate whose
qualification is questioned got re-elected to another term. In Aguinaldo vs. Santos, 212 SCRA 768,
the Supreme Court ruled that re-election renders an administrative case moot and academic.

....

Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections would be
tantamount to a condonation of the Sangguniang Panlalawigan decision promulgated 04 February
1992 which found him guilty of dishonesty, malversation of public funds etc[.], granting said decision
has become final and executory.

Moreover, the people of LAPUYAN have already expressed their will when they cast their votes in
the recent elections as evidenced by the results which found respondent Sulong to have won
convincingly.

....

WHEREFORE, premises considered, the Commission En Banc RESOLVED as it hereby

RESOLVES to reverse the First Division Resolution [dated August 1, 2001] and DISMISS the
petition for lack of merit.12

The COMELEC en banc also ruled that, in any event, respondent Sulong was not entitled to occupy
the office thus vacated. Hence, this petition by Lingating.

Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v.
Commission on Elections13 in holding that the reelection of respondent Sulong in 1992 and 1995 as
mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed
by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on
Elections14 in which we held that an elective local executive officer, who is removed before the
expiration of the term for which he was elected, is disqualified from being a candidate for a local
elective position under §40(b) of the Local Government Code.

We stated in Reyes:

Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official
could not be removed for misconduct committed during a prior term and that his reelection operated
as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove
him therefor. But that was because in that case, before the petition questioning the validity of the
administrative decision removing petitioner could be decided, the term of office during which the
alleged misconduct was committed expired. Removal cannot extend beyond the term during which
the alleged misconduct was committed. If a public official is not removed before his term of office
expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the
rationale for the ruling in the two Aguinaldo cases.

The case at bar is the very opposite of those cases. Here, . . . the decision in the administrative
case, . . . was served on petitioner and it thereafter became final on April 3, 1995, because petitioner
failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant
to §40(b) of the Local Government Code, he was disqualified from running for reelection.

It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to
§40(b) which disqualifies any person from running for any elective position on the ground that he has
been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No.
7160) could not be given retroactive effect.

However, Reyes cannot be applied to this case because it appears that the 1992 decision of the
Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and
malversation of public funds, has not until now become final. The records of this case show that the
Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on February
4, 1992, a copy of which was received by respondent Sulong on February 17, 1992; that on
February 18, 1992, he filed a "motion for reconsideration and/or notice of appeal;" that on February
27, 1992, the Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91,
to comment; and that the complainant in AC No. 12-91 has not filed a comment nor has the
Sangguniang Panlalawigan resolved respondent’s motion. The filing of his motion for
reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final.

While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the
same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. Thus, it
was held15 that a party in a disbarment proceeding under Rule 139-B, §12(c) can move for a
reconsideration of a resolution of the Integrated Bar of the Philippines although Rule 139-B does not
so provide:

Although Rule 139-B, §12(c) makes no mention of a motion for reconsideration, nothing in its text or
history suggests that such motion is prohibited. It may therefore be filed . . . . Indeed, the filing of
such motion should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion
of administrative remedies, to afford the agency rendering the judgment [an] opportunity to correct
any error it may have committed through a misapprehension of facts or misappreciation of evidence.

There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of
Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply
considered the matter as having become moot and academic because it was "overtaken by the local
elections of May [11,]1992."

Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the highest
ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor,
respectively, be considered proof that the decision in AC No. 12-91 had become final because it
appears to have been made pursuant to §6816 of the Local Government Code, which makes
decisions in administrative cases immediately executory.

Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondent’s motion, it is
unfair to the electorate to be told after they have voted for respondent Sulong that after all he is
disqualified, especially since, at the time of the elections on May 14, 2001, the decision of the
Sangguniang Panlalawigan had been rendered nearly ten years ago.

Having come to the conclusion that respondent Sulong is not disqualified from holding the position of
mayor of Lapuyan, it is unnecessary to pass upon petitioner’s contention that, as the candidate who
obtained the second highest number of votes, he is entitled to be installed as mayor because the
votes cast in favor of respondent Sulong were void.

WHEREFORE, the petition for certiorari is DISMISSED and the resolution, dated April 4, 2002, of
the COMELEC en banc, dismissing petitioner’s petition for disqualification, is AFFIRMED.

SO ORDERED.
 G.R. No. 108072. December 12, 1995.*

HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the

Visayas, petitioner,

vs.

HON. MERCEDES GOZODADOLE, Presiding Judge, Branch XXVIII,

Regional Trial Court, Mandaue City, Mandaue City Mayor ALFREDO M.
OUANO, Mandaue City Vice-Mayor PATERNO CAÑETE and Mandaue
City Sangguniang Panlungsod Member RAFAEL MAYOL,
respondents.

Ombudsman; Administrative Law; Public Officers; Local Government Code;

Statutory Construction; Statutes; There is nothing in the Local Government Code
(R.A. 7160) to indicate that it has repealed the pertinent provisions of the
Ombudsman Act (R.A. 6770); Repeals by implication are not favored—every statute
must be so interpreted and brought into accord with other laws as to form a uniform
system of jurisprudence.—Indeed, there is nothing in the Local Government Code to
indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of
the Ombudsman Act. The two statutes on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike
down the other. Well settled is the rule that repeals of laws by implication are not
favored, and that courts must generally assume their congruent application. The two
laws must be absolutely incompatible, and a clear finding thereof must surface, before
the inference of implied repeal may be drawn. The rule is expressed in the maxim,
interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be
so interpreted and brought into accord with other laws as to form a uniform system of
jurisprudence. The fundament is that the legislature should be presumed to have known
the existing laws on the subject and not to have enacted conflicting statutes. Hence, all
doubts must be resolved against any implied repeal, and all efforts should be exerted in
order to harmonize and give effect to all laws on the subject.

Same; Same; Same; Preventive Suspension; Not being in the nature of a penalty, a
preventive suspension can be decreed on an official under investigation after charges
are brought and even before the charges are heard.—Be that, as it may, we have
heretofore held that, not being in the nature of a penalty, a preventive suspension can
be decreed on an official under investigation after charges are brought and even before
the charges are heard. Naturally, such a preventive suspension would occur prior to any
finding of guilt or innocence.

Same; Same; Same; Courts; Jurisdiction; Any appeal or application for remedy
against a decision or finding of the Ombudsman may only be entertained by the
Supreme Court, on pure question of law.—Finally, it does appear, as so pointed out by
the Solicitor General that respondent official’s petition for prohibition, being an
application for remedy against the findings of petitioner contained in his 21 September
1992 order, should not have been entertained by the trial court. The proscription in
Section 14 of R.A. No. 6770 reads: “SEC. 14. Restrictions. x x x No court shall hear
any appeal or application for remedy against the decision or findings of the Ombudsman
except the Supreme Court, on pure question of law.” Likewise noteworthy in Section 27
of the law which prescribes a direct recourse to this Court on matters involving orders
arising from administrative disciplinary cases originating from the Office of the
Ombudsman.

VITUG, J.:

The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770,1 otherwise
known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative
investigations over local elective officials by virtue of the subsequent enactment of R.A. No.
7160,2 otherwise known as the Local Government Code of 1991, is the pivotal issue before the Court
in this petition.

The petition seeks (a) to annul the writ of preliminary injunction, dated 21 October 1992, issued
against petitioner by respondent trial court and (b) to prohibit said court from further proceeding with
RTC Case No. MDE-14.3

Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed the office of Juan
Hagad, now resigned,4 who took the initiative in instituting this special civil action for certiorari and
prohibition.

The controversy stemmed from the filing of criminal and administrative complaints, on 22 July 1992,
against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang
Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors
Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the
Visayas. The respondents were charged with having violated R.A. No. 3019, as amended,5 Articles
1706 and 1717 of the Revised Penal Code; and R.A. No. 6713.8 Councilors Dionson and Bercede
averred that respondent officials, acting in conspiracy, had caused the alteration and/or falsification
of Ordinance No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to
P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. The
complaints were separately docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative
Case No. OMB-VIS-ADM-92-015.

A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by
Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against
respondent officials. The next day, petitioner ordered respondents, including Acting Mandaue City
Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-
affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede
moved for the preventive suspension of respondent officials in the separately docketed
administrative case.

Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992,
prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft
of jurisdiction to try, hear and decide the administrative case filed against them since, under Section
63 of the Local Government Code of 1991, the power to investigate and impose administrative
sanctions against said local officials, as well as to effect their preventive suspension, had now been
vested with the Office of the President.

In their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local
Government Code of 1991 could not have repealed, abrogated or otherwise modified the pertinent
provisions of the Constitution granting to the Ombudsman the power to investigate cases against all
public officials and that, in any case, the power of the Ombudsman to investigate local officials under
the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of
1991.

During the hearing on the motion for preventive suspension, the parties were directed by the Deputy
Ombudsman to file their respective memoranda.

In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local
Government Code of 1991, the Office of the President, not the Office of the Ombudsman, could
lawfully take cognizance of administrative complaints against any elective official of a province, a
highly urbanized city or an independent component city and to impose disciplinary sanctions,
including preventive suspensions, and that there was nothing in the provision of the Constitution
giving to the Office of the Ombudsman superior powers than those of the President over elective
officials of local governments.

In an Order,9 dated 10 September 1992, the Office of the Deputy Ombudsman denied the motion to
dismiss and recommended the preventive suspension of respondent officials, except City Budget
Officer Pedro M. Guido, until the administrative case would have been finally resolved by the
Ombudsman.10 Respondent officials were formally placed under preventive suspension by the
Deputy Ombudsman pursuant to an Order11 of 21 September 1992.

On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary injunction and
temporary restraining order, was filed by respondent officials with the Regional Trial Court of
Mandaue City. Acting favorably on the pleas of petitioning officials, respondent Judge issued, on
even date, a restraining order directed at petitioner, enjoining him ". . . from enforcing and/or
implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015."

Petitioner moved to dismiss the petition but it was to no avail. The court a quo, on 15 October 1992,
denied the motion to dismiss and issued an Order for the issuance of a writ of preliminary injunction,
holding thusly:

So by following and applying the well-established rules of statutory construction that

endeavor should be made to harmonize the provisions of these two laws in order that
each shall be effective, it is the finding of this Court that since the investigatory power
of the Ombudsman is so general, broad and vague and gives wider discretion to
disciplining authority to impose administrative sanctions against a responsible public
official or employee while that of Section 60 of the New Local Government Code
provides for more well defined and specific grounds upon which a local elective
official can be subjected to administrative disciplinary action, that it Could be
considered that the latter law could be an exception to the authority and
administrative power of the Ombudsman to conduct an investigation against local
elective officials and as such, the jurisdiction now to conduct administrative
investigation against local elective officials is already lodged before the offices
concerned under Section 61 of Republic Act No. 7160.

xxx xxx xxx

WHEREFORE, foregoing premises considered, Order is hereby issued:

 1) Expanding the restraining order dated September 25, 1992 issued by the Court
into an Order for the issuance of a writ of preliminary injunction upon the posting of
the petitioners of the bond in the amount of Fifty thousand pesos (P50,000.00)
conditioned that the latter will pay all the costs that may be adjudged to the adverse
party and/or damages which he may sustain by reason of the injunction, if the Court
will finally adjudge that the petitioners are not entitled thereto, and

2) Denying the respondent's Motion to Dismiss dated September 28, 1992 for lack of
merit.

SO ORDERED. 12

A writ of preliminary injunction was issued on 21 October 1992.13 A motion for reconsideration made
by petitioner was denied by the trial court.

The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of
preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent
judge be directed to desist from further proceeding with RTC Case No. MDE-14.

There is merit in the petition.

The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the
1987 Constitution,14 thus:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions,
and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient;

while his statutory mandate to act on administrative complaints is contained in Section 19 of

R.A. No. 6770 that reads:

Sec. 19. Administrative complaints. — The Ombudsman shall act on all complaints
relating, but not limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency's functions, though in

accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of

justification.

Section 21 of the same statute names the officials who could be subject to the disciplinary
authority of the Ombudsman, viz.:

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials
of the Government and its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned or controlled
corporations and their subsidiaries except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied)
 Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the
Office of the Ombudsman correspondingly has the authority to decree preventive suspension
on any public officer or employee under investigation by it. Said section of the law provides:

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment, the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of
the Ombudsman but not more than six months, without pay, except when the delay
in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.

Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman
over local officials must be deemed to have been removed by the subsequent enactment of the
Local Government Code of 1991 which vests the authority to investigate administrative charges,
listed under Section 6015 thereof, on various offices. In the case specifically of complaints against
elective officials of provinces and highly urbanized cities, the Code states:

Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint

against any erring local elective officials shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the
President.

Thus respondents insist, conformably with Section 63 of the Local Government Code,
preventive suspension can only be imposed by: ". . . the President if the respondent is an
elective official of a province, a highly urbanized or an independent component city; . . . "
under sub-paragraph (b) thereof:

(b) Preventive suspension may be imposed at any time after the issues are joined,
when the evidence of guilt is strong, and given the gravity of the offense, there is
great probability that the continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records and other
evidence; Provided, That, any single preventive suspension of local elective officials
shall not extend beyond sixty (60) days: Provided, further, That in the event that
several administrative cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within a single year on the
same ground or grounds existing and known at the time of the first suspension.

In his comment, which the Court required considering that any final resolution of the case would be a
matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as
having conferred, but not on an exclusive basis, on the Office of the President (and the various
Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did
not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a
constitutional mandate. In passing, the Solicitor General has also opined that the appropriate
remedy that should have been pursued by respondent officials is a petition for certiorari before this
Court rather than their petition for prohibition filed with the Regional Trial Court.

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are
not favored,16 and that courts must generally assume their congruent application.17 The two laws must
be absolutely incompatible,18 and a clear finding thereof must surface, before the inference of implied
repeal may be drawn.19 The rule is expressed in the maxim, interpretare et concordare legibus est
optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence.20 The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes.21 Hence, all doubts must be resolved against any implied repeal,22 and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.23

Certainly, Congress would not have intended to do injustice to the very reason that underlies the
creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long
tentacles of officialdom."24

Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost parallel
with the provisions then existing under the old code. Section 61 and Section 63 of the precursor local
Government Code of 1983, 25 under the heading of "Suspension and Removal," read:

Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective
officials shall be prepared as follows:

(a) Against any elective provincial or city official, before the Minister of Local
Government.

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by

the Minister of Local Government if the respondent is a provincial or city official, by
the provincial governor if the respondent is an elective municipal official, or by the
city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined,
when there is reasonable ground to believe that the respondent has committed the
act or acts complained of, when the evidence of culpability is strong, when the gravity
of the offense so warrants, or when the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence. In all cases, preventive suspension shall not extend beyond sixty
days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him until its
termination. However, if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time of
suspension.

The authority to conduct administrative investigation and to impose preventive suspension

over elective provincial or city officials was at that time entrusted to the Minister of Local
Government until it became concurrent with the Ombudsman upon the enactment of R.A.
No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant.
The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from
what already prevailed, the modification being only in the substitution of the Secretary (the
Minister) of Local Government by the Office of the President.

Respondent local officials contend that the 6-month preventive suspension without pay under
Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension
provided by Section 63 of the Local Government Code to even now maintain its application. The two
provisions govern differently. In order to justify the preventive suspension of a public official under
Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the
officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges should warrant removal from the service; or (c) the
respondent's continued stay in office would prejudice the case filed against him. The Ombudsman
can impose the 6-month preventive suspension to all public officials, whether elective or appointive,
who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days
of preventive suspension prescribed in the Local Government Code of 1991 on an elective local
official (at any time after the issues are joined), it would be enough that (a) there is reasonable
ground to believe that the respondent has committed the act or acts complained of, (b) the evidence
of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of
the respondent could influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence.

Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when
he caused the issuance of the preventive suspension order without any hearing.
The contention is without merit. The records reveal that petitioner issued the order of preventive
suspension after the filing (a) by respondent officials of their opposition on the motion for preventive
suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of
petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a
preventive suspension can be decreed on an official under investigation after charges are brought
and even before the charges are heard. Naturally, such a preventive suspension would occur prior to
any finding of guilt or innocence. In the early case of Nera vs. Garcia,26 reiterated in subsequent
cases,27 we have said:

In connection with the suspension of petitioner before he could file his answer to the
administrative complaint, suffice it to say that the suspension was not a punishment
or penalty for the acts of dishonesty and misconduct in office, but only as a
preventive measure. Suspension is a preliminary step in an administrative
investigation. If after such investigation, the charges are established and the person
investigated is found guilty of acts warranting his removal, then he is removed or
dismissed. This is the penalty. There is, therefore, nothing improper in suspending an
officer pending his investigation and before the charges against him are heard and
be given an opportunity to prove his innocence.

Moreover, respondent officials were, in point of fact, put on preventive suspension only after
petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier,28 that the evidence of
guilt was strong. Petitioner gave his justification for the preventive suspension in this wise:

After a careful and honest scrutiny of the evidence submitted on record, at this stage,
it is the holding of this office that the evidence of guilt against the respondents in the
instant case is strong. There is no question that the charge against the respondents
involves dishonesty or gross misconduct which would warrant their removal from the
service and there is no gainsaying the fact that the charge for falsification of veritable
documents like city ordinances are very serious charges that affect the very
foundations of duly established representative governments. Finally, it is likewise the
holding of this office at this stage that the continued stay in office of respondents may
prejudice the judicious investigation and resolution of the instant case.29

Finally, it does appear, as so pointed out by the Solicitor General, that respondent official's petition
for prohibition, being an application for remedy against the findings of petitioner contained in his 21
September 1992 order, should not have been entertained by the trial court. The proscription in
Section 14 of R.A. No. 6770 reads:

Sec. 14. Restrictions. — No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is
a prima facie evidence that the subject matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or
findings of the Ombudsman, except the Supreme Court, on pure question of law.

Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court
on matters involving orders arising from administrative disciplinary cases originating from the
Office of the Ombudsman; thus:

Sec. 27. Effectivity and Finality of Decisions. — . . .

In all administrative disciplinary cases, orders, directives, or decisions of the Office of

the Ombudsman may be appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with
Rule 45 of the Rules of Court. (Emphasis supplied)

All told, petitioner is plainly entitled to the relief prayed for, and we must, accordingly; grant the
petition.

WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is ANNULLED and
SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED. No cost.
 G.R. No. 172700. July 23, 2010.*

OFFICE OF THE OMBUDSMAN, petitioner,

vs.

ROLSON RODRIGUEZ, respondent.

Administrative Cases; Jurisdiction; Office of the Ombudsman vs. Sangguniang

Bayan; In administrative cases involving the concurrent jurisdiction of two or more
disciplining authorities, the body in which the complaint is filed first, and which opts to
take cognizance of the case, acquires jurisdiction to the exclusion of other tribunals
exercising concurrent jurisdiction.—In administrative cases involving the concurrent
jurisdiction of two or more disciplining authorities, the body in which the complaint is
filed first, and which opts to take cognizance of the case, acquires jurisdiction to the
exclusion of other tribunals exercising concurrent jurisdiction. In this case, since the
complaint was filed first in the Ombudsman, and the Ombudsman opted to assume
jurisdiction over the complaint, the Ombudsman’s exercise of jurisdiction is to the
exclusion of the sangguniang bayan exercising concurrent jurisdiction.

Same; Same; Jurisdiction, once acquired, is not lost upon the instance of the parties
but continues until the case is terminated. When herein complainants first filed the
complaint in the Ombudsman, jurisdiction was already vested on the latter. Jurisdiction
could no longer be transferred to the sangguniang bayan by virtue of a subsequent
complaint filed by the same complainants.—It is a hornbook rule that jurisdiction is a
matter of law. Jurisdiction, once acquired, is not lost upon the instance of the parties but
continues until the case is terminated. When herein complainants first filed the
complaint in the Ombudsman, jurisdiction was already vested on the latter. Jurisdiction
could no longer be transferred to the sangguniang bayan by virtue of a subsequent
complaint filed by the same complainants.

Same; Same; Local Government Code; Under Section 60 of the Local Government
Code, the sangguniang bayan has no power to remove an elective barangay official.
Apart from the Ombudsman, only a proper court may do so. Unlike the sangguniang
bayan, the powers of the Ombudsman are not merely recommendatory. The
Ombudsman is clothed with authority to directly remove an erring public official other
than members of Congress and the Judiciary who may be removed only by
impeachment.—As a final note, under Section 60 of the Local Government Code, the
sangguniang bayan has no power to remove an elective barangay official. Apart from
the Ombudsman, only a proper court may do so. Unlike the sangguniang bayan, the
powers of the Ombudsman are not merely recommendatory. The Ombudsman is
clothed with authority to directly remove an erring public official other than members of
Congress and the Judiciary who may be removed only by impeachment.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the 8 May 2006 Decision2 of the Court of Appeals in CA-G.R. SP No.
00528 setting aside for lack of jurisdiction the 21 September 2004 Decision 3 of the Ombudsman
(Visayas) in OMB-V-A-03-0511-H.

The Antecedent Facts

On 26 August 2003, the Ombudsman in Visayas received a complaint4 for abuse of authority,
dishonesty, oppression, misconduct in office, and neglect of duty against Rolson Rodriguez, punong
barangay in Brgy. Sto. Rosario, Binalbagan, Negros Occidental. On 1 September 2003,
the sangguniang bayan of Binalbagan, Negros Occidental, through vice-mayor Jose G. Yulo,
received a similar complaint5 against Rodriguez for abuse of authority, dishonesty, oppression,
misconduct in office, and neglect of duty.

In its 8 September 2003 notice,6 the municipal vice-mayor required Rodriguez to submit his answer
within 15 days from receipt of the notice. On 23 September 2003, Rodriguez filed a motion to
dismiss7 the case filed in the sangguniang bayan on the ground that the allegations in the complaint
were without factual basis and did not constitute any violation of law. In a compliance 8 dated 22
October 2003, Rodriguez alleged complainants violated the rule against forum shopping.

Meanwhile, in its 10 September 2003 order,9 the Ombudsman required Rodriguez to file his answer.
Rodriguez filed on 24 October 2003 a motion to dismiss10 the case filed in the Ombudsman on the
grounds of litis pendentia and forum shopping. He alleged that the sangguniang bayan had already
acquired jurisdiction over his person as early as 8 September 2003.

The municipal vice-mayor set the case for hearing on 3 October 2003.11 Since complainants had no
counsel, the hearing was reset to a later date. When the case was called again for hearing,
complainants’ counsel manifested that complainants would like to withdraw the administrative
complaint filed in the sangguniang bayan. On 29 October 2003, complainants filed a motion12 to
withdraw the complaint lodged in the sangguniang bayan on the ground that they wanted to prioritize
the complaint filed in the Ombudsman. Rodriguez filed a comment13 praying that the complaint be
dismissed on the ground of forum shopping, not on the ground complainants stated. In their
opposition,14 complainants admitted they violated the rule against forum shopping and claimed they
filed the complaint in the sangguniang bayan without the assistance of counsel. In his 4 November
2003 Resolution,15 the municipal vice-mayor dismissed the case filed in the sangguniang bayan.

In its 29 January 2004 order,16 the Ombudsman directed both parties to file their respective verified
position papers. Rodriguez moved for reconsideration of the order citing the pendency of his motion
to dismiss.17 In its 11 March 2004 order,18 the Ombudsman stated that a motion to dismiss was a
prohibited pleading under Section 5 (g) Rule III of Administrative Order No. 17. The Ombudsman
reiterated its order for Rodriguez to file his position paper.

In his position paper, Rodriguez insisted that the sangguniang bayan still continued to exercise
jurisdiction over the complaint filed against him. He claimed he had not received any resolution or
decision dismissing the complaint filed in the sangguniang bayan. In reply,19 complainants
maintained there was no more complaint pending in the sangguniang bayan since the latter had
granted their motion to withdraw the complaint. In a rejoinder,20 Rodriguez averred that
the sangguniang bayan resolution dismissing the case filed against him was not valid because only
the vice-mayor signed it.

The Ruling of the Ombudsman

In its 21 September 2004 Decision,21 the Ombudsman found Rodriguez guilty of dishonesty and
oppression. It imposed on Rodriguez the penalty of dismissal from the service with forfeiture of all
benefits, disqualification to hold public office, and forfeiture of civil service eligibilities. Rodriguez filed
a motion for reconsideration.22 In its 12 January 2005 Order,23 the Ombudsman denied the motion for
reconsideration. In its 8 March 2005 Order,24 the Ombudsman directed the mayor of Binalbagan,
Negros Occidental to implement the penalty of dismissal against Rodriguez.

Rodriguez filed in the Court of Appeals a petition for review with prayer for the issuance of a
temporary restraining order.

The Ruling of the Court of Appeals

In its 8 May 2006 Decision,25 the Court of Appeals set aside for lack of jurisdiction the Decision of the
Ombudsman and directed the sangguniang bayan to proceed with the hearing on the administrative
case. The appellate court reasoned that the sangguniang bayan had acquired primary jurisdiction
over the person of Rodriguez to the exclusion of the Ombudsman. The Court of Appeals relied on
Section 4, Rule 46 of the Rules of Court, to wit:

Sec. 4. Jurisdiction over person of respondent, how acquired. – The court shall acquire jurisdiction
over the person of the respondent by the service on him of its order or resolution indicating its initial
action on the petition or by his voluntary submission to such jurisdiction.

The appellate court noted that the sangguniang bayan served on Rodriguez a notice, requiring the
latter to file an answer, on 8 September 2003 while the Ombudsman did so two days later or on 10
September 2003.

Petitioner Ombudsman contends that upon the filing of a complaint before a body vested with
jurisdiction, that body has taken cognizance of the complaint. Petitioner cites Black’s Law Dictionary
in defining what "to take cognizance" means to wit, "to acknowledge or exercise jurisdiction."
Petitioner points out it had taken cognizance of the complaint against Rodriguez before a similar
complaint was filed in the sangguniang bayan against the same respondent. Petitioner maintains
summons or notices do not operate to vest in the disciplining body jurisdiction over the person of the
respondent in an administrative case. Petitioner concludes that consistent with the rule on
concurrent jurisdiction, the Ombudsman’s exercise of jurisdiction should be to the exclusion of
the sangguniang bayan.

Private respondent Rolson Rodriguez counters that when a competent body has acquired
jurisdiction over a complaint and the person of the respondent, other bodies are excluded from
exercising jurisdiction over the same complaint. He cites Article 124 of the Implementing Rules and
Regulations of Republic Act No. 7160,26 which provides that an elective official may be removed from
office by order of the proper court or the disciplining authority whichever first acquires jurisdiction to
the exclusion of the other. Private respondent insists the sangguniang bayan first acquired
jurisdiction over the complaint and his person. He argues jurisdiction over the person of a
respondent in an administrative complaint is acquired by the service of summons or other
compulsory processes. Private respondent stresses complainants violated the rule against forum
shopping when they filed identical complaints in two disciplining authorities exercising concurrent
jurisdiction.

The Issues

The issues submitted for resolution are (1) whether complainants violated the rule against forum
shopping when they filed in the Ombudsman and the sangguniang bayan identical complaints
against Rodriguez; and (2) whether it was the sangguniang bayan or the Ombudsman that first
acquired jurisdiction.

The Court’s Ruling

The petition has merit.

Paragraph 1, Section 13 of Article XI of the Constitution provides:

Sec. 13. The Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office, or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.

Section 15 of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989, states:

Sec. 15. Powers, Functions, and Duties. – The Ombudsman shall have the following powers,
functions, and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and,
in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory
agency of Government, the investigations of such cases.

The primary jurisdiction of the Ombudsman to investigate any act or omission of a public officer or
employee applies only in cases cognizable by the Sandiganbayan. In cases cognizable by regular
courts, the Ombudsman has concurrent jurisdiction with other investigative agencies of
government.27 Republic Act No. 8249, otherwise known as An Act Further Defining the Jurisdiction of
the Sandiganbayan, limits the cases that are cognizable by the Sandiganbayan to public officials
occupying positions corresponding to salary grade 27 and higher. The Sandiganbayan has no
jurisdiction over private respondent who, as punong barangay, is occupying a position corresponding
to salary grade 14 under Republic Act No. 6758, otherwise known as the Compensation and
Position Classification Act of 1989.28

Under Republic Act No. 7160, otherwise known as the Local Government Code, the sangguniang
panlungsod or sangguniang bayan has disciplinary authority over any elective barangay official, to
wit:

SEC. 61. Form and Filing of Administrative Complaints. – A verified complaint against any erring
elective official shall be prepared as follows:

xxxx

(c) A complaint against any elective barangay official shall be filed before the sangguniang
panlungsod or sangguniang bayan concerned whose decision shall be final and executory.

Clearly, the Ombudsman has concurrent jurisdiction with the sangguniang bayan over administrative
cases against elective barangay officials occupying positions below salary grade 27, such as private
respondent in this case.

The facts in the present case are analogous to those in Laxina, Sr. v. Ombudsman,29 which likewise
involved identical administrative complaints filed in both the Ombudsman and the sangguniang
panlungsod against a punong barangay for grave misconduct. The Court held therein that the rule
against forum shopping applied only to judicial cases or proceedings, not to administrative
cases.30 Thus, even if complainants filed in the Ombudsman and the sangguniang bayan identical
complaints against private respondent, they did not violate the rule against forum shopping because
their complaint was in the nature of an administrative case. 1avvphi1

In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities,
the body in which the complaint is filed first, and which opts to take cognizance of the case, acquires
jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction.31 In this case, since
the complaint was filed first in the Ombudsman, and the Ombudsman opted to assume jurisdiction
over the complaint, the Ombudsman’s exercise of jurisdiction is to the exclusion of the sangguniang
bayan exercising concurrent jurisdiction.
It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction, once acquired, is not lost upon
the instance of the parties but continues until the case is terminated.32 When herein complainants
first filed the complaint in the Ombudsman, jurisdiction was already vested on the latter. Jurisdiction
could no longer be transferred to the sangguniang bayan by virtue of a subsequent complaint filed
by the same complainants.

As a final note, under Section 60 of the Local Government Code, the sangguniang bayan has no
power to remove an elective barangay official. Apart from the Ombudsman, only a proper court may
do so.33 Unlike the sangguniang bayan, the powers of the Ombudsman are not merely
recommendatory. The Ombudsman is clothed with authority to directly remove34 an erring public
official other than members of Congress and the Judiciary who may be removed only by
impeachment.35

WHEREFORE, we GRANT the petition. We SET ASIDE the 8 May 2006 Decision of the Court of
Appeals in CA-G.R. SP No. 00528. We AFFIRM the 21 September 2004 Decision of the
Ombudsman (Visayas) in OMB-V-A-03-0511-H.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 169888. November 11, 2008.*

RAMON Y. TALAGA, JR., City Mayor, Lucena City, petitioner,

vs.

HON. SANDIGANBAYAN, 4th Division, and PEOPLE OF THE

PHILIPPINES, respondents.

Anti-Graft and Corrupt Practices Act; Preventive Suspension; The theory of

Petitioner that “environmental circumstances” of the case should first be explored has
no leg to stand on.—The arguments are not new. They have been advanced and
rejected in earlier cases. They will again be so rejected in this case. The Court’s
pronouncements in Bolastig v. Sandiganbayan, 235 SCRA 103 (1994), are germane:
x x x The fact is that the possibility that the accused would intimidate witnesses or
otherwise hamper his prosecution is just one of the grounds for preventive suspension.
The other one is, to prevent the accused from committing further acts of malfeasance
while in office. (Emphasis supplied) Ineluctably, the theory of petitioner that
“environmental circumstances” of the case should first be explored has no leg to stand
on.
Same; Same; The purpose of the law in requiring a pre-suspension hearing is to
determine the validity of the information so that the court can have a basis to either
suspend the accused and proceed with the trial on the merits of the case, or withhold
the suspension and dismiss the case, or correct any part of the proceedings that impairs
its validity.—The purpose of the law in requiring a pre-suspension hearing is to
determine the validity of the information so that the court can have a basis to either
suspend the accused and proceed with the trial on the merits of the case, or withhold
the suspension and dismiss the case, or correct any part of the proceedings that impairs
its validity. That hearing is similar to a challenge to the validity of the information by way
of a motion to quash. In this case, respondent had determined the validity of the
Information when petitioner filed his Motion to Quash. The hearings or proceedings held
thereon, in effect, constituted a pre-suspension hearing. Respondent has followed the
dictates of the law.

Same; Same; Causes of Action; The law does not require that the information must
allege that the acts in question “caused injury to any party, whether the government or
private party.”—Contrary to the argument of petitioner, the law does not require that the
information must allege that the acts in question “caused injury to any party, whether the
government or private party.” The presence of the word “or” clearly shows that there are
two acts which can be prosecuted under Section 3: First, causing any undue injury to
any party, including the government, and, Second, giving any private party any
unwarranted benefits, advantages or preference.

Same; Same; Same; The test is whether the crime is described in intelligible terms with
such particularity as to appraise the accused, with reasonable certainty, of the offense
charged.—The test is whether the crime is described in intelligible terms with such
particularity as to appraise the accused, with reasonable certainty, of the offense
charged. The raison d’être of the rule is to enable the accused to suitably prepare his
defense. Based on the foregoing test, the Information sufficiently apprises petitioner of
the charges against him. The Information charged the petitioner of evident bad faith and
manifest partiality when as Mayor of Lucena City, petitioner, in conspiracy with the City
Council, gave unwarranted benefits to Jose Sy Bang. Moreover, it states the specific act
which constituted the giving of unwarranted benefits, namely, granting unto the said
Jose Sy Bang a local franchise to operate a bingo business in Lucena City in violation of
existing laws. These allegations are clear enough for a layman to understand.
Same; Same; Same; Once a proper determination of the validity of the information has
been made, it becomes the ministerial duty of the court to forthwith issue the order of
preventive suspension.—The Anti-Graft and Corrupt Practices Act implicitly recognizes
that the power of preventive suspension lies in the court in which the criminal charge is
filed; once a case is filed in court, all other acts connected with the discharge of court
functions—including preventive suspension—should be acknowledged as within the
competence of the court that has taken cognizance thereof, no violation of the doctrine
of separation of powers being perceivable in that acknowledgement. As earlier
mentioned, the court must first determine the validity of the information through a pre-
suspension hearing. But once a proper determination of the validity of the information
has been made, it becomes the ministerial duty of the court to forthwith issue the order
of preventive suspension.

DECISION

AUSTRIA-MARTINEZ, J.:

Herein special civil action for certiorari under Rule 65 of the Rules of Court seeks the nullification of the
Resolution1 dated October 3, 2005 of the Sandiganbayan issued in Criminal Case No. 27738 - where
Mayor Ramon Y. Talaga, Jr. (petitioner) and the City Councilors are prosecuted for violation of the Anti-
Graft and Corrupt Practices Act: Republic Act (R.A.) No. 3019, as amended.

The assailed Resolution ordered petitioner's preventive suspension for ninety (90) days in accordance
with Section 13 of R.A. No. 3019.

The facts of the case:

Criminal and administrative complaints were filed by Elan Recreation, Inc. (ELAN) against petitioner with
the Office of the Ombudsman. The complaints alleged that petitioner, in his capacity as mayor of the City
of Lucena, had unlawfully granted favors to a third party with respect to the operation of bingo games in
the city, to the damage and prejudice of the complainants.2

On May 23, 2003, the Office of the Deputy Ombudsman for Luzon recommended the dismissal of both
the criminal and administrative complaints.3 However, the Ombudsman approved the dismissal of the
administrative case but denied the dismissal of the criminal case.

As a result, the Office of the Special Prosecutor recommended the filing of three criminal charges for
violation of R.A. No. 3019:

1. Criminal Case No. 27737. For causing undue injury to complainants when petitioner as mayor
of Lucena City vetoed an ordinance granting a local franchise to the complainants to operate
bingo games in the city;

2. Criminal Case No. 27738. For giving unwarranted benefits to Jose Sy Bang by approving
an ordinance granting to Sy Bang a local franchise to operate bingo games in the city; and

3. Criminal Case No. 27739. For causing undue injury to complainants when petitioner closed
down their bingo operations temporarily. (Emphasis supplied)

Petitioner filed a motion for reconsideration/reinvestigation 4 questioning the finding of the Special
Prosecutor. The Motion for Reconsideration was denied by the Office of the Ombudsman.

On May 17, 2003, petitioner filed a motion to quash the three informations. 5 On February 9, 2004,
the Sandinganbayan issued a Resolution6 quashing the Informations in Criminal Cases No. 27737 and
27739. However, it sustained the Information in Criminal Case No. 27738. In the said Resolution,
respondent referred Criminal Case No. 27738 back to the Office of the Ombudsman and ordered the
latter to conduct further preliminary investigation to determine the possible liability of the members of the
City Council which passed Ordinance No. 1963 in said case.7

An Amended Information8 and Second Amended Information9 were filed by the prosecution in
the Sandiganbayan. The first included the members of the City Council of Lucena City (City Councilors),
as additional accused, while the Second Amended Information (Information) alleged conspiracy between
petitioner and the City Councilors. Over the opposition10 of petitioner, the Sandiganbayan admitted both
amended informations.11

On February 21, 2005, petitioner and the City Councilors filed a Motion to Quash 12 the Information on the
ground that there is no valid information on which the Sandiganbayan has a finding of probable cause
because the second amended information's allegations do not constitute an offense, there being no
violation of Presidential Decree (P.D.) No. 771 as it has no applicability to bingo operations and P.D. No.
771 has been superceded by P.D. No. 1869 and R.A. No 7160. The Sandiganbayna denied13 the petition
and it likewise denied petitioner's Motion for Reconsideration.14

On June 29, 2005, petitioner and the City Councilors were arraigned in Criminal Case No. 27738 and all
pleaded "not guilty".

On July 5, 2005, the prosecution filed a Motion to Suspend the Accused

Pendente Lite.15 Petitioner and his co-accused filed an Opposition16 to the motion. Thereafter, respondent
ordered the suspension of the petitioner and his co-accused, to wit:

xxxx

WHEREFORE, the prosecution's motion for suspension pendente lite is hereby GRANTED, and
accused Ramon Y. Talaga, Jr., Godofredo V. Faller, Danilo R. Zaballero, Salome S. Dato, Simon
N. Aldovino, Wilfredo F. Asilo, and Aurora C. Garcia are hereby directed to CEASE and DESIST
from further performing and/or exercising the functions, duties, and privileges of their positions as
City Mayor, and City Councilors of Lucena City, respectively, or any other positions they may now
or hereafter be holding effective immediately upon receipt hereof and continuing for a total period
of ninety (90) days.17

Petitioner then filed the present petition for certiorari with an urgent application for the issuance of a
temporary restraining order and/or preliminary injunction under Rule 65 of the Rules of Court. The Court
issued a Temporary Restraining Order on November 9, 2005 enjoining public respondents from
implementing the suspension of petitioner.18

Assailing his suspension, petitioner alleges:

THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING

TO LACK OR EXCESS OF JURISDICTION WHEN IN ABDICATION OF ITS
CONSTITUTIONAL DUTY TO RESOLVE A JUDICIAL CONTROVERSY, IT IS MINISTERIAL
DUTY TO ISSUE A PREVENTIVE SUSPENSION ORDER AGAINST THE PETITIONER AND
THERE ARE NO IFS AND BUTS ABOUT IT.

II

ASSUMING THAT THE ISSUANCE OF THE PREVENTIVE SUSPENSION IS MANDATORY,

THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO EXCESS OR LACK OF JURISDICTION WHEN IT ORDERED THE
SUSPENSION OF THE PETITIONER AS SECTION 13 OF REPUBLIC ACT NO. 3019, WHICH
FORMS THE BASIS OF THE ORDER OF SUSPENSION, IS UNCONSTITUTIONAL ON THE
GROUND THAT IT IMPINGES UPON THE EXCLUSIVE PREROGATIVE OF THE JUDICIARY.

III

THE HONORABLE SANDIGANBAYAN COMMITED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ORDERED THE
SUSPENSION OF HEREIN PETITIONER DESPITE THE FACT THAT THERE EXISTS NO
VALID INFORMATION UNDER WHICH PETITIONER STANDS CHARGED.19
The petition is devoid of merit.

Petitioner argues that respondent committed grave abuse of discretion when in imposing the sanction of
suspension, it only relied on the "mandatory" provision of Section 13 insensate to the weight and cogency
of the peculiar circumstances of the case before it.20 Moreover, petitioner argues that the bare reliance of
respondent on Section 13 without calibrating the weight of diverse and dueling evidence pertinent to the
issue of appropriateness of ordering his suspension is a clear abdication of respondent's constitutional
duty to exercise its judicial function.21 In addition, petitioner contends that respondent should have looked
into the "environmental circumstances" of the case and thus it was unwarranted to apply the presumption
in Bolastig v. Sandiganbayan22 that unless the accused is suspended, he may frustrate or commit further
acts of malfeasance or do both.

Petitioner asks this Court to first look into the circumstances of the case and thereafter determine the
propriety of issuing a suspension order. The Court could not be more explicit than its ruling in Segovia v.
Sandiganbayan,23 thus:

Petitioners would now have this Court strike down these resolutions because supposedly
rendered in excess of jurisdiction or with grave abuse of discretion. The Court will not do so. In no
sense may the challenged resolutions be stigmatized as so clearly capricious, whimsical,
oppressive, egregiously erroneous or wanting in logic as to call for invalidation by the
extraordinary writ of certiorari. On the contrary, in promulgating those resolutions, the
Sandiganbayan did but adhere to the clear command of the law and what it calls a "mass of
jurisprudence" emanating from this Court, sustaining its authority to decree suspension of public
officials and employees indicted before it. Indeed that the theory of "discretionary
suspension" should still be advocated at this late date, despite the "mass of
jurisprudence" relevant to the issue, is little short of amazing, bordering on contumacious
disregard of the solemn magisterial pronouncements of the Highest Court of the land.24

xxxx

While petitioners concede that this Court has "almost consistently ruled that the
preventive suspension contemplated in Section 13 of RA 3019 is mandatory in character,"
they nonetheless urge the Court to consider their case an exception because of the
"peculiar circumstances" thereof. They assert that the evils sought to be avoided by
"separating a public official from the scene of his alleged misfeasance while the same is being
investigated" -- e.g., "to preclude the abuse of the prerogative of (his) office, such as through
intimidation of witnesses,"or the tampering with documentary evidence -- will not occur in the
present situation where:

1. The Project has been canceled.

2. (Their) ** official duties no longer pertain, in any manner, to the prequalification of

contractors dealing with NPC. Neither are they now involved in any bidding for or
awarding of contracts, ** it (being) emphasized (in this connection) that they were merely
designated as ad hoc members of the Committee without additional compensation for
their additional duties.

3. All the relevant documentary evidence had been either submitted to the Ombudsman
or to the Honorable Sandiganbayan.

They conclude that their preventive suspension "at this point would actually be purposeless, as
there is no more need for precautionary measures against their abuse of the prerogatives of their
office."

The arguments are not new. They have been advanced and rejected in earlier cases. They
will again be so rejected in this case.

The Court's pronouncements in Bolastig v. Sandiganbayan, are germane:

x x x The fact is that the possibility that the accused would intimidate witnesses or
otherwise hamper his prosecution is just one of the grounds for preventive suspension.
The other one is, to prevent the accused from committing further acts of
malfeasance while in office.25 (Emphasis supplied)

Ineluctably, the theory of petitioner that "environmental circumstances" of the case should first be
explored has no leg to stand on.
Section 13, R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, provides:

Suspension and loss of benefits. - Any public officer against whom any criminal
prosecution under a valid information under this Act or under the provisions of the Revised
Penal Code on bribery is pending in court, shall be suspended from office. Should he be
convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if
he is acquitted, he shall be entitled to reinstatement and to salaries and benefits which he failed
to receive during suspension, unless in the meantime administrative proceedings have been filed
against him. (Emphasis supplied)

In Beroña v. Sandiganbayan,26 the Court explicitly ruled:

Section 13 is so clear and explicit that there is hardly room for any extended court rationalization
of the law. Section 13 unequivocally mandates the suspension of a public official from office
pending a criminal prosecution under R.A. 3019 or Title 7, Book II of the Revised Penal Code or
for any offense involving public funds or property or fraud on government. This Court has
repeatedly held that such preventive suspension is mandatory, and there are no "ifs" and "buts"
about it.

As early as Luciano v. Mariano,27 the Court has set out the guidelines to be followed by the lower courts
in the exercise of the power of suspension, to wit:

xxxx

(c) By way of broad guidelines for the lower courts in the exercise of the power of suspension
from office of public officers charged under a valid information under the provisions of Republic
Act No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to section
13 of said Act, it may be briefly stated that upon the filing of such information, the trial court
should issue an order with proper notice requiring the accused officer to show cause at a specific
date of hearing why he should not be ordered suspended from office pursuant to the cited
mandatory provisions of the Act. Where either the prosecution seasonably files a motion for
an order of suspension or the accused in turn files a motion to quash the information or
challenges the validity thereof, such show-cause order of the trial court would no longer
be necessary. What is indispensable is that the trial court duly hear the parties at a
hearing held for determining the validity of the information, and thereafter hand down its
ruling, issuing the corresponding order of suspension should it uphold the validity of the
information or withhold such suspension in the contrary case.

(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that
the accused should be given a fair and adequate opportunity to challenge the validity of the
criminal proceedings against him, e.g., that he has not been afforded the right of due preliminary
investigation, the act for which he stands charged do not constitute a violation of the provisions of
Republic Act No. 3019 or of bribery provisions of the Revised Penal Code which would warrant
his mandatory suspension from office under Section 13 of the Act, or he may present a motion to
quash the information on any of the grounds provided in the Rule 117 of the Rules of Court. The
mandatory suspension decreed by the act upon determination of the pendency in court or
criminal prosecution for violation of the Anti-Graft Act or for bribery under a valid information
requires at the same time that the hearing be expeditious, and not unduly protracted such as to
thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say, finds the
ground alleged in the quashal motion not to be indubitable, then it shall be called upon to issue
the suspension order upon its upholding the validity of the information and setting the same for
trial on the merits.28 (Emphasis and underscoring supplied)

Stated differently, the purpose of the law in requiring a pre-suspension hearing is to determine the validity
of the information so that the court can have a basis to either suspend the accused and proceed with the
trial on the merits of the case, or withhold the suspension and dismiss the case, or correct any part of the
proceedings that impairs its validity. That hearing is similar to a challenge to the validity of the information
by way of a motion to quash.29 In this case, respondent had determined the validity of the Information
when petitioner filed his Motion to Quash. The hearings or proceedings held thereon, in effect, constituted
a pre-suspension hearing. Respondent has followed the dictates of the law.

This brings the Court to petitioner's third assigned error that there is no valid Information under which
petitioner stands charged.

In effect, petitioner is stating once again that the allegations in the Information do not constitute an
offense. Petitioner is holding on to a thin straw in claiming that the Information is fatally defective since it
failed to allege that petitioner by enacting and approving Ordinance No. 1963 had "caused injury to any
party, whether the government or private party", an essential element in the crime charged.

The Information reads:

That on or about June 5, 2000, or sometime prior or subsequent thereto, in Lucena City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused RAMON
TALAGA , JR., being the City Mayor of Lucena, Quezon and GODOFREDO V. FALLER, VICTOR
U. PAULO, DANILO R. ZABALLERO, SALOME S. DATO, SIMON N. ALDOVINO, WILFREDO F.
ASILO, PHILIP M. CASTILLO, AURORA C. GARCIA, ROMANO FRANCO C. TALAGA, being
members of the City Council of Lucena City, while in the performance of their official and/or
administrative functions, committing the offense in relation to their office, did then and there
willfully, unlawfully, and criminally, with evident bad faith and/or manifest partiality, conspiring,
confederating and mutually helping such other, give unwarranted benefit to Jose Sy Bang of
Lucena City, by then and there, in conspiracy with each other, by enacting and approving
Ordinance No. 1963, series of 2000 dated June 5, 2000 granting unto the said Jose Sy
Bang a local franchise to operate a bingo business in Lucena City in violation of
Presidential decree No. 771. (Emphasis supplied)

Section 3(e) of R.A. No. 3019, under which petitioner is charged, provides:

Section 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:

xxxx

(e) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees charged with the
grant of licenses or permits or other concessions. (Emphasis and underscoring supplied)

Contrary to the argument of petitioner, the law does not require that the information must allege that the
acts in question "caused injury to any party, whether the government or private party." The presence of
the word "or" clearly shows that there are two acts which can be prosecuted under Section 3: First,
causing any undue injury to any party, including the government, and, Second, giving any private party
any unwarranted benefits, advantages or preference. Moreover, in Quibal v. Sandiganbayan,30 the Court
ruled that violation of Section 3 (e) of R.A. No. 3019 requires proof of the following facts:

xxxx

1. His action caused undue injury to the Government or any private party, or gave any party any
unwarranted benefit, advantage or preference to such parties.31

Section 9, Rule 110, Rules of Court provides the guideline for the determination of the validity or
sufficiency of allegations in an information, to wit:

SECTION 9. Cause of the Accusation. - The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in the statute but in terms
sufficient to enable a person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances and for the court to pronounce
judgment. (Emphasis supplied)

The test is whether the crime is described in intelligible terms with such particularity as to appraise the
accused, with reasonable certainty, of the offense charged. The raison d'etre of the rule is to enable the
accused to suitably prepare his defense.32

Based on the foregoing test, the Information sufficiently apprises petitioner of the charges against him.
The Information charged the petitioner of evident bad faith and manifest partiality when as Mayor of
Lucena City, petitioner, in conspiracy with the City Council, gave unwarranted benefits to Jose Sy Bang.
Moreover, it states the specific act which constituted the giving of unwarranted benefits, namely, granting
unto the said Jose Sy Bang a local franchise to operate a bingo business in Lucena City in violation of
existing laws. These allegations are clear enough for a layman to understand.
Finally, petitioner's second assigned error deserves scant consideration. The validity of Section 13, R.A.
No. 3019 may no longer be put at issue, the same having been repeatedly upheld by this Court. 33 Basic is
the rule that every law has in its favor the presumption of constitutionality, and to justify its nullification,
there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful,
speculative or argumentative.34

The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive suspension
lies in the court in which the criminal charge is filed; once a case is filed in court, all other acts connected
with the discharge of court functions - including preventive suspension - should be acknowledged as
within the competence of the court that has taken cognizance thereof, no violation of the doctrine of
separation of powers being perceivable in that acknowledgement. 35 As earlier mentioned, the court must
first determine the validity of the information through a pre-suspension hearing. But once a proper
determination of the validity of the information has been made, it becomes the ministerial duty of the court
to forthwith issue the order of preventive suspension.36

WHEREFORE, the instant petition is DISMISSED, there being no showing that

the Sandiganbayan gravely abused its discretion in issuing its Resolution of October 3, 2005, preventively
suspending the petitioner for ninety (90) days. The Temporary Restraining Order dated November 9,
2005 is lifted.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 180917 April 23, 2010

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,

vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON,
SALVADOR ADUL, and AGNES FABIAN, Respondents,

DECISION

(NO ESCRA NO ESCRA NO ESCRA NO ESCRA NO ESCRA NO ESCRA NO ESCRA)

CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the October
11, 2007 Decision and the December 13, 2007 Resolution of the Court of Appeals 1 in CA-G.R. SP
No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of
Duty.

Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and
Municipal Budget Officer, respectively, of Tagkawayan, Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to
construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal High
School2 (TMHS) since the public school in the poblacion area would no longer admit high school
freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor
consulted Salumbides who suggested that the construction of the two-classroom building be
charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance
of Facilities (MOOE/RMF) and implemented "by administration," as had been done in a previous
classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December 2001, that there were no more
available funds that could be taken from the MOOE/RMF, but the savings of the municipal
government were adequate to fund the projects. She added, however, that the approval by
the Sangguniang Bayan of a proposed supplemental budget must be secured.

The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays,
Glenda and Salumbides advised the mayor to source the funds from the ₱1,000,000 MOOE/RMF
allocation in the approved Municipal Annual Budget for 2002.3

The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed
with the construction of the projects based on the program of work and bill of materials he (Aquino)
prepared with a total cost estimate of ₱222,000.

Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor
included the projects in the list of local government projects scheduled for bidding on January 25,
2002 which, together with the January 31, 2002 public bidding, failed.

The mayor was to admit later his expectation or assumption of risk on reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the
time on-going (although it was also my thinking then that no bidder would possibly bid for these 2
projects as these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for
the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the
project. I said "I" because up to the time of the failed 2 biddings I have shouldered the "vale" of the
laborers and I requisitioned some materials on credit on my own personal account, and not a single
centavo was at the time disbursed by our municipal treasury until all requirements for negotiated
purchase of the materials for the project had been accomplished. As a matter of fact, payments for
the expenses on these 2 projects have been made only starting 19 March 2002. x x x4 (underscoring
supplied)

The construction of the projects commenced without any approved appropriation and ahead of the
public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an
earlier project that was "implemented in the same manner, using the same source of fund and for the
same reason of urgency" which was allowed "because the building was considered merely
temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government
is presently negotiating to buy."5

Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the
implementation of infrastructure projects to be executed "by administration," while Councilor Coleta
Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter
into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan.

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul
and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of
the Ombudsman a complaint6 against Salumbides and Glenda (hereafter petitioners), the mayor,
Coleta, Jason and Aquino.

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged
petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to
the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the
Local Government Code.

By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et
al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved
on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both
elective officials, as respondents in the administrative case, the 2004 elections having mooted the
case. The parties were thereupon directed to submit their respective verified position papers to
which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May
19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on
February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the
projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required
documents were among those razed by fire on April 14, 2004 that hit the Office of the Municipal
Accountant where they were temporarily stored due to lack of space at the Provincial Auditor's
Office.
1avvphi1

On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005
Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty,
for which they were meted the penalty of suspension from office for a maximum period of six months
with a stern warning against a similar repetition. It also approved on November 2, 2006 the March
27, 2006 Order7 denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of
the Rules of Court.

For non-compliance with the rule on certification against forum shopping, the petition merits outright
dismissal. The verification portion of the petition does not carry a certification against forum
shopping.8

The Court has distinguished the effects of non-compliance with the requirement of verification and
that of certification against forum shopping. A defective verification shall be treated as an unsigned
pleading and thus produces no legal effect, subject to the discretion of the court to allow the
deficiency to be remedied, while the failure to certify against forum shopping shall be cause for
dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the
initiatory pleading.9

Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition
was previously denied by Resolution of January 15, 200810 for non-compliance with the required
showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March
4, 2008,11 later granted their motion for reconsideration with motion to admit appeal (Motion with
Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period.

Moreover, in their Manifestation/Motion12 filed a day later, petitioners prayed only for the admission
of nine additional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an
insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted
a Motion with Appeal which is different from the first set they had submitted. The second set of
Appeal includes specific Assignment of Errors13 and already contains a certification against forum
shopping14 embedded in the Verification. The two different Verifications were notarized by the same
notary public and bear the same date and document number.15 The rectified verification with
certification, however, was filed beyond the reglementary period.

Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation16 to cover coterminous
appointive officials who were administratively charged along with the reelected official/appointing
authority with infractions allegedly committed during their preceding term.

The Court rejects petitioners' thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija17 issued the
landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed
during his immediately preceding term of office. The Court explained that "[t]he underlying theory is
that each term is separate from other terms, and that the reelection to office operates as a
condonation of the officer's previous misconduct to the extent of cutting off the right to remove him
therefor."18

The Court should never remove a public officer for acts done prior to his present term of office. To
do otherwise would be to deprive the people of their right to elect their officers. When the people
elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any.
It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the
people.19 (underscoring supplied)
Lizares v. Hechanova, et al.20 replicated the doctrine. The Court dismissed the petition in that case
for being moot, the therein petitioner "having been duly reelected, is no longer amenable to
administrative sanctions."21

Ingco v. Sanchez, et al.22 clarified that the condonation doctrine does not apply to a criminal
case.23 Luciano v. The Provincial Governor, et al.,24 Olivarez v. Judge Villaluz,25 and Aguinaldo v.
Santos26 echoed the qualified rule that reelection of a public official does not bar prosecution for
crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two
cases involving a Senator and a Member of the House of Representatives.27

Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon. Mojica29 reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed before the reelection
of the public official, and even if the alleged misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as
long as the alleged misconduct was committed during the prior term, the precise timing or period of
which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public
official's culpability was committed prior to the date of reelection.

Petitioners' theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor30 where the Court found no
basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondent's contention that his appointment to the position of
president of NORSU, despite the pending administrative cases against him, served as a
condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in
Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present
circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here
who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the
principle of vox populi est suprema lex, the re-election of a public official may, indeed,
supersede a pending administrative case. The same cannot be said of a re-appointment to a
non-career position. There is no sovereign will of the people to speak of when the BOR re-
appointed respondent Sojor to the post of university president.31 (emphasis and underscoring
supplied) lawph!l

Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive

officials does not violate the right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections,32 the Court applied the four-fold test in an
equal protection challenge33 against the resign-to-run provision, wherein it discussed the material
and substantive distinctions between elective and appointive officials that could well apply to the
doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and
those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to an office for
a definite term and may be removed therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a permanent capacity and are entitled to
security of tenure while others serve at the pleasure of the appointing authority.

xxxx
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people. It involves the choice or selection of candidates to public office by popular vote.
Considering that elected officials are put in office by their constituents for a definite term, x x x
complete deference is accorded to the will of the electorate that they be served by such officials until
the end of the term for which they were elected. In contrast, there is no such expectation insofar as
appointed officials are concerned. (emphasis and underscoring supplied)

The electorate's condonation of the previous administrative infractions of the reelected official cannot
be extended to that of the reappointed coterminous employees, the underlying basis of the rule
being to uphold the will of the people expressed through the ballot. In other words, there is neither
subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of
reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the appointing authority,
that could extinguish an administrative liability. Since petitioners hold appointive positions, they
cannot claim the mandate of the electorate. The people cannot be charged with the presumption of
full knowledge of the life and character of each and every probable appointee of the elective official
ahead of the latter's actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it
would, as respondents posit, provide civil servants, particularly local government employees, with
blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-
assess the factual findings. This the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a
trier of facts.34 As a rule, the Court is not to review evidence on record and assess the probative
weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of
the Ombudsman, which rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in

favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act
negligently, their infraction becomes intentional.35 There can hardly be conspiracy to commit
negligence.36

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an
employee resulting from either carelessness or indifference.37 In the present case, petitioners fell
short of the reasonable diligence required of them, for failing to exercise due care and prudence in
ascertaining the legal requirements and fiscal soundness of the projects before stamping their
imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to
uphold the law and provide a sound legal assistance and support to the mayor in carrying out the
delivery of basic services and provisions of adequate facilities when he advised [the mayor] to
proceed with the construction of the subject projects without prior competitive bidding."38 As pointed
out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with
impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the
mayor on "matters related to upholding the rule of law."39 Indeed, a legal officer who renders a legal
opinion on a course of action without any legal basis becomes no different from a lay person who
may approve the same because it appears justified.

As regards petitioner Glenda, the appellate court held that the improper use of government funds
upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of
liability for willingly cooperating rather than registering her written objection40 as municipal budget
officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of
the expense, held that the funding for the projects should have been taken from the "capital outlays"
that refer to the appropriations for the purchase of goods and services, the benefits of which extend
beyond the fiscal year and which add to the assets of the local government unit. It added that current
operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and
services for the conduct of normal local government operations within the fiscal year.41
In Office of the Ombudsman v. Tongson,42 the Court reminded the therein respondents, who were
guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with
the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for
one month and one day to six months. Finding no alleged or established circumstance to warrant the
imposition of the maximum penalty of six months, the Court finds the imposition of suspension
without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform
the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of
the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and
attention which careful persons use in the management of their affairs.43

Public service requires integrity and discipline. For this reason, public servants must exhibit at all
times the highest sense of honesty and dedication to duty. By the very nature of their duties and
responsibilities, public officers and employees must faithfully adhere to hold sacred and render
inviolate the constitutional principle that a public office is a public trust; and must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.44

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No.
96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda
Araña, are suspended from office for three (3) months without pay.

SO ORDERED.

G.R. No. 131136. February 28, 2001.*

CONRADO L. DE RAMA, petitioner,

vs.

THE COURT OF APPEALS (NINTH DIVISION, THE CIVIL SERVICE

COMMISSION), ELADIO MARTINEZ, DIVINO DE JESUS, MORELL
AYALA, ARISTEO CATALLA, DAISY PORTA, FLORDELIZA ORIASEL,
GRACIELA GLORY, FELECIDAD ORINDAY, MA. PETRA MUFFET
LUCE, ELSA MARINO, BERNARDITA MENDOZA, JANE
MACATANGAY, ADELFO GLODOVIZA and FLORINO RAMOS,
respondents.

Political Law; Civil Service Commission; Appointments; In truth and in fact, there is
no law that prohibits local elective officials from making appointments during the last
days of his or her tenure.—The records reveal that when the petitioner brought the
matter of recalling the appointments of the fourteen (14) private respondents before the
CSC, the only reason he cited to justify his action was that these were “midnight
appointments” that are forbidden under Article VII, Section 15 of the Constitution.
However, the CSC ruled, and correctly so, that the said prohibition applies only to
presidential appointments. In truth and in fact, there is no law that prohibits local elective
officials from making appointments during the last days of his or her tenure. Petitioner
certainly did not raise the issue of fraud on the part of the outgoing mayor who made the
appointments. Neither did he allege that the said appointments were tainted by
irregularities or anomalies that breached laws and regulations governing appointments.
His solitary reason for recalling these appointments was that they were, to his personal
belief, “midnight appointments” which the outgoing mayor had no authority to make.

Same; Same; Same; Upon the issuance of an appointment and the appointee’s
assumption of the position in the civil service, “he acquires a legal right which cannot be
taken away either by revocation of the appointment or by removal except for cause and
with previous notice and hearing”; It is well-settled that the person assuming a position
in the civil service under a completed appointment acquires a legal, not just an
equitable, right to the position.—It has been held that upon the issuance of an
appointment and the appointee’s assumption of the position in the civil service, “he
acquires a legal right which cannot be taken away either by revocation of the
appointment or by removal except for cause and with previous notice and hearing.”
Moreover, it is well-settled that the person assuming a position in the civil service under
a completed appointment acquires a legal, not just an equitable, right to the position.
This right is protected not only by statute, but by the Constitution as well, which right
cannot be taken away by either revocation of the appointment, or by removal, unless
there is valid cause to do so, provided that there is previous notice and hearing.

Same; Same; Same; It is the CSC that is authorized to recall an appointment initially
approved, but only when such appointment and approval are proven to be in disregard
of applicable provisions of the civil service law and regulations.—Rule V, Section 9 of
the Omnibus Implementing Regulations of the Revised Administrative Code specifically
provides that “an appointment accepted by the appointee cannot be withdrawn or
revoked by the appointing authority and shall remain in force and in effect until
disapproved by the Commission.” Thus, it is the CSC that is authorized to recall an
appointment initially approved, but only when such appointment and approval are
proven to be in disregard of applicable provisions of the civil service law and
regulations.

Remedial Law; Civil Procedure; Pleadings and Practices; Parties may file
supplemental pleadings to supply deficiencies in aid of an original pleading, but which
should not entirely substitute the latter; Supplemental pleadings must be with
reasonable notice, and it is discretionary upon the court or tribunal to allow the same or
not.—There is no question that parties may file supplemental pleadings to supply
deficiencies in aid of an original pleading, but which should not entirely substitute the
latter. The propriety and substance of supplemental pleadings are prescribed under
Rule 10, Section 6 of the 1997 Rules of Civil Procedure, x x x Supplemental pleadings
must be with reasonable notice, and it is discretionary upon the court or tribunal to allow
the same or not. Thus, the CSC was under no obligation to admit the supplemental
pleading, or even to consider the averments therein.

Same; Same; Same; Appeals; It is well-settled that issues or questions of fact cannot
be raised for the first time on appeal.—Be that as it may, these alleged irregularities
were considered by the CSC and the Court of Appeals as new issues which were raised
for the first time on appeal. It is rather too late for petitioner to raise these issues for the
first time on appeal. It is well-settled that issues or questions of fact cannot be raised for
the first time on appeal. We have consistently held that matters, theories or arguments
not brought out in the original proceedings cannot be considered on review or appeal
where they are raised for the first time. To consider the alleged facts and arguments
raised belatedly in the supplemental pleading to the appeal at this very late stage in the
proceedings would amount to trampling on the basic principles of fair play, justice and
due process.

Same; Same; Same; Same; The raising of factual issues for the first time in a pleading
which is supplemental only to an appeal is barred by estoppel.—Failure of the petitioner
to raise said grounds and to present supporting documents constitute a waiver thereof
and the same arguments and evidence can no longer be entertained on appeal before
the CSC, nor in the Court of Appeals, and much less in a petition for review before the
Supreme Court. In fine, the raising of these factual issues for the first time in a pleading
which is supplemental only to an appeal is barred by estoppel.

YNARES-SANTIAGO, J.:
Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Raffia
wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the
appointments of fourteen (14) municipal employees, namely:

NAME POSITION DATE OF

APPOINTMENT

Eladio Martinez Registration Office I June 1, 1995

Divino de Jesus Bookbinder III June 1, 1995

Morell Ayala Accounting Clerk III June 16, 1995

Daisy Porta Clerk IV June 27, 1995

Aristeo Catalla Gen. Services Officer June 19, 1995

Elsa Marino Mun. Agriculturist June 19, 1995

Graciela Glory Bookkeeper II June 27, 1995

Ma. Petra Muffet Accounting Clerk III June 27, 1995

Lucce

Felicidad Orinday Accounting Clerk II June 27, 1995

Bernardita Agricultural June 27, 1995

Mendoza Technologist

Flordeliza Oriasel Clerk I June 27, 1995

Jane Macatangay Day Care Worker I June 27, 1995

Adolfo Glodoviza Utility Worker II June 27, 1995

Florenio Ramos Utility Foreman June 27, 1995

Petitioner de Raffia justified his recall request on the allegation that, the appointments of the said
employees were "midnight" appointments of the former mayor, Ma. Evelyn S. Abeja, done in
violation of Article VII, Section 15 of the 1987 Constitution, which provides:

Section 15. Two months immediately before the next presidential elections and up to the end
of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety. (Underscoring supplied)

While the matter was pending before the CSC, three of the above-named employees, namely: Elsa
Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their salaries,
alleging that although their appointments were declared permanent by Conrado Gulim, Director II of
the CSC Field Office based in Quezon, petitioner de Rama withheld the payment of their salaries
and benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995, wherein the
appointments of the said fourteen (14) employees were recalled.

Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial
Division of the CSC issued an Order2 finding that since the claimants-employees had assumed their
respective positions and performed their duties pursuant to their appointments, they are therefore
entitled to receive the salaries and benefits appurtenant to their positions. Citing Rule V, Section 10
of the Omnibus Rules3 which provides, in part, that "if the appointee has assumed the duties of the
position, he shall be entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission," the CSC Legal and Quasi-Judicial Division ruled that the said
employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-
assumed mayor.

On April 30, 1996, the CSC denied petitioner's request for the recall of the appointments of the
fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus
Rules, and declared that the appointments of the said employees were issued in accordance with
pertinent laws. Thus, the same were effective immediately, and cannot be withdrawn or revoked by
the appointing authority until disapproved by the CSC. The CSC also dismissed petitioner's
allegation that these were "midnight" appointments, pointing out that the Constitutional provision
relied upon by petitioner prohibits only those appointments made by an outgoing President and
cannot be made to apply to local elective officials. Thus, the CSC opined, "the appointing authority
can validly issue appointments until his term has expired, as long as the appointee meets the
qualification standards for the position."4

The CSC upheld the validity of the appointments on the ground that they had already been approved
by' the Head of the CSC Field Office in Lucena City, and for petitioner's failure to present evidence
that would warrant the revocation or recall of the said appointments.

Petitioner moved for the reconsideration of the CSC's Resolution, as well as the Order of the CSC
Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to refuse to
revoke the subject appointments; and (2) to uphold the validity of said appointments, even assuming
that there was failure to present evidence that would prove that these appointments contravened
existing laws or rules. He also posited that the CSC erred in finding the appointments valid despite
the existence of circumstances showing that the same were fraudulently issued and processed.

On November 21, 1996, the CSC denied petitioner's motion for reconsideration. The CSC reiterated
its ruling that:

In the absence of any showing that these alleged midnight appointments were defective in
form and in substance, nor is there evidence presented to show that subject appointments
were issued in contravention of law or rules, these appointments are deemed valid and in
effect.

xxx xxx xxx

Mayor de Rama failed to present evidence that subject appointments should be revoked or
recalled because of any of the abovementioned grounds enumerated. As a matter of fact
said appointments were even approved by the Head, Civil Service Field Office, Lucena City
when submitted for attestation. In the absence of a clear showing that these appointments
were issued in violation of any of these grounds, the Commission has no other recourse but
to uphold their validity. (Underscoring supplied).

The CSC also 'cited the Supreme Court ruling in the case of Aquino v. Civil Service
Commission5 wherein this Court held that:

It is well-settled that once an appointment is issued and the moment the appointee assumes
a position in the civil 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, and cannot be taken away from him either by revocation of the appointment, or
by removal, except for cause, and with previous notice and hearing. (Emphasis supplied)

Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that the CSC
arrived at the erroneous conclusion after it ignored his "supplement to the consolidated appeal and
motion for reconsideration" wherein he laid out evidence showing that the subject appointments
were obtained through fraud.

After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a
Resolution6 dated May 16, 1997 which held that there was no abuse of the power of appointment on
the part of the outgoing mayor.

The Court of Appeals further held that the fact that the appointments of Marino, Ayala, Ramos,
Mendoza and Glory were made more than four (4) months after the publication of the vacancies to
which they were appointed is of no moment. Setting aside petitioner's suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide that every appointment to the local
government service must be made within four (4) months from publication of the vacancies. It cited
Section 80 of said Act, to wit:

Section 80. Public Notice of Vacancy: Personnel Selection Board.

 (a) Whenever a local chief executive decides to fill a vacant career position, there shall be
posted notices of the vacancy in at least three (3) conspicuous public places in the local
government unit concerned for a period of not less than fifteen (15) days.

(b) There shall be established in every province, city or municipality a personnel selection
board to assist the local chief executive in the judicious and objective selection of personnel
for employment as well as for promotion, and in the formulation of such policies as would
contribute to employee welfare.

(c) The personnel selection board shall be headed by the local sanggunian concerned. A
representative of the Civil Service Commission, if any, and the personnel officer of the local
government unit concerned shall be ex officio members of the board.7

Likewise, neither did the CSC's own Circular Order No. 27, Section 7, Series of 1991, require that
vacant positions published in a government quarterly must be filled up before the advent of the
succeeding quarter.

On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the petition for
review.

Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding the
CSC's resolutions despite the following defects:

I. No screening process and no criteria were adopted by the Personnel Selection Board in
nominating the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required by the
rules and the law;

III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents.8

In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for reconsideration.

Hence, the instant petition for review on certiorari on the following assigned errors:

I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY

ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT
UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE
RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON
ISSUANCE OF APPOINTMENTS.

II. THE-PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING

THAT THE PARTICULAR GROUNDS NAMELY:

I. No screening process and no criteria were adopted by the Personnel Selection

Board in nominating the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required
by the rules and the law;

III. Merit and fitness requirements were not observed by the selection board and by
the appointing authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents.

ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS
BY THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND
REGULATIONS ON ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE
RESPONDENT CIVIL SERVICE COMMISSION.
Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to law
and not being supported by the evidence on record.

This argument is too specious to be given credence. The records reveal that when the petitioner
brought the matter of recalling the appointments of the fourteen (14) private respondents before the
CSC, the only reason he cited to justify his action was that these were "midnight appointments" that
are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly
so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no
law that prohibits local elective officials from making appointments during the last days of his or her
tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who
made the appointments. Neither did he allege that the said appointments were tainted by
irregularities or anomalies that breached laws and regulations governing appointments. His solitary
reason for recalling these appointments was that they were, to his personal belief, "midnight
appointments" which the outgoing mayor had no authority to make.

Even in petitioner's consolidated appeal and motion for reconsideration, he did not make any
assertion that these appointments were violative of civil service rules and procedures. Indeed, he
harped on the CSC's alleged lack of jurisdiction to refuse to recall the subject appointments. After
first invoking the authority of the CSC to approve or affirm his act, he then contradicted himself by
arguing that the CSC had no jurisdiction to do so, but only after the CSC had ruled that the recall
was without legal basis. He emphasized that he alone has sole discretion to appoint and recall the
appointment of municipal employees, an authority which, he stressed, the CSC cannot usurp. Yet,
nowhere in said pleading did he cite any other ground, much less present proof that would warrant
the recall of said appointments.

Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a supplement to
the appeal and motion for reconsideration where, for the very first time, he alleged that the
appointments were fraught with irregularities for failing to comply with CSC rules and regulations.
Nevertheless, the CSC overruled petitioner's assertions, holding that no new evidence had been
presented to warrant a reversal of its earlier resolution.

Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSC's
conclusion because it had ignored the allegations and documents he presented in the supplement to
his earlier consolidated appeal and motion for reconsideration. He argued that these form part of the
records of the case and that the CSC erred in failing to consider the assertions he raised therein.
The appellate court, however, agreed with the CSC when it ruled that the documents presented by
petitioner in the supplemental pleading did not constitute "new evidence" that would convince the
CSC to reverse its earlier ruling. In fine, the Court of Appeals, as did the CSC, simply dismissed
petitioner's allegations and documents attached to the supplemental pleading for they did not
constitute new evidence that a court, board or tribunal may entertain.

Herein lies the inconsistency of petitioner's arguments. He faults the Court of Appeals and the CSC
for ignoring his supplemental pleading, while at the same time arguing that the grounds for recall
such as violations of laws and regulations on issuance of appointments are not new issues because
he had timely raised them before the CSC.

There is no question that parties may file supplemental pleadings to supply deficiencies in aid of an
original pleading, but which should not entirely substitute the latter.9 The propriety and substance of
supplemental pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of Civil
Procedure, which provides:

Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplemental pleading setting
forth transactions, occurrences or events which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead thereto within ten (10)
days from notice of the order admitting the supplemental pleading.

Supplemental pleadings must be with reasonable notice, and it is discretionary upon the court or
tribunal to allow the same or not. Thus, the CSC was under no obligation to admit the supplemental
pleading, or even to consider the averments therein.

Secondly, a supplemental pleading must state transactions, occurrences or events which took place
since the time the pleading sought to be supplemented was filed. In the instant case, petitioner
alleged fraud and irregularities that supposedly occurred contemporaneous to the execution of the
appointments. They should have been raised at the very first opportunity. They are not new events
which petitioner could not have originally included as grounds for the recall of the appointments.

Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his supplemental
pleading did not constitute "new evidence" that can be the proper subject of a supplemental
pleading. These were old facts and issues which he failed to raise earlier. Consequently, the CSC
and the Court of Appeals did not err in refusing to give credence to the supplemental pleading.

Be that as it may, these alleged irregularities were considered by the CSC and the Court of Appeals
as new issues which were raised for the first time on appeal. It is rather too late for petitioner to raise
these issues for the first time on appeal. It is well-settled that issues or questions of fact cannot be
raised for the first time on appeal.10 We have consistently held that matters, theories or arguments
not brought out in the original proceedings cannot be considered on review or appeal where they are
raised for the first time.11 To consider the alleged facts and arguments raised belatedly in the
supplemental pleading to the appeal at this very late stage in the proceedings would amount to
trampling on the basic principles of fair play, justice and due process.12

The grounds for the recall of the appointments that petitioner raised in his supplemental pleading to
the consolidated appeal and motion for reconsideration are that: (1) the rules on screening of
applicants based on adopted criteria were not followed; (2) there was no proper posting of notice of
vacancy; and (3) the merit and fitness requirements set by the civil service rules were not observed.
These are grounds that he could have stated in his order of recall, but which he did not. Neither did
he raise said grounds in his original appeal, but only by way of a supplemental pleading. Failure of
the petitioner to raise said grounds and to present supporting documents constitute a waiver thereof,
and the same arguments and evidence can no longer be entertained on appeal before the CSC, nor
in the Court of Appeals, and much less in a petition for review before the Supreme Court. 13 In fine,
the raising of these factual issues for the first time in a pleading which is supplemental only to an
appeal is barred by estoppel.14

Petitioner asks this Court to appreciate and consider these factual issues. It must be recalled that
the jurisdiction of the Supreme Court in a petition for review on certiorari under Rule 45 of the
Revised Rules of Court is limited to reviewing only errors of law, not of fact.15 That is, of course,
unless the factual findings assailed by petitioner are devoid of support by the evidence on record or
the impugned judgment is based on a misapprehension of facts.16

A thorough perusal of the records reveal that the CSC's ruling is supported by the evidence and the
law. The fourteen (14) employees were duly appointed following two meetings of the Personnel
Selection Board held on May 31 and June 26, 1995. There is no showing that any of the private
respondents were not qualified for the positions they were appointed to. Moreover, their
appointments were duly attested to by the Head of the CSC field office at Lucena City. By virtue
thereof, they had already assumed their appointive positions even before petitioner himself assumed
his elected position as town mayor. Consequently, their appointments took effect immediately and
cannot be unilaterally revoked or recalled by petitioner.

It has been held that upon the issuance of an appointment and the appointee's assumption of the
position in the civil service, "he acquires a legal right which cannot be taken away either by
revocation of the appointment or by removal except for cause and with previous notice and
hearing."17 Moreover, it is well-settled that the person assuming a position in the civil service under a
completed appointment acquires a legal, not just an equitable, right to the position. This right is
protected not only by statute, but by the Constitution as well, which right cannot be taken away by
either revocation of the appointment, or by removal, unless there is valid cause to do so, provided
that there is previous notice and hearing.18

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue
Office Order No. 95-01 which recalled the appointments of the private respondents. There was no
previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in
undue haste to remove the private respondents without regard for the simple requirements or due
process of law. In doing so, he overstepped the bounds of his authority. While he argues that the
appointing power has the sole authority to revoke said appointments, there is no debate that he does
not have blanket authority to do so. Neither can he question the CSC's jurisdiction to affirm or revoke
the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code
specifically provides that "an appointment accepted by the appointee cannot be withdrawn or
revoked by the appointing authority and shall remain in force and in effect until disapproved by the
Commission." Thus, it is the CSC that is authorized to recall an appointment initially approved, but
only when such appointment and approval are proven to be in disregard of applicable provisions of
the civil service law and regulations.19

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect
immediately upon its issuance by the appointing authority, and if the appointee has assumed
the duties of the position, he shall be entitled to receive his salary at once without awaiting
the approval of his appointment by the Commission. The appointment shall remain effective
until disapproved by the Commission. In no case shall an appointment take effect earlier
than the date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on
any of the following grounds:

(a) Non-compliance with the procedures/criteria provided in the agency's Merit

Promotion Plan;

(b) Failure to pass through the agency's Selection/Promotion Board;

(c) Violation of the existing collective agreement between management and

employees relative to promotion; or

(d) Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited
grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were
"midnight appointments." The CSC correctly ruled, however, that the constitutional prohibition on so-
called "midnight appointments," specifically those made within two (2) months immediately prior to
the next presidential elections, applies only to the President or Acting President.

If ever there were other procedural or legal requirements that were violated in implementing the
appointments of the private respondents, the same were not seasonably brought before the Civil
Service Commission. These cannot be raised for the first time on appeal.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and the
Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions Nos. 96-
2828 and 96-7525 hereby AFFIRMED in toto.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 138464. January 18, 2008.*

HON. GOVERNOR DEMOCRITO O. PLAZA (deceased, to be

substituted by incumbent GOVERNOR VALENTINA G. PLAZA),
DANILO S. SAMSON, FE TAN-CEBRIAN, HONORABLE SB MEMBER
(now Vice Governor) VIRGINIA M. GETES, ADULFO A. LLAGAS (as
members of the Administrative Investigating Committee), FRANCISCO
U. FERNANDEZ, and JOSEFINA V. BAJADE, petitioners,

vs.

COURT OF APPEALS, GIL POL TAN, ELISA O. GILSANO, and

EMMANUEL S. QUISMUNDO, respondents.

Public Officers; Preventive Suspensions; The payment of salaries corresponding to

the period when an employee is not allowed to work may be decreed if he is found
innocent of the charges which caused his suspension and when the suspension is
unjustified.—The Court rules that private respondents’ claim for back salaries is
untenable because their suspension was authorized by law and they have not been
absolved of the administrative charges filed against them. In Gloria v. Court of Appeals,
306 SCRA 287 (1999), this Court had the occasion to clarify that the payment of
salaries corresponding to the period when an employee is not allowed to work may be
decreed if he is found innocent of the charges which caused his suspension and when
the suspension is unjustified.

Same; Same; To be entitled to back salaries, private respondents must not only be
found innocent of the charges, but their suspension must likewise be unjustified.—The
law provides for the preventive suspension of appointive local officials and employees
pending investigation of the charges against them. The suspension given to private
respondents cannot, therefore, be considered unjustified for it is one of those sacrifices
which holding a public office requires for the public good. To be entitled to back salaries,
private respondents must not only be found innocent of the charges, but their
suspension must likewise be unjustified.

DECISION

AZCUNA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, as amended, seeking
to annul and set aside the Decision1 dated February 13, 1997 of the Court of Appeals (CA) in CA-
G.R. SP No. 34359, as well as its Resolution2 dated March 30, 1999, denying petitioners’ motion for
reconsideration. The questioned decision lifted the orders of preventive suspension issued by
petitioner Governor Democrito O. Plaza against private respondents. The appellate court then
ordered the reinstatement of private respondents to their former positions with right to backwages
but without prejudice to the continuation of the administrative proceedings against them.

The relevant facts of the case are as follows:

A few months after his assumption as Governor of Agusan del Sur in 1992, petitioner Democrito O.
Plaza received separate administrative complaints against the following:

(a) Gil Pol Tan, Provincial Budget Officer, on the ensuing grounds:

1. For having drawn cash advance out of the Local Government Funds (General
Funds) of the Provincial Government of Agusan del Sur amounting to ONE
HUNDRED SEVENTEEN NINE HUNDRED THIRTY FIVE THOUSAND
(P117,935.00) PESOS ONLY for allege [sic] OPERATIONAL EXPENSES of the
Provincial Government of Agusan del Sur barely three (3) days before the May 11,
1992 synchronized elections, without passing the same to pre-audit as one of the
requirements under Commission on Audit Circular No. 86-257 which states among
others "ALL CASH ADVANCES, except those granted for the payment of salaries
and wages of officers or employees, shall be pre-audited."

2. For making again a cash advance in an increasing amount to liquidate

his previous cash advance, which is a clear violation again of COA Circular No. 86-
257 which states among others "A cash advance for miscellaneous expenses shall
be reported on and liquidated as soon as, but not later than thirty (30) days after, the
purpose of which it was served" and "No cash advance shall be allowed to any
official or employee unless the previous cash advance given to him is first settled or
a proper accounting thereof is made for the full amount of the cash advance" and
"No cash advance shall be granted for the purpose of liquidating a previous cash
advance."

3. For making cash advances beyond his approved cash bond, again, a violation to
COA Memorandum Circular No. 86-257 which states that "No Officer and employee
shall be granted a cash advance unless he is properly bonded in accordance with
law or regulations. The amount of cash advance which may be granted shall not
exceed the maximum amount covered by his bond."3

(b) Emmanuel S. Quismundo, Provincial Planning and Development Coordinator, for

inappropriate disbursements of the 20% Development Funds thereby constituting technical
malversation and other violations based on existing guidelines;4 and

(c) Elisa O. Gilsano, Provincial Accountant, for neglect in the performance of duty.5

Pursuant to Book I, Title Three, Section 86 of Republic Act (R.A.) No. 7160, otherwise known as the
Local Government Code (LGC) of 1991, Plaza issued Executive Order No. 01, Series of
1992,6 creating a Provincial Investigating Committee (PIC) composed of the following petitioners:

Chairperson - Atty. Danilo Samson

Provincial Legal Officer
Secretary - Ms. Fe Tan-Cebrian
Acting Provincial Personnel Officer
Member - Hon. Virginia M. Getes
SP Member
- Mr. Adulfo A. Llagas
Asst. Provincial Treasurer
Officer-in-Charge

The PIC was established to conduct hearings on cases brought against appointive local officials and
employees, and was ordered to submit its findings and recommendations to the local chief executive
within 15 days from conclusion of the hearings.7

On various dates in October 1992, petitioner Samson, acting as Chairperson of the Administrative
Investigating Committee, notified private respondents of the administrative complaints. Tan allegedly
committed a conduct prejudicial to the best interest of the service,8 Gilsano was charged with neglect
in the performance of duty,9 and Quismundo was allegedly liable for technical malversation, an act
prejudicial to the best interest of the service.10 Private respondents were required to answer in writing
under oath within 72 hours from receipt together with the affidavits of their witnesses, if any, and to
state whether they would opt for a formal investigation or would waive such right.
Instead of filing their answers, private respondents filed separate Motions to Inhibit/Dismiss11 seeking
to inhibit Samson on the ground that he had no authority under the law to conduct the administrative
investigations because his appointment as Provincial Legal Officer had not been acted upon by
the Sangguniang Panlalawigan of Agusan del Sur, which concurrence is of utmost necessity to
confer upon his appointment by the Provincial Governor the imprimatur of legality and validity.
Another issue raised by private respondents was that they could not expect to be given due process
and the cold neutrality of an impartial committee.

On October 26, 1992, Samson issued an Omnibus Order12 denying private respondents’ motions to
dismiss/inhibit. The fallo of the order reads:

WHEREFORE, the Motions to Dismiss/Inhibit filed by the respondents is hereby DENIED.

Respondents however, is [sic] given an extension of time of five (5) days after receipt of this
order to file their Answer under oath not Motion for Reconsideration. Failure to file Answer
within the given period of time, respondents are hereby deemed to have waived their right to
present evidence in their behalf and the investigating committee shall proceed to conduct its
investigation process afterwhich [sic] will submit its findings and recommendations to the
office of the Provincial Governor.

SO ORDERED.13

Private respondents then opted to file, on November 6, 1992, an Omnibus Motion to Dismiss the
administrative charges.

On November 9, 1992, Plaza issued Memorandum Order Nos. 131-92 to 133-9214 ordering the
preventive suspension of private respondents for a period of 60 days effective upon receipt of the
orders.

On December 3, 1992, private respondents filed before the Regional Trial Court (RTC) of
Prosperidad, Agusan del Sur, Branch VI, a Petition for Certiorari, Prohibition, Injunction, with
Preliminary Injunction and/or Restraining Order, docketed as Civil Case No. 897, seeking to annul
the preventive suspension imposed by Plaza, as well as the October 26, 1992 Omnibus Order
denying their motions to inhibit/dismiss.

In an Order15 dated December 8, 1992, the trial court issued a temporary restraining order and
ordered Plaza to refrain from further continuing with the investigation and/or conducting further
proceedings on the subject administrative charge and from enforcing the assailed orders and/or the
effects thereof until further orders from the court.

On January 5, 1993, Plaza issued Memorandum No. 001-93,16 the contents of which are as follows:

Reports are received by this office that you have the intention to assume your respective
offices after the lapse of sixty (60) days from the date you are placed under preventive
suspension.

Please be reminded that the period of suspension stops running from the time you filed the
petition for Certiorari with the Court of Appeals and Regional Trial Court Branch VI of this
province pursuant to Section 85 par. (b) of R.A. 7160 otherwise known as the Local
Government Code of 1991.

Please be guided accordingly.

DEMOCRITO O. PLAZA (Sgd.)

Provincial Governor17

On January 18, 1993, the RTC issued a writ of preliminary injunction18 "to temporarily stop the
administrative fact finding until after the principal action shall have been resolved."

A motion for reconsideration19 of the RTC order dated January 18, 1993 was filed by private
respondents arguing that the act of imposing a preventive suspension had become a fait
accompli since the 60-day period from November 9, 1992, private respondents’ receipt of the orders
of preventive suspension, had already elapsed. They prayed for the nullification of the orders of
preventive suspension and the lifting of the legal effects of the Memorandum dated January 5, 1993.
This was denied by the trial court in an Order20 dated March 15, 1993.

Meantime, Resolution No. 11, Series of 199321 was issued by the Sangguniang Panlalawigan of
Agusan del Sur on February 11, 1993 reiterating the rejection of the appointment of Samson as
Provincial Legal Officer of the province for lack of the required 5-year law practice.

On June 18, 1993, the trial court dismissed the petition, the dispositive portion of which reads:

ACCORDINGLY, this Petition is, as it is hereby ordered DISMISSED for having been filed
prematurely and precipitately.

SO ORDERED.22

The RTC reasoned that private respondents failed to exhaust the available administrative remedies
since the proper forum to decide the dispute is the Civil Service Commission (CSC) pursuant to
Section 87 of R.A. No. 7160.

The trial court later denied private respondents’ motion for reconsideration in an Order23 dated
November 19, 1993.

Feeling aggrieved, private respondents immediately filed a notice of appeal to the CA. The appeal
was docketed as CA-G.R. SP No. 34359 by the appellate court. In their Memorandum filed before
the CA, private respondents raised the lone assignment of error that the controversy falls within the
well-settled exceptions to the principle of non-exhaustion of administrative remedies.

On February 13, 1997, the appellate court in CA-G.R. SP No. 34359 rendered a Decision, the
dispositive portion of which reads:

WHEREFORE, the appealed decision is SET ASIDE and in lieu thereof, judgment is
rendered lifting the orders of preventive suspension issued by then Gov. Democrito Plaza
against appellants. Appellants are reinstated to their previous positions with right to
backwages but without prejudice to the continuation of the administrative proceedings
against them.

SO ORDERED.24

The CA opined that Samson’s authority as chairman of the PIC is not invalidated by the lack of
concurrence of the Sangguniang Panlalawigan in his appointment as the Provincial Legal Officer.
Moreover, the preventive suspension of private respondents may be ordered even without a hearing
as such suspension is not a penalty but only a preliminary step in an administrative investigation. It
likewise ruled that the filing of the petition for certiorari and prohibition before the RTC was not a
delay which would interrupt the running of the period of preventive suspension. Lastly, the CA
pronounced that to sanction preventive suspension pending resolution of an administrative case is
equivalent to indefinite suspension which the Constitution prohibits.

On March 30, 1999, the CA denied25 for lack of merit the motion for reconsideration filed by private
respondents.

Meanwhile, a series of events occurred during the pendency of the appeal and even after the
promulgation of the appellate court’s decision. On August 5, 1993, the members of the Sangguniang
Panlalawigan of Agusan del Sur discovered the existence of CSC Resolution No. 93-1765 dated
May 17, 1993, designating petitioner Fe Tan-Cebrian as substitute Provincial Government
Department Head of the Office of the Provincial Planning and Development Coordinator. The
members of the sanggunian then filed a petition26 before the CSC seeking to set aside the aforesaid
resolution and to order the immediate reinstatement of Quismundo and the payment of his
backwages. Similar petitions were also filed by the members of the sanggunian praying for the
immediate reinstatement of private respondents Tan and Gilsano with payment of back salaries.

On January 28, 1997, the CSC issued Resolution No. 97068627 directing the incumbent Governor of
Agusan del Sur to immediately reinstate private respondents to their former positions without
prejudice to the continuance of the administrative cases against them. A motion for reconsideration
was filed by the Governor of Agusan del Sur but the same was denied in CSC Resolution No.
97406528 dated October 14, 1997.

Undaunted, the provincial governor filed before the CA a petition for review with temporary
restraining order and injunction docketed as CA-G.R. SP No. 46650 praying that an order be issued
enjoining the CSC from implementing Resolutions Nos. 970686 and 974065.

By virtue of CSC Resolution No. 974065, private respondents wrote29 the incumbent governor
informing the latter that they are assuming office on December 1, 1997. However, then Provincial
Governor Alex G. Bascug issued Office Order No. 016-97, Series of 199730 dated December 1, 1997
detailing private respondents to the Agusan del Sur Economic and Business Assistance Center
(ASERBAC). On December 29, 1997, counsel for private respondents informed Governor Bascug
through a letter31 that he has advised his clients to cease and desist from reporting to work as the
detail to ASERBAC was in reckless and wanton contravention of the order of the CA dated February
13, 1997.

Petitioners now seek relief from this Court via a petition for review on certiorari.

The following are the issues raised by petitioners:

10. Whether or not the Court of Appeals erred in ruling that the appellants [sic] filing of
Special Civil Action for Prohibition and with Preliminary Injunction and/or Restraining Order
before the RTC is a delay which does not interrupt the running of the period of suspension;

10.a Whether or not the Court of Appeals erred in ruling that the preventive
suspension imposed against Petitioner-Appellants [herein private respondents]
should be lifted;

10.b Whether or not the Court of Appeals erred in ruling that Petitioner-Appellants
should immediately be reinstated;

10.c Whether or not the Court of Appeals erred in ruling that Petitioner-Appellants
are entitled to backwages during the entire period of their suspension;

10.d Whether or not the Court of Appeals erred in ruling that the preventive
suspension was unjustified.32

Petitioners argue that private respondents have not yet been exonerated and to grant them the right
to back salaries is, at the moment, premature. It is likewise their contention that the undue delay in
the investigation of private respondents was caused by them and shall be deducted from the period
of their suspension as provided in Section 85(b)33 of R.A. No. 7160. In addition, petitioners explain
that Section 88 of R.A. No. 7160 provides that a suspended respondent is entitled to all the rights
and privileges appurtenant to his position only when he is exonerated.

In their Amended Petition for Review34 filed on September 16, 1999, and subsequently in the
Reply35 filed on May 2, 2000, petitioners argue that the only pertinent issue to be resolved is whether
or not the CA’s award of backwages is in accordance with law and the applicable jurisprudence
because of the following developments:

1. On July 26, 1999, petitioner Governor Valentina G. Plaza through Provincial Administrator
Dante Luz Viacrucis sent respondents a letter, certified copy attached as Annex "M", stating
that "pursuant to the Resolution of the Civil Service Commission, you are again hereby
enjoined to report for work not later than August 2, 1999."

2. On August 2, 1999, respondents complied by reporting for work, formally notifying the
Governor that "in compliance to your Memorandum dated July 26, 1999, we are respectfully
informing you that we, the undersigned, are assuming the duties and responsibilities of our
respective offices today, August 2, 1999." A copy of said letter is hereto attached as Annex
"N".36

Similarly, the appellate court issued, on November 26, 1999, a Decision in CA-G.R. SP No. 46650,
the fallo of which reads:
 WHEREFORE, foregoing premises considered, finding herein petition to be meritorious, the
Resolution No. 97-0686 of the Civil Service Commission, dated January 28, 1997 is hereby
SET ASIDE and a new one is entered as follows:

1. Ordering that the counting of the sixty (60) day preventive suspension of the private
respondents Elisa O. Gilsano, Gil Pol Tan and Emmanuel Quizmundo [sic] shall start from
the day the decision of the Court of Appeals on [sic] CA-G.R. SP No. 34359 dated June 6,
1991 [sic] have become final and executory.

2. Ordering further, thereafter, that suspension of the said employees shall be lifted and the
incumbent Provincial Governor is directed to reinstate the above mentioned private
respondents to their former positions as Provincial Accountant, Provincial Budget Officer,
and Provincial Planning and Development Coordinator, respectively, without prejudice to the
continuance of the administrative cases against them.

No pronouncement as to cost.

SO ORDERED.37

As correctly raised by the petitioners, the only remaining issues to be determined by the Court are
whether the private respondents are entitled to backwages during the entire period of their
suspension and, concomitantly, whether the CA erred in ruling that the preventive suspension was
unjustified. The other issues, as conceded by the parties, have become moot and academic in view
of the actual reinstatement of private respondents last August 2, 1999.

The Court rules that private respondents’ claim for back salaries is untenable because their
suspension was authorized by law and they have not been absolved of the administrative charges
filed against them.38 In Gloria v. Court of Appeals,39 this Court had the occasion to clarify that the
payment of salaries corresponding to the period when an employee is not allowed to work may be
decreed if he is found innocent of the charges which caused his suspension and when the
suspension is unjustified.

Stated otherwise, the preventive suspension of the private respondents is authorized by R.A. No.
7160. Section 85 (a) of the LGC of 1991 states:

SEC. 85. Preventive Suspension of Appointive Local Officials and Employees. — (a) The
local chief executives may preventively suspend for a period not exceeding sixty (60) days
any subordinate official or employee under his authority pending investigation if the charge
against such official or employee involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty, or if there is reason to believe that the respondent is
guilty of the charges which would warrant his removal from the service.

Clearly, the law provides for the preventive suspension of appointive local officials and employees
pending investigation of the charges against them. The suspension given to private respondents
cannot, therefore, be considered unjustified for it is one of those sacrifices which holding a public
office requires for the public good.40 To be entitled to back salaries, private respondents must not
only be found innocent of the charges, but their suspension must likewise be unjustified.

WHEREFORE, the Decision of the Court of Appeals dated February 13, 1997 in CA-G.R. SP No.
34359, and its Resolution therein dated March 30, 1999 are hereby MODIFIED. The Provincial
Investigating Committee is DIRECTED to reconvene and proceed with the administrative cases filed
against private respondents Gil Pol Tan, Elisa O. Gilsano, and Emmanuel S. Quismundo, and to
resolve the cases with all reasonable dispatch. The award of backwages is DELETED.

No costs.

SO ORDERED.
 G.R. No. 161081. May 10, 2005.*

RAMON M. ATIENZA, in his capacity as Vice-Governor of the Province

of Occidental Mindoro, petitioner,

vs.

JOSE T. VILLAROSA, in his capacity as Governor of the Province of

Occidental Mindoro, respondent.

Municipal Corporations; Local Government Units; Actions; Moot and Academic

Questions; Even in cases where supervening events had made the cases moot, the
Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and the public.—Before resolving the
foregoing issues, it is noted that petitioner Atienza and respondent Villarosa had ceased
to be the Vice-Governor and Governor, respectively, of the Province of Occidental
Mindoro effective June 30, 2004 when the newly-elected officials of the province took
their oaths of offices. The petitioner Vice-Governor did not run for re-election during the
May 2004 elections while the respondent Governor did not succeed in his re-election
bid. The expiration of their terms of offices has effectively rendered the case moot.
However, even in cases where supervening events had made the cases moot, the
Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and the public. In this case, there is
compelling reason for the Court to resolve the issues presented in order to clarify the
scope of the respective powers of the Governor and Vice-Governor under the pertinent
provisions of the Local Government Code of 1991.

Same; Same; Local Government Code (R.A. No. 7160); Local Autonomy;
Decentralization; The provisions of R.A. No. 7160 are anchored on principles that
give effect to decentralization.—To resolve the substantive issues presented in the
instant case, it is well to recall that Rep. Act No. 7160 was enacted to give flesh to the
constitutional mandate to “provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective
mechanism of recall, initiative and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions
and duties of local officials, and all matters relating to the organization and operation of
the local units.” In this connection, the provisions of Rep. Act No. 7160 are anchored on
principles that give effect to decentralization. Among these principles are: [t]here shall
be an effective allocation among the different local government units of their respective
powers, functions, responsibilities, and resources; [t]here shall be established in every
local government unit an accountable, efficient, and dynamic organizational structure
and operating mechanism that will meet the priority needs and service requirements of
its communities; [p]rovinces with respect to component cities and municipalities, and
cities and municipalities with respect to component barangays, shall ensure that the
acts of their component units are within the scope of their prescribed powers and
functions; and [e]ffective mechanisms for ensuring the accountability of local
government units to their respective constituents shall be strengthened in order to
upgrade continually the quality of local leadership.

Same; Same; Same; The Vice-Governor, as the presiding officer of the Sangguniang
Panlalawigan, has administrative control of the funds of the said body and it is he who
has the authority to approve disbursement vouchers for expenditures appropriated for
the operation of the Sangguniang Panlalawigan.—Reliance by the CA on the clause
“approval of the disbursement voucher by the local chief executive himself shall be
required whenever local funds are disbursed” of the above section (Section 344) to rule
that it is the Governor who has the authority to approve purchase orders for the
supplies, materials or equipment for the operation of the Sangguniang Panlalawigan is
misplaced. This clause cannot prevail over the more specific clause of the same
provision which provides that “vouchers and payrolls shall be certified to and approved
by the head of the department or office who has administrative control of the fund
concerned.” The Vice-Governor, as the presiding officer of the Sangguniang
Panlalawigan, has administrative control of the funds of the said body. Accordingly, it is
the Vice-Governor who has the authority to approve disbursement vouchers for
expenditures appropriated for the operation of the Sangguniang Panlalawigan.

Same; Same; Same; Statutory Construction; Doctrine of Necessary Implication;

Words and Phrases; While R.A. No. 7160 is silent as to the matter, the authority
granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all
expenditures appropriated for the operation of the Sangguniang Panlalawigan as well
as to approve disbursement vouchers relating thereto necessarily includes the authority
to approve purchase orders covering the same applying the doctrine of necessary
implication; The doctrine of necessary implication states that what is implied in a statute
is as much a part thereof as that which is expressed—every statute is understood, by
implication, to contain all such provisions as may be necessary to effectuate its object
and purpose, or to make effective rights, powers, privileges or jurisdiction which it
grants, including all such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms.—While Rep. Act No. 7160 is silent as to the matter, the
authority granted to the Vice-Governor to sign all warrants drawn on the provincial
treasury for all expenditures appropriated for the operation of the Sangguniang
Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily
includes the authority to approve purchase orders covering the same applying the
doctrine of necessary implication. This doctrine is explained, thus: No statute can be
enacted that can provide all the details involved in its application. There is always an
omission that may not meet a particular situation. What is thought, at the time of
enactment, to be an all-embracing legislation may be inadequate to provide for the
unfolding of events of the future. So-called gaps in the law develop as the law is
enforced. One of the rules of statutory construction used to fill in the gap is the doctrine
of necessary implication. The doctrine states that what is implied in a statute is as much
a part thereof as that which is expressed. Every statute is understood, by implication, to
contain all such provisions as may be necessary to effectuate its object and purpose, or
to make effective rights, powers, privileges or jurisdiction which it grants, including all
such collateral and subsidiary consequences as may be fairly and logically inferred from
its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is
deemed to include all incidental power, right or privilege. This is so because the greater
includes the lesser, expressed in the maxim, in eo plus sit, simper inest et minus.

Same; Same; Same; Words and Phrases; “Warrants,” “Vouchers,” and “Purchase
Orders,” Explained.—Warrants are “order[s] directing the treasurer of the municipality
to pay money out of funds in city treasury which are or may become available for
purpose specified to designated person[s].” Warrants of a municipal corporation are
generally orders payable when funds are found. They are issued for the payment of
general municipal debts and expenses subject to the rule that they shall be paid in the
order of presentation. The ordinary meaning of “voucher” is a document which shows
that services have been performed or expenses incurred. It covers any acquittance or
receipt discharging the person or evidencing payment by him. When used in connection
with disbursement of money, it implies some instrument that shows on what account or
by what authority a particular payment has been made, or that services have been
performed which entitle the party to whom it is issued to payment.Purchase order, on
the other hand, is “an authorization by the issuing party for the recipient to provide
materials or services for which issuing party agrees to pay; it is an offer to buy which
becomes binding when those things ordered have been provided.”

Same; Same; Same; Since it is the Vice-Governor who approves disbursement

vouchers and approves the payment for the procurement of the supplies, materials and
equipment needed for the operation of the Sangguniang Panlalawigan, then he also has
the authority to approve the purchase orders to cause the delivery of the said supplies,
materials or equipment—the express authority to approve disbursement vouchers and,
in effect, authorize the payment of money claims for supplies, materials or equipment,
necessarily includes the authority to approve purchase orders to cause the delivery of
the same; The authority granted to the Vice-Governor to sign all warrants drawn on the
provincial treasury for all expenditures appropriated for the operation of the
Sangguniang Panlalawigan as well as to approve disbursement vouchers relating
thereto is greater and includes the authority to approve purchase orders for the
procurement of the supplies, materials and equipment necessary for the operation of
the Sangguniang Panlalawigan.—When an authorized person approves a disbursement
voucher, he certifies to the correctness of the entries therein, among others: that the
expenses incurred were necessary and lawful, the supporting documents are complete
and the availability of cash therefor. Further, the person who performed the services or
delivered the supplies, materials or equipment is entitled to payment. On the other
hand, the terms and conditions for the procurement of supplies, materials or equipment,
in particular, are contained in a purchase order. The tenor of a purchase order basically
directs the supplier to deliver the articles enumerated and subject to the terms and
conditions specified therein. Hence, the express authority to approve disbursement
vouchers and, in effect, authorize the payment of money claims for supplies, materials
or equipment, necessarily includes the authority to approve purchase orders to cause
the delivery of the said supplies, materials or equipment. Since it is the Vice-Governor
who approves disbursement vouchers and approves the payment for the procurement
of the supplies, materials and equipment needed for the operation of the Sangguniang
Panlalawigan, then he also has the authority to approve the purchase orders to cause
the delivery of the said supplies, materials or equipment. Indeed, the authority granted
to the Vice-Governor to sign all warrants drawn on the provincial treasury for all
expenditures appropriated for the operation of the Sangguniang Panlalawigan as well
as to approve disbursement vouchers relating thereto is greater and includes the
authority to approve purchase orders for the procurement of the supplies, materials and
equipment necessary for the operation of the Sangguniang Panlalawigan.
Same; Same; Same; Appointments; Courts; Actions; Moot and Academic
Questions; “Capable of Repetition Yet Evading Review” Rule; The Governor has
no authority to appoint the officials and employees of the Sangguniang Panlalawigan; It
is recognized that courts will decide a question otherwise moot and academic if it is
“capable of repetition yet evading review.”—Anent the second issue, the appellate court
likewise committed reversible error in holding that the implementation of the
Memorandum dated July 1, 2002 had rendered the petition moot and academic. It is
recognized that courts will decide a question otherwise moot and academic if it is
“capable of repetition yet evading review.” Even if the employees whose contractual or
job order employment had been terminated by the implementation of the July 1, 2002
Memorandum may no longer be reinstated, still, similar memoranda may be issued by
other local chief executives. Hence, it behooves the Court to resolve whether the
Governor has the authority to terminate or cancel the appointments of casual/job order
employees of the Sangguniang Panlalawigan and the Office of the Vice-Governor. We
hold that the Governor, with respect to the appointment of the officials and employees of
the Sangguniang Panlalawigan, has no such authority.

Same; Same; Same; Same; While the Governor has authority to appoint officials and
employees whose salaries are paid out of the provincial funds, this does not extend to
the officials and employees of the Sangguniang Panlalawigan because such authority is
lodged with the Vice-Governor; The appointing power of the Vice-Governor is limited to
those employees of the Sangguniang Panlalawigan, as well as those of the Office of the
Vice Governor, whose salaries are paid out of the funds appropriated for the
Sangguniang Panlalawigan—if the salary of an employee or official is charged against
the provincial funds, even if this employee reports to the Vice-Governor or is assigned
to his office, the Governor retains the authority to appoint the said employee.—Thus,
while the Governor has the authority to appoint officials and employees whose salaries
are paid out of the provincial funds, this does not extend to the officials and employees
of the Sangguniang Panlalawigan because such authority is lodged with the Vice-
Governor. In the same manner, the authority to appoint casual and job order employees
of the Sangguniang Panlalawigan belongs to the Vice-Governor. The authority of the
Vice-Governor to appoint the officials and employees of the Sangguniang Panlalawigan
is anchored on the fact that the salaries of these employees are derived from the
appropriation specifically for the said local legislative body. Indeed, the budget source of
their salaries is what sets the employees and officials of the Sangguniang Panlalawigan
apart from the other employees and officials of the province. Accordingly, the appointing
power of the Vice-Governor is limited to those employees of the Sangguniang
Panlalawigan, as well as those of the Office of the Vice-Governor, whose salaries are
paid out of the funds appropriated for the Sangguniang Panlalawigan. As a corollary, if
the salary of an employee or official is charged against the provincial funds, even if this
employee reports to the Vice-Governor or is assigned to his office, the Governor retains
the authority to appoint the said employee pursuant to Section 465(b)(v) of Rep. Act No.
7160.

Same; Same; Same; Separation of Powers; With R.A. No. 7160, the union of
legislative and executive powers in the office of the local chief executive under BP Blg.
337 has been disbanded, so that either department now comprises different and non-
intermingling official personalities with the end in view of ensuring a better delivery of
public service and provide a system of check and balance between the two; The
avowed intent of R.A. No. 7160 is to vest on the Sangguniang Panlalawigan
independence in the exercise of its legislative functions vis-à-vis the discharge by the
Governor of the executive functions.—With Rep. Act No. 7160, the union of legislative
and executive powers in the office of the local chief executive under the BP Blg. 337
has been disbanded, so that either department now comprises different and non-
intermingling official personalities with the end in view of ensuring a better delivery of
public service and provide a system of check and balance between the two. Senator
Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that “the Vice-
Governor is now the presiding officer of the Sangguniang Panlalawigan. The City Vice-
Mayor presides at meetings of the Sangguniang Panlungsod and the Municipal Vice-
Mayor at the sessions of the Sangguniang Bayan. The idea is to distribute powers
among elective local officials so that the legislative, which is the Sanggunian, can
properly check the executive, which is the Governor or the Mayor and vice versa and
exercise their functions without any undue interference from one by the other.” The
avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang
Panlalawigan independence in the exercise of its legislative functions vis-à-vis the
discharge by the Governor of the executive functions.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by Ramon M. Atienza, in his capacity as
Vice-Governor of the Province of Occidental Mindoro, seeking to reverse and set aside the
Decision1 dated November 28, 2003 of the Court of Appeals in CA-G.R. SP No. 72069. The assailed
decision dismissed the petition for prohibition under Rule 65 of the Rules of Court filed by petitioner
Atienza which had sought to enjoin the implementation of the Memoranda dated June 25, 2002 and
July 1, 2002 issued by Jose T. Villarosa, Governor of the same province.

The present case arose from the following undisputed facts:

Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor, respectively, of
the Province of Occidental Mindoro. On June 26, 2002, the petitioner Vice-Governor received the
Memorandum dated June 25, 2002 issued by the respondent Governor concerning the
"AUTHORITY TO SIGN PURCHASE ORDERS OF SUPPLIES, MATERIALS, EQUIPMENT[S],
INCLUDING FUEL, REPAIRS AND MAINTENANCE OF THE SANGGUNIANG PANLALAWIGAN."
The said memorandum reads:

For proper coordination and to ensure efficient and effective local government administration
particularly on matters pertaining to supply and property management, effective immediately,
all Purchase Orders issued in connection with the procurement of supplies, materials and
equipment[s] including fuel, repairs and maintenance needed in the transaction of public
business or in the pursuit of any undertaking, project or activity of the Sangguniang
Panlalawigan, this province, shall be approved by the undersigned in his capacity as the
local chief executive of the province.

The provision of DILG Opinion No. 148-1993 which states that the authority to sign Purchase
Orders of supplies, materials and equipment[s] of the Sanggunian belongs to the local chief
executive, serves as basis of this memorandum.

For strict compliance.2

In reply to the above memorandum, the petitioner Vice-Governor wrote the respondent Governor
stating that:

We are of the opinion that … purchase orders for supplies, materials and equipment are
included under those as authorized for signature by the Vice-chief executive of the
Sanggunian on the basis of the DILG Opinion No. 96-1995 as affirmed by the COA Opinions
on June 28, April 11 and February 9, 1994 and coursing it to the Governor for his approval is
no longer necessary, the fact that [Secs.] 466 and 468, RA 7160 already provides for the
separation of powers between the executive and legislative. Such authority even include
everything necessary for the legislative research program of the Sanggunian.3

Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002 relating to the
"TERMINATION OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER EMPLOYEES AND
REAPPOINTMENT OF THE RESPECTIVE RECOMMENDEES." The said memorandum reads:

For faithful and appropriate enforcement and execution of laws and issuances and to
promote efficiency in the government service, effective immediately, all existing contract of
employment – casual/job order basis and reappointment of the recommendees – entered
into by Vice-Governor Ramon M. Atienza are hereby terminated for being unauthorized.

Aside from being signed by the unauthorized signatory, the following facts regarding the
appointments were considered:

1. The appointment of 28 clerks – on top of existing permanent employees – is a clear

manifestation of an excessive and bloated bureaucracy;

2. The appointment of an X-ray Technician detailed at the Provincial Health Office and some
clerks detailed at various offices in the province were not proper to be assigned by the Vice-
Governor;

3. The appointment of 30 messengers, utility workers and drivers ran counter to COA
Opinion as cited in the letter of the undersigned dated 28 June 2002, addressed to the Vice-
Governor.

However, in order to accommodate the Vice-Governor and the members of the Sangguniang
Panlalawigan, the undersigned, in his capacity as the local chief executive of the province,
will allow four (4) casual/job order employees to be assigned to the Vice-Governor and one
(1) casual/job order employee to be assigned to each member of the Sangguniang
Panlalawigan.
 The Vice-Governor and all the Sanggunian Members are hereby directed to submit
immediately the names of their recommendees to the undersigned for immediate approval of
their respective appointments.

Please be guided accordingly.4

On July 3, 2002, the respondent Governor issued another Memorandum regarding the
"ENFORCIBILITY (sic) OF PREVIOUS MEMORANDA ISSUED ON JUNE 20, 26 AND JULY 1,
2002." It provides that:

Please be properly advised that the Memoranda dated June 20, 26 and July 1, 2002 issued
by the undersigned regarding the issuance of permit to travel and authority to sign Purchase
Orders of supplies, materials, equipment, including fuel, repairs and maintenance of the
Sangguniang Panlalawigan, is to be strictly adhered to for compliance.

Likewise for strict compliance is the Memorandum dated July 1, 2002 with reference to
the Cancellation of the Appointment of Casual/Job Order Employees of the Sangguniang
Panlalawigan Members/Office of the Vice-Governor previously signed by Vice-Governor
Ramon M. Atienza.

Please be guided accordingly.5

In his Letter dated July 9, 2002, the petitioner Vice-Governor invoked the principle of separation of
powers as applied to the local government units, i.e., the respondent, as the Governor, the head of
the executive branch, and the petitioner, as the Vice-Governor, the head of the legislative branch,
which is the Sangguniang Panlalawigan. The petitioner Vice-Governor reiterated his request for the
respondent to make a "deeper study" on the matter before implementing his memoranda. The
request, however, went unheeded as the respondent Governor insisted on obliging the department
heads of the provincial government to comply with the memoranda.

The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition assailing
as having been issued with grave abuse of discretion the respondent Governor's Memoranda dated
June 25, 2002 and July 1, 2002. The petitioner Vice-Governor claimed that these memoranda
excluded him from the use and enjoyment of his office in violation of the pertinent provisions of
Republic Act No. 7160, or the Local Government Code of 1991, and its implementing rules and
regulations. It was prayed that the respondent Governor be enjoined from implementing the assailed
memoranda.

The appellate court, in its Decision dated November 28, 2003, dismissed the petition for prohibition.
Citing Section 3446 of Rep. Act No. 7160, the CA upheld the authority of the respondent Governor to
issue the Memorandum dated June 25, 2002 as it recognized his authority to approve the purchase
orders. The said provision provides in part that "approval of the disbursement voucher by the local
chief executive himself shall be required whenever local funds are disbursed."

The CA explained that Section 466(a)(1)7 of the same Code, relied upon by the petitioner Vice-
Governor, speaks of the authority of the Vice-Governor to sign "all warrants drawn on the public
treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan." In
declaring this provision inapplicable, the CA reasoned that the approval of purchase orders is
different from the power of the Vice-Governor to sign warrants drawn against the public treasury.

Section 3618 was, likewise, held to be inapplicable ratiocinating, thus:

[R]equisitioning, which is provided under Section 361 of RA 7160, is the act of requiring that
something be furnished. In the procurement function, it is the submission of written requests
for supplies and materials and the like. It could be inferred that, in the scheme of things,
approval of purchase requests is different from approval of purchase orders. Thus, the
inapplicability of Section 361.

Anent the Memorandum dated July 1, 2002, the CA ruled that the issue on whether it could be
enjoined had already been rendered moot and academic. The CA pointed out that the subject of the
said memorandum could no longer be enjoined or restrained as the termination of the employees
had already been effected. It opined that where the act sought to be enjoined in the prohibition
proceedings had already been performed and there is nothing more to restrain, the case is already
moot and academic.

The petitioner Vice-Governor now seeks recourse to this Court alleging that the appellate court
committed reversible error in ruling that it is the Governor, and not the Vice-Governor, who has the
authority to sign purchase orders of supplies, materials, equipment, including fuel, repairs and
maintenance of the Sangguniang Panlalawigan. The petitioner Vice-Governor, likewise, takes
exception to the holding of the CA that the issue relating to the July 1, 2002 Memorandum had been
rendered moot and academic. He points out that the appointment of casual/job order employees is
exercised by the appointing authority every six months in the case of casual employees and per job
order as to job order employees. Thus, while the July 1, 2002 Memorandum had already been
implemented, what is being sought to be enjoined is the respondent Governor's continued
usurpation of the petitioner Vice-Governor's authority to appoint the employees of the Sangguniang
Panlalawigan under the pertinent provisions of Rep. Act No. 7160.

For his part, the respondent Governor maintains that his Memoranda dated June 25, 2002 and July
1, 2002 are valid. He asserts that the approval of purchase orders is different from the power of the
Vice-Governor to sign warrants drawn against the provincial treasury under Section 466(a)(1) of
Rep. Act No. 7160. Rather, he insists on the application of the last clause in Section 344 which
states that the approval of the disbursement by the local chief executive is required whenever local
funds are disbursed.

The respondent Governor likewise defends the validity of the Memorandum dated July 1, 2002
stating that it was issued upon finding that the petitioner Vice-Governor appointed, among others, 28
clerks on top of the existing permanent employees resulting in an excessive and bloated
bureaucracy. He concedes the appointing power of the Vice-Governor but submits that this is limited
to the employees of the Sangguniang Panlalawigan and that he is not authorized to appoint officials
and employees of the Office of the Vice-Governor.

As correctly presented by the appellate court, the issues for resolution in this case are:

A. Who between the petitioner and the respondent is authorized to approve purchase orders
issued in connection with the procurement of supplies, materials, equipment, including fuel,
repairs and maintenance of the Sangguniang Panlalawigan?

B. Does respondent Villarosa, as local chief executive, have the authority to terminate or
cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan
Members and the Office of the Vice-Governor?9

Before resolving the foregoing issues, it is noted that petitioner Atienza and respondent Villarosa had
ceased to be the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro
effective June 30, 2004 when the newly-elected officials of the province took their oaths of offices.
The petitioner Vice-Governor did not run for re-election during the May 2004 elections while the
respondent Governor did not succeed in his re-election bid. The expiration of their terms of offices
has effectively rendered the case moot. However, even in cases where supervening events had
made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar and the public.10 In this case, there is
compelling reason for the Court to resolve the issues presented in order to clarify the scope of the
respective powers of the Governor and Vice-Governor under the pertinent provisions of the Local
Government Code of 1991.

To resolve the substantive issues presented in the instant case, it is well to recall that Rep. Act No.
7160 was enacted to give flesh to the constitutional mandate to "provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanism of recall, initiative and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all matters
relating to the organization and operation of the local units."11

In this connection, the provisions of Rep. Act No. 7160 are anchored on principles that give effect to
decentralization. Among these principles are: [t]here shall be an effective allocation among the
different local government units of their respective powers, functions, responsibilities, and resources;
[t]here shall be established in every local government unit an accountable, efficient, and dynamic
organizational structure and operating mechanism that will meet the priority needs and service
requirements of its communities; [p]rovinces with respect to component cities and municipalities, and
cities and municipalities with respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions; and [e]ffective
mechanisms for ensuring the accountability of local government units to their respective constituents
shall be strengthened in order to upgrade continually the quality of local leadership.12

With these guideposts, the Court shall now address the issue on who between the Governor and
Vice-Governor is authorized to approve purchase orders issued in connection with the procurement
of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang
Panlalawigan.

We hold that it is the Vice-Governor who has such authority.

Under Rep. Act No. 7160, local legislative power for the province is exercised by the Sangguniang
Panlalawigan13 and the Vice-Governor is its presiding officer.14 Being vested with legislative powers,
the Sangguniang Panlalawigan enacts ordinances, resolutions and appropriates funds for the
general welfare of the province in accordance with the provisions of Rep. Act No. 7160. 15 The same
statute vests upon the Vice-Governor the power to:

(1) Be the presiding officer of the sangguniang panlalawigan and sign all warrants drawn on
the provincial treasury for all expenditures appropriated for the operation of the sangguniang
panlalawigan. 16

Further, Section 344 provides:

Sec. 344. Certification on, and Approval of, Vouchers. – No money shall be disbursed unless
the local budget officer certifies to the existence of appropriation that has been legally made
for the purpose, the local accountant has obligated said appropriation, and the local treasurer
certifies to the availability of funds for the purpose. Vouchers and payrolls shall be certified to
and approved by the head of the department or office who has administrative control of the
fund concerned, as to validity, propriety and legality of the claim involved. Except in cases of
disbursements involving regularly recurring administrative expenses such as payrolls for
regular or permanent employees, expenses for light, water, telephone and telegraph
services, remittances to government creditor agencies such as the GSIS, SSS, LBP, DBP,
National Printing Office, Procurement Service of the DBM and others, approval of the
disbursement voucher by the local chief executive himself shall be required whenever local
funds are disbursed.

In cases of special or trust funds, disbursements shall be approved by the administrator of

the fund.

In case of temporary absence or incapacity of the department head or chief of office, the
officer next-in-rank shall automatically perform his function and he shall be fully responsible
therefor.

Reliance by the CA on the clause "approval of the disbursement voucher by the local chief executive
himself shall be required whenever local funds are disbursed" of the above section (Section 344) to
rule that it is the Governor who has the authority to approve purchase orders for the supplies,
materials or equipment for the operation of the Sangguniang Panlalawigan is misplaced. This clause
cannot prevail over the more specific clause of the same provision which provides that "vouchers
and payrolls shall be certified to and approved by the head of the department or office who has
administrative control of the fund concerned." The Vice-Governor, as the presiding officer of
the Sangguniang Panlalawigan, has administrative control of the funds of the said body. Accordingly,
it is the Vice-Governor who has the authority to approve disbursement vouchers for expenditures
appropriated for the operation of the Sangguniang Panlalawigan.

On this point, Section 39 of the Manual on the New Government Accounting System for Local
Government Units, prepared by the Commission on Audit (COA), is instructive:

Sec. 39. Approval of Disbursements. – Approval of disbursements by the Local Chief

Executive (LCE) himself shall be required whenever local funds are disbursed, except for
regularly recurring administrative expenses such as: payrolls for regular or permanent
employees, expenses for light, water, telephone and telegraph services, remittances to
 government creditor agencies such as GSIS, BIR, PHILHEALTH, LBP, DBP, NPO, PS of the
DBM and others, where the authority to approve may be delegated. Disbursement vouchers
for expenditures appropriated for the operation of the Sanggunian shall be approved by the
provincial Vice Governor, the city Vice-Mayor or the municipal Vice-Mayor, as the case may
be.17

While Rep. Act No. 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign
all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of
the Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto
necessarily includes the authority to approve purchase orders covering the same applying the
doctrine of necessary implication. This doctrine is explained, thus:

No statute can be enacted that can provide all the details involved in its application. There is
always an omission that may not meet a particular situation. What is thought, at the time of
enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding
of events of the future. So-called gaps in the law develop as the law is enforced. One of the
rules of statutory construction used to fill in the gap is the doctrine of necessary implication.
The doctrine states that what is implied in a statute is as much a part thereof as that which is
expressed. Every statute is understood, by implication, to contain all such provisions as may
be necessary to effectuate its object and purpose, or to make effective rights, powers,
privileges or jurisdiction which it grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its terms. Ex necessitate legis.
And every statutory grant of power, right or privilege is deemed to include all incidental
power, right or privilege. This is so because the greater includes the lesser, expressed in the
maxim, in eo plus sit, simper inest et minus.18

Warrants are "order[s] directing the treasurer of the municipality to pay money out of funds in city
treasury which are or may become available for purpose specified to designated
person[s]."19 Warrants of a municipal corporation are generally orders payable when funds are found.
They are issued for the payment of general municipal debts and expenses subject to the rule that
they shall be paid in the order of presentation.20

The ordinary meaning of "voucher" is a document which shows that services have been performed
or expenses incurred. It covers any acquittance or receipt discharging the person or evidencing
payment by him. When used in connection with disbursement of money, it implies some instrument
that shows on what account or by what authority a particular payment has been made, or that
services have been performed which entitle the party to whom it is issued to payment.21

Purchase order, on the other hand, is "an authorization by the issuing party for the recipient to
provide materials or services for which issuing party agrees to pay; it is an offer to buy which
becomes binding when those things ordered have been provided."22

When an authorized person approves a disbursement voucher, he certifies to the correctness of the
entries therein, among others: that the expenses incurred were necessary and lawful, the supporting
documents are complete and the availability of cash therefor. Further, the person who performed the
services or delivered the supplies, materials or equipment is entitled to payment.23 On the other
hand, the terms and conditions for the procurement of supplies, materials or equipment, in particular,
are contained in a purchase order. The tenor of a purchase order basically directs the supplier to
deliver the articles enumerated and subject to the terms and conditions specified therein.24 Hence,
the express authority to approve disbursement vouchers and, in effect, authorize the payment of
money claims for supplies, materials or equipment, necessarily includes the authority to approve
purchase orders to cause the delivery of the said supplies, materials or equipment.

Since it is the Vice-Governor who approves disbursement vouchers and approves the payment for
the procurement of the supplies, materials and equipment needed for the operation of
the Sangguniang Panlalawigan, then he also has the authority to approve the purchase orders to
cause the delivery of the said supplies, materials or equipment.

Indeed, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial
treasury for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well
as to approve disbursement vouchers relating thereto is greater and includes the authority to
approve purchase orders for the procurement of the supplies, materials and equipment necessary
for the operation of the Sangguniang Panlalawigan.
Anent the second issue, the appellate court likewise committed reversible error in holding that the
implementation of the Memorandum dated July 1, 2002 had rendered the petition moot and
academic. It is recognized that courts will decide a question otherwise moot and academic if it is
"capable of repetition yet evading review."25 Even if the employees whose contractual or job order
employment had been terminated by the implementation of the July 1, 2002 Memorandum may no
longer be reinstated, still, similar memoranda may be issued by other local chief executives. Hence,
it behooves the Court to resolve whether the Governor has the authority to terminate or cancel the
appointments of casual/job order employees of the Sangguniang Panlalawigan and the Office of the
Vice-Governor.

We hold that the Governor, with respect to the appointment of the officials and employees of
the Sangguniang Panlalawigan, has no such authority.

Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are:

Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation.– (a) The
provincial governor, as the chief executive of the provincial government, shall exercise such
powers and perform such duties and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the general
welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial
governor shall:

(v) Appoint all officials and employees whose salaries and wages are wholly or
mainly paid out of provincial funds and whose appointments are not otherwise
provided for in this Code, as well as those he may be authorized by law to appoint.

On the other hand, Section 466 vests on the Vice-Governor the power to, among others:

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of
the sangguniang panlalawigan, except those whose manner of appointment is specifically
provided in this Code.

Thus, while the Governor has the authority to appoint officials and employees whose salaries are
paid out of the provincial funds, this does not extend to the officials and employees of
the Sangguniang Panlalawigan because such authority is lodged with the Vice-Governor. In the
same manner, the authority to appoint casual and job order employees of the Sangguniang
Panlalawigan belongs to the Vice-Governor.

The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang
Panlalawigan is anchored on the fact that the salaries of these employees are derived from the
appropriation specifically for the said local legislative body. Indeed, the budget source of their
salaries is what sets the employees and officials of the Sangguniang Panlalawigan apart from the
other employees and officials of the province. Accordingly, the appointing power of the Vice-
Governor is limited to those employees of the Sangguniang Panlalawigan, as well as those of the
Office of the Vice-Governor, whose salaries are paid out of the funds appropriated for the
Sangguniang Panlalawigan. As a corollary, if the salary of an employee or official is charged against
the provincial funds, even if this employee reports to the Vice-Governor or is assigned to his office,
the Governor retains the authority to appoint the said employee pursuant to Section 465(b)(v) of
Rep. Act No. 7160.

However, in this case, it does not appear whether the contractual/job order employees, whose
appointments were terminated or cancelled by the Memorandum dated July 1, 2002 issued by the
respondent Governor, were paid out of the provincial funds or the funds of the Sangguniang
Panlalawigan. Nonetheless, the validity of the said memorandum cannot be upheld because it
absolutely prohibited the respondent Vice-Governor from exercising his authority to appoint the
employees, whether regular or contractual/job order, of the Sangguniang Panlalawigan and
restricted such authority to one of recommendatory nature only.26 This clearly constituted an
encroachment on the appointment power of the respondent Vice- Governor under Section 466(a)(2)
of Rep. Act No. 7160.
At this juncture, it is well to note that under Batas Pambansa Blg. 337, the Local Government Code
prior to Rep. Act No. 7160, the Governor was the presiding officer of the Sangguniang Panlalawigan:

Sec. 205. Composition. (1) Each provincial government shall have a provincial legislature
hereinafter known as the sangguniang panlalawigan, upon which shall be vested the
provincial legislative power.

(2) The sangguniang panlalawigan shall be composed of the governor, vice-governor,

elective members of the said sanggunian, and the presidents of the katipunang
panlalawigan and the kabataang barangay provincial federation who shall be appointed by
the President of the Philippines.

Sec. 206. Sessions. –

(3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall
not be entitled to vote except in case of a tie.

With Rep. Act No. 7160, the union of legislative and executive powers in the office of the local chief
executive under the BP Blg. 337 has been disbanded, so that either department now comprises
different and non-intermingling official personalities with the end in view of ensuring a better delivery
of public service and provide a system of check and balance between the two.27

Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that "the Vice-
Governor is now the presiding officer of the Sangguniang Panlalawigan. The City Vice-Mayor
presides at meetings of the Sangguniang Panlungsod and the Municipal Vice-Mayor at the sessions
of the Sangguniang Bayan. The idea is to distribute powers among elective local officials so that the
legislative, which is the Sanggunian, can properly check the executive, which is the Governor or the
Mayor and vice versa and exercise their functions without any undue interference from one by the
other."28

The avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang
Panlalawigan independence in the exercise of its legislative functions vis-a-vis the discharge by the
Governor of the executive functions. The Memoranda dated June 25, 2002 and July 1, 2002 of the
respondent Governor, which effectively excluded the petitioner Vice-Governor, the presiding officer
of the Sangguniang Panlalawigan, from signing the purchase orders for the procurement of supplies,
materials or equipment needed for the operation of the Sangguniang Panlalawigan as well as from
appointing its casual and job order employees, constituted undue interference with the latter's
functions. The assailed memoranda are clearly not in keeping with the intent of Rep. Act No. 7160
and their implementation should thus be permanently enjoined.

WHEREFORE, the petition is GRANTED. The Memoranda dated June 25, 2002 and July 1, 2002
issued by respondent Governor Jose T. Villarosa are NULL AND VOID.

SO ORDERED.

G.R. No. 164185. July 23, 2008.*

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
 THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A.
VILLAPANDO, respondents.

Criminal Law; Unlawful Appointments; Local Government Code; Words and

Phrases; Legal disqualification in Article 244 of the Revised Penal Code simply
means disqualification under the law—there is no basis for the interpretation that there
is no violation should a person suffering from temporary disqualification be appointed so
long as the appointee possesses all the qualifications stated in the law; Clearly, Section
6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code
of 1991 prohibits losing candidates within one year after such election to be appointed
to any office in the government or any government-owned or controlled corporations or
in any of their subsidiaries.—The Sandiganbayan, Fourth Division held that the
qualifications for a position are provided by law and that it may well be that one who
possesses the required legal qualification for a position may be temporarily disqualified
for appointment to a public position by reason of the one-year prohibition imposed on
losing candidates. However, there is no violation of Article 244 of the Revised Penal
Code should a person suffering from temporary disqualification be appointed so long as
the appointee possesses all the qualifications stated in the law. There is no basis in law
or jurisprudence for this interpretation. On the contrary, legal disqualification in Article
244 of the Revised Penal Code simply means disqualification under the law. Clearly,
Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government
Code of 1991 prohibits losing candidates within one year after such election to be
appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.

Same; Same; Statutory Construction; Grave Abuse of Discretion; In this case, the
Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction,
acted with grave abuse of discretion—its interpretation of the term legal disqualification
in Article 244 of the Revised Penal Code defies legal cogency; Legal disqualification
cannot be read as excluding temporary disqualification in order to exempt therefrom the
legal prohibitions under the 1987 Constitution and the Local Government Code of
1991.—Although this Court held in the case of People v. Sandiganbayan, 376 SCRA 74
(2002), that once a court grants the demurrer to evidence, such order amounts to an
acquittal and any further prosecution of the accused would violate the constitutional
proscription on double jeopardy, this Court held in the same case that such ruling on the
matter shall not be disturbed in the absence of a grave abuse of discretion. Grave
abuse of discretion defies exact definition, but it generally refers to capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility. In this case, the Sandiganbayan, Fourth Division, in disregarding
basic rules of statutory construction, acted with grave abuse of discretion. Its
interpretation of the term legal disqualification in Article 244 of the Revised Penal Code
defies legal cogency. Legal disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal prohibitions under the 1987
Constitution and the Local Government Code of 1991. We reiterate the legal maxim ubi
lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory
construction that where the law does not distinguish, the courts should not distinguish.
There should be no distinction in the application of a law where none is indicated.

Same; Double Jeopardy; A judgment rendered with grave abuse of discretion or

without due process is void, does not exist in legal contemplation and, thus, cannot be
the source of an acquittal.—A judgment rendered with grave abuse of discretion or
without due process is void, does not exist in legal contemplation and, thus, cannot be
the source of an acquittal. The Sandiganbayan, Fourth Division having acted with grave
abuse of discretion in disregarding the basic rules of statutory construction resulting in
its decision granting Villapando’s Demurrer to Evidence and acquitting the latter, we can
do no less but declare its decision null and void.

DECISION

QUISUMBING, J.:

This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special
Prosecutor assails the May 20, 2004 Decision1 of the Sandiganbayan, Fourth Division, in Criminal
Case No. 27465, granting private respondent Alejandro A. Villapando’s Demurrer to Evidence 2 and
acquitting him of the crime of unlawful appointment under Article 2443 of the Revised Penal Code.

The facts culled from the records are as follows:

During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan.
Orlando M. Tiape (now deceased), a relative of Villapando’s wife, ran for Municipal Mayor of
Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, on July 1, 1998,
Villapando designated Tiape as Municipal Administrator of the Municipality of San Vicente,
Palawan.4 A Contract of Consultancy5 dated February 8, 1999 was executed between the
Municipality of San Vicente, Palawan and Tiape whereby the former employed the services of Tiape
as Municipal Administrative and Development Planning Consultant in the Office of the Municipal
Mayor for a period of six months from January 1, 1999 to June 30, 1999 for a monthly salary of
₱26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape
for violation of Article 244 of the Revised Penal Code before the Office of the Deputy Ombudsman
for Luzon.6 The complaint was resolved against Villapando and Tiape and the following
Information7 dated March 19, 2002 charging the two with violation of Article 244 of the Revised Penal
Code was filed with the Sandiganbayan:

xxxx

That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
ALEJANDRO A. VILLAPANDO, a public officer, being then the Municipal Mayor of San Vicente,
Palawan, committing the crime herein charged, in relation to and taking advantage of his official
functions, conspiring and confederating with accused Orlando M. Tiape, did then and there wilfully,
unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of San
Vicente, Palawan, accused Alejandro A. Villapando knowing fully well that Orlando Tiape lacks the
qualification as he is a losing mayoralty candidate in the Municipality of Kitcharao, Agusan del Norte
during the May 1998 elections, hence is ineligible for appointment to a public office within one year
(1) from the date of the elections, to the damage and prejudice of the government and of public
interest.

CONTRARY TO LAW.8

The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the
Sandiganbayan.

Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case
against Tiape was dismissed after the prosecution proved his death which occurred on July 26,
2000.9

After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The
Sandiganbayan, Fourth Division denied his motion but gave him five days within which to inform the
court in writing whether he will nonetheless submit his Demurrer to Evidence for resolution without
leave of court.10 Villapando then filed a Manifestation of Intent to File Demurrer to Evidence,11 and
was given 15 days from receipt to file his Demurrer to Evidence. He filed his Demurrer to
Evidence12 on October 28, 2003.

In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapando’s Demurrer
to Evidence meritorious, as follows:

The Court found the "Demurrer to Evidence" impressed with merit.

Article 244 of the Revised Penal Code provides:

Article 244. Unlawful appointments.–Any public officer who shall knowingly nominate or appoint to
any public office any person lacking the legal qualifications therefor, shall suffer the penalty
of arresto mayor and a fine not exceeding 1,000 pesos. (underscoring supplied)

A dissection of the above-cited provision [yields] the following elements, to wit:

1. the offender was a public officer;

2. accused nominated or appointed a person to a public office;

3. such person did not have the legal qualifications [therefor;] and,

4. the offender knew that his nominee or appointee did not have the legal qualifications at the
time he made the nomination or appointment.

Afore-cited elements are hereunder discussed.

1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when
the alleged crime was committed.
 2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San
Vicente, Palawan.

3. There appears to be a dispute. This Court is now called upon to determine whether
Orlando Tiape, at the time of [his] designation as Municipal Administrator, was lacking in
legal qualification. Stated differently, does "legal qualification" contemplate the one (1) year
prohibition on appointment as provided for in Sec. 6, Art. IX-B of the Constitution and Sec. 94
(b) of the Local Government Code, mandating that a candidate who lost in any election shall
not, within one year after such election, be appointed to any office in the Government?

The Court answers in the negative.

In ascertaining the legal qualifications of a particular appointee to a public office, "there must be a
law providing for the qualifications of a person to be nominated or appointed" therein. To illuminate
further, Justice Rodolfo Palattao succinctly discussed in his book that the qualification of a public
officer to hold a particular position in the government is provided for by law, which may refer to
educational attainment, civil service eligibility or experience:

As the title suggests, the offender in this article is a public officer who nominates or appoints a
person to a public office. The person nominated or appointed is not qualified and his lack of
qualification is known to the party making the nomination or appointment. The qualification of a
public officer to hold a particular position in the government is provided by law. The purpose of the
law is to ensure that the person appointed is competent to perform the duties of the office, thereby
promoting efficiency in rendering public service.

The qualification to hold public office may refer to educational attainment, civil service eligibility or
experience. For instance, for one to be appointed as judge, he must be a lawyer. So if the Judicial
and Bar Council nominates a person for appointment as judge knowing him to be not a member of
the Philippine Bar, such act constitutes a violation of the law under consideration.

In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As
such, the law that provides for the legal qualification for the position of municipal administrator
is Section 480, Article X of the Local Government Code, to wit:

"Section 480. Qualifications, Terms, Powers and Duties.–(a) No person shall be appointed
administrator unless he is a citizen of the Philippines, a resident of the local government unit
concerned, of good moral character, a holder of a college degree preferably in public administration,
law, or any other related course from a recognized college or university, and a first grade civil
service eligible or its equivalent. He must have acquired experience in management and
administration work for at least five (5) years in the case of the provincial or city administrator, and
three (3) years in the case of the municipal administrator.

xxx xxx x x x"

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor
Villapando’s appointee, Orlando Tiape, lacked any of the qualifications imposed by law on the
position of Municipal Administrator. Prosecution’s argument rested on the assertion that since Tiape
lost in the May 11, 1998 election, he necessarily lacked the required legal qualifications.

It bears stressing that temporary prohibition is not synonymous with absence or lack of legal
qualification. A person who possessed the required legal qualifications for a position may be
temporarily disqualified for appointment to a public position by reason of the one year prohibition
imposed on losing candidates. Upon the other hand, one may not be temporarily disqualified for
appointment, but could not be appointed as he lacked any or all of the required legal qualifications
imposed by law.

4. Anent the last element, this Court deems it unnecessary to discuss the same.

WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the same is
hereby GRANTED. Mayor Villapando is hereby ACQUITTED of the crime charged.

SO ORDERED.13
Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor,
representing the People of the Philippines.

Villapando was required by this Court to file his comment to the petition. Despite several notices,
however, he failed to do so and in a Resolution14 dated June 7, 2006, this Court informed him that he
is deemed to have waived the filing of his comment and the case shall be resolved on the basis of
the pleadings submitted by the petitioner.

Petitioner raises the following issues:

I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN INTERPRETING THAT
THE "LEGAL DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED PENAL CODE
DOES NOT INCLUDE THE ONE YEAR PROHIBITION IMPOSED ON LOSING
CANDIDATES AS ENUNCIATED IN THE CONSTITUTION AND THE LOCAL
GOVERNMENT CODE.

II.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN GIVING DUE COURSE
TO, AND EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.15

Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.

Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion
amounting to lack or excess of jurisdiction because its interpretation of Article 244 of the Revised
Penal Code does not complement the provision on the one-year prohibition found in the 1987
Constitution and the Local Government Code, particularly Section 6, Article IX of the 1987
Constitution which states no candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the government or any government-owned or controlled
corporation or in any of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for
its part, states that except for losing candidates in barangay elections, no candidate who lost in any
election shall, within one year after such election, be appointed to any office in the government or
any government-owned or controlled corporation or in any of their subsidiaries. Petitioner argues
that the court erred when it ruled that temporary prohibition is not synonymous with the absence of
lack of legal qualification.

The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law
and that it may well be that one who possesses the required legal qualification for a position may be
temporarily disqualified for appointment to a public position by reason of the one-year prohibition
imposed on losing candidates. However, there is no violation of Article 244 of the Revised Penal
Code should a person suffering from temporary disqualification be appointed so long as the
appointee possesses all the qualifications stated in the law.

There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification
in Article 244 of the Revised Penal Code simply means disqualification under the law. Clearly,
Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of
1991 prohibits losing candidates within one year after such election to be appointed to any office in
the government or any government-owned or controlled corporations or in any of their subsidiaries.

Article 244 of the Revised Penal Code states:

Art. 244. Unlawful appointments. — Any public officer who shall knowingly nominate or appoint to
any public office any person lacking the legal qualifications therefore, shall suffer the penalty of
arresto mayor and a fine not exceeding 1,000 pesos.

Section 94 of the Local Government Code provides:

SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in
Election. - (a) No elective or appointive local official shall be eligible for appointment or designation
in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive
local official shall hold any other office or employment in the government or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall,
within one (1) year after such election, be appointed to any office in the government or any
government-owned or controlled corporations or in any of their subsidiaries.

Section 6, Article IX-B of the 1987 Constitution states:

Section 6. No candidate who has lost in any election shall, within one year after such election, be
appointed to any office in the Government or any Government-owned or controlled corporations or in
any of their subsidiaries.

Villapando’s contention and the Sandiganbayan, Fourth Division’s interpretation of the term legal
disqualification lack cogency. Article 244 of the Revised Penal Code cannot be circumscribed
lexically. Legal disqualification cannot be read as excluding temporary disqualification in order to
exempt therefrom the legal prohibitions under Section 6, Article IX of the 1987 Constitution and
Section 94(b) of the Local Government Code of 1991.

Although this Court held in the case of People v. Sandiganbayan16 that once a court grants the
demurrer to evidence, such order amounts to an acquittal and any further prosecution of the
accused would violate the constitutional proscription on double jeopardy, this Court held in the same
case that such ruling on the matter shall not be disturbed in the absence of a grave abuse of
discretion.1avv phi 1

Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility.17

In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory
construction, acted with grave abuse of discretion. Its interpretation of the term legal disqualification
in Article 244 of the Revised Penal Code defies legal cogency. Legal disqualification cannot be read
as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under the
1987 Constitution and the Local Government Code of 1991. We reiterate the legal maxim ubi lex non
distinguit nec nos distinguere debemus. Basic is the rule in statutory construction that where the law
does not distinguish, the courts should not distinguish. There should be no distinction in the
application of a law where none is indicated.

Further, the Sandiganbayan, Fourth Division denied Villapando’s Motion for Leave to File Demurrer
to Evidence yet accommodated Villapando by giving him five days within which to inform it in writing
whether he will submit his demurrer to evidence for resolution without leave of court.

Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not
exist in legal contemplation and, thus, cannot be the source of an acquittal.18

The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the
basic rules of statutory construction resulting in its decision granting Villapando’s Demurrer to
Evidence and acquitting the latter, we can do no less but declare its decision null and void.

WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan,
Fourth Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapando’s
Demurrer to Evidence and acquitting him of the crime of unlawful appointment under Article 244 of
the Revised Penal Code is hereby declared NULL and VOID. Let the records of this case be
remanded to the Sandiganbayan, Fourth Division, for further proceedings.
 G.R. No. 160791. February 13, 2007.*

PATRICIO E. SALES, et al. petitioners,

vs.

HON. RODOLFO H. CARREON, JR., and THE CITY GOVERNMENT OF

DAPITAN CITY, represented by its Mayor, Hon. RODOLFO H.
CARREON, JR., respondents.

Municipal Corporations; Local Government Units; Public Officers; Civil Service;

Appointments; Midnight Appointments; Not all “midnight” appointments are invalid—
each appointment must be judged on the basis of the nature, character, and merits of
the individual appointment and the circumstances surrounding the same; It is only when
the appointments were made en masse by the outgoing administration and shown to
have been made through hurried maneuvers and under circumstances departing from
good faith, morality, and propriety that the Supreme Court has struck down “midnight”
appointments. —This case is a typical example of the practice of outgoing local chief
executives to issue “midnight” appointments, especially after their successors have
been proclaimed. It does not only cause animosities between the outgoing and the
incoming officials, but also affects efficiency in local governance. Those appointed tend
to devote their time and energy in defending their appointments instead of attending to
their functions. However, not all “midnight” appointments are invalid. Each appointment
must be judged on the basis of the nature, character, and merits of the individual
appointment and the circumstances surrounding the same. It is only when the
appointments were made en masse by the outgoing administration and shown to have
been made through hurried maneuvers and under circumstances departing from good
faith, morality, and propriety that this Court has struck down “midnight” appointments.

Same; Same; Same; Same; Same; Same; R.A. No. 7041; It was precisely in order to
ensure transparency and equal opportunity in the recruitment and hiring of government
personnel that R.A. No. 7041 was enacted; R.A. No. 7041 provides, among others, that
vacant positions shall not be filled until after publication of a complete list of all existing
vacant positions in all branches, subdivisions, instrumentalities and agencies of the
Government, including government-owned or controlled corporations with original
charters, and local government units, and that the Civil Service Commission shall not
act on any appointment to fill up a vacant position unless the same has been reported to
and published by the Commission.—It is State policy that “opportunities for government
employment shall be open to all qualified citizens” and “employees shall be selected on
the basis of fitness to perform the duties and assume the responsibilities of the
positions.” It was precisely in order to ensure transparency and equal opportunity in the
recruitment and hiring of government personnel, that Republic Act No. 7041 was
enacted. Section 2 provides: SEC. 2. Duty of Personnel Officers.—It shall be the duty of
all Chief Personnel or Administrative Officers of all branches, subdivisions,
instrumentalities and agencies of the Government, including governmentowned or
controlled corporations with original charters, and local government units, to post in
three (3) conspicuous places of their offices for a period ten (10) days a complete list of
all existing vacant positions in their respective offices which are authorized to be filled,
and to transmit a copy of such list and the corresponding qualification standards to the
Civil Service Commission not later than the tenth day of every month. Vacant positions
shall not be filled until after publication: Provided, however, that vacant and unfilled
positions that are:

a) primarily confidential;

b) policy-determining;

c) highly technical;

d) co-terminous with that of the appointing authority; or

e) limited to the duration of a particular project, shall be excluded from the list required
by law.

SEC. 3. Publication of Vacancies.—The Chairman and members of the Civil Service

Commission shall publish once every quarter a complete list of all the existing vacant
positions in the Government throughout the country, including the qualification
standards required for each position and, thereafter, certify under oath to the completion
of publication. Copies of such publication shall be sold at cost to the public and
distributed free of charge to the various personnel office of the government where they
shall be available for inspection by the public: Provided, That said publication shall be
posted by the Chief Personnel or Administrative Officer of all local government units in
at least three (3) public and conspicuous places in their respective municipalities and
provinces: Provided, further, That any vacant position published therein shall be open to
any qualified person who does not necessarily belong to the same office with the
vacancy or who occupies a position next-in-rank to the vacancy: Provided, finally, That
the Civil Service Commission shall not act on any appointment to fill up a vacant
position unless the same has been reported to and published by the Commission.
Same; Same; Same; Same; Absence of a first-level representative in the Personnel
Selection Board which deliberated on the appointments to first-level positions rendered
the resulting appointments invalid.—The CSC found that there was no first-level
representative appointed to the Personnel Selection Board, which deliberated on the
appointments to first-level positions. CSC Memorandum Circular No. 18, series of 1988,
as amended, provides that the Personnel Selection Board shall be composed of the
following: a. Official of department/agency directly responsible for personnel
management; b. Representative of management; c. Representative of organizational
unit which may be an office, department, or division where the vacancy is; d.
Representative of rank-and-file employees, one (1) for the first-level and one (1) for the
second-level, who shall both be chosen by duly registered/accredited employees’
association in the department or agency. The former shall sit during the screening of
candidates for vacancy in the first-level, while the latter shall participate in the screening
of candidates for vacancy in the second level. In case where there is no employees’
association in the department or agency, the representative shall be chosen at large by
the employees through a general election to be called for the purpose.

Same; Same; Same; Same; The Civil Service Commission has the authority to recall
appointments made in disregard of the applicable provisions of Civil Service Law and
regulations.—Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of
the Administrative Code of 1987 (also known as the Civil Service Law), provides:
SEC. 20. Notwithstanding the initial approval of an appointment, the same may be
recalled on any of the following grounds: a) non-compliance with the procedures/criteria
provided in the agency’s Merit Promotion Plan; b) failure to pass through the agency’s
Selection/Promotion Board; c) violation of the existing collective bargaining agreement
between management and employees relative to promotion; or d) violation of other
existing civil service laws, rules and regulations. Verily, in deliberating and
recommending to former Mayor Ruiz the appointments of herein petitioners to the
vacant positions sans the required representation, the Board violated the above CSC
Rules. Hence, the appointments he issued are not valid. They may be recalled. In
Mathay, Jr. v. Civil Service Commission, 312 SCRA 91 (1999), this Court upheld the
authority of the CSC to take appropriate action on all appointments, including its
authority to recall appointments made in disregard of the applicable provisions of Civil
Service Law and regulations.

DECISION

SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on Certiorari assailing the Decision1 of the Court
of Appeals dated September 16, 2003 in CA-G.R. SP No. 75515.

During the May 2001 elections, then Mayor Joseph Cedrick O. Ruiz of Dapitan City, running for re-
election, was defeated by respondent Rodolfo H. Carreon, Jr.

On June 1, 18 and 27, 2001, his last month in office, then Dapitan City Mayor Ruiz issued 83
appointments, including those of herein petitioners.

On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein respondent, assumed
office.

On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2 revoking the 83
appointments signed by his predecessor on the ground that the latter violated Civil Service
Commission (CSC) Resolution No. 01-988 in relation to CSC Memorandum Circular No. 7, Series of
2001, imposing a ban on issuing appointments in the civil service during the election period.
Thereupon, respondent prohibited the release of the salaries and benefits of the 83 appointees.

On July 10, 2001, Patricio Sales, one of herein petitioners, in his capacity as president of the
Dapitan City Government Employees Association, wrote the CSC Regional Office No. IX requesting
its ruling on the matter.

On July 16 and August 3, 2001, respondent sent the said Office a position paper justifying his action,
contending that the questioned appointments were not only "issued in bulk" but that there was no
urgent need to fill those positions.

On August 17, 2001, the CSC Regional Office No. IX issued an Omnibus Order, the dispositive
portion of which reads:

WHEREFORE, all premises considered:

1. The eighty-three (83) appointments issued by then Mayor Joseph Cedrick O. Ruiz,
including those issued by the herein requesting parties, are, therefore not considered "mass
appointments," as defined under CSC Resolution No. 01-0988 and are thus, VALID and
EFFECTIVE.

2. Memorandum Orders Nos. 1 and 2, Series of 2001, issued by Mayor Rodolfo H. Carreon,
Jr., are hereby declared NULL and VOID, and accordingly,

3. The LGU-Dapitan is hereby directed to pay the salaries and other emoluments to which
the 83 appointments are entitled to pursuant to the appointments issued to them.

On appeal by respondent, the CSC En Banc, on June 17, 2002, issued Resolution No. 020828
reversing the assailed Omnibus Order of the CSC Regional Office No. IX, thus:

WHEREFORE, premises considered, the Omnibus Order dated August 17, 2001of the Civil Service
Commission Regional Office No. IX is

REVERSED and SET ASIDE. The Commission hereby rules, as follows:

1. The approval of all 83 appointments issued by then Mayor J. Cedrick O. Ruiz is revoked
for being violative of Republic Act No. 7041, CSC Memorandum Circular No. 18 s. 1988, as
amended, CSC Resolution No. 963332 on its accreditation and CSC Resolution No. 01-
0988. 1awphi1.net

2. All promoted employees are reverted to their previous position; and

3. Memorandum Order No. 1 and Memorandum Order No. 2 issued by incumbent Mayor
Rodolfo H. Carreon, Jr. are hereby declared null and void.

The CSC En Banc held that the positions in question were published and declared vacant prior to
the existence of any vacancy.
Petitioners filed a motion for reconsideration but it was denied in Resolution No. 030049 dated
January 16, 2003 by the CSC En Banc.

On February 13, 2003, petitioners filed with the Court of Appeals a petition for review. On September
16, 2003, the appellate court rendered its Decision dismissing the petition, sustaining the CSC’s
finding that the positions to which the petitioners were appointed were already reported and
published even before they had been declared vacant, in violation of Sections 2 and 3 of Republic
Act (R.A.) No. 7041;2 and that there was no first level representative to the Personnel Section Board
who should have participated in the screening of candidates for vacancy in the first level.

Petitioners filed a motion for reconsideration, but this was denied by the Court of Appeals in its
Resolution dated November 17, 2003.

Hence, the instant petition.

This case is a typical example of the practice of outgoing local chief executives to issue "midnight"
appointments, especially after their successors have been proclaimed. It does not only cause
animosities between the outgoing and the incoming officials, but also affects efficiency in local
governance. Those appointed tend to devote their time and energy in defending their appointments
instead of attending to their functions. However, not all "midnight" appointments are invalid.3 Each
appointment must be judged on the basis of the nature, character, and merits of the individual
appointment and the circumstances surrounding the same.4 It is only when the appointments were
made en masse by the outgoing administration and shown to have been made through hurried
maneuvers and under circumstances departing from good faith, morality, and propriety that this
Court has struck down "midnight" appointments.5

It is State policy that "opportunities for government employment shall be open to all qualified
citizens" and "employees shall be selected on the basis of fitness to perform the duties and assume
the responsibilities of the positions."6 It was precisely in order to ensure transparency and equal
opportunity in the recruitment and hiring of government personnel, that Republic Act No. 7041 was
enacted. Section 2 provides:

SEC. 2. Duty of Personnel Officers. – It shall be the duty of all Chief Personnel or Administrative
Officers of all branches, subdivisions, instrumentalities and agencies of the Government, including
government-owned or controlled corporations with original charters, and local government units, to
post in three (3) conspicuous places of their offices for a period ten (10) days a complete list of all
existing vacant positions in their respective offices which are authorized to be filled, and to transmit a
copy of such list and the corresponding qualification standards to the Civil Service Commission not
later than the tenth day of every month. Vacant positions shall not be filled until after
publication: Provided, however, that vacant and unfilled positions that are:

a) primarily confidential;

b) policy-determining;

c) highly technical;

d) co-terminous with that of the appointing authority; or

e) limited to the duration of a particular project, shall be excluded from the list required by
law.

SEC. 3. Publication of Vacancies. – The Chairman and members of the Civil Service Commission
shall publish once every quarter a complete list of all the existing vacant positions in the Government
throughout the country, including the qualification standards required for each position and,
thereafter, certify under oath to the completion of publication. Copies of such publication shall be
sold at cost to the public and distributed free of charge to the various personnel office of the
government where they shall be available for inspection by the public: Provided, That said
publication shall be posted by the Chief Personnel or Administrative Officer of all local government
units in at least three (3) public and conspicuous places in their respective municipalities and
provinces: Provided, further, That any vacant position published therein shall be open to any
qualified person who does not necessarily belong to the same office with the vacancy or who
occupies a position next-in-rank to the vacancy: Provided, finally, That the Civil Service
Commission shall not act on any appointment to fill up a vacant position unless the same has
been reported to and published by the Commission.

The foregoing provisions are clear and need no interpretation. The CSC is required to publish the
lists of vacant positions and such publication shall be posted by the chief personnel or administrative
officer of all local government units in the designated places. The vacant positions may only be filled
by the appointing authority after they have been reported to the CSC as vacant and only after
publication.

Here, the publication of vacancies was made even before the positions involved actually became
vacant. Clearly, respondent’s action violated Section 2 of R.A. No. 7041 cited earlier.

Moreover, the CSC found that there was no first-level representative appointed to the Personnel
Selection Board, which deliberated on the appointments to first-level positions.

CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the Personnel
Selection Board shall be composed of the following:

a. Official of department/agency directly responsible for personnel management;

b. Representative of management;

c. Representative of organizational unit which may be an office, department, or division

where the vacancy is;

d. Representative of rank-and-file employees, one (1) for the first-level and one (1) for
the second-level, who shall both be chosen by duly registered/accredited employees’
association in the department or agency. The former shall sit during the screening of
candidates for vacancy in the first-level, while the latter shall participate in the screening
of candidates for vacancy in the second level. In case where there is no employees’
association in the department or agency, the representative shall be chosen at large by the
employees through a general election to be called for the purpose.

Petitioners admitted that after the retirement on April 22, 2000 of Beltran Faconete, the first-level
representative to the Personnel Selection Board, no other first-level representative to replace him
was chosen by the Dapitan City Government Employees Association. Yet, the city government
Personnel Selection Board proceeded to deliberate and recommend the appointments of applicants
to the 43 first-level positions. Petitioners contend, however, that although there was no such
representative, the action of the Board is still valid.

Petitioners’ contention lacks merit.

Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of
1987 (also known as the Civil Service Law), provides:

SEC. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of
the following grounds:

a) non-compliance with the procedures/criteria provided in the agency’s Merit Promotion

Plan;

b) failure to pass through the agency’s Selection/Promotion Board;

c) violation of the existing collective bargaining agreement between management and

employees relative to promotion; or

d) violation of other existing civil service laws, rules and regulations.

Verily, in deliberating and recommending to former Mayor Ruiz the appointments of herein
petitioners to the vacant positions sans the required representation, the Board violated the above
CSC Rules. Hence, the appointments he issued are not valid. They may be recalled. In Mathay, Jr.
v. Civil Service Commission,7 this Court upheld the authority of the CSC to take appropriate action
on all appointments, including its authority to recall appointments made in disregard of the
applicable provisions of Civil Service Law and regulations.

In sum, for being in violation of Section 2, R.A. No. 7041, CSC Memorandum Circular No. 18, as
amended, and Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the
Administrative Code of 1987, the appointments of the above-named petitioners are declared void.

WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed Decision of the Court of
Appeals in CA-G.R. SP No. 755151.

SO ORDERED.

G.R. No. 163443. November 11, 2008.*

LIZA M. QUIROG and RENE L. RELAMPAGOS, petitioners,

vs.

GOVERNOR ERICO B. AUMENTADO, respondent.

G.R. No. 163568. November 11, 2008.*

CIVIL SERVICE COMMISSION, petitioner, vs. COURT OF APPEALS and GOV.

ERICO B. AUMENTADO, respondents.

Administrative Law; Civil Service Commission; Appointments; Parties; Both the

appointing authority and the appointee are equally real parties in interest who have the
requisite legal standing to bring an action challenging a Civil Service Commission (CSC)
disapproval of an appointment.—In the recent case of Abella, Jr. v. Civil Service
Commission, 442 SCRA 507 (2004), the Court declared that both the appointing
authority and the appointee are equally real parties in interest who have the requisite
legal standing to bring an action challenging a CSC disapproval of an appointment. In
said case, we held that: The CSC’s disapproval of an appointment is a challenge to the
exercise of the appointing authority’s discretion. The appointing authority must have the
right to contest the disapproval. Thus, Section 2 of Rule VI of CSC Memorandum
Circular 40, s. 1998 is justified insofar as it allows the appointing authority to request
reconsideration or appeal.
Same; Same; Same; Statutory Construction; Since the retroactive application of a
law usually divests rights that have already become vested, the rule in statutory
construction is that all statutes are to be construed as having only a prospective
operation unless the purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the language
used.—Records disclose that on May 28, 2001, the PSB of the Human Resource
Management and Development Office of Bohol, issued a certification that Quirog was
one of two candidates qualified for the position of PGDH-OPA. On the same day,
Quirog was appointed by then Governor Relampagos and on June 1, 2001, she took
her oath of office. CSC Resolution No. 010988 was issued three days later, or on June
4, 2001. Evidently, the CSCROVII should not have subjected Quirog’s appointment to
the requirements under said resolution, as its application is against the prospective
application of laws. Having no provision regarding its retroactive application to
appointments made prior to its effectivity, CSC Resolution No. 010988 must be taken to
be of prospective application. As we have held time and again: Since the retroactive
application of a law usually divests rights that have already become vested, the rule in
statutory construction is that all statutes are to be construed as having only a
prospective operation unless the purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the language
used.

Same; Same; Same; Midnight Appointments; The constitutional prohibition on so-

called midnight appointments, specifically, those made within two (2) months
immediately prior to the next presidential elections, applies only to the President or
Acting President; The ruling in De Rama v. Court of Appeals, 353 SCRA 95 (2001),
does not mean that the raison d’être behind the prohibition against midnight
appointments may not be applied to those made by chief executives of local
government units.—It cannot also be said that Quirog’s appointment was a midnight
appointment. The constitutional prohibition on so-called midnight appointments,
specifically, those made within two (2) months immediately prior to the next presidential
elections, applies only to the President or Acting President. As the Court ruled in De
Rama v. CA, 353 SCRA 95 (2001): The records reveal that when the petitioner brought
the matter of recalling the appointments of the fourteen (14) private respondents before
the CSC, the only reason he cited to justify his action was that these were midnight
appointments that are forbidden under Article VII, Section 15 of the Constitution.
However, the CSC ruled, and correctly so, that the said prohibition applies only to
presidential appointments. In truth and in fact, there is no law that prohibits local elective
officials from making appointments during the last days of his or her tenure. We,
however, hasten to add that the aforementioned ruling does not mean that the raison
d’être behind the prohibition against midnight appointments may not be applied to those
made by chief executives of local government units, as here. Indeed, the prohibition is
precisely designed to discourage, nay, even preclude, losing candidates from issuing
appointments merely for partisan purposes thereby depriving the incoming
administration of the opportunity to make the corresponding appointments in line with its
new policies.

DECISION

LEONARDO-DE CASTRO, J.:

Before this Court are two consolidated petitions for review under Rule 45 of the Rules of Court both
assailing and seeking to set aside the Court of Appeals' (CA) Decision1 dated March 31, 2003 and
the Resolution2 dated April 12, 2004 in CA-G.R. SP No. 70255. The Decision set aside Resolution Nos.
011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively, of the Civil Service
Commission in Administrative NDC No. 01-88 and reinstated the (a) June 28, 2001 Order and (b) July 23,
2001 Decision of the Civil Service Commission Regional Office No. VII.

The facts as culled from the records are as follows:

On May 28, 2001, Bohol Provincial Governor Rene L. Relampagos permanently appointed 3 Liza M.
Quirog as Provincial Government Department Head4 of the Office of the Bohol Provincial Agriculture
(PGDH-OPA). The appointment was confirmed by the Sangguniang Panlalawigan in Resolution No.
2001-1995 on June 1, 2001. On even date, Quirog took her oath of office.

Before the issuance of the permanent appointment, the Personnel Selection Board (PSB) of the Human
Resource Management and Development Office of Bohol issued a certification 6 that Quirog was one of
two candidates qualified for the position of PGDH-OPA.

A copy of the Monthly Report on Personnel Actions (ROPA) covering the months of May and June 2001
of the provincial government was submitted to the Civil Service Commission Regional Office No. VII
(CSCROVII), Cebu City.

In the Order dated June 28, 20017, the Director of CSCROVII invalidated Quirog's appointment as PGDH-
OPA upon finding that the same was part of the bulk appointments issued by then Governor Relampagos
after the May 14, 2001 elections allegedly in violation of Item No. 3(d) 8 of CSC Resolution No. 010988
dated June 4, 2001. The Order pointed out that the prohibition against the issuance of midnight
appointments was already laid down as early as February 29, 2000 in CSC Resolution No. 000550. 9

Both Relampagos and Quirog moved for reconsideration of the CSCROVII Order, alleging that when the
latter took her oath of office on June 1, 2001, CSC Resolution No. 010988 was not yet effective as it took
effect only on June 4, 2001. They argued that the subject appointment cannot be considered a midnight
appointment because it was made days before the expiration of Relampagos' term, and that Quirog was
already the acting Provincial Agriculturist a year prior to said appointment or since June 19,
2000.10 Besides, so they asserted, since Quirog had already taken her oath of office, assumed her duties
and collected her salary for the month of June, 2001, she had already acquired a legal, not merely
equitable, right to the position in question, which cannot be taken away from her either by revocation of
the appointment or by removal except for cause and with previous notice and hearing.

In a decision11 dated July 23, 2001, the CSCROVII denied Quirog's and Relampagos' motion for
reconsideration for lack of legal personality to file such pleading, citing Section 2, Rule VI of CSC
Memorandum Circular (MC) No. 40, series of 1998. The CSCROVII explained that only the appointing
officer may request reconsideration of the disapproval of an appointment by the Civil Service
Commission. Even if Relampagos was the one who appointed Quirog, he could not file a motion for
reconsideration because his term as governor had already expired.

Aggrieved, the petitioners in G.R. No. 163443 appealed to the Civil Service Commission (CSC) where
their joint appeal was docketed as Adm. NDC No. 01-88.
On November 20, 2001, the CSC issued Resolution No. 011812,12 which granted the said joint appeal
and set aside the order and decision of the CSCROVII. More specifically, the Resolution states:

WHEREFORE, the joint appeal of former Governor Rene L. Relampagos and Liza M. Quirog is
hereby GRANTED. Accordingly, the decision dated July 23, 2001 of the Civil Service
Commission-Regional Office No. VII and CSCRO No. VII Order dated June 28, 2001 are hereby
set aside. Said Regional Office is enjoined to approve the appointment of Quirog to the position of
Provincial Government Head, Office of the Provincial Agriculturist, Province of Bohol.

According to the CSC, since Relampagos had ceased to be the appointing authority upon the expiration
of his term as governor and incumbent Governor Erico B. Aumentado was not the official who made the
subject appointment, equity dictates that the appointee Quirog be allowed to question the decision to
obviate possible damage or injury to the delivery of public service. The CSC also declared that the
appointment of Quirog was not a midnight appointment as it was not hurriedly issued nor did it subvert the
policies of the incoming administration. The CSC relaxed the application of Item 3(a)13 in CSC Resolution
01-0988 requiring that appointments should have gone through the regular screening by the PSB before
the election ban or the prohibited period from March 30, 2001 to May 14, 2001. After noting that the
selection board only deliberated upon Quirog's qualifications on May 24, 2001, or after the election ban,
the CSC ratiocinated that the spirit, rather than the letter of the said rule should prevail as long as the
case did not involve a midnight appointment proscribed by Aytona v. Castillo, et al.14 Lastly, the CSC
justified Quirog's appointment even though such was included among 46 post-election appointments
because of the need to immediately fill up in a permanent capacity the vacant position of Provincial
Agriculturist and the fact that Governor Aumentado expressly declared his trust and confidence in Quirog
in his Memorandum No. 115 dated July 2, 2001.

On December 10, 2001, incumbent Bohol Governor Erico B. Aumentado filed an amended Motion for
Reconsideration16 of the CSC Resolution No. 011812. He insisted that Quirog and Relampagos had no
legal personality to file a motion for reconsideration of the disapproved appointment or to appeal the
same. He insisted that Quirog's appointment was a midnight appointment. Aumentado added that the
selection board which screened Quirog's qualifications was not validly constituted and that the subject
appointment was made more than six months from the time it was published on July 23, 2000 in violation
of CSC Resolution No. 01011417 dated January 10, 2001. Aumentado insisted that Relampagos made
97, not 46, mass appointments on the eve of his term, 95 of which were invalidated by the CSC Bohol
Field Office and two, including that of Quirog, by the CSCROVII.

In Resolution No. 02027118 dated February 22, 2002, the CSC denied Aumentado's motion for
reconsideration. Aumentado then filed a petition for review19 under Rule 43 of the Rules of Court with the
CA where it was docketed as CA-G.R. SP No. 70255.

On March 31, 2003, the CA rendered the herein challenged Decision, 20 granting Aumentado's petition.
The CA reversed and set aside CSC Resolution No. 011812 and ruled that Quirog's appeal should have
been dismissed outright for lack of legal personality:

WHEREFORE, based on the foregoing premises, the instant petition is hereby GRANTED, the
assailed CSC Resolution Nos. 011812 and 020271, dated November 20, 2001 and February 22,
2002 respectively, are REVERSED and SET ASIDE. The CSCROVII's June 28, 2001 Order and
its July 23, 2001 Decision are hereby REINSTATED.

SO ORDERED.

On April 12, 2004, the CA rendered the second assailed Resolution, 21 denying Quirog and Relampagos'
motion for reconsideration.

From the adverse decision of the CA, the CSC as well as Relampagos and Quirog interposed separate
petitions for review on certiorari. Relampagos and Quirog's petition 22 filed on June 25, 2004, was
docketed as G.R. No. 163443, while the CSC's petition23 filed on July 8, 2004, was docketed as G.R. No.
163568.

In the Resolution24 dated July 13, 2004, the Court ordered the consolidation of the two petitions.

The consolidated petitions present the following issues for the Court's resolution: (1) whether or not
petitioners Relampagos and Quirog have the legal standing to file a motion for reconsideration of, or
appeal from, the disapproval of the latter's appointment by the Civil Service Commission, (2) whether or
not Quirog's appointment violated Item 3 of CSC Resolution No. 010988 dated June 4, 2001, and 3)
whether or not the subject appointment was a midnight appointment.
In the herein challenged decision, the CA held that only the appointing authority could challenge the
CSC's disapproval of an appointment. In arriving at such a conclusion, the CA relied solely on Section 2
of Rule VI of CSC Memorandum Circular (MC) No. 40, series of 199825 which provides:

Sec. 2. Requests for reconsideration of, or appeal from, the disapproval of an appointment may
be made by the appointing authority and submitted to the Commission within fifteen (15) days
from receipt of the disapproved appointment.

The petitioners share the view that the word may in the afore-quoted provision simply means that a
request for reconsideration or appeal from a disapproved appointment is not vested exclusively in the
appointing authority and that Quirog's appeal should have been given due course because she was the
real party-in-interest, being the one aggrieved by the disapproval of the appointment.

Petitioners Quirog and Relampagos contend that their appeal before the CA should not have been
dismissed on a mere technicality such as lack of legal personality. They argued that litigants must be
afforded full opportunity for the adjudication of their case on the merits.

The CSC for its part, pointed out that in previously decided cases, the CSC allowed the appointees to
take relief from the disapproval of their appointments as an exception to the rule on legal standing.

Upon the other hand, respondent Aumentado maintains that the controlling rule on the matter of legal
standing is the afore-cited Section 2, Rule VI, CSC MC No. 40, series of 1998. He anchors his argument
in Mathay, Jr. v. Civil Service Commission,26 where the Court laid down the ruling that only the appointing
authority can request for reconsideration of a CSC-disapproved appointment.

The Court rules for the petitioners.

In the recent case of Abella, Jr. v. Civil Service Commission,27 the Court declared that both the appointing
authority and the appointee are equally real parties in interest who have the requisite legal standing to
bring an action challenging a CSC disapproval of an appointment. In said case, we held that:

The CSC's disapproval of an appointment is a challenge to the exercise of the appointing

authority's discretion. The appointing authority must have the right to contest the disapproval.
Thus, Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 is justified insofar as it
allows the appointing authority to request reconsideration or appeal.

xxx

Although the earlier discussion demonstrates that the appointing authority is adversely affected
by the CSC's Order and is a real party in interest, the appointee is rightly a real party in interest
too. He is also injured by the CSC disapproval, because he is prevented from assuming the office
in a permanent capacity. Moreover, he would necessarily benefit if a favorable judgment is
obtained, as an approved appointment would confer on him all the rights and privileges of a
permanent appointee.

xxx

Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be interpreted to
restrict solely to the appointing authority the right to move for a reconsideration of, or to appeal,
the disapproval of an appointment. PD 807 and EO 292, from which the CSC derives the
authority to promulgate its rules and regulations, are silent on whether appointees have a similar
right to file motions for reconsideration of, or appeals from, unfavorable decisions involving
appointments. Indeed, there is no legislative intent to bar appointees from challenging the CSC's
disapproval.

The view that only the appointing authority may request reconsideration or appeal is too narrow.
The appointee should have the same right. Parenthetically, CSC Resolution 99-1936 recognizes
the right of the adversely affected party to appeal to the CSC Regional Offices prior to elevating a
matter to the CSC Central Office. The adversely affected party necessarily includes the
appointee.28

Also, in Abella, Jr, we held that the right of the appointee to seek reconsideration or appeal was not the
main issue in Mathay:
This judicial pronouncement does not override Mathay v. Civil Service Commission xxx. The Court merely
noted in passing -- by way of obiter -- that based on a similar provision, only the appointing officer could
request reconsideration of actions taken by the CSC on appointments.

In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC Resolutions that
recalled his appointment of a city government officer. He filed a Petition assailing the CA Decision, which
had previously denied his Petition for Certiorari for being the wrong remedy and for being filed out of time.
We observed then that the CSC Resolutions were already final and could no longer be elevated to the
CA. Furthermore, Mathay's Petition for Certiorari filed with the CA was improper, because there was an
available remedy of appeal. And the CSC could not have acted without jurisdiction, considering that it was
empowered to recall an appointment initially approved.

The right of the appointee to seek reconsideration or appeal was not the main issue in Mathay. At any
rate, the present case is being decided en banc, and the ruling may reverse previous doctrines laid down
by this Court. 29

Clearly, pursuant to Abella, Jr., Quirog had the right to ask for reconsideration of, or to appeal the adverse
ruling of CSCROVII. In contrast, Relampagos, by reason of the expiration of his term as governor, had
lost the legal personality to contest the disapproval of the appointment.

As to the validity of Quirog's appointment, the CSCROVII disapproved Quirog's appointment for non-
compliance with Item No. 3 of CSC Resolution No. 010988 dated June 4, 2001. Item No. 3 refers to the
disapproval of appointments unless certain requisites are complied with. Item No. 3 reads:

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or

demotion, x x x which are issued AFTER the elections, regardless of their dates of effectivity
and/or date of receipt by the Commission, x x x shall be disapproved unless the following
requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel Selection
Board (PSB) before the prohibited period on the issuance of appointments as shown by
the PSB report or minutes of its meeting;

b) That the appointee is qualified;

c) There is a need to fill up the vacancy immediately in order not to prejudice public
service and/or endanger public safety;

d) That the appointment is not one of those mass appointments issued after the
elections.

The CSC ruled that the promotional appointment extended to Quirog by Governor Relampagos was not
violative of the aforesaid CSC Resolution. This interpretation by the CSC of its own rules should be given
great weight and consideration for after all, it is the agency tasked with interpreting or applying the same.

Records disclose that on May 28, 2001, the PSB of the Human Resource Management and Development
Office of Bohol, issued a certification30 that Quirog was one of two candidates qualified for the position of
PGDH-OPA. On the same day, Quirog was appointed by then Governor Relampagos and on June 1,
2001, she took her oath of office. CSC Resolution No. 010988 was issued three days later, or on June 4,
2001. Evidently, the CSCROVII should not have subjected Quirog's appointment to the requirements
under said resolution, as its application is against the prospective application of laws. Having no provision
regarding its retroactive application to appointments made prior to its effectivity, CSC Resolution No.
010988 must be taken to be of prospective application. As we have held time and again:

Since the retroactive application of a law usually divests rights that have already become vested,
the rule in statutory construction is that all statutes are to be construed as having only a
prospective operation unless the purpose and intention of the legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the language used. 31

Prescinding therefrom, it cannot be said that Quirog's appointment violated CSC Resolution No. 010988,
the said Resolution having taken effect after the questioned appointment was extended.

It cannot also be said that Quirog's appointment was a midnight appointment. The constitutional
prohibition on so-called midnight appointments, specifically, those made within two (2) months
immediately prior to the next presidential elections, applies only to the President or Acting President. 32
As the Court ruled in De Rama v. CA33:

The records reveal that when the petitioner brought the matter of recalling the appointments of
the fourteen (14) private respondents before the CSC, the only reason he cited to justify his
action was that these were midnight appointments that are forbidden under Article VII, Section 15
of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies
only to presidential appointments. In truth and in fact, there is no law that prohibits local elective
officials from making appointments during the last days of his or her tenure.

We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind
the prohibition against midnight appointments may not be applied to those made by chief executives of
local government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even
preclude, losing candidates from issuing appointments merely for partisan purposes thereby depriving the
incoming administration of the opportunity to make the corresponding appointments in line with its new
policies. As we held in Aytona v. Castillo:

The filling up of vacancies in important positions, if few, and so spaced as to afford some
assurance of deliberate action and careful consideration of the need for the appointment and the
appointee's qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of almost all of them in a few hours
before the inauguration of the new President may, with some reason, be regarded by the
latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness and other conditions, and
thereby to deprive the new administration of an opportunity to make the corresponding
appointments.34 (Emphasis ours)

The appointment of Quirog cannot be categorized as a midnight appointment. For it is beyond dispute
that Quirog had been discharging and performing the duties concomitant with the subject position for a
year prior to her permanent appointment thereto. Surely, the fact that she was only permanently
appointed to the position of PGDH-OPA after a year of being the Acting Provincial Agriculturist more than
adequately shows that the filling up of the position resulted from deliberate action and a careful
consideration of the need for the appointment and the appointee's qualifications. The fact that Quirog had
been the Acting Provincial Agriculturist since June 2000 all the more highlights the public need for said
position to be permanently filled up.

Besides, as correctly held by the CSC:

A careful evaluation of the circumstances obtaining in the issuance of the appointment of Quirog
shows the absence of the element of hurriedness on the part of former Governor Relampagos
which characterizes a midnight appointment. There is also wanting in the records of the case the
subversion by the former governor of the policies of the incumbent Governor Erico Aumentado as
a logical consequence of the issuance of Quirog's appointment by the latter. Both elements are
the primordial considerations by the Supreme Court when it laid down its ruling in prohibiting
midnight appointments in the landmark case of Aytona vs Castillo, et. al.35

In any event, respondent Governor Aumentado, in a Memorandum 36 dated March 4, 2003, has reinstated
Quirog to the permanent position of PGDH-OPA. Such act of respondent bespeaks of his acceptance of
the validity of Quirog's appointment and recognition that indeed, the latter is qualified for the subject
position.

WHEREFORE, the assailed Decision dated March 31, 2003 and the Resolution dated April 12, 2004 of
the Court of Appeals are REVERSED AND SET ASIDE and CSC Resolution Nos. 011812 and 020271
dated November 20, 2001 and February 22, 2002, respectively, are AFFIRMED.

SO ORDERED.
 G.R. No. 177736. October 6, 2008.*

MELANIE P. MONTUERTO, petitioner,

vs.

HONORABLE MAYOR ROLANDO E. TY and THE SANGGUNIANG

BAYAN, represented by HONORABLE VICE-MAYOR RICHARD D.
JAGUROS, all of the Municipality of Almeria, Biliran, respondents.

Municipal Corporations; Local Government Units; Appointments; Under Section

443(a) and (d) of Republic Act (R.A.) No. 7160 or the Local Government Code, the
head of a department or office in the municipal government, such as the Municipal
Budget Officer, shall be appointed by the mayor with the concurrence of the majority of
all Sangguniang Bayan members subject to civil service law, rules and regulations.—
The law is clear. Under Section 443(a) and (d) of Republic Act (R.A.) No. 7160 or the
Local Government Code, the head of a department or office in the municipal
government, such as the Municipal Budget Officer, shall be appointed by the mayor with
the concurrence of the majority of all Sangguniang Bayan members subject to civil
service law, rules and regulations. Per records, the appointment of petitioner was never
submitted to the Sangguniang Bayan for its concurrence or, even if so submitted, no
such concurrence was obtained. Such factual finding of quasi-judicial agencies,
especially if adopted and affirmed by the CA, is deemed final and conclusive and may
not be reviewed on appeal by this Court. This Court is not a trier of facts and generally,
does not weigh anew evidence already passed upon by the CA. Absent a showing that
this case falls under any of the exceptions to this general rule, this Court will refrain from
disturbing the findings of fact of the tribunals below.

Same; Same; Same; Verbal concurrence allegedly given by the Sanggunian is not the
concurrence required and envisioned under R.A. No. 7160—the Sanggunian, as a
body, acts through a resolution or an ordinance; Without a valid appointment, petitioner
acquired no legal title to the Office of Municipal Budget Officer, even if she had served
as such for ten years, and the Civil Service Commission has the authority to recall the
appointment.—We agree with the ruling of the CA that the verbal concurrence allegedly
given by the Sanggunian, as postulated by the petitioner, is not the concurrence
required and envisioned under R.A. No. 7160. The Sanggunian, as a body, acts through
a resolution or an ordinance. Absent such resolution of concurrence, the appointment of
petitioner failed to comply with the mandatory requirement of Section 443(a) and (d) of
R.A. No. 7160. Without a valid appointment, petitioner acquired no legal title to the
Office of Municipal Budget Officer, even if she had served as such for ten years.
Accordingly, the CSC has the authority to recall the appointment of the petitioner.

RESOLUTION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Civil Procedure
seeking the reversal of the Court of Appeals (CA) Decision2 dated October 31, 2006 and
Resolution3 dated March 29, 2007, which affirmed in toto the Resolution of the Civil Service
Commission (CSC) dated June 7, 2005.

The antecedents, as found by the CA, are as follows:

On March 17, 1992, petitioner was issued an appointment as Municipal Budget Officer by the then
Mayor Supremo T. Sabitsana of the Municipality of Almeria, Biliran. On March 24, 1992, her
appointment was approved as permanent by Gerardo Corder, Acting Civil Service Commission Field
Officer.

On January 14, 2002, the Sangguniang Bayan of Almeria, Biliran passed Sangguniang Bayan (SB)
Resolution No. 01-S-2002 entitled "A Resolution Requesting the Civil Service Commission Regional
Office, to Revoke the Appointment of Mrs. Melanie P. Montuerto, Municipal Budget Officer of the
Municipality of Almeria, Biliran for Failure to Secure the Required Concurrence from the
Sangguniang Bayan."

Consequently, the Municipality of Almeria, Biliran submitted the 201 file of petitioner to Civil Service
Commission Regional Office No. VIII (CSCRO No. VIII) which showed that petitioner's appointment
lacked the required concurrence of the local sanggunian. On the other hand, petitioner submitted to
the same office a Joint-Affidavit4 executed on March 6, 2002, by the majority of the then members of
the Sangguniang Bayan of Almeria, Biliran, the pertinent portion of which reads:

4. Since the regular session focused on the deliberations regarding the municipal budget, the
concurrence on the appointment of Municipal Budget Officer Melanie P. Montuerto was not
highlighted and the concurrence was inadvertently omitted in the Minutes of the Regular
Session for 2 March 1992. But, we can still fully recall that there was really a verbal
concurrence on the appointment of Municipal Budget Officer Melanie P. Montuerto x x x.

On March 11, 2002, CSCRO No. VIII issued an Order decreeing:

WHEREFORE, foregoing premises considered, the approval on the appointment of Melanie

P. Montuerto as Municipal Budget Officer of LGU-Almeria, Leyte xxx is hereby RECALLED
on the ground that it lacks the required concurrence of the majority of all the members of the
Sangguniang Bayan of LGU-Almeria, Biliran.

Petitioner moved for reconsideration. Before resolving the motion, CSCRO No. VIII invited Marcelo
C. Maceda, Jr., incumbent SB Secretary, to appear and bring with him any document showing that
petitioner's appointment as Municipal Budget Officer had been submitted to the SB for concurrence.
In reply, Maceda issued a Certification on June 10, 2002, which reads:

This is to certify that as per records kept on file by this office, there is no record that would
show that the appointment of Mrs. Melanie P. Montuerto, as Municipal Budget Officer of
Almeria, Biliran was submitted to the Sangguniang Bayan for concurrence from June 1992
up to the present.

However, the SB minutes of the March 2, 1992 regular session pointed out the presence of a
budget officer who explained fully the details of the 1992 Municipal Annual Budget of
Almeria, Biliran.
Likewise, Maceda submitted a copy of the SB Minutes of the regular session held on March 2, 1992.

On July 9, 2002, CSCRO No. VIII denied petitioner's motion for reconsideration. Aggrieved,
petitioner appealed to the CSC Central Office. After due consideration of the pleadings and
documents presented, the latter issued CSC Resolution No. 040728 dated July 1, 2004, disposing of
petitioner's appeal in this wise:

WHEREFORE, the instant appeal of Melanie P. Montuerto is hereby DISMISSED.

Accordingly, the appealed Order dated March 11, 2002 of the Civil Service Commission-
Regional Office No. VIII, Palo, Leyte, recalling the initial approval of the appointment of
Montuerto as Municipal Budget Officer of Almeria, Biliran, for lack of the required
concurrence by the majority of all the members of Sangguniang Bayan, is
hereby AFFIRMED.

Petitioner filed a motion for reconsideration which was denied in CSC Resolution No. 050756 dated
June 7, 2005. Meanwhile, on July 30, 2004, the Municipal Mayor of Almeria, Biliran issued Office
Order No. 15 which directed the indefinite detail of the petitioner to the Cooperative Development
Project. In the same office order, the commutable representation and transportation allowance of
petitioner was removed. On July 11, 2005, the Municipal Mayor issued a Memorandum terminating
the services of petitioner as Municipal Budget Officer pursuant to CSC Resolution No. 050756.

Petitioner filed a Petition for Review under Rule 43 of the Rules of Civil Procedure before the CA,
which denied it for lack of merit.

Hence, the instant Petition raising the sole issue of whether the appointment of petitioner as
Municipal Budget Officer, without the written concurrence of the Sanggunian, but duly approved by
the CSC and after the appointee had served as such for almost ten years without interruption, can
still be revoked by the Commission.

We resolve to deny the Petition.

The law is clear. Under Section 443(a) and (d) of Republic Act (R.A.) No. 71605 or the Local
Government Code, the head of a department or office in the municipal government, such as the
Municipal Budget Officer, shall be appointed by the mayor with the concurrence of the majority of
all Sangguniang Bayan members6 subject to civil service law, rules and regulations. Per records, the
appointment of petitioner was never submitted to the Sangguniang Bayan for its concurrence or,
even if so submitted, no such concurrence was obtained. Such factual finding of quasi-judicial
agencies, especially if adopted and affirmed by the CA, is deemed final and conclusive and may not
be reviewed on appeal by this Court. This Court is not a trier of facts and generally, does not weigh
anew evidence already passed upon by the CA. Absent a showing that this case falls under any of
the exceptions to this general rule, this Court will refrain from disturbing the findings of fact of the
tribunals below.

Moreover, we agree with the ruling of the CA that the verbal concurrence allegedly given by
the Sanggunian, as postulated by the petitioner, is not the concurrence required and envisioned
under R.A. No. 7160. The Sanggunian, as a body, acts through a resolution or an ordinance. Absent
such resolution of concurrence, the appointment of petitioner failed to comply with the mandatory
requirement of Section 443(a) and (d) of R.A. No. 7160. Without a valid appointment, petitioner
acquired no legal title to the Office of Municipal Budget Officer, even if she had served as such for
ten years.

Accordingly, the CSC has the authority to recall the appointment of the petitioner.7

All told, we find no reversible error on the part of the CA.

WHEREFORE, the instant Petition is DENIED for lack of merit. No costs.

SO ORDERED.
 G.R. Nos. 217126-27. November 10, 2015.*

CONCHITA CARPIO-MORALES, in her capacity as the Ombudsman,

petitioner,

vs.

COURT OF APPEALS (SIXTH DIVISION) and JEJOMAR ERWIN S.

BINAY, JR., respondents.

Remedial Law; Special Civil Actions; Certiorari; Prohibition; A common

requirement to both a petition for certiorari and a petition for prohibition taken under
Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain,
speedy, and adequate remedy in the ordinary course of law.—A common requirement
to both a petition for certiorari and a petition for prohibition taken under Rule 65 of the
1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and
adequate remedy in the ordinary course of law.

Same; Same; Same; Motion for Reconsideration; As a general rule, a motion for
reconsideration must first be filed with the lower court prior to resorting to the
extraordinary remedy of certiorari or prohibition since a motion for reconsideration may
still be considered as a plain, speedy, and adequate remedy in the ordinary course of
law; Exceptions.—As a general rule, a motion for reconsideration must first be filed
with the lower court prior to resorting to the extraordinary remedy of certiorari or
prohibition since a motion for reconsideration may still be considered as a plain, speedy,
and adequate remedy in the ordinary course of law. The rationale for the prerequisite is
to grant an opportunity for the lower court or agency to correct any actual or perceived
error attributed to it by the reexamination of the legal and factual circumstances of the
case. Jurisprudence states that “[i]t is [the] inadequacy, [and] not the mere absence of
all other legal remedies and the danger of failure of justice without the writ, that must
usually determine the propriety of certiorari [or prohibition]. A remedy is plain, speedy[,]
and adequate if it will promptly relieve the petitioner from the injurious effects of the
judgment, order, or resolution of the lower court or agency. x x x.” In this light, certain
exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also
apply to a petition for prohibition. These are:
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;

(b) where the questions raised in the certiorari proceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in
the lower court;

(c) where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of the petitioner or the subject
matter of the action is perishable;

(d) where, under the circumstances, a motion for reconsideration would be useless;

(e) where petitioner was deprived of due process and there is extreme urgency for
relief;

(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of
such relief by the trial court is improbable;

(g) where the proceedings in the lower court are a nullity for lack of due process;

(h) where the proceedings were ex parte or in which the petitioner had no opportunity to
object; and

(i) where the issue raised is one purely of law or where public interest is involved.

Same; Courts; Jurisdiction; A court’s jurisdiction over the subject matter may be
raised at any stage of the proceedings.—Albeit raised for the first time by the
Ombudsman in her Memorandum, it is nonetheless proper to resolve the issue on the
CA’s lack of subject matter jurisdiction over the main petition for certiorari in C.A.-G.R.
S.P. No. 139453, in view of the well-established rule that a court’s jurisdiction over the
subject matter may be raised at any stage of the proceedings. The rationale is that
subject matter jurisdiction is conferred by law, and the lack of it affects the very authority
of the court to take cognizance of and to render judgment on the action. Hence, it
should be preliminarily determined if the CA indeed had subject matter jurisdiction over
the main C.A.-G.R. S.P. No. 139453 petition, as the same determines the validity of all
subsequent proceedings relative thereto. It is noteworthy to point out that Binay, Jr. was
given the opportunity by this Court to be heard on this issue, as he, in fact, duly
submitted his opposition through his comment to the Ombudsman’s Memorandum. That
being said, the Court perceives no reasonable objection against ruling on this issue.
Ombudsman Act; The first paragraph of Section 14, Republic Act (RA) No. 6770 is
a prohibition against any court (except the Supreme Court [SC]) from issuing a writ of
injunction to delay an investigation being conducted by the Office of the Ombudsman.—
The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court) from issuing a writ of injunction to delay an investigation being
conducted by the Office of the Ombudsman. Generally speaking, “[i]njunction is a
judicial writ, process or proceeding whereby a party is ordered to do or refrain from
doing a certain act. It may be the main action or merely a provisional remedy for and as
an incident in the main action.” Considering the textual qualifier “to delay,” which
connotes a suspension of an action while the main case remains pending, the “writ of
injunction” mentioned in this paragraph could only refer to injunctions of the provisional
kind, consistent with the nature of a provisional injunctive relief. The exception to the no
injunction policy is when there is prima facie evidence that the subject matter of the
investigation is outside the office’s jurisdiction. The Office of the Ombudsman has
disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with the exception only of impeachable
officers, Members of Congress, and the Judiciary. Nonetheless, the Ombudsman
retains the power to investigate any serious misconduct in office allegedly committed by
officials removable by impeachment, for the purpose of filing a verified complaint for
impeachment, if warranted. Note that the Ombudsman has concurrent jurisdiction over
certain administrative cases which are within the jurisdiction of the regular courts or
administrative agencies, but has primary jurisdiction to investigate any act or omission
of a public officer or employee who is under the jurisdiction of the Sandiganbayan.

Same; The second paragraph of Section 14, Republic Act (RA) No. 6770 provides
that no appeal or application for remedy may be heard against the decision or findings
of the Ombudsman, with the exception of the Supreme Court (SC) on pure questions of
law.—On the other hand, the second paragraph of Section 14, RA 6770 provides that
no appeal or application for remedy may be heard against the decision or findings of the
Ombudsman, with the exception of the Supreme Court on pure questions of law. This
paragraph, which the Ombudsman particularly relies on in arguing that the CA
had no jurisdiction over the main C.A.-G.R. S.P. No. 139453 petition, as it is
supposedly this Court which has the sole jurisdiction to conduct a judicial review
of its decisions or findings, is vague for two (2) reasons:

(1) it is unclear what the phrase “application for remedy” or the word “findings” refers to;
and
(2) it does not specify what procedural remedy is solely allowable to this Court, save
that the same be taken only against a pure question of law. The task then, is to apply
the relevant principles of statutory construction to resolve the ambiguity.

Same; Statutory Construction; In case of doubt as to what a provision of a statute

means, the meaning put to the provision during the legislative deliberations may be
adopted, albeit not controlling in the interpretation of the law.—As an aid to construction,
courts may avail themselves of the actual proceedings of the legislative body in
interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a
statute means, the meaning put to the provision during the legislative deliberations may
be adopted, albeit not controlling in the interpretation of the law.

Same; Same; As a general rule, the second paragraph of Section 14, Republic Act
(RA) No. 6770 bans the whole range of remedies against issuances of the
Ombudsman, by prohibiting:

(a) an appeal against any decision or finding of the Ombudsman, and

(b) “any application of remedy” against the same.—As a general rule, the second
paragraph of Section 14, RA 6770 bans the whole range of remedies against issuances
of the Ombudsman, by prohibiting: (a) an appeal against any decision or finding of the
Ombudsman, and (b) “any application of remedy” (subject to the exception below)
against the same. To clarify, the phrase “application for remedy,” being a generally
worded provision, and being separated from the term “appeal” by the disjunctive “or,”
refers to any remedy (whether taken mainly or provisionally), except an appeal,
following the maxim generalia verba sunt generaliter intelligenda: general words are to
be understood in a general sense. By the same principle, the word “findings,” which is
also separated from the word “decision” by the disjunctive “or,” would therefore refer to
any finding made by the Ombudsman (whether final or provisional), except a decision.
The subject provision, however, crafts an exception to the foregoing general rule. While
the specific procedural vehicle is not explicit from its text, it is fairly deducible that the
second paragraph of Section 14, RA 6770 excepts, as the only allowable remedy
against “the decision or findings of the Ombudsman,” a Rule 45 appeal, for the reason
that it is the only remedy taken to the Supreme Court on “pure questions of law,”
whether under the 1964 Rules of Court or the 1997 Rules of Civil Procedure.
Doctrine of Non-Interference; Appeals; Petition for Review on Certiorari; Congress
cannot interfere with matters of procedure; hence, it cannot alter the scope of a Rule 45
appeal so as to apply to interlocutory “findings” issued by the Ombudsman.—Of course,
the second paragraph of Section 14, RA 6770’s extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal — which is within the sphere of the
rules of procedure promulgated by this Court — can only be taken against final
decisions or orders of lower courts, and not against “findings” of quasi-judicial agencies.
As will be later elaborated upon, Congress cannot interfere with matters of procedure;
hence, it cannot alter the scope of a Rule 45 appeal so as to apply to interlocutory
“findings” issued by the Ombudsman. More significantly, by confining the remedy to a
Rule 45 appeal, the provision takes away the remedy of certiorari, grounded on errors of
jurisdiction, in denigration of the judicial power constitutionally vested in courts. In this
light, the second paragraph of Section 14, RA 6770 also increased this Court’s
appellate jurisdiction, without a showing, however, that it gave its consent to the same.
The provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as
above cited), which was invalidated in the case of Fabian v. Desierto, 295 SCRA 470
(1998).

Same; Judicial Power; The concept of Ombudsman independence cannot be invoked

as basis to insulate the Ombudsman from judicial power constitutionally vested unto the
courts.—The concept of Ombudsman independence cannot be invoked as basis to
insulate the Ombudsman from judicial power constitutionally vested unto the courts.
Courts are apolitical bodies, which are ordained to act as impartial tribunals and apply
even justice to all. Hence, the Ombudsman’s notion that it can be exempt from an
incident of judicial power — that is, a provisional writ of injunction against a preventive
suspension order — clearly strays from the concept’s rationale of insulating the office
from political harassment or pressure.

Remedial Law; Courts; Hierarchy of Courts; Certiorari; The Court of Appeals’ (CA’s)
certiorari jurisdiction is not only original but also concurrent with the Regional Trial
Courts (RTCs) (under Section 21[1], Chapter II of Batas Pambansa [BP] Blg. 129),
and the Supreme Court (SC) (under Section 5, Article VIII of the 1987 Philippine
Constitution). In view of the concurrence of these courts’ jurisdiction over petitions for
certiorari, the doctrine of hierarchy of courts should be followed.—Note that the CA’s
certiorari jurisdiction, as above stated, is not only original but also concurrent with the
Regional Trial Courts (under Section 21[1], Chapter II of BP 129), and the Supreme
Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view of the
concurrence of these courts’ jurisdiction over petitions for certiorari, the doctrine of
hierarchy of courts should be followed. In People v. Cuaresma, 172 SCRA 415 (1989),
the doctrine was explained as follows: [T]his concurrence of jurisdiction is not x x x to be
taken as according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be directed. There is
after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals,
and should also serve as a general determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level
(“inferior”) courts should be filed with the Regional Trial Court, and those against the
latter, with the Court of Appeals. When a court has subject matter jurisdiction over a
particular case, as conferred unto it by law, said court may then exercise its jurisdiction
acquired over that case, which is called judicial power.

Judicial Power; Words and Phrases; Judicial power, as vested in the Supreme Court
(SC) and all other courts established by law, has been defined as the “totality of powers
a court exercises when it assumes jurisdiction and hears and decides a case.”—Judicial
power, as vested in the Supreme Court and all other courts established by law, has
been defined as the “totality of powers a court exercises when it assumes jurisdiction
and hears and decides a case.” Under Section 1, Article VIII of the 1987 Constitution, it
includes “the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.”wor

Same; While the power to define, prescribe, and apportion the jurisdiction of the various
courts is, by constitutional design, vested unto Congress, the power to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts belongs exclusively to the Supreme Court (SC).—Judicial
power is never exercised in a vacuum. A court’s exercise of the jurisdiction it has
acquired over a particular case conforms to the limits and parameters of the rules of
procedure duly promulgated by this Court. In other words, procedure is the framework
within which judicial power is exercised. In Manila Railroad Co. v. Attorney-General, 20
Phil. 523 (1911), the Court elucidated that “[t]he power or authority of the court over the
subject matter existed and was fixed before procedure in a given cause began.
Procedure does not alter or change that power or authority; it simply directs the manner
in which it shall be fully and justly exercised. To be sure, in certain cases, if that power
is not exercised in conformity with the provisions of the procedural law, purely, the court
attempting to exercise it loses the power to exercise it legally. This does not mean that it
loses jurisdiction of the subject matter.” While the power to define, prescribe, and
apportion the jurisdiction of the various courts is, by constitutional design, vested unto
Congress, the power to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts belongs exclusively
to this Court.

Remedial Law; Temporary Restraining Order; Preliminary Injunction; It is well-

settled that the sole object of a temporary restraining order (TRO) or a writ of
preliminary injunction (WPI), whether prohibitory or mandatory, is to preserve the status
quo until the merits of the case can be heard.—A temporary restraining order and a writ
of preliminary injunction both constitute temporary measures availed of during the
pendency of the action. They are, by nature, ancillary because they are mere incidents
in and are dependent upon the result of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of preliminary injunction, whether
prohibitory or mandatory, is to preserve the status quo until the merits of the case can
be heard. They are usually granted when it is made to appear that there is a substantial
controversy between the parties and one of them is committing an act or threatening the
immediate commission of an act that will cause irreparable injury or destroy the status
quo of the controversy before a full hearing can be had on the merits of the case. In
other words, they are preservative remedies for the protection of substantive rights or
interests, and, hence, not a cause of action in itself, but merely adjunct to a main suit. In
a sense, they are regulatory processes meant to prevent a case from being mooted by
the interim acts of the parties.

Same; Same; Same; The Supreme Court (SC) rules that when Congress passed the
first paragraph of Section 14, Republic Act (RA) No. 6770 and, in so doing, took away
from the courts their power to issue a Temporary Restraining Order (TRO) and/or Writ
of Preliminary Injunction (WPI) to enjoin an investigation conducted by the Ombudsman,
it encroached upon the Court’s constitutional rule-making authority.—With these
considerations in mind, the Court rules that when Congress passed the first paragraph
of Section 14, RA 6770 and, in so doing, took away from the courts their power to issue
a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it
encroached upon this Court’s constitutional rule-making authority. Clearly, these
issuances, which are, by nature, provisional reliefs and auxiliary writs created under the
provisions of the Rules of Court, are matters of procedure which belong exclusively
within the province of this Court. Rule 58 of the Rules of Court did not create, define,
and regulate a right but merely prescribed the means of implementing an existing right
since it only provided for temporary reliefs to preserve the applicant’s right in esse which
is threatened to be violated during the course of a pending litigation.

Political Law; Separation of Powers; When Congress creates a court and delimits its
jurisdiction, the procedure for which its jurisdiction is exercised is fixed by the Court
through the rules it promulgates.—That Congress has been vested with the authority to
define, prescribe, and apportion the jurisdiction of the various courts under Section 2,
Article VIII, supra, as well as to create statutory courts under Section 1, Article VIII,
supra, does not result in an abnegation of the Court’s own power to promulgate rules of
pleading, practice, and procedure under Section 5(5), Article VIII, supra. Albeit
operatively interrelated, these powers are nonetheless institutionally separate and
distinct, each to be preserved under its own sphere of authority. When Congress
creates a court and delimits its jurisdiction, the procedure for which its jurisdiction is
exercised is fixed by the Court through the rules it promulgates. The first paragraph of
Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives, because it does not define, prescribe, and apportion the subject matter
jurisdiction of courts to act on certiorari cases; the certiorari jurisdiction of courts,
particularly the CA, stands under the relevant sections of BP 129 which were not shown
to have been repealed. Instead, through this provision, Congress interfered with a
provisional remedy that was created by this Court under its duly promulgated rules of
procedure, which utility is both integral and inherent to every court’s exercise of judicial
power. Without the Court’s consent to the proscription, as may be manifested by an
adoption of the same as part of the rules of procedure through an administrative circular
issued therefor, there thus, stands to be a violation of the separation of powers
principle.

Same; Judicial Power; To give true meaning to the judicial power contemplated by the
Framers of our Constitution, the Court’s duly promulgated rules of procedure should
therefore remain unabridged, this, even by statute.—It should be pointed out that the
breach of Congress in prohibiting provisional injunctions, such as in the first paragraph
of Section 14, RA 6770, does not only undermine the constitutional allocation of powers;
it also practically dilutes a court’s ability to carry out its functions. This is so since a
particular case can easily be mooted by supervening events if no provisional injunctive
relief is extended while the court is hearing the same. Accordingly, the court’s acquired
jurisdiction, through which it exercises its judicial power, is rendered nugatory. Indeed,
the force of judicial power, especially under the present Constitution, cannot be
enervated due to a court’s inability to regulate what occurs during a proceeding’s
course. As earlier intimated, when jurisdiction over the subject matter is accorded by
law and has been acquired by a court, its exercise thereof should be unclipped. To give
true meaning to the judicial power contemplated by the Framers of our Constitution, the
Court’s duly promulgated rules of procedure should therefore remain unabridged, this,
even by statute. Truth be told, the policy against provisional injunctive writs in whatever
variant should only subsist under rules of procedure duly promulgated by the Court
given its sole prerogative over the same.

Administrative Law; Preventive Suspension; A preventive suspension order is not a

penalty but only a preventive measure.—By nature, a preventive suspension order is
not a penalty but only a preventive measure. In Quimbo v. Acting Ombudsman
Gervacio, 466 SCRA 277 (2005), the Court explained the distinction, stating that its
purpose is to prevent the official to be suspended from using his position and the
powers and prerogatives of his office to influence potential witnesses or tamper with
records which may be vital in the prosecution of the case against him: Jurisprudential
law establishes a clear-cut distinction between suspension as preventive measure and
suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.
Preventive suspension is merely a preventive measure, a preliminary step in an
administrative investigation. The purpose of the suspension order is to prevent the
accused from using his position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which may be vital in the
prosecution of the case against him. If after such investigation, the charge is established
and the person investigated is found guilty of acts warranting his suspension or
removal, then he is suspended, removed or dismissed. This is the penalty.

Same; Same; The law sets forth two (2) conditions that must be satisfied to justify
the issuance of an order of preventive suspension pending an investigation.—The
law sets forth two (2) conditions that must be satisfied to justify the issuance of an order
of preventive suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and

(2) Either of the following circumstances coexist with the first requirement:

(a) The charge involves dishonesty, oppression or grave misconduct or neglect in

the performance of duty;

(b) The charge would warrant removal from the service; or

(c) The respondent’s continued stay in office may prejudice the case filed against
him.

Same; Condonation; Words and Phrases; Generally speaking, condonation has been
defined as “[a] victim’s express or implied forgiveness of an offense, [especially] by
treating the offender as if there had been no offense.”—Generally speaking,
condonation has been defined as “[a] victim’s express or implied forgiveness of an
offense, [especially] by treating the offender as if there had been no offense.” The
condonation doctrine — which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon — is not based on statutory law. It is a
jurisprudential creation that originated from the 1959 case of Pascual v. Hon. Provincial
Board of Nueva Ecija, 106 Phil. 466 (Pascual), which was therefore decided under the
1935 Constitution.

Same; Condonation Doctrine; The Court, citing Civil Service Commission v. Sojor,
554 SCRA 160 (2008), also clarified that the condonation doctrine would not apply to
appointive officials since, as to them, there is no sovereign will to disenfranchise.—The
Court, citing Civil Service Commission v. Sojor, 554 SCRA 160 (2008), also clarified
that the condonation doctrine would not apply to appointive officials since, as to them,
there is no sovereign will to disenfranchise.

Civil Service; Public Officers; The 1987 Constitution strengthened and solidified
what has been first proclaimed in the 1973 Constitution by commanding public officers
to be accountable to the people at all times.—After the turbulent decades of Martial Law
rule, the Filipino People have framed and adopted the 1987 Constitution, which sets
forth in the Declaration of Principles and State Policies in Article II that “[t]he State shall
maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.” Learning how unbridled power could corrupt
public servants under the regime of a dictator, the Framers put primacy on the integrity
of the public service by declaring it as a constitutional principle and a State policy. More
significantly, the 1987 Constitution strengthened and solidified what has been first
proclaimed in the 1973 Constitution by commanding public officers to be accountable to
the people at all times: Section 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency and act with patriotism and justice, and
lead modest lives. In Belgica v. Ochoa, Jr., 710 SCRA 1 (2013), it was explained that:
[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states
that “public office is a public trust,” is an overarching reminder that every instrumentality
of government should exercise their official functions only in accordance with the
principles of the Constitution which embodies the parameters of the people’s trust. The
notion of a public trust connotes accountability x x x. (Emphasis supplied) The same
mandate is found in the Revised Administrative Code under the section of the Civil
Service Commission, and also, in the Code of Conduct and Ethical Standards for Public
Officials and Employees.

Same; Same; For local elective officials like Binay, Jr., the grounds to discipline,
suspend or remove an elective local official from office are stated in Section 60 of
Republic Act (RA) No. 7160, otherwise known as the “Local Government Code of 1991”
(LGC), which was approved on October 10 1991, and took effect on January 1, 1992.—
For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove
an elective local official from office are stated in Section 60 of Republic Act No. 7160,
otherwise known as the “Local Government Code of 1991” (LGC), which was approved
on October 10 1991, and took effect on January 1, 1992: Section 60. Grounds for
Disciplinary Action.—An elective local official may be disciplined, suspended, or
removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of

duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by at

least prisión mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case
of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang
bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and (h) Such other grounds as may be provided in this
Code and other laws. An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.

Same; Same; Section 40(b) of the Local Government Code (LGC) states that those
removed from office as a result of an administrative case shall be disqualified from
running for any elective local position.—Related to this provision is Section 40(b) of the
LGC which states that those removed from office as a result of an administrative case
shall be disqualified from running for any elective local position: Section 40.
Disqualifications.—The following persons are disqualified from running for any elective
local position: x x x x (b) Those removed from office as a result of an administrative
case.

Same; Same; Condonation Doctrine; The doctrine of condonation is actually bereft of

legal bases.—Section 52(a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public
office: Section 52. Administrative Disabilities Inherent in Certain Penalties.—a.
The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of
retirement benefits, perpetual disqualification from holding public office, and bar from
taking the civil service examinations. In contrast, Section 66(b) of the LGC states that
the penalty of suspension shall not exceed the unexpired term of the elective local
official nor constitute a bar to his candidacy for as long as he meets the qualifications
required for the office. Note, however, that the provision only pertains to the duration of
the penalty and its effect on the official’s candidacy. Nothing therein states that the
administrative liability therefor is extinguished by the fact of reelection: Section 66. Form
and Notice of Decision.—x x x. x x x x (b) The penalty of suspension shall not exceed
the unexpired term of the respondent or a period of six (6) months for every
administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office.
Reading the 1987 Constitution together with the above cited legal provisions now leads
this Court to the conclusion that the doctrine of condonation is actually bereft of legal
bases.
Same; Same; Same; Election is not a mode of condoning an administrative offense,
and there is simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term.—The concept of public office is
a public trust and the corollary requirement of accountability to the people at all times,
as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an
elective local official’s administrative liability for a misconduct committed during a prior
term can be wiped off by the fact that he was elected to a second term of office, or even
another elective post. Election is not a mode of condoning an administrative offense,
and there is simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term. In this jurisdiction, liability
arising from administrative offenses may be condoned by the President in light of
Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v.
Orbos, 202 SCRA 844 (1991), to apply to administrative offenses.

Same; Same; Same; Nothing in Section 66(b) states that the elective local official’s
administrative liability is extinguished by the fact of reelection. Thus, at all events, no
legal provision actually supports the theory that the liability is condoned.—At best,
Section 66(b) of the LGC prohibits the enforcement of the penalty of suspension beyond
the unexpired portion of the elective local official’s prior term, and likewise allows said
official to still run for reelection. This treatment is similar to People ex rel. Bagshaw v.
Thompson, (55 Cal. App. 2d 147; 130 P.2d.237 [1942]), and Montgomery v. Nowell,
(183 Ark. 1116; 40 S.W.2d 418 [1931]), both cited in Pascual, wherein it was ruled that
an officer cannot be suspended for a misconduct committed during a prior term.
However, as previously stated, nothing in Section 66(b) states that the elective local
official’s administrative liability is extinguished by the fact of reelection. Thus, at all
events, no legal provision actually supports the theory that the liability is condoned.

Same; Same; Same; The Supreme Court’s (SC’s) abandonment of the condonation
doctrine should be prospective in application for the reason that judicial decisions
applying or interpreting the laws or the Constitution, until reversed, shall form part of the
legal system of the Philippines.—This Court simply finds no legal authority to sustain the
condonation doctrine in this jurisdiction. As can be seen from this discourse, it was a
doctrine adopted from one class of US rulings way back in 1959 and thus, out of touch
from — and now rendered obsolete by — the current legal regime. In consequence, it is
high time for this Court to abandon the condonation doctrine that originated from
Pascual, and affirmed in the cases following the same, such as Aguinaldo v. Santos,
212 SCRA 768 (1992), Salalima v. Guingona, Jr., 257 SCRA 55 (1996), Mayor Garcia
v. Mojica, 314 SCRA 207 (1999), and Governor Garcia, Jr. v. CA, 586 SCRA 799
(2009), which were all relied upon by the CA. It should, however, be clarified that this
Court’s abandonment of the condonation doctrine should be prospective in application
for the reason that judicial decisions applying or interpreting the laws or the Constitution,
until reversed, shall form part of the legal system of the Philippines. Unto this Court
devolves the sole authority to interpret what the Constitution means, and all persons are
bound to follow its interpretation. As explained in De Castro v. Judicial Bar Council, 618
SCRA 639 (2010): Judicial decisions assume the same authority as a statute itself and,
until authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those called upon to
abide by them, but also of those duty-bound to enforce obedience to them.

Grave Abuse of Discretion; It is well-settled that an act of a court or tribunal can only
be considered as with grave abuse of discretion when such act is done in a capricious
or whimsical exercise of judgment as is equivalent to lack of jurisdiction.—It is well-
settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of passion and hostility. It has also been
held that “grave abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence.”

Civil Service; Public Officers; Condonation Doctrine; The Supreme Court (SC)
deems it apt to clarify that the mootness of the issue regarding the validity of the
preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine.—This Court
deems it apt to clarify that the mootness of the issue regarding the validity of the
preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As explained
in Belgica v. Ochoa, Jr., “‘the moot and academic principle’ is not a magical formula that
can automatically dissuade the Court in resolving a case. The Court will decide cases,
otherwise moot, if:

first, there is a grave violation of the Constitution;

second, the exceptional character of the situation and the paramount public interest is
involved;

third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet
evading review.”

Same; Same; Same; It would be a violation of the Supreme Court’s (SC’s) own duty to
uphold and defend the Constitution if it were not to abandon the condonation doctrine
now that its infirmities have become apparent.—It would be a violation of the Court’s
own duty to uphold and defend the Constitution if it were not to abandon the
condonation doctrine now that its infirmities have become apparent. As extensively
discussed, the continued application of the condonation doctrine is simply impermissible
under the auspices of the present Constitution which explicitly mandates that public
office is a public trust and that public officials shall be accountable to the people at all
times.

Same; Same; Same; The condonation doctrine is a peculiar jurisprudential creation

that has persisted as a defense of elective officials to escape administrative liability.—
The condonation doctrine is a peculiar jurisprudential creation that has persisted as a
defense of elective officials to escape administrative liability. It is the first time that the
legal intricacies of this doctrine have been brought to light; thus, this is a situation of
exceptional character which this Court must ultimately resolve. Further, since the
doctrine has served as a perennial obstacle against exacting public accountability from
the multitude of elective local officials throughout the years, it is indubitable that
paramount public interest is involved.

Same; Same; Same; In any event, the abandonment of a doctrine is wholly within the
prerogative of the Court. As mentioned, it is its own jurisprudential creation and may
therefore, pursuant to its mandate to uphold and defend the Constitution, revoke it
notwithstanding supervening events that render the subject of discussion moot.—The
defense of condonation has been consistently invoked by elective local officials against
the administrative charges filed against them. To provide a sample size, the
Ombudsman has informed the Court that “for the period of July 2013 to December 2014
alone, 85 cases from the Luzon Office and 24 cases from the Central Office were
dismissed on the ground of condonation. Thus, in just one and a half years, over a
hundred cases of alleged misconduct — involving infractions such as dishonesty,
oppression, gross neglect of duty and grave misconduct — were placed beyond the
reach of the Ombudsman’s investigatory and prosecutorial powers.” Evidently, this
fortifies the finding that the case is capable of repetition and must therefore, not evade
review. In any event, the abandonment of a doctrine is wholly within the prerogative of
the Court. As mentioned, it is its own jurisprudential creation and may therefore,
pursuant to its mandate to uphold and defend the Constitution, revoke it notwithstanding
supervening events that render the subject of discussion moot.