G.R. No. 90762 May 20, 1991
Esmas,
LEYTE ACTING VICE-GOVERNOR AURELIO D.
MENZON, petitioner,
vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his
capacity as Chief Executive of the Province of Leyte and Head of
SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer
FLORENCIO LUNA, respondents.
Zozimo G. Alegre for petitioner.
The Provincial Attorney for respondents.
RESOLUTION
GUTIERREZ, JR., J.:
This is a motion for reconsideration of the resolution of the Court dated
August 28, 1990 which initially denied the petition
for certiorari and mandamus filed by then Acting Vice-Governor of
Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated
that Mr. Menzon cannot successfully assert the right to be recognized
as Acting Vice-Governor and, therefore, his designation was invalid. In
this motion, the primary issue is the right to emoluments while actually
discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988, by virtue of
the fact that no Governor had been proclaimed in the province of
Leyte, the Secretary of Local Government Luis Santos designated the
Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member
of the Sangguniang Panlalawigan was also designated by Secretary
Luis Santos to act as the Vice-Governor for the province of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on
March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero
inquired from the Undersecretary of the Department of Local
Government, Jacinto T. Rubillar, Jr., as to the legality of the
appointment of the petitioner to act as the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T.
Rubillar, Jr. stated that since B.P. 337 has no provision relating to
succession in the Office of the Vice-Governor in case of a temporary
vacancy, the appointment of the petitioner as the temporary Vice-
Governor is not necessary since the Vice-Governor who is temporarily
performing the functions of the Governor, could concurrently assume
the functions of both offices.
As a result of the foregoing communications between Tente U.
Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in
a special session held on July 7, 1989, issued Resolution No. 505
where it held invalid the appointment of the petitioner as acting Vice-
Governor of Leyte. The pertinent portion of the resolution reads:
WHEREAS, the circumstances obtaining at present in the
Office of the Vice-Governor is that there is no permanent
(sic) nor a vacancy in said office. The Honorable Leopoldo
E. Petilla assumed the Office of the Vice-Governor after he
took his oath of office to said position.
WHEREAS, it is the duty of the members of the Board not
only to take cognizance of the aforesaid official
communication of the Undersecretary, Jacinto T. Rubillar,
Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R.
Jr., duly seconded by the Honorable Rogelio L. Granados
and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize
Honorable Aurelio D. Menzon as Acting Vice-Governor of
Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional
Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary
Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and
explained his opinion.1âwphi1 The pertinent portion of the letter reads:
This has reference to your letter dated July 10, 1989,
requesting for clarification of our letter to Provincial
Administrator Tente U. Quintero dated June 22, 1989, which
states in substance, that "there is no succession provided for
in case of temporary vacancy in the office of the vice-
governor and that the designation of a temporary vice-
governor is not necessary.
We hold the view that the designation extended by the
Secretary of Local Government in favor of one of the
Sangguniang Panlalawigan Members of Leyte to temporarily
discharge the powers and duties of the vice-governor during
the pendency of the electoral controversy in the Office of the
Governor, does not contradict the stand we have on the
matter. The fact that the Sangguniang Panlalawigan member
was temporarily designated to perform the functions of the
vice-governor could not be considered that the Sangguniang
member succeeds to the office of the latter, for it is basic that
designation is merely an imposition of additional duties to be
performed by the designee in addition to the official functions
attached to his office. Furthermore, the necessity of
designating an official to temporarily perform the functions of
a particular public office, would depend on the discretion of
the appointing authority and the prevailing circumstances in
a given area and by taking into consideration the best
interest of public service.
On the basis of the foregoing and considering that the law is
silent in case of temporary vacancy, in the Office of the Vice-
Governor, it is our view that the peculiar situation in the
Province of Leyte, where the electoral controversy in the
Office of the Governor has not yet been settled, calls for the
designation of the Sangguniang Member to act as vice-
governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar, the
Regional Director of the Department of Local Government, Region 8,
Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to
the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter
that Resolution No. 505 of the Sangguniang Panlalawigan be modified
accordingly. The letter states:
In view thereof, please correct previous actions made by
your office and those of the Sangguniang Panlalawigan
which may have tended to discredit the validity of Atty.
Aurelio Menzon's designation as acting vice-governor,
including the payment of his salary as Acting Vice-Governor,
if he was deprived of such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to
Acting-Governor Petilla, reiterating his earlier request.
Despite these several letters of request, the Acting Governor and the
Sangguniang Panlalawigan, refused to correct Resolution No. 505 and
correspondingly to pay the petitioner the emoluments attached to the
Office of Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this Court a
petition for certiorari and mandamus. The petition sought the
nullification of Resolution No. 505 and for the payment of his salary for
his services as the acting Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship of Leyte was
settled and Adelina Larrazabal was proclaimed the Governor of the
province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990,
the provincial treasurer of Leyte, Florencio Luna allowed the payment
to the petitioner of his salary as acting Vice-Governor of Leyte in the
amount of P17,710.00, for the actual services rendered by the
petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio
D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of the
above resolution requested Governor Larrazabal to direct the petitioner
to pay back to the province of Leyte all the emoluments and
compensation which he received while acting as the Vice-Governor of
Leyte.
On September 21, 1990, the petitioner filed a motion for
reconsideration of our resolution. The motion prayed that this Court
uphold the petitioner's right to receive the salary and emoluments
attached to the office of the Vice-Governor while he was acting as
such.
The petitioner interposes the following reason for the allowance of the
motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE
EMOLUMENTS FOR HIS SERVICES RENDERED AS
DESIGNATED ACTING VICE-GOVERNOR UNDER THE
PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND
EQUITY.
The controversy basically revolves around two issues: 1) Whether or
not there was a vacancy?; and 2) Whether or not the Secretary of
Local Government has the authority to make temporary appointments?
The respondents argue that there exists no vacancy in the Office of the
Vice-Governor which requires the appointment of the petitioner. They
further allege that if indeed there was a need to appoint an acting Vice-
Governor, the power to appoint is net vested in the Secretary of Local
Government. Absent any provision in the Local Government Code on
the mode of succession in case of a temporary vacancy in the Office of
the Vice-Governor, they claim that this constitutes an internal problem
of the Sangguniang Panlalawigan and was thus for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. 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.
(see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the
Law on Public Offices and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be readily seen
that the office of the Vice-Governor was left vacant when the duly
elected Vice-Governor Leopoldo Petilla was appointed Acting
Governor. 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.
There is no satisfactory showing that Leopoldo Petilla, notwithstanding
his succession to the Office of the Governor, continued to
simultaneously exercise the duties of the Vice-Governor. The nature of
the duties of a Provincial Governor call for a full-time occupant to
discharge them. More so when the vacancy is for an extended period.
Precisely, it was Petilla's automatic assumption to the acting
Governorship that resulted in the vacancy in the office of the Vice-
Governor. The fact that the Secretary of Local Government was
prompted to appoint the petitioner shows the need to fill up the position
during the period it was vacant. The Department Secretary had the
discretion to ascertain whether or not the Provincial Governor should
devote all his time to that particular office. Moreover, it is doubtful if the
Provincial Board, unilaterally acting, may revoke an appointment made
by a higher authority.
Disposing the issue of vacancy, we come to the second issue of
whether or not the Secretary of Local Government had the authority to
designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession in the
event of a temporary vacancy in the Office of the Vice-Governor.
However, the silence of the law must not be understood to convey that
a remedy in law is wanting.
The circumstances of the case reveal that there is indeed a necessity
for the appointment of an acting Vice-Governor. For about two years
after the governatorial elections, there had been no de jure permanent
Governor for the province of Leyte, Governor Adelina Larrazabal, at
that time, had not yet been proclaimed due to a pending election case
before the Commission on Elections.
The two-year interregnum which would result from the respondents'
view of the law is disfavored as it would cause disruptions and delays
in the delivery of basic services to the people and in the proper
management of the affairs of the local government of Leyte. Definitely,
it is incomprehensible that to leave the situation without affording any
remedy was ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of
the Local Government Code, the Court rules that, in order to obviate
the dilemma resulting from an interregnum created by the vacancy, the
President, acting through her alter ego, the Secretary of Local
Government, may remedy the situation. We declare valid the
temporary appointment extended to the petitioner to act as the Vice-
Governor. The exigencies of public service demanded nothing less
than the immediate appointment of an acting Vice-Governor.
The records show that it was primarily for this contingency that
Undersecretary Jacinto Rubillar corrected and reconsidered his
previous position and acknowledged the need for an acting Vice-
Governor.
It may be noted that under Commonwealth Act No. 588 and the
Revised Administrative Code of 1987, the President is empowered to
make temporary appointments in certain public offices, in case of any
vacancy that may occur. Albeit both laws deal only with the filling of
vacancies in appointive positions. However, in the absence of any
contrary provision in the Local Government Code and in the best
interest of public service, we see no cogent reason why the procedure
thus outlined by the two laws may not be similarly applied in the
present case. The respondents contend that the provincial board is the
correct appointing power. This argument has no merit. As between the
President who has supervision over local governments as provided by
law and the members of the board who are junior to the vice-governor,
we have no problem ruling in favor of the President, until the law
provides otherwise.
A vacancy creates an anomalous situation and finds no approbation
under the law for it deprives the constituents of their right of
representation and governance in their own local government.
In a republican form of government, the majority rules through their
chosen few, and if one of them is incapacitated or absent, etc., the
management of governmental affairs to that extent, may be hampered.
Necessarily, there will be a consequent delay in the delivery of basic
services to the people of Leyte if the Governor or the Vice-Governor is
missing.
Whether or not the absence of a Vice-Governor would main or
prejudice the province of Leyte, is for higher officials to decide or, in
proper cases, for the judiciary to adjudicate. As shown in this case
where for about two years there was only an acting Governor steering
the leadership of the province of Leyte, the urgency of filling the
vacancy in the Office of the Vice-Governor to free the hands of the
acting Governor to handle provincial problems and to serve as the
buffer in case something might happen to the acting Governor
becomes unquestionable. We do not have to dwell ourselves into the
fact that nothing happened to acting Governor Petilla during the two-
year period. The contingency of having simultaneous vacancies in both
offices cannot just be set aside. It was best for Leyte to have a full-time
Governor and an acting Vice-Governor. Service to the public is the
primary concern of those in the government. It is a continuous duty
unbridled by any political considerations.
The appointment of the petitioner, moreover, is in full accord with the
intent behind the Local Government Code. There is no question that
Section 49 in connection with Section 52 of the Local Government
Code shows clearly the intent to provide for continuity in the
performance of the duties of the Vice-Governor.
The Local Government Code provides for the mode of succession in
case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a Vice-Governor
assumes the Office of the Governor, . . . refuses to assume
office, fails to qualify, dies, is removed from office, voluntary
resigns or is otherwise permanently incapacitated to
discharge the functions of his office the sangguniang
panlalawigan . . . member who obtained the highest number
of votes in the election immediately preceding, . . . shall
assume the office for the unexpired term of the Vice-
Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of
succession provided for permanent vacancies may likewise be
observed in case of a temporary vacancy in the same office. In this
case, there was a need to fill the vacancy. The petitioner is himself the
member of the Sangguniang Panlalawigan who obtained the highest
number of votes. The Department Secretary acted correctly in
extending the temporary appointment.
In view of the foregoing, the petitioner's right to be paid the salary
attached to the Office of the Vice Governor is indubitable. The
compensation, however, to be remunerated to the petitioner, following
the example in Commonwealth Act No. 588 and the Revised
Administrative Code, and pursuant to the proscription against double
compensation must only be such additional compensation as, with his
existing salary, shall not exceed the salary authorized by law for the
Office of the Vice-Governor.
And finally, even granting that the President, acting through the
Secretary of Local Government, possesses no power to appoint the
petitioner, at the very least, the petitioner is a de facto officer entitled to
compensation.
There is no denying that the petitioner assumed the Office of the Vice-
Governor under color of a known appointment. As revealed by the
records, the petitioner was appointed by no less than the alter ego of
the President, the Secretary of Local Government, after which he took
his oath of office before Senator Alberto Romulo in the Office of
Department of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The
respondents themselves acknowledged the validity of the petitioner's
appointment and dealt with him as such. It was only when the
controversial Resolution No. 505 was passed by the same persons
who recognized him as the acting Vice-Governor that the validity of the
appointment of the petitioner was made an issue and the recognition
withdrawn.
The petitioner, for a long period of time, exercised the duties attached
to the Office of the Vice-Governor. He was acclaimed as such by the
people of Leyte. Upon the principle of public policy on which the de
facto doctrine is based and basic considerations of justice, it would be
highly iniquitous to now deny him the salary due him for the services
he actually rendered as the acting Vice-Governor of the province of
Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974])
WHEREFORE, the COURT hereby GRANTS the motion for
reconsideration. The additional compensation which the petitioner has
received, in the amount exceeding the salary authorized by law for the
position of Senior Board Member, shall be considered as payment for
the actual services rendered as acting Vice-Governor and may be
retained by him.
SO ORDERED.
G.R. No. 96817 July 25, 1991
AGUSTIN B. DOCENA, petitioner,
vs.
THE SANGGUNIANG PANLALAWIGAN OF EASTERN SAMAR,
GOVERNOR LUTGARDO B. BARBO, VICE GOVERNOR CAMILO
A. CAMENFORTE, BOARD MEMBERS MARCOS ALIDO, NONATO
GERNA, ISMAEL KHO, MARCELINO C. LIBANAN, NICOLAS
PIMENTEL, GENEROSO YU and ATTY. SOCRATES B.
ALAR, respondents.
Zaldy B. Docena for petitioner.
CRUZ, J.:
Two persons are claiming the same position in the Sangguniang
Panlalawigan of Eastern Samar by virtue of separate appointments
thereto extended to them by the same authority. The first appointment
was replaced by the second appointment, which was subsequently
withdrawn to reinstate the first appointment, but this was later itself
recalled in favor of the second appointment. To add to the confusion,
the Sangguniang Panlalawigan has joined the fray and taken it upon
itself to decide who as between the two claimants is entitled to the
office.
The case arose when Luis B. Capito, who had been elected to and
was serving as a member of the Sangguniang Panlalawigan of Eastern
Samar (SPES) died in office and petitioner Agustin B. Docena was
appointed to succeed him.
The appointment was issued on November 19, 1990,1 by Secretary
Luis T. Santos of the Department of Local Government and read in full
as follows:
Republic of the Philippines
Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
OFFICE OF THE SECRETARY
 November 19, 1990 Thru: The Honorable Governor
Eastern Samar
Sir:
On December 18, 990, the SPES passed Resolution No.
755 recognizing Alar rather than Docena as the legitimate successor of
Pursuant to the provisions of existing laws, you are hereby appointed
the late Board Member Capito.
MEMBER OF THE SANGGUNIANG PANLALAWIGAN, PROVINCE
OF EASTERN SAMAR.
The following day, the SPES was in effect reversed by Secretary
Santos when he addressed the following letter to Alar:6
By virtue hereof, you may qualify and enter upon the performance of
the duties of the office, furnishing this Office and the Civil Service
Commission copies of your oath of office. Republic of the Philippines

Very truly yours, Department of Local Government

PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
By Authority of the President

OFFICE OF THE SECRETARY

LUIS T. SANTOS
Secretary
December 19, 1990
Mr. AGUSTIN B. DOCENA
Mr. Socrates Alar
Borongan, Eastern Samar
Thru: The Honorable Governor
Province of Eastern Samar
Dear Mr. Alar:
Pursuant thereto, the petitioner took his oath of office before Speaker
Ramon V. Mitra of the House of Representatives on November 22, It appearing from perusal of records that an appointment dated
1990,2 and assumed office as member of the SPES on November 26, November 19, 1990 was already issued to Mr. AGUSTIN DOCENA as
1990.3 member of the Sangguniang Panlalawigan of Eastern Samar, vice:
Luis Capito, the appointment issued to you dated November 27, 1990
as member of the same sanggunian, is hereby recalled effective the
The record does not show why, but on November 27, 1990, private
date of issue.
respondent Socrates B. Alar was appointed, also by Secretary Luis T.
Santos, to the position already occupied by Docena.4The appointment
read in full as follows: Please be guided accordingly.

Republic of the Philippines Very truly yours,

Department of Local Government LUIS T. SANTOS

PNCC Bldg., EDSA Corner Reliance St., Secretary
Mandaluyong, Metro Manila
cc: The Honorable Governor
OFFICE OF THE SECRETARY Borongan, Eastern Samar
The Sangguniang Panlalawigan
Borongan, Eastern Samar
November 27, 1990
Mr. Agustin Docena
Borongan, Eastern Samar
Sir:
This action was affirmed in a First Indorsement dated January 4, 1991,
Pursuant to the provisions of existing laws, you are hereby appointed signed by Head Executive Assistant Arturo V. Agundo of the
MEMBER OF THE SANGGUNIANG PANLALAWIGAN, PROVINCE Department of Local Government,7 in which he declared "by authority
OF EASTERN SAMAR. of the Secretary" that

By virtue hereof, you may qualify and enter upon the performance of
the duties of the office, furnishing this Office and the Civil Service
Commission with copies of your oath of office.
Very truly yours,
By Authority of the President
1. Records show that the Secretary has appointed Mr.
Agustin B. Docena as Sangguniang Panlalawigan Member
as of November 19, 1990; the Secretary has extended
another appointment to the same post in favor of Atty.
Socrates Alar on November 27, 1990; the Secretary, on
December 19, 1990, has recalled the appointment of Atty.
Socrates Alar on the basis of the earlier appointment
extended in favor of Mr. Docena.

LUIS T. SANTOS In view of the foregoing, the appointment of Mr. Agustin

Secretary Docena stands and should be recognized.

The reaction of the SPES was to pass, Resolution No. 1 dated January
8, 1991,8 where it reiterated its previous recognition of Alar and
declared that "the recall order issued by Secretary Santos, dated
Atty. SOCRATES ALAR December 19, 1990, recalling the appointment of Atty. Alar has no
legal basis in fact and in law and issued to fit his whimsical, capricious
and wishy-washy desires to the detriment of decency and due process
of law.
On the same date, Provincial Prosecutor Dario S. Labrador had
rendered an opinion that the recall order of Secretary Santos was "void
ab initio"' because Alar's right to the office "had become vested." 9
It is not clear if Secretary Santos agreed with these views, but at any
rate he issued on February 20, 1991, another recall order. 10 this time
addressed to Docena, reading in full as follows:
Republic of the Philippines
Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
OFFICE OF THE SECRETARY
February 20, 1991
MEMORANDUM
TO: MR. AGUSTIN DOCENA
Borongan, Eastern Samar
SUBJECT: RECALL OF APPOINTMENT —
Please be informed that the appointment extended to you as Member
of the Sangguniang Panlalawigan of Eastern Samar, last November
19, 1990 is hereby recalled effective immediately.
You are hereby directed to turn-over the office to Mr. Socrates Alar
who was appointed by this Department on November 27, 1990,
immediately upon receipt hereof.
For compliance.
LUIS T. SANTOS
Secretary
cc: The Honorable Governor
Province of Eastern Samar
Mr. Socrates Alar
Borongan, Eastern Samar
Docena then came to this Court in a petition for mandamus to compel
the respondents to recognize and admit him as a lawfully appointed
member of the Sangguniang Panlalawigan of Eastern Samar. He also
seeks to hold them officially and personally liable in damages for their
refusal to do so in spite of his clear title to the disputed office.
Pending resolution of this case, we issued a temporary restraining
order on January 31, 1991, enjoining both Docena and Alar from
assuming the office of member of the Sangguniang Panlalawigan of
Eastern Samar.
The pertinent legal provision is Section 50 of the Local Government
Code reading as follows:
Sec. 50. Permanent Vacancies in Local Sanggunians. — In
case of permanent vacancy in the sangguniang
panlalawigan, sangguniang panlungsod, sangguniang
bayan, or sangguniang barangay, the President of the
Philippines, upon recommendation of the Minister of Local
Government, shall appoint a qualified person to fill the
vacancy in the sangguniang panlalawigan and the
sangguniang panlungsod; the governor, in the case of
sangguniang bayan members; or the city or municipal
mayor, in the case of sangguniang barangay members.
Except for the sangguniang barangay, the appointee shall
come from the political party of the sanggunian member who
caused the vacancy, and shall serve the unexpired term of
the vacant office.
The petitioner makes the point, and it has not been disputed by the
respondents, that both he and Capito ran for the provincial board in the
1988 elections under the banner of Lakas ng Bansa. Later, they both
joined the Laban ng Demokratikong Pilipino under the leadership of
Speaker Mitra, who administered the oath of office to him when he was
appointed to the SPES on November 19, 1990. Docena argues that he
has a preferential right to the disputed office even on equitable
grounds because he placed ninth in the election, next to Capito,
compared to Alar who did not even run for the office.
The respondents do not challenge the qualifications of the petitioner.
But they contend that the appointment in his favor on November 19,
1990, had been superseded by the appointment in favor of Alar on
November 27, 1990, and that the recall of the second appointment on
December 19, 1990, was null and void ab initio for lack of previous
hearing. Curiously, they do not have the same view of the recall of
Docena's appointment on February 20, 1991, which was also issued
without hearing.
From the tenor of the appointment extended to Docena on November
19, 1990, there is no question that it was intended to be permanent, to
fill the permanent vacancy caused by Capito's death. As such, it was to
be valid for the unexpired portion of the term of the deceased member,
who was entitled to serve "until noon of June 30, 1992," in accordance
with Article XVIII, Section 2, of the Constitution.
The said appointment had been accepted by Docena, who had in fact
already assumed office as member of the SPES as per certification of
the Provincial Secretary.11 For all legal intents and purposes, the
petitioner's appointment had already become complete and
enforceable at the time it was supposed to have been "superseded" by
the appointment in favor of Alar.
The respondents are ambivalent about the power of the Secretary of
Local Government to recall his appointments. They described the
appointment as "whimsical, capricious and wishy-washy" but they had
no similar complaints about the recall of Docena's appointment
although also apparently indecisive. On the contrary, they maintained a
deep silence about this other recall and insisted simply that the
subsequent appointment of Alar had invalidated the earlier
appointment of Docena.
It is noteworthy that absolutely no reason was given for the recall of
Docena's appointment (or for that matter, the recall of Alar's
appointment). It appears that after appointing Docena and later twice
sustaining his title to the office, Secretary Santos simply had a change
of heart and decided to award the position to Alar.
This is not the way things are done in a democracy.
Docena's appointment having been issued and accepted earlier, and
the petitioner having already assumed office, he could not thereafter
be just recalled and replaced to accommodate Alar. The appointment
was permanent in nature, and for the unexpired portion of the
deceased predecessor's term. Docena had already acquired security
of tenure in the position and could be removed therefrom only for any
of the causes, and conformably to the procedure, prescribed by the
Local Government Code.12 These requirements could not be
circumvented by the simple process of recalling his appointment.
Whatever gave the SPES the impression that the questioned
appointments were revocable at will can only be left to conjecture;
what is certain is that it was not based on careful legal study. The
Provincial Prosecutor's opinion that the office had "become vested" in
Alar suffers from the same flaw and a lack of understanding of the
nature of a public office. Political rather than legal considerations seem
to have influenced the action of the provincial government in rejecting January 22, 1993, which certified respondent James Calisin as the
the petitioner's claim despite its obvious merit. highest ranking member of the Sangguniang Panlalawigan of the
Province of Albay and (b) its Resolution dated February 22, 1993,
which denied the motion for reconsideration of petitioner.
The respondents also argue that the petitioner should have sought to
enforce his claimed right in a petition not for mandamus but for quo
warranto, as his purpose is to challenge Alar's title to the disputed The issue in the case at bench is the ranking of the members of the
office. That is only secondary in this case. The real purpose of the Sangguniang Panlalawigan of the Province of Albay for purposes of
present petition is to compel the respondent SPES to recognize and succession.
admit Docena as a member of the body by virtue of a valid
appointment extended to him by the Secretary of Local Government.
In the May 11, 1992 Elections, the following candidates from the first,
second and third districts of the Province of Albay were elected and
Mandamus is employed to compel the performance of a ministerial proclaimed as members of the Sangguniang Panlalawigan, to wit:
duty to which the petitioner is entitled.1âwphi1 In arguing that the
recognition and admission of the petitioner is not a ministerial duty, the
respondents are asserting the discretion to review, and if they so
decide, reject, the Secretary's appointment. They have no such
authority. Faced with a strictly legal question, they had no right and FIRST DISTRICT
competence to resolve it in their discretion. What they should have
done was reserve their judgment on the matter, leaving it to the courts
Name No. of Votes Garnered
of justice to decide which of the conflicting claims should be upheld. As
a local legislative body subject to the general supervision of the
President of the Philippines, the SPES had no discretion to rule on the 1. Jesus James Calisin
validity of the decisions of the Secretary of Local Government acting as 28,335 votes
her alter ego. 2. Vicente Go, Sr. 17,937
votes
3. Clenio Cabredo 16,705
Even assuming that the proper remedy is a petition for quo
warranto, the Court may in its own discretion consider the present votes
petition a. such and deal with it accordingly. We find that as a petition
for quo warranto, it complies with the prescribed requirements, to wit, SECOND DISTRICT
that it be filed on time and by a proper party asserting title to the office
also claimed by the respondent. Acting thereon, we hold that Docena
has proved his right to the disputed office and could not be legally 1. Juan D. Victoria 32,918
replaced by Alar. votes
2. Jesus Marcellana 26,030
votes
The Court will make no award of damages, there being no sufficient 3. Lorenzo Reyeg 23,887
proof to overcome the presumption that the respondents have acted in votes
good faith albeit erroneously. Nevertheless, the petitioner is entitled to
the payment of the salaries and other benefits appurtenant to the office
of a Member of the Sangguniang Panlalawigan of Eastern Samar, from THIRD DISTRICT
the time of his assumption of office and until he is actually admitted or
reinstated. 1. Ramon Fernandez, Jr.
19,315 votes
WHEREFORE, the petition is GRANTED. The petitioner is 2. Masikap Fontanilla 19,241
DECLARED the lawfully appointed member of the Sangguniang votes
Panlalawigan of Eastern Samar, which is hereby DIRECTED to admit 3. Arturo Osia 17,778 votes
or reinstate him as such. The temporary restraining order dated 4. Nemesio Baclao 17,545
January 31, 1991, is LIFTED. No costs. votes

SO ORDERED.
(Rollo, pp. 27-28)

Due to the suspension of Governor Romeo Salalima of the Province of

Albay, Vice-Governor Danilo Azana automatically assumed the powers
G.R. No. 109005 January 10, 1994 and functions of the governor, leaving vacant his post as vice-
governor. Under the law, Azana's position as vice-governor should be
occupied by the highest ranking Sangguniang member, a post being
JUAN D. VICTORIA, petitioner, contested by petitioner and private respondent.
vs.
THE COMMISSION ON ELECTIONS and JESUS JAMES
CALISIN, respondents. In answer to private respondent's petition for his declaration as senior
Sanggunian member for the Province of Albay, the COMELEC issued
a resolution dated January 22, 1993, certifying him as first in the order
Juan D. Victoria for himself and in his own behalf. of ranking with petitioner herein as second ranking member. The
COMELEC based its certification on the number of votes obtained by
The Solicitor General for public respondent. the Sanggunian members in relation to the number of registered voters
in the district.

Thus, on February 15, 1993, Secretary Rafael M. Alunan III of the

Department of Interior and Local Government designated private
QUIASON, J.: respondent as acting Vice-Governor of the province.

This is a petition for certiorari, under Rule 65 of the Revised Rules of Petitioner filed a motion for reconsideration of the COMELEC
Court in relation to section 2, Article IX of the Constitution, to set aside resolution which was denied on February 22, 1993.
(a) the Resolution of the Commission on Elections (COMELEC) dated
Hence, this petition.
Petitioner claims that the ranking of the Sanggunian members should
not only be based on the number of votes obtained in relation to the
total number of registered voters, but also on the number of voters in
the district who actually voted therein. He further argues that a district
may have a large number of registered voters but only a few actually
voted, in which case the winning candidate would register a low
percentage of the number of votes obtained. Conversely, a district may
have a smaller number of registered voters but may have a big voters'
turn-out, in which case the winning candidate would get a higher
percentage of the votes. Applying his formula, petitioner would come
out to be the highest ranking Sanggunian member.
Petitioner gives the following illustration:
1. for private respondent.
107,216 (actually voted)
—————————— x 28,335 (votes
obtained) = 23.40%
129,793 (registered voters)
(Rollo, pp. 24, 25 and 30)
2. for petitioner
121,423 (actually voted)
—————————— x 32,918 (votes
obtained) = 25.84%
154,665 (registered voters)
(Rollo, p. 9).
We are not persuaded.
The Local Government provides:
Sec. 44. Permanent Vacancies in the Office 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
vice-mayor concerned shall become governor or
mayor. If a permanent vacancy occurs in the
offices of the governor, vice-governor, mayor, or
vice-mayor, the highest ranking Sanggunian
member or, in case of his permanent inability, the
second highest ranking Sanggunian member, shall
become the governor, vice-governor, mayor or
vice-mayor, as the case may be. Subsequent
vacancies in the said office shall be filled
automatically by the other Sanggunian members
according to their ranking as defined herein.
xxx xxx xxx
For purposes of succession as provided in this
Chapter, ranking in the Sanggunian shall be
determined on the basis of the proportion of votes
obtained by each winning candidate to the total
number of registered voters in each district in the
immediately preceding local election. (Emphasis
ours)
The COMELEC came up with the following ranking of the top three
Sanggunian members:
——————————————————————
————————
NAME District Registered Votes Percent Rank
of Elected Voters Obtained Dist'n
Candidates
——————————————————————
————————
ALBAY
CALISIN,
JESUS JAMES B. 1st 130,085 28,335 21.78 1st
VICTORIA,
JUAN D. 2nd 155.318 32,918 21.19 2nd
MARCELLANA
JESUS, M. 2nd 155.318 26,030 16.76 3rd
——————————————————————
————————
(Rollo, p. 14)
The law is clear that the ranking in the Sanggunian shall be determined
on the basis of the proportion of the votes obtained by each winning
candidate of the total number of registered voters who actually voted.
In such a case, the Court has no recourse but to merely apply the law.
The courts may not speculate as to the probable intent of the
legislature apart from the words (Pascual v. Pascual-Bautista, 207
SCRA 561 [1992]).
In the case of Globe-Mackay Cable and Radio Corporation v. National
Labor Relations Commission, 206 SCRA 710 (1992), we held that:
. . . Under the principles of statutory construction,
if a statue is clear, plain and free from ambiguity, it
must be given it literal meaning and applied
without attempted interpretation. This plain-
meaning rule or
verba legis derived from the maxim, index animi
sermo est (speech is the index of intention) rests
on the valid presumption that the words employed
by the legislature in a statute correctly express its
intent or will and preclude the court from
construing it differently. The legislature is
presumed to know the meaning of the words, to
have used words advisely, and to have expressed
its intent by the use of such words as are found in
the statute. Verba legis non est recedendum, or
from the words of a statute there should be no
departure. . .
Petitioner's contention is therefore untenable considering the clear
mandate of the law, which leaves no room for other interpretation but it
must very well be addressed to the legislative branch and not to this
Court which has no power to change the law.
Considering the foregoing, we find no grave abuse of discretion on the
part of the COMELEC in issuing the Resolution dated January 22,
1993.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. 116763 April 19, 1996
GOVERNOR RODOLFO C. FARIÑAS and AL NACINO, petitioners,
vs.
MAYOR ANGELO N. BARBA, VICE MAYOR MANUEL S.
HERNANDO and EDWARD PALAFOX, respondents.

MENDOZA, J.:p
The question in this case is: In case of a permanent vacancy in the
Sangguniang Bayan caused by the cessation from office of a member
who does not belong to any political party, who can appoint the
replacement and in accordance with what procedure?
This case arose from the following facts:
Carlito B. Domingo was a member of the Sangguniang Bayan of San
Nicolas, Ilocos Norte. On March 24, 1994, he resigned after going
without leave to the United States.
To fill the vacancy created by his resignation, the mayor, respondent
Angelo M. Barba, recommended to the Governor of the province,
respondent Rodolfo C. Fariñas, the appointment of respondent Edward
Palafox.
A similar recommendation for the appointment of Edward Palafox was
made by the Sangguniang Bayan of San Nicolas but the
recommendation was made to Mayor Barba. The resolution, containing
the recommendation, was submitted to the Sangguniang Panlalawigan
of Ilocos Norte purportedly in compliance with §56 of the Local
Government Code (R.A. No. 7160).1
The Sangguniang Panlalawigan, purporting to act under this provision
of the Local Government Code, disapproved the resolution "for the
reason that the authority and power to appoint Sangguniang Bayan
members are lodged in the Governor, and therefore, the Resolution
should be addressed to the Provincial Governor." Accordingly, the
Sangguniang Panlalawigan recommended to the Governor the
appointment of petitioner Al Nacino, vice Carlito Domingo, as member
of the Sangguniang Bayan of San Nicolas. On June 8, 1994, petitioner
Governor appointed petitioner Nacino and swore him in office that
same day.
On the other hand, respondent Mayor Barba appointed respondent
Edward Palafox to the same position on June 8, 1994. The next day,
June 9, 1994, respondent Palafox took his oath as member of the
Sangguniang Bayan.
On June 14, 1994, petitioners filed with the Regional Trial Court of
Ilocos Norte a petition for quo warranto and prohibition, entitled
"Governor Rodolfo C. Fariñas and Al Nacino v. Mayor Angelo M.
Barba, Vice Mayor Manuel S. Hernando, Jr. and Edward D. Palafox."
On July 8, 1994 the trial court rendered its decision, upholding the
appointment of respondent Palafox by respondent Mayor Barba. It
held:
Under the facts and circumstances as shown
clearly in the case, there is no doubt the law that is
applicable is sub-section "C" of Section 45 of
Republic Act No. 7160 otherwise known as the
Local Government Code of 1991 which provides:
In case the permanent
vacancy is caused by a
Sanggunian Member who
does not belong to any
political party, the Local Chief
Executive shall upon the
recommendation of the
Sanggunian concerned,
appoint a qualified person to
fill the vacancy.
. . . Inasmuch as the permanent vacancy is in the
Sanggunian Bayan of San Nicolas, Ilocos Norte, it
is the Sanggunian concerned referred to in the law
which recommends the appointment to fill the
vacancy. . . This being so, the Local Chief
Executive referred to in sub-section "C" of Section
45 of Republic Act No. 7160 is the Municipal
Mayor of San Nicolas, Ilocos Norte.
It cannot be denied that the Governor has the
authority to appoint a qualified person to fill the
vacancy in the Sanggunian Bayan caused by
resignation of a member thereof as that is vested
in him or her by the Provision of No. 2, Sec. 45 of
Republic Act No. 7160. To the mind of the court
that authority is not vested in him or her where the
permanent vacancy is caused by a Sanggunian
Member who does not belong to any political party
as that authority is specifically vested upon the
Local Chief Executive upon recommendation of
the Sanggunian concerned as per sub-section "C"
of Section 45 of the same Republic Act No. 7160.
Under No. 2 of Sec. 45 aforementioned the law
does not require a recommendation for the
appointment of Sanggunian Bayan Member to fill a
permanent vacancy either from the Sangguniang
Panlalawigan or from the Sanggunian Bayan. . .
As such there can be no other person referred to
as the Local Chief Executive having the authority
to appoint other than the Municipal Mayor of the
Municipality of the Sanggunian Bayan where there
is permanent vacancy. This can be clearly inferred
from the two (2) provisions of the law (No. 2 and
sub-section C of Sec. 45 of Rep. Act No. 7160).
While No. 2 of Sec. 45 specifically vests the power
to appoint in the Governor, sub-sec. C of Sec. 45,
specifically vests the power to appoint in the Local
Chief Executive. The Local Chief Executive
specifically mentioned in said sub-section C of
Sec. 45 is not the Governor, for there would have
been no need for the law making body to have
specifically stated in the law if it had intended that
the Governor is that one and the same Local Chief
Executive vested with power to appoint.
Petitioners filed a motion for reconsideration, but this was denied by
the trial court on August 18, 1994. Hence this petition for review
on certiorari.
Petitioners contend that the power to fill a vacancy in the Sangguniang
Bayan, which is created as a result of the cessation from office of a
member who does not belong to a political party, is vested in the
provincial governor upon recommendation of the Sangguniang
Panlalawigan.
The statutory provision in question is §45 of the Local Government
Code of 1991 (R.A. No . 7160) which reads:
§45. Permanent Vacancies in the Sanggunian. (a)
Permanent vacancies in the sanggunian where
automatic successions provided above do not
apply shall be filled by appointment in the following
manner:
(1) The President, through the
Executive Secretary, in the
case of the sangguniang
panlalawigan and the
sangguniang panlungsod of
highly urbanized cities and
independent component
cities;
(2) The governor, in the case
of the sangguniang
panlungsod of component
 cities and the sangguniang
bayan;
(3) The city or municipal
mayor, in the case of the
sangguniang barangay, upon
recommendation of the
sangguniang barangay
concerned.
(b) Except for the sangguniang barangay, only the
nominee of the political party under which the
sanggunian member concerned had been elected
and whose elevation to the position next higher in
rank created the last vacancy in the sanggunian
shall be appointed in the manner hereinabove
provided. The appointee shall come from the
same political party as that of the sanggunian
member who caused the vacancy and shall serve
the unexpired term of the vacant office. In the
appointment herein mentioned, a nomination and
a certificate of membership of the appointee from
the highest official of the political party concerned
are conditions sine qua non, and any appointment
without such nomination and certification shall be
null and void ab initio and shall be a ground for
administrative action against the official
responsible therefor.
(c) In case the permanent vacancy is caused by a
sanggunian member who does not belong to any
political party, the local chief executive shall, upon
recommendation of the sanggunian concerned,
appoint a qualified person to fill the vacancy.
(d) In case of vacancy in the representation of the
youth and the barangay in the sanggunian, said
vacancy shall be filled automatically by the official
next in rank of the organization concerned.
[1] Since the vacancy in this case was created by a Sanggunian
member who did not belong to any political party, the specific provision
involved is par. (c), to wit:
(c) In case the permanent vacancy is caused by a
sanggunian member who does not belong to any
political party, the local chief executive shall, upon
recommendation of the sanggunian concerned,
appoint a qualified person to fill the vacancy.
But who is the "local chief executive" referred? And which is the
"sanggunian concerned"? With respect to the first ("local chief
executive"), petitioners look to §45(a) for the answer and say that it is
the governor, with respect to vacancies in the Sangguniang
Panlungsod of component cities and Sangguniang Bayan, or the
mayor with respect to vacancies in the Sangguniang Barangay.
In support of this view, they cite, first of all, the following provision of
the former Local Government Code (B.P. Blg. 337):
§50. Permanent Vacancies in the Local
Sanggunians. — In case of permanent vacancy in
the sangguniang panlalawigan, sangguniang
panlungsod, sangguniang bayan, or sangguniang
barangay, the President of the Philippines, upon
recommendation of the Minister of Local
Government, shall appoint a qualified person to fill
the vacancy in the sangguniang panlalawigan and
the sangguniang panglungsod; the governor, in
the case of sangguniang bayan members; or the
city or municipal mayor, in the case
of sangguniang barangay members. Except for
the sangguniang barangay, the appointee shall
come from the political party of
the sanggunian member who caused the vacancy,
and shall serve the unexpired term of the vacant
office.
and, second, the following provision of the present Code:
§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;
(2) By the governor, if the respondent is an
elective official of a component city or municipality;
or
(3) By the mayor, if the respondent is an elective
official of the barangay. . . .
Reference to these provisions is appropriate not for the reason
advanced by petitioners, i.e., that the power to appoint implies the
power to remove, but because implicit in these provisions is a policy to
vest in the President, the governor and the mayor in descending order
the exercise of an executive power whether to appoint in order to fill
vacancies in local councils or to suspend local officials. These
provisions are in pari materia with §45.
To be sure the President of the Philippines can not be referred to as
"local chief executive" in §45(c) but it is apparent that the phrase is a
misnomer and that the choice of this phrase was simply dictated by the
need to avoid, for stylistic reasons, interminably repeating the officials
on whom the power to appoint is conferred. Perhaps "authorities
concerned" would have been a more accurate generic phrase to use.
For that matter, to follow private respondents' interpretation would be
to run into a similar, if not greater, difficulty. For §45(a) (3) vests the
power to fill vacancies in the Sangguniang Barangay in the mayor but
the local chief executive of a barangay is not the mayor. It is the
punong barangay. Yet "local chief executive" cannot be applied to the
punong barangay without rendering §45(a) (3) meaningless. For then
there would never be any occasion when the mayor, under this
provision, can appoint a replacement for a member of the
Sangguniang Bayan who for one reason or another ceases from office
for reason other than the expiration of his term. And why should a
vacancy in the Sangguniang Panlalawigan be filled by a different
authority (the governor, according to this view) simply because the
vacancy was created by a member who does not belong to a political
party when, according to §45(a) (1), a vacancy created by a member
who belongs to a political party must be filled by appointment by the
President of the Philippines?
With reference to the phrase "sangguniang concerned" in §45(c),
petitioners say it means, with respect to a vacancy in the Sangguniang
Bayan, the Sangguniang Panlalawigan. Their reason is that under §61
of the Code, the power to investigate complaints against elective
municipal officials is vested in the Sangguniang Panlalawigan:
§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 a 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 sanggunian
 panlalawigan whose decision may be appealed to
the Office of the President;
(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.
This interpretation is inconsistent with the fact that in filling vacancies
in the Sangguniang Barangay it is the Sangguniang Barangay which
under §45(a) (3) recommends the appointee, not the Sangguniang
Panlungsod or the Sangguniang Bayan, which would be the case if
petitioners' view were to prevail.
We think that the phrase "sanggunian concerned" in §45(c) should
more properly be understood as referring to the Sanggunian in which
the vacancy is created. This is in keeping with the policy implicit in
§45(a) (3).
In other words, with the exception of the Sangguniang Barangay pars.
(a) and (b) must be read as providing for the filling of vacancies in the
various Sanggunians when these vacancies are created as a result of
the cessation from office (other than expiration of term) of members
who belong to political parties. On the other hand, §45(c) must be
understood as providing for the filling of vacancies created by
members who do not belong to any political party. Consequently, §45
must be construed to mean that —
I. Where the Permanent Vacancy is Caused by a
Sanggunian Member Belonging to a Political Party
A. Sangguniang Panlalawigan
and Sangguniang Panlungsod
of highly urbanized cities and
independent component cities
— The President, through the
Executive Secretary, upon the
nomination and certification of
the political party to which the
member who caused the
vacancy belonged, as
provided in §45 (b).
B. Sangguniang Panlungsod
of component cities and
Sangguniang Bayan — The
Governor upon the
nomination and certification of
the political party to which the
member who caused the
vacancy belonged, as
provided in §45 (b).
III. Where the Vacancy is Caused by a
Sanggunian Member Not Belonging to a Political
Party
A. Sangguniang Panlalawigan
and Sangguniang Panlungsod
of highly urbanized and
independent component cites
— The President, through the
Executive Secretary, upon
recommendation of the
Sangguniang Panlalawigan or
Sangguniang Panlungsod as
the case may be
B. Sangguniang Panlungsod
of component cities and
Sangguniang Bayan — The
Governor upon
recommendation of the
Sangguniang Panlungsod or
Sangguniang Bayan as the
case may be
III. Where the Vacancy is Caused by a Member of
the Sangguniang Barangay — City or Municipal
Mayor upon recommendation of the Sangguniang
Barangay
There is only one rule governing appointments to the Sangguniang
Barangay. Any vacancy therein caused by the cessation from office of
a member must be made by the mayor upon the recommendation of
that Sanggunian. The reason is that members of the Sangguniang
Barangay are not allowed to have party affiliations.
Indeed there is no reason for supposing that those who drafted §45
intended to make the manner of filling vacancies in the Sanggunians,
created by members who do not belong to any political party, different
from the manner of filling such vacancies when created by members
who belong to political party or parties. The provision for the first must
approximate the provision for the second situation. Any difference in
procedure must be limited to the fact that in the case of vacancies
caused by those who have political affiliations there is a party which
can nominate a replacement while there is none in the case of those
who have no political affiliation. Accordingly, where there is no political
party to make a nomination, the Sanggunian, where the vacancy
occurs, must be considered the appropriate authority for making the
recommendation, by analogy to vacancies created in the Sangguniang
Barangay whose members are by law prohibited from having any party
affiliation.
[2] Having determined that appointments in case of vacancies caused
by Sanggunian members who do not belong to any political party must
be made in accordance with the "recommendation" of the Sanggunians
concerned where the vacancies occur, the next question is: Is the
appointing authority limited to the appointment of those
"recommended" to him? We think an affirmative answer must be given
to the question. The appointing authority is not bound to appoint
anyone recommended to him by the Sanggunian concerned. The
power of appointment is a discretionary power. On the other hand,
neither is the appointing power vested with so large a discretion that he
can disregard the recommendation of the Sanggunian concerned,
Since the recommendation takes the place of nomination by political
party, the recommendation must likewise be considered a
condition sine qua non for the validity of the appointment, by analogy
to the provision of §45(b).
[3] The upshot of this is that in the case at bar, since neither petitioner
Al Nacino nor respondent Edward Palafox was appointed in the
manner indicated in the preceding discussion, neither is entitled to the
seat in the Sangguniang Bayan of San Nicolas, Ilocos Norte which was
vacated by member Carlito B. Domingo. For while petitioner Al Nacino
was appointed by the provincial governor, he was not recommended
by the Sangguniang Bayan of San Nicolas. On the other hand,
respondent Edward Palafox was recommended by the Sangguniang
Bayan but it was the mayor and not the provincial governor who
appointed him.
WHEREFORE, the decision of the Regional Trial Court of Ilocos Norte,
insofar as it dismisses petitioners' action for quo warranto and
prohibition, is AFFIRMED, but for different reasons from those given by
the trial court in its decision.
SO ORDERED.
G.R. No. 134213 July 20, 1999
ROMEO J. GAMBOA, JR., petitioner,
vs.
MARCELO AGUIRRE, JR., and JUAN Y. ARANETA, respondents.
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.1âwphi1.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)" 3 the 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, 8 but 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. 17 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 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. 19 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." 20
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
G.R. No. 141307 March 28, 2001
PURTO J. NAVARRO and DANNY B. TAMAYO, petitioners,
vs.
COURT OF APPEALS and ADOLFO AQUINO, ROLANDO LALAS,
ABRAHAM MORALES, BLANDO QUINTO, ROMEO VISPERAS,
ANTONIO PENULIAR, EDUARDO ABULENCIA, EMILIO PENULIAR,
JR., ERNESTO SERAPION, VICTORIO LALANGAN, ANTONIO
BURGUILLOS, MIGUEL JIMENEZ, and ELPIDIO
VILLANUEVA, respondents.
KAPUNAN, J.:
This is a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure, assailing as erroneous the decision of the
Court of Appeals, Fourth Division,1 dated October 7, 1999 in CA-G.R.
SP No. 5475 which granted the petition for certiorari filed by herein
respondents and declared as null and void the appointment of herein
petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan,
Pangasinan.
The facts are undisputed.
In the May 11, 1997 local elections, the following officials were elected
to office in the Municipality of Mapandan, Pangasinan:
Cesar M. Calimlim Mayor
Baltazar Aquino Vice-Mayor
Elected as members of the Sangguniang Bayan ranked according to
the highest number of votes obtained were the following councilors:
Political Party
1. Danny B. Tamayo REFORMA-LMtherefore, the person to be appointed to the vacant position should
2. Rolando S. Soriano REFORMA-LMwhich was the Lakas-NUCD-Kampi.1âwphi1.nêt
3. Leopoldo C. Biagtan
4. Florentino Z. Lalas
5. Mamerto Eden, Jr.
6. Victorio C. Lalangan
7. Judy A. Pascual
8. Rolando Lalas
On March 25, 1999, Mayor Cesar Calimlim died. A vacancy was thus
created in the Office of the Mayor so by operation of law, Section 44 of
Republic Act 7160, otherwise known as the Local Government Code of
1991, then Vice-Mayor Baltazar Aquino succeeded him. Accordingly,
the highest-ranking member of the Sangguniang Bayan, i.e. the one
who garnered the highest number of votes, was elevated to the
position of the Vice-Mayor, pursuant to the same law. This was
petitioner Danny B. Tamayo who belonged to the REFORMA-LM
political party.
Since a vacancy occurred in the Sangguniang Bayan by the elevation
of petitioner Tamayo to the office of the Vice-Mayor, Governor Victor
Agbayani of Pangasinan appointed herein petitioner Purto J. Navarro
as Member of the Sangguniang Bayan. Navarro belonged to the same
political party as that of petitioner Tamayo.
Private respondents filed Civil Case No. 99-12958-D to nullify the
appointment of petitioner Navarro before the Regional Trial Court of
Dagupan City, Branch 44 presided by Judge Crispin Laron. Their
motions for the issuance of a temporary restraining order and for the
inhibition of Judge Laron having been denied, private respondents filed
a Petition for Review on Certiorari with this Court.
In a Resolution dated August 25, 1999, this Court referred the case to
the Court of Appeals due to the hierarchy of courts.
Private respondents argued before the Court of Appeals that it was the
former vice-mayor, succeeding to the position of the mayor, who
created the permanent vacancy in the Sanggunian Bayan because
under the law he was also a member of the Sanggunian. Thus, the
appointee must come from said former vice-mayor’s political party, in
this case, the Lakas-NUCD-Kampi.
Petitioners, on the other hand, contended that it was the elevation of
petitioner Tamayo, who was the highest-ranking member of the
Sanggunian Bayan, to the office of the Vice-Mayor which resulted in a
permanent vacancy in the Sanggunian Bayan. Pursuant to Section 45
(b) of RA 7160, the person to be appointed to the position vacated by
him should come from the same political party affiliation as that of
petitioner Tamayo. Hence, the appointment extended by Governor
Agbayani to petitioner Navarro, who was a member of and
recommended by the REFORMA-LM, is valid.
The Court of Appeals in a decision dated October 7, 1999 resolved the
petition in favor of private respondents but for the reason different from
thatNUCD-KAMPI
Lakas posited by private respondents. According to the appellate court,
the vacancy which resulted from the death of the mayor created a
series
Lakas of vacancies and successions by operation of law. By this
NUCD-KAMPI
interpretation, petitioner Tamayo’s former position as the highest-
ranking member of the Sanggunian Bayan was filled up by second
highest-ranking member and that vacated by the second highest-
ranking member was succeeded by the third highest-ranking member,
and so forth. And the last vacancy created was the position of the
lowest ranking-member of the Sanggunian, that is, the eighth position
occupied by Rolando Lalas. The Court of Appeals then concluded that
it was the appointment of the eighth councilor, who was Rolando Lalas
to the number seven position which created the "last vacancy;"
come form the same political party to which Rolando Lalas belonged,
REFORMA-LM
Aggrieved by the decision of the Court of Appeals, petitioners brought
the instant petition.
REFORMA-LM
REFORMA-LMWe give due course to the petition.
LAKAS-NUCD-KAMPI
Sections 44 and 45 of RA 7160 governing vacancies and succession
are quoted hereunder:
REFORMA-LM
Section 44. Permanent Vacancies in the Offices of the
LAKAS-NUCD-KAMPI
Governor, Mayor, and Vice-Mayor. – If a permanent vacancy
occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the
governor or mayor. If a permanent vacancy in the offices of
the governor, vice-governor, mayor or vice-mayor, the
highest sanggunian member or, in case of his permanent
inability, the second highest-ranking sanggunian member,
shall become the governor, vice-governor, mayor or vice-
mayor as the case may be. Subsequent vacancies in the
said office shall be filled automatically by the other
sanggunian members according to their ranking as defined
herein:
(b) If a permanent vacancy occurs in the office of the punong
barangay, the highest-ranking sanggunian barangay
members or, in case of his permanent inability, the second
highest-ranking sanggunian member, shall become the
punong barangay.
(c) A Lie between or among the highest ranking sanggunian
members shall be resolved by the drawing of lots.
(d) The successors as defined herein shall serve only the
unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises
when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed
from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
For purposes of succession as provided in this Chapter,
ranking in the sanggunian shall be determined on the basis
of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each
district in the immediately preceding local election.
Section 45. Permanent Vacancies in the Sanggunian. –
(a) Permanent vacancies in the sanggunian where automatic
successions provided above do not apply shall be filled by
appointment in the following manner:
(1) The President, through the Executive
Secretary, in the case of the sangguniang
panlalawigan and the sangguniang panglungsod
of highly urbanized cities and independent
component cities;
(2) The governor, in the case of the sangguniang
panglunsod of component cities and the
sanguniang bayan;
(3) The city or municipal mayor, in the case of
sangguniang barangay, upon recommendation of
the sangguniang barangay concerned;
(b) Except for the sangguniang barangay, only the nominee
of the political party under which the sanggunian member
concerned had been elected and whose elevation to the
position next higher in rank created the last vacancy in the
sanggunian shall be appointed in the manner hereinabove
provided. The appointee shall come from the same political
party as that on the sanggunian member who caused the
vacancy and shall serve the unexpired term of the vacant
office. In the appointment herein mentioned, a nomination
and a certificate of membership of the appointee from the
highest official of the political party concerned are conditions
sine qua non, and any appointment without such nomination
and certification shall be null and void ab initio and shall be a
ground for administrative action against the official
responsible therefor.
(c) In case the permanent vacancy is caused by a
sanggunian member who does not belong to any political
party, the local chief executive shall, upon recommendation
of the sanggunian concerned, appoint a qualified person to
fill the vacancy.
(d) In case of vacancy in the representation of the youth and
the barangay in the sanggunian, said vacancy shall be filled
automatically by the official next in rank of the organization
concerned.
Under Section 44, a permanent vacancy arises when an elective
official fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
What is crucial is the interpretation of Section 45(b) providing that "xxx
only the nominee of the political party under which the Sanggunian
member concerned has been elected and whose elevation to the
position next higher in rank created the last vacancy in the Sanggunian
shall be appointed in the manner hereinabove provided. The appointee
shall come from the political party as that of the Sanggunian member
who caused the vacancy xxx."
The reason behind the right given to a political party to nominate a
replacement where a permanent vacancy occurs in the Sanggunian is
to maintain the party representation as willed by the people in the
election.2
With the elevation of petitioner Tamayo, who belonged to REFORMA-
LM, to the position of Vice-Mayor, a vacancy occurred in the
Sanggunian that should be filled up with someone who should belong
to the political party of petitioner Tamayo. Otherwise, REFORMA-LM’s
representation in the Sanggunian would be diminished. To argue that
the vacancy created was that formerly held by Rolando Lalas, a
LAKAS-NUCD-Kampi member, would result in the increase of that
party’s representation in the Sanggunian at the expense of the
REFORMA-LM. This interpretation is contrary to the letter and spirit of
the law and thus violative of a fundamental rule in statutory
construction which is to ascertain and give effect to the intent and
purpose of the law.3 As earlier pointed out, the reason behind par. (b),
section 44 of the Local Government Code is the maintenance party
representation in the Sanggunian in accordance with the will of the
electorate.1âwphi1.nêt
The "last vacancy" in the Sanggunian refers to that created by the
elevation of the member formerly occupying the next higher in rank
which in turn also had become vacant by any of the causes already
enumerated. The term "last vacancy" is thus used in Sec. 45 (b) to
differentiate it from the other vacancy previously created. The term by
no means refers to the vacancy in the No. 8 position which occurred
with the election of Rolando Lalas to the seventh position in the
Sanggunian. Such construction will result in absurdity.
Petitioners also allege that the Court of Appeals erred in giving due
course to the petition because the verification is defective. It is argued
that the affidavit merely stated that the allegations therein are "true and
correct to the best of my own knowledge and information" whereas
Section 4, Rule 7 of the Rules of Court specifically requires that the
allegations be "true and correct of his knowledge and belief."
The contention is without merit. Verification based on the affiant’s own
knowledge and information is sufficient under the circumstances.
Verification is merely a formal and not a jurisdictional requisite which
does not affect the validity or efficacy of the pleading, or the jurisdiction
of the court.4 Therefore, a defective verification, as in the present case,
does not render the pleading or the petition invalid and the Court of
Appeals did not err in giving due course to the petition.
WHEREFORE, the petition is hereby GRANTED. The decision of the
Court of Appeals in CA-G.R. SP No. 54675 dated October 7, 1999
is REVERSED and SET ASIDE. The appointment of petitioner Purto J.
Navarro to the Sanggunian Bayan of Mapandan, Pangasinan is
hereby AFFIRMED as valid and legal.
SO ORDERED.

G.R. No. 195229 October 9, 2012
EFREN RACEL ARA TEA, Petitioner,
vs.
COMMISSiON ON ELECTIONS and ESTELA D.
ANTlPOLO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a special civil action for certiorari1 seeking to review and nullify
the Resolution2 dated 2 February 2011 and the Order3 dated 12
January 2011 of the Commission on Elections (COMELEC) En Banc
in Dra. Sigrid S. Rodolfo v. Romeo D. Lonzanida, docketed as SPA
No. 09-158 (DC). The petition asserts that the COMELEC issued the
Resolution and Order with grave abuse of discretion amounting to lack
or excess of jurisdiction.
The Facts
Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo)
were candidates for Mayor of San Antonio, Zambales in the May 2010
National and Local Elections. Lonzanida filed his certificate of
candidacy on 1 December 2009.4 On 8 December 2009, Dra. Sigrid S.
Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus
Election Code to disqualify Lonzanida and to deny due course or to
cancel Lonzanida’s certificate of candidacy on the ground that
Lonzanida was elected, and had served, as mayor of San Antonio,
Zambales for four (4) consecutive terms immediately prior to the term
for the May 2010 elections. Rodolfo asserted that Lonzanida made a
false material representation in his certificate of candidacy when
Lonzanida certified under oath that he was eligible for the office he
sought election. Section 8, Article X of the 1987 Constitution5 and
Section 43(b) of the Local Government Code6 both prohibit a local
elective official from being elected and serving for more than three
consecutive terms for the same position.
The COMELEC Second Division rendered a Resolution7 on 18
February 2010 cancelling Lonzanida’s certificate of candidacy.
Pertinent portions of the 18 February 2010 Resolution read:
Respondent Lonzanida never denied having held the office of mayor of
San Antonio, Zambales for more than nine consecutive years. Instead
he raised arguments to forestall or dismiss the petition on the grounds
other than the main issue itself. We find such arguments as wanting.
Respondent Lonzanida, for holding the office of mayor for more than
three consecutive terms, went against the three-term limit rule;
therefore, he could not be allowed to run anew in the 2010 elections. It
is time to infuse new blood in the political arena of San Antonio.
WHEREFORE, premises considered, the instant petition is hereby
GRANTED. The Certificate of Candidacy of Respondent Romeo D.
Lonzanida for the position of mayor in the municipality of San Antonio,
Zambales is hereby CANCELLED. His name is hereby ordered
STRICKEN OFF the list of Official Candidates for the position of Mayor
of San Antonio, Zambales in May 10, 2010 elections.
SO ORDERED.8
Lonzanida’s motion for reconsideration before the COMELEC En Banc
remained pending during the May 2010 elections. Lonzanida and Efren
Racel Aratea (Aratea) garnered the highest number of votes and were
respectively proclaimed Mayor and Vice-Mayor.
Aratea took his oath of office as Acting Mayor before Regional Trial
Court (RTC) Judge Raymond C. Viray of Branch 75, Olongapo City on
5 July 2010.9 On the same date, Aratea wrote the Department of
Interior and Local Government (DILG) and requested for an opinion on
whether, as Vice-Mayor, he was legally required to assume the Office
of the Mayor in view of Lonzanida’s disqualification. DILG Legal
Opinion No. 117, S. 201010 stated that Lonzanida was disqualified to
hold office by reason of his criminal conviction. As a consequence of
Lonzanida’s disqualification, the Office of the Mayor was deemed
permanently vacant. Thus, Aratea should assume the Office of the
Mayor in an acting capacity without prejudice to the COMELEC’s
resolution of Lonzanida’s motion for reconsideration. In another letter
dated 6 August 2010, Aratea requested the DILG to allow him to take
the oath of office as Mayor of San Antonio, Zambales. In his response
dated 24 August 2010, then Secretary Jesse M. Robredo allowed
Aratea to take an oath of office as "the permanent Municipal Mayor of
San Antonio, Zambales without prejudice however to the outcome of
the cases pending before the [COMELEC]."11
On 11 August 2010, the COMELEC En Banc issued a
Resolution12 disqualifying Lonzanida from running for Mayor in the May
2010 elections. The COMELEC En Banc’s resolution was based on
two grounds: first, Lonzanida had been elected and had served as
Mayor for more than three consecutive terms without interruption;
and second, Lonzanida had been convicted by final judgment of ten
(10) counts of falsification under the Revised Penal Code. Lonzanida
was sentenced for each count of falsification to imprisonment of four
(4) years and one (1) day of prisión correccional as minimum, to eight
(8) years and one (1) day of prisión mayor as maximum. The judgment
of conviction became final on 23 October 2009 in the Decision of this
Court in Lonzanida v. People,13 before Lonzanida filed his certificate of
candidacy on 1 December 2009. Pertinent portions of the 11 August
2010 Resolution read:
Prescinding from the foregoing premises, Lonzanida, for having served
as Mayor of San Antonio, Zambales for more than three (3)
consecutive terms and for having been convicted by a final judgment of
a crime punishable by more than one (1) year of imprisonment, is
clearly disqualified to run for the same position in the May 2010
Elections.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration is hereby DENIED.
SO ORDERED.14
On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and
to Admit Attached Petition-in-Intervention.15 She claimed her right to be
proclaimed as Mayor of San Antonio, Zambales because Lonzanida
ceased to be a candidate when the COMELEC Second Division,
through its 18 February 2010 Resolution, ordered the cancellation of
his certificate of candidacy and the striking out of his name from the list
of official candidates for the position of Mayor of San Antonio,
Zambales in the May 2010 elections.
In his Comment filed on 26 January 2011, Aratea asserted that
Antipolo, as the candidate who received the second highest number of
votes, could not be proclaimed as the winning candidate. Since
Lonzanida’s disqualification was not yet final during election day, the
votes cast in his favor could not be declared stray. Lonzanida’s
subsequent disqualification resulted in a permanent vacancy in the
Office of Mayor, and Aratea, as the duly-elected Vice-Mayor, was
mandated by Section 4416 of the Local Government Code to succeed
as Mayor.
The COMELEC’s Rulings
The COMELEC En Banc issued an Order dated 12 January 2011,
stating:
Acting on the "Motion for Leave to Intervene and to Admit Attached
Petition-in-Intervention" filed by Estela D. Antipolo (Antipolo) and
pursuant to the power of this Commission to suspend its Rules or any
portion thereof in the interest of justice, this Commission hereby
RESOLVES to:
1. GRANT the aforesaid Motion;
2. ADMIT the Petition-in-Intervention filed by Antipolo;
3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as
well as EFREN RACEL ARATEA, proclaimed Vice-Mayor of San
Antonio, Zambales, to file their respective Comments on the Petition-
in- Intervention within a non-extendible period of five (5) days from
receipt thereof;
4. SET the above-mentioned Petition-in-Intervention for hearing on
January 26, 2011 at 10:00 a.m. COMELEC Session Hall, 8th Floor,
Palacio del Gobernador, Intramuros, Manila.
WHEREFORE, furnish copies hereof the parties for their information
and compliance.
SO ORDERED.17
In its Resolution dated 2 February 2011, the COMELEC En Banc no
longer considered Lonzanida’s qualification as an issue: "It is beyond
cavil that Lonzanida is not eligible to hold and discharge the functions
of the Office of the Mayor of San Antonio, Zambales. The sole issue to
be resolved at this juncture is how to fill the vacancy resulting from
Lonzanida’s disqualification."18 The Resolution further stated:
We cannot sustain the submission of Oppositor Aratea that Intervenor
Antipolo could never be proclaimed as the duly elected Mayor of
Antipolo [sic] for being a second placer in the elections. The teachings
in the cases of Codilla vs. De Venecia and Nazareno and Domino vs.
COMELEC, et al., while they remain sound jurisprudence find no
application in the case at bar. What sets this case apart from the cited
jurisprudence is that the notoriety of Lonzanida’s disqualification and
ineligibility to hold public office is established both in fact and in law on
election day itself. Hence, Lonzanida’s name, as already ordered by
the Commission on February 18, 2010 should have been stricken off
from the list of official candidates for Mayor of San Antonio, Zambales.
WHEREFORE, in view of the foregoing, the Commission hereby:
1. Declares NULL and VOID the proclamation of respondent ROMEO
D. LONZANIDA;
2. GRANTS the Petition for Intervention of Estela D. Antipolo;
3. Orders the immediate CONSTITUTION of a Special Municipal Board
of Canvassers to PROCLAIM Intervenor Estela D. Antipolo as the duly
elected Mayor of San Antonio, Zambales;
4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from
discharging the functions of the Office of the Mayor, and to cause a
peaceful turn-over of the said office to Antipolo upon her proclamation;
and
5. Orders the Office of the Executive Director as well as the Regional
Election Director of Region III to cause the implementation of this
Resolution and disseminate it to the Department of Interior and Local
Government.
SO ORDERED.19
Aratea filed the present petition on 9 February 2011.
The Issues
The manner of filling up the permanent vacancy in the Office of the
Mayor of San Antonio, Zambales is dependent upon the determination
of Lonzanida’s removal. Whether Lonzanida was disqualified under
Section 68 of the Omnibus Election Code, or made a false material
representation under Section 78 of the same Code that resulted in
his certificate of candidacy being void ab initio, is determinative of
whether Aratea or Antipolo is the rightful occupant to the Office of the
Mayor of San Antonio, Zambales.
The dissenting opinions reverse the COMELEC’s 2 February 2011
Resolution and 12 January 2011 Order. They hold that Aratea, the duly
elected Vice-Mayor of San Antonio, Zambales, should be declared
Mayor pursuant to the Local Government Code’s rule on succession.
The dissenting opinions make three grave errors: first, they ignore
prevailing jurisprudence that a false representation in the certificate of
candidacy as to eligibility in the number of terms elected and served is
a material fact that is a ground for a petition to cancel a certificate of
candidacy under Section 78; second, they ignore that a false
representation as to eligibility to run for public office due to the fact that
the candidate suffers from perpetual special disqualification is a
material fact that is a ground for a petition to cancel a certificate of
candidacy under Section 78; and third, they resort to a strained
statutory construction to conclude that the violation of the three-term
limit rule cannot be a ground for cancellation of a certificate of
candidacy under Section 78, even when it is clear and plain that
violation of the three-term limit rule is an ineligibility affecting the
qualification of a candidate to elective office.
The dissenting opinions tread on dangerous ground when they assert
that a candidate’s eligibility to the office he seeks election must be
strictly construed to refer only to the details, i.e., age, citizenship, or
residency, among others, which the law requires him to state in his
COC, and which he must swear under oath to possess. The dissenting
opinions choose to view a false certification of a candidate’s eligibility
on the three-term limit rule not as a ground for false material
representation under Section 78 but as a ground for disqualification
under Section 68 of the same Code. This is clearly contrary to well-
established jurisprudence.
The Court’s Ruling
We hold that Antipolo, the alleged "second placer," should be
proclaimed Mayor because Lonzanida’s certificate of candidacy was
void ab initio. In short, Lonzanida was never a candidate at all. All
votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified
candidate, actually garnered the highest number of votes for the
position of Mayor.
Qualifications and Disqualifications
Section 65 of the Omnibus Election Code points to the Local
Government Code for the qualifications of elective local officials.
Paragraphs (a) and (c) of Section 39 and Section 40 of the Local
Government Code provide in pertinent part:
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 x x x; 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.
xxxx
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. (Emphasis supplied)
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. — 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. (Emphasis
supplied)
The grounds for disqualification for a petition under Section 68 of the
Omnibus Election Code are specifically enumerated:
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; (e) violated any
of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 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)
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."20 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,21 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.
False Material Representation
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. (Emphasis supplied)
Section 74 of the Omnibus Election Code details the contents of the
certificate of candidacy:
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.
x x x x (Emphasis supplied)
A candidate for mayor in the 2010 local elections was thus required to
provide 12 items of information in the certificate of candidacy:22 name;
nickname or stage name; gender; age; place of birth; political party that
nominated the candidate; civil status; residence/address; profession or
occupation; post office address for election purposes; locality of which
the candidate is a registered voter; and period of residence in the
Philippines before 10 May 2010. The candidate also certifies four
statements: a statement that the candidate is a natural born or
naturalized Filipino citizen; a statement that the candidate is not a
permanent resident of, or immigrant to, a foreign country; a statement
that the candidate is eligible for the office he seeks election; and a
statement of the candidate’s allegiance to the Constitution of the
Republic of the Philippines.23 The certificate of candidacy should also
be under oath, and filed within the period prescribed by law.
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. The pertinent provisions of the Revised Penal Code are as
follows:
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
prision 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,24 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.
In Lacuna v. Abes (Lacuna),25 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
prision 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 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 . 26
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,27 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.28 (Emphasis supplied)
Latasa, Rivera and Ong:
The Three-Term Limit Rule as a Ground for Ineligibility
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,29 is found both in the Constitution30 and the
law.31 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 election32 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"33 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.
In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was
elected mayor of the Municipality of Digos, Davao del Sur in 1992,
1995, and 1998. The Municipality of Digos was converted into the City
of Digos during Latasa’s third term. Latasa filed his certificate of
candidacy for city mayor for the 2001 elections. Romeo Sunga,
Latasa’s opponent, filed before the COMELEC a "petition to deny due
course, cancel certificate of candidacy and/or disqualification" under
Section 78 on the ground that Latasa falsely represented in his
certificate of candidacy that he is eligible to run as mayor of Digos City.
Latasa argued that he did not make any false representation. In his
certificate of candidacy, Latasa inserted a footnote after the phrase "I
am eligible" and indicated "*Having served three (3) term[s] as
municipal mayor and now running for the first time as city mayor." The
COMELEC First Division cancelled Latasa’s certificate of candidacy for
violation of the three-term limit rule but not for false material
representation. This Court affirmed the COMELEC En Banc’s denial of
Latasa’s motion for reconsideration.
We cancelled Marino Morales’ certificate of candidacy in Rivera III v.
Commission on Elections (Rivera).35 We held that Morales exceeded
the maximum three-term limit, having been elected and served as
Mayor of Mabalacat for four consecutive terms (1995 to 1998, 1998 to
2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible as
a candidate for the same position for the 2007 to 2010 term. Although
we did not explicitly rule that Morales’ violation of the three-term limit
rule constituted false material representation, we nonetheless granted
the petition to cancel Morales’ certificate of candidacy under Section
78. We also affirmed the cancellation of Francis Ong’s certificate of
candidacy in Ong v. Alegre,36 where the "petition to disqualify, deny
due course and cancel" Ong’s certificate of candidacy under Section
78 was predicated on the violation of the three-term limit rule.
Loong, Fermin and Munder:
When Possession of a Disqualifying Condition
is Not a Ground for a Petition for Disqualification
It is obvious from a reading of the laws and jurisprudence that there is
an overlap in the grounds for eligibility and ineligibility vis-à-
vis qualifications and disqualifications. For example, a candidate may
represent that he is a resident of a particular Philippine locality37 when
he is actually a permanent resident of another country.38 In cases of
such overlap, the petitioner should not be constrained in his choice of
remedy when the Omnibus Election Code explicitly makes available
multiple remedies.39 Section 78 allows the filing of a petition to deny
due course or to cancel a certificate of candidacy before the election,
while Section 253 allows the filing of a petition for quo warranto after
the election. Despite the overlap of the grounds, one should not
confuse a petition for disqualification using grounds enumerated in
Section 68 with a petition to deny due course or to cancel a certificate
of candidacy under Section 78.
The distinction between a petition under Section 68 and a petition
under Section 78 was discussed in Loong v. Commission on
Elections40 with respect to the applicable prescriptive period.
Respondent Nur Hussein Ututalum filed a petition under Section 78 to
disqualify petitioner Benjamin Loong for the office of Regional Vice-
Governor of the Autonomous Government of Muslim Mindanao for
false representation as to his age. The petition was filed 16 days after
the election, and clearly beyond the prescribed 25 day period from the
last day of filing certificates of candidacy. This Court ruled that
Ututalum’s petition was one based on false representation under
Section 78, and not for disqualification under Section 68. Hence, the
25-day prescriptive period provided in Section 78 should be strictly
applied. We recognized the possible gap in the law:
It is true that the discovery of false representation as to material facts
required to be stated in a certificate of candidacy, under Section 74 of
the Code, may be made only after the lapse of the 25-day period
prescribed by Section 78 of the Code, through no fault of the person
who discovers such misrepresentations and who would want the
disqualification of the candidate committing the misrepresentations. It
would seem, therefore, that there could indeed be a gap between the
time of the discovery of the misrepresentation, (when the discovery is
made after the 25-day period under Sec. 78 of the Code has lapsed)
and the time when the proclamation of the results of the election is
made. During this so-called "gap" the would-be petitioner (who would
seek the disqualification of the candidate) is left with nothing to do
except to wait for the proclamation of the results, so that he could avail
of a remedy against the misrepresenting candidate, that is, by filing a
petition for quo warranto against him. Respondent Commission sees
this "gap" in what it calls a procedural gap which, according to it, is
unnecessary and should be remedied.
At the same time, it can not be denied that it is the purpose and intent
of the legislative branch of the government to fix a definite time within
which petitions of protests related to eligibility of candidates for elective
offices must be filed, as seen in Sections 78 and 253 of the Code.
Respondent Commission may have seen the need to remedy this so-
called “procedural gap", but it is not for it to prescribe what the law
does not provide, its function not being legislative. The question of
whether the time to file these petitions or protests is too short or
ineffective is one for the Legislature to decide and remedy. 41
In Fermin v. Commission on Elections,42 the issue of a candidate’s
possession of the required one-year residency requirement was raised
in a petition for disqualification under Section 68 instead of a petition to
deny due course or to cancel a certificate of candidacy under Section
78. Despite the question of the one-year residency being a proper
ground under Section 78, Dilangalen, the petitioner before the
COMELEC in Fermin, relied on Section 5(C)(1) and 5(C)(3)(a)(4) of
COMELEC Resolution No. 780043 and filed the petition under Section
68. In Fermin, we ruled that "a COMELEC rule or resolution cannot
supplant or vary legislative enactments that distinguish the grounds
for disqualification from those of ineligibility, and the appropriate
proceedings to raise the said grounds."44 A petition for disqualification
can only be premised on a ground specified in Section 12 or 68 of the
Omnibus Election Code or Section 40 of the Local Government Code.
Thus, a petition questioning a candidate’s possession of the required
one-year residency requirement, as distinguished from permanent
residency or immigrant status in a foreign country, should be filed
under Section 78, and a petition under Section 68 is the wrong
remedy.
In Munder v. Commission on Elections,45 petitioner Alfais Munder filed
a certificate of candidacy for Mayor of Bubong, Lanao del Sur on 26
November 2009. Respondent Atty. Tago Sarip filed a petition for
Munder’s disqualification on 13 April 2010. Sarip claimed that Munder
misrepresented that he was a registered voter of Bubong, Lanao del
Sur, and that he was eligible to register as a voter in 2003 even though
he was not yet 18 years of age at the time of the voter’s registration.
Moreover, Munder’s certificate of candidacy was not accomplished in
full as he failed to indicate his precinct and did not affix his thumb-
mark. The COMELEC Second Division dismissed Sarip’s petition and
declared that his grounds are not grounds for disqualification under
Section 68 but for denial or cancellation of Munder’s certificate of
candidacy under Section 78. Sarip’s petition was filed out of time as he
had only 25 days after the filing of Munder’s certificate of candidacy, or
until 21 December 2009, within which to file his petition.
The COMELEC En Banc, however, disqualified Munder. In reversing
the COMELEC Second Division, the COMELEC En Banc did not rule
on the propriety of Sarip’s remedy but focused on the question of
whether Munder was a registered voter of Bubong, Lanao del Sur. This
Court reinstated the COMELEC Second Division’s resolution. This
Court ruled that the ground raised in the petition, lack of registration as
voter in the locality where he was running as a candidate, is
inappropriate for a petition for disqualification. We further declared that
with our ruling in Fermin, we had already rejected the claim that lack of
substantive qualifications of a candidate is a ground for a petition for
disqualification under Section 68. The only substantive qualification the
absence of which is a ground for a petition under Section 68 is the
candidate’s permanent residency or immigrant status in a foreign
country.
The dissenting opinions place the violation of the three-term limit rule
as a disqualification under Section 68 as the violation allegedly is "a
status, circumstance or condition which bars him from running for
public office despite the possession of all the qualifications under
Section 39 of the [Local Government Code]." In so holding the
dissenting opinions write in the law what is not found in the law.
Section 68 is explicit as to the proper grounds for disqualification under
said Section. The grounds for filing a petition for disqualification under
Section 68 are specifically enumerated in said Section. However,
contrary to the specific enumeration in Section 68 and contrary to
prevailing jurisprudence, the dissenting opinions add to the
enumerated grounds the violation of the three-term limit rule and
falsification under the Revised Penal Code, which are obviously not
found in the enumeration in Section 68.
The dissenting opinions equate Lonzanida’s possession of a
disqualifying condition (violation of the three-term limit rule) with the
grounds for disqualification under Section 68. Section 68 is explicit as
to the proper grounds for disqualification: the commission of specific
prohibited acts under the Omnibus Election Code and possession of a
permanent residency or immigrant status in a foreign country. Any
other false representation regarding a material fact should be filed
under Section 78, specifically under the candidate’s certification of his
eligibility. In rejecting a violation of the three-term limit as a condition
for eligibility, the dissenting opinions resort to judicial legislation,
ignoring the verba legis doctrine and well-established jurisprudence on
this very issue.
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.
Legal Duty of COMELEC
to Enforce Perpetual Special Disqualification
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.
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."46 The disqualification
of a convict to run for elective 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 the laws" relating to the
conduct of elections.
Effect of a Void Certificate of Candidacy
A cancelled certificate of candidacy void ab initio cannot give rise to a
valid candidacy, and much less to valid votes.47 We quote from the
COMELEC’s 2 February 2011 Resolution with approval:
As early as February 18, 2010, the Commission speaking through the
Second Division had already ordered the cancellation of Lonzanida’s
certificate of candidacy, and had stricken off his name in the list of
official candidates for the mayoralty post of San Antonio, Zambales.
Thereafter, the Commission En Banc in its resolution dated August 11,
2010 unanimously affirmed the resolution disqualifying Lonzanida. Our
findings were likewise sustained by the Supreme Court no less. The
disqualification of Lonzanida is not simply anchored on one ground. On
the contrary, it was emphasized in our En Banc resolution that
Lonzanida’s disqualification is two-pronged: first, he violated the
constitutional fiat on the three-term limit; and second, as early as
December 1, 2009, he is known to have been convicted by final
judgment for ten (10) counts of Falsification under Article 171 of the
Revised Penal Code. In other words, on election day, respondent
Lonzanida’s disqualification is notoriously known in fact and in
law. Ergo, since respondent Lonzanida was never a candidate for the
position of Mayor [of] San Antonio, Zambales, the votes cast for him
should be considered stray votes. Consequently, Intervenor Antipolo,
who remains as the sole qualified candidate for the mayoralty post and
obtained the highest number of votes, should now be proclaimed as
the duly elected Mayor of San Antonio, Zambales.48 (Boldfacing and
underscoring in the original; italicization supplied)
Lonzanida's certificate of candidacy was cancelled because he was
ineligible or not qualified to run for Mayor.1âwphi1 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 201 0 elections - Anti polo, who therefore received the
highest number of votes.
WHEREFORE, the petition is DISMISSED. The Resolution dated 2
February 2011 and the Order dated 12 January 2011 of the COMELEC
En Bane in SPA No. 09-158 (DC) are AFFIRMED. The COMELEC En
Bane is DIRECTED to constitute a Special Municipal Board of
Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of
San Antonio, Zambales. Petitioner Efren Racel Aratea is ORDERED to
cease and desist from discharging the functions of the Office of the
Mayor of San Antonio, Zambales.
SO ORDERED.
G.R. No. 123169 November 4, 1996
DANILO E. PARAS, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula,
Cabanatuan City who won during the last regular barangay election in
1994. A petition for his recall as Punong Barangay was filed by the
registered voters of the barangay. Acting on the petition for recall,
public respondent Commission on Elections (COMELEC) resolved to
approve the petition, scheduled the petition signing on October 14,
1995, and set the recall election on November 13,
1995.1 At least 29.30% of the registered voters signed the petition, well
above the 25% requirement provided by law. The COMELEC,
however, deferred the recall election in view of petitioner's opposition.
On December 6, 1995, the COMELEC set anew the recall election, this
time on December 16, 1995. To prevent the holding of the recall
election, petitioner filed before the Regional Trial Court of Cabanatuan
City a petition for injunction, docketed as SP Civil Action No. 2254-AF,
with the trial court issuing a temporary restraining order. After
conducting a summary hearing, the trial court lifted the restraining
order, dismissed the petition and required petitioner and his counsel to
explain why they should not be cited for contempt for misrepresenting
that the barangay recall election was without COMELEC approval. 2
In a resolution dated January 5, 1996, the COMELEC, for the third
time, re-scheduled the recall election an January 13, 1996; hence, the
instant petition for certiorari with urgent prayer for injunction. On
January 12, 1996, the Court issued a temporary restraining order and
required the Office of the Solicitor General, in behalf of public
respondent, to comment on the petition. In view of the Office of the
Solicitor General's manifestation maintaining an opinion adverse to that
of the COMELEC, the latter through its law department filed the
required comment. Petitioner thereafter filed a reply.3
Petitioner's argument is simple and to the point. Citing Section 74 (b) of
Republic Act No. 7160, otherwise known as the Local Government
Code, which states that "no recall shall take place within one (1) year
from the date of the official's assumption to office or one (1) year
immediately preceding a regular local election", petitioner insists that
the scheduled January 13, 1996 recall election is now barred as the
Sangguniang Kabataan (SK) election was set by Republic Act No.
7808 on the first Monday of May 1996, and every three years
thereafter. In support thereof, petitioner cites Associated Labor Union
v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the
SK election as a regular local election. Petitioner maintains that as the
SK election is a regular local election, hence no recall election can be
had for barely four months separate the SK election from the recall
election. We do not agree.
The subject provision of the Local Government Code provides:
Sec. 74. Limitations on Recall. — (a) Any elective
local official may be the subject of a recall election
only once during his term of office for loss of
confidence.
(b) No recall shall take place within one (1) year
from the date of the official's assumption to office
or one (1) year immediately preceding a regular
local election.
[Emphasis added]
It is a rule in statutory construction that every part of the statute must
be interpreted with reference to the context, i.e., that every part of the
statute must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment.4 The evident
intent of Section 74 is to subject an elective local official to recall
election once during his term of office. Paragraph (b) construed
together with paragraph (a) merely designates the period when such
elective local official may be subject of a recall election, that is, during
the second year of his term of office. Thus, subscribing to petitioner's
interpretation of the phrase regular local election to include the SK
election will unduly circumscribe the novel provision of the Local
Government Code on recall, a mode of removal of public officers by
initiation of the people before the end of his term. And if the SK
election which is set by R.A No. 7808 to be held every three years from
May 1996 were to be deemed within the purview of the phrase "regular
local election", as erroneously insisted by petitioner, then no recall
election can be conducted rendering inutile the recall provision of the
Local Government Code.
In the interpretation of a statute, the Court should start with the
assumption that the legislature intended to enact an effective law, and
the legislature is not presumed to have done a vain thing in the
enactment of a statute.5 An interpretation should, if possible, be
avoided under which a statute or provision being construed is
defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative or nugatory.6
It is likewise a basic precept in statutory construction that a statute
should be interpreted in harmony with the Constitution.7 Thus, the
interpretation of Section 74 of the Local Government Code, specifically
paragraph (b) thereof, should not be in conflict with the Constitutional
mandate of Section 3 of Article X of the Constitution to "enact a local
government code which shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization with effective mechanism of recall, initiative, and
referendum . . . ."
Moreover, petitioner's too literal interpretation of the law leads to
absurdity which we cannot countenance. Thus, in a case, the Court
made the following admonition:
We admonish against a too-literal reading of the
law as this is apt to constrict rather than fulfill its
purpose and defeat the intention of its authors.
That intention is usually found not in "the letter that
killeth but in the spirit that vivifieth". . .8
The spirit, rather than the letter of a law determines its
construction; hence, a statute, as in this case, must be read
according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of
the local government unit necessitating additional expenses, hence the
prohibition against the conduct of recall election one year immediately
preceding the regular local election. The proscription is due to the
proximity of the next regular election for the office of the local elective
official concerned. The electorate could choose the official's
replacement in the said election who certainly has a longer tenure in
office than a successor elected through a recall election. It would,
therefore, be more in keeping with the intent of the recall provision of
the Code to construe regular local election as one referring to an
election where the office held by the local elective official sought to be
recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the
limitation stated under Section 74 (b) of the Code considering that the
next regular election involving the barangay office concerned is barely
seven (7) months away, the same having been scheduled on May
1997. 9
ACCORDINGLY, the petition is hereby dismissed for having become
moot and academic. The temporary restraining order issued by the
Court on January 12, 1996, enjoining the recall election should be as it
is hereby made permanent.
SO ORDERED.
G.R. No. 126576 March 5, 1997
MAYOR RICARDO M. ANGOBUNG, petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, and ATTY. AURORA S.
DE ALBAN, respondents.
HERMOSISIMA, JR., J.:
Before us on certiorari is a petition seeking to annul and set aside
Resolution No. 96-29511 dated October 15, 1996 issued by public
respondent Commission on Elections (COMELEC) which (1) approved
the Petition for Recall filed and signed by only one registered voter —
herein private respondent Ma. Aurora Siccuan de Alban, against
petitioner — incumbent Mayor Ricardo Angobung; (2) set the further
signing of said petition by the rest of the registered voters of Tumauini,
Isabela on November 9, 1996; and (3) in case the said petition is
signed by at least 25% of the total number of registered votes in
Tumauini, Isabela, scheduled the recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining
Order2 enjoining public respondent COMELEC from implementing and
enforcing Resolution No. 96-2951.
The facts of this case are not disputed.
Petitioner won as the duly elected Mayor of the Municipality of
Tumauini, Isabela in the local elections of 1995. He garnered 55% of
all the votes cast. Private respondent de Alban was also a candidate in
said elections.
Sometime in early September, 1996, private respondent filed with the
Local Election Registrar of Tumauini, Isabela, a Petition for
Recall3 against petitioner. On September 12, 1996, petitioner received
a copy of this petition. Subsequently said petition was forwarded to the
Regional Office in Tuguegarao, Cagayan and then to the main office of
COMELEC in Manila, for approval.
Acting on the petition, Deputy Executive Director for Operations Pio
Jose Joson submitted to the COMELEC En Banc, a
Memorandum4 dated October 8, 1996 recommending approval of the
petition for recall filed by private respondent and its signing by other
qualified voters in order to garner at least 25% of the total number of
registered voters as required by Section 69(d) of the Local
Government Code of 1991.
In turn acting on the abovementioned Memorandum of Deputy
Executive Director Joson, the COMELEC en banc issued the herein
assailed Resolution No. 96-2951.
Petitioner now attacks the aforementioned resolution as being
unconstitutional and therefore invalid, on two main grounds: (1) that
the resolution approved the Petition for Recall albeit same was signed
by just one person in violation of the statutory 25% minimum
requirement as to the number of signatures supporting any petition for
recall; and (2) that the resolution scheduled the recall election within
one (1) year from the May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent has sought the
lifting of the Temporary Restraining Order issued last October 25, 1996
on the twin grounds (1) that the issue of the one-year bar on recall
elections has been resolved in the case of Paras v. COMELEC5,
promulgated on November 4, 1996; and (2) that the procedure
prescribed by Resolution No. 96-2951 involving petition signing upon
initiation of even just one person, is no different from that provided for
in COMELEC Resolution No. 2272 which was upheld as constitutional
in the 1991 cases of Sanchez, et al. v. COMELEC6 and Evardone
v. COMELEC7.
Private respondent is correct in saying that in the light of our
pronouncement in Paras v. COMELEC8, the recall election scheduled
on December 2, 1996 in the instant case cannot be said to be barred
by the May 12, 1997 Barangay Elections. In construing the meaning of
the term, "regular local election" in Section 74 of the Local Government
Code of 1991 which provides that "no recall shall take place within one
(1) year . . . immediately preceding a regular local election," we ruled
that for the time bar to apply, the approaching regular local election
must be one where the position of the official to be recalled, is to be
actually contested and filled by the electorate. Thus, in the instant case
where the time bar is being invoked by petitioner mayor in view of the
approaching Barangay Elections in May 1997, there can be no
application of the one year bar, hence no invalidity may be ascribed to
Resolution No. 96-2951 on this ground.
We, however, find petitioner's second ground to be impressed with
merit.
Before the enactment of the 1991 Local Government Code, the recall
of public officials voted for in popular elections, was governed by
Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise known as
the Local Government Code of 1983. Pursuant to Section 59 thereof,
which states that "the Commission on Elections shall conduct and
supervise the process of and election on recall . . . and, in pursuance
thereof, promulgate the necessary rules and regulations," the
COMELEC promulgated Resolution No. 2272 Sections 4 and 5 of
which provide as follows:
Sec. 4. How instituted. — The recall of an elective
provincial, city or municipal official shall be
commenced by the filing of a duly verified notice of
recall containing the address and precinct number
of the voter filing the notice, and the name of the
official sought to be recalled, his position, and the
ground(s) for the recall. Each notice shall refer to
only one official.
The notice shall be filed in triplicate with the local
Election Registrar if the recall involves a city or
 municipal official, or with the Provincial Election
Supervisor if it involves a provincial official, one
copy of which shall be posted upon receipt thereof
on the bulletin board in the city/municipal hall.
If the recall involves a provincial official, two
additional copies of the notice shall also be
furnished by the voter filing the notice to the
Election Registrar of each city and municipality in
the province, one copy of which shall be posted
upon receipt thereof on the bulletin board in the
city/municipal hall.
Article XVIII, Section 3 of the 1987 Constitution
expressly provides that all existing laws not
inconsistent with the 1987 Constitution shall
remain operative, until amended, repealed or
revoked. Republic Act No. 7160 providing for the
Local Government Code of 1991, approved by the
President on 10 October 1991, specifically repeals
B.P. Blg. 337 as provided in Sec. 534, Title Four of
said Act. But the Local Government Code of 1991
will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P.
Blg. 337) is still the law applicable to the present
case.

In every case, the voter filing the notice of recall

xxx xxx xxx
shall furnish a copy thereof to the official sought to
be recalled, the Commission on Elections in
Manila and the Election Records and Statistics Chapter (Sections 54 to 59) of B.P. Blg. 337
Department of the Commission. provides for the mechanism for recall of local
elective officials. Section 59 expressly authorizes
the respondent COMELEC to conduct and
Sec. 5. Schedule and place of signing of the
supervise the process of and election on recall
petition. — The Election Registrar shall submit to
and in the exercise of such powers, promulgate
the Commission on Elections, not later than ten
the necessary rules and regulations. . . . Thus,
days from filing of the notice of recall, the schedule
pursuant to the rule-making power vested in
of the signing of the petition to recall for approval
respondent COMELEC, it promulgated Resolution
and funding . . .9
No. 2272 on 23 May 1990.

In the case of Sanchez v. COMELEC 10, petitioners therein contended

We therefore rule that Resolution No. 2272
that the aforegoing "Resolution No. 2272 is unconstitutional there
promulgated by respondent COMELEC is valid
being no legislative enactment yet on [the] mechanism of recall as
and constitutional. Consequently, the respondent
mandated under Sec. 3, Art. X of the Constitution". 11 It is true, as
COMELEC had the authority to approve the
private respondent asseverates, that we upheld the constitutionality of
petition for recall and set the date for the signing of
Resolution No. 2272, but not because we found nothing constitutionally
said petition. 14
infirm about the procedure of allowing the initiatory recall petition to be
filed by only one person. The issue in Sanchez was not this questioned
procedure but the legal basis for the exercise by the COMELEC of its In Sanchez and Evardone, the COMELEC-prescribed procedure of (1)
rule-making power in the alleged absence of a grant of such power by allowing the recall petition to be filed by at least one person or by less
an enabling statute on recall. Thus we ruled: than 25% of the total number of registered voters and then (2) inviting
voters to sign said petition on a date set for that purpose, was never
put to issue. As this is the crux of the present constitutional challenge,
While it is true that Sec. 3, Art. X of the
the proper time has come for this court to issue a definitive ruling on
Constitution mandates the Congress to enact a
the matter.
local government code providing among others for
an effective mechanism of recall, nothing in said
provision could be inferred the repeal of BP 337, Apropos for starters is the following chronicle of the evolution of the
the local government code existing prior to the mechanism of recall as a mode of removing a public officer by direct
adoption of the 1987 Constitution. Sec. 3, Art. X of action of the people, essayed in the case of Garcia v. COMELEC 15:
the Constitution merely provides that the local
government code to be enacted by Congress shall
Recall is a mode of removal of a public officer by
be "more responsive" than the one existing at
the people before the end of his term of office. The
present. Until such time that a more responsive
people's prerogative to remove a public officer is
and effective local government code is enacted,
an incident of their sovereign power and in the
the present code shall remain in full force and
absence of constitutional restraint, the power is
effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing
implied in all governmental operations. Such
laws, decrees, executive orders, proclamations,
power has been held to be indispensable for the
letters of instructions and other executive
proper administration of public affairs. Not
issuances not inconsistent with this Constitution
undeservedly, it is frequently described as a
shall remain operative until amended, repealed, or
fundamental right of the people in a representative
revoked.
democracy.

Considering that the present local government

Recall as a mode of removal of elective local
code (BP 337) is still in effect, respondent
officials made its maiden appearance in section 2
COMELEC's promulgation of Resolution No. 2272
of Article XI entitled Local Government, viz.:
is therefore valid and constitutional, the same
having been issued pursuant to Sec. 59 of BP
337. It reads: Sec. 2. The Batasang
Pambansa shall enact a local
government code which may
Sec. 59. Supervision by the Commission on
not thereafter be amended
Elections. — The Commission on Elections shall
except by a majority vote of all
conduct and supervise the process of and election
its Members, defining a more
on recall . . . and, in pursuance thereof,
responsive and accountable
promulgate the necessary rules and regulations. 12
local government structure
with an effective system of
We reiterated the foregoing ruling in the case of Evardone v. recall . . .
COMELEC 13 in this wise:
 The Batasang Pambansa then enacted BP 337
entitled, "The Local Government Code of 1983.
Section 54 of its Chapter 3 provided only one
mode of initiating the recall elections of local
election officials, i.e., by petition of at least twenty-
five percent (25%) of the total number of
registered voters in the local government unit
concerned . . . .
Our legal history does not reveal any instance
when this power of recall as provided by BP 337
was exercised by our people.
In February, 1986, however, our people more than
exercised their right of recall for they resorted to
revolution and they booted out of office the highest
elective officials of the land. The successful use of
people power to remove public officials who have
forfeited the trust of the electorate led to its firm
institutionalization of the 1987 Constitution. Its
Article XIII expressly recognized the Role and
Rights of People's Organizations . . . .
Section 3 of its Article X also reiterated the
mandate for Congress to enact a local government
code which "shall provide for a more responsive
and accountable local government structure
instituted through a system of decentralization with
effective mechanisms of recall, initiative and
referendum . . . . In response to this constitutional
call, Congress enacted R.A. 7160, otherwise
known as the Local Government Code of 1991,
which took effect on January 1, 1992." 16
Section 69 (d) of the Local Government Code of 1991 expressly
provides that "recall of any elective . . . municipal . . . official may also
be validly initiated upon petition of at least twenty-five percent (25%) of
the total number of registered voters in the local government unit
concerned during the election in which the local official sought to be
recalled was elected". The law is plain and unequivocal as to what
initiates recall proceedings: only a petition of at least 25% of the total
number of registered voters, may validly initiate recall proceedings. We
take careful note of the phrase, "petition of at least twenty-five percent
(25%)" and point out that the law does not state that the petition must
be signed by at least 25% of the registered voters; rather, the petition
must be "of" or by, at least 25% of the registered voters, i.e., the
petition must be filed, not by one person only, but by at least 25% of
the total number of registered voters. This is understandable, since the
signing of the petition is statutorily required to be undertaken "before
the election registrar or his representative, and in the presence of a
representative of the official sought to be recalled, and in a public place
in the . . . municipality . . . " 17. Hence, while the initiatory recall petition
may not yet contain the signatures of at least 25% of the total number
of registered voters, the petition must contain the names of at least
25% of the total number of registered voters in whose behalf only one
person may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by a
number of people less than the foregoing 25% statutory requirement,
much less, the filing thereof by just one person, as in the instant case,
since this is indubitably violative of clear and categorical provisions of
subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice
or in a vacuum. They knew that this is the requirement under a majority
of the constitutions and recall statutes in various American states to
the same extent that they were aware of the rationale therefor. While
recall was intended to be an effective and speedy remedy to remove
an official who is not giving satisfaction to the electorate regardless of
whether or not he is discharging his full duty to the best of his ability
and as his conscience dictates 18 it is a power granted to the people
who, in concert, desire to change their leaders for reasons only they,
as a collective, can justify. In other words, recall must be pursued by
the people, not just by one disgruntled loser in the elections or a small
percentage of disenchanted electors. Otherwise, its purposes as a
direct remedy of the people shall be defeated by the ill motives of a few
among them whose selfish resort to recall would destabilize the
community and seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and the
percentage of minimum voter requirement in American recall statutes,
unmistakably reveals the vigilance of lawmakers against the abuse of
the power of recall. For instance, the Supreme Court of Illinois held in
the case of In Re Bower 19 that:
[t]he only logical reason which we can ascribe for
requiring the electors to wait one year before
petitioning for a recall election is to prevent
premature action on their part in voting to remove
a newly elected official before having had
sufficient time to evaluate the soundness of his
political policies and decisions. We view the
statutory provision requiring the number of petition
signers to equal at least 45% of the total votes
case in the last general election for mayor as a
further attempt to insure that an official will not
have to defend his policies against frivolous
attacks launched by a small percentage of
disenchanted electors. 20
Along the same lines, the Supreme Court of Colorado held in the case
of Bernzen, v. City of Boulder 21 that:
[t]he framers, by requiring that a recall petition
contain the signatures of at least 25% of all votes
cast in the last election for all candidates for the
position which the person sought to be recalled
occupies, assured that a recall election will not be
held in response to the wishes of a small and
unrepresentative minority. However, once at least
25% of the electorate have expressed their
dissatisfaction, the constitution reserves the recall
power to the will of the electorate. 22
And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan
echoed the foregoing posturings in this wise:
Much of what has been said to justify a limit upon
recall clearly not provided or contemplated by the
Constitution has revealed fears about an
irresponsible electorate . . . . A much cited
Nebraska case pertaining to a Nebraska recall
statute provides some answers which are equally
applicable to the Michigan constitutional right of
recall:
. . . Doubtless the provision
requiring 30 per cent of the
electors to sign the petition
before the council [is]
compelled to act was
designed to avoid such a
contingency. The Legislature
apparently assumed that
nearly one-third of the
electorate would not entail
upon the taxpayers the cost of
an election unless the
charges made approved
themselves to their
understanding and they were
seriously dissatisfied with the
services of the incumbent of
the office. 24
In the instant case, this court is confronted with a procedure that is
unabashedly repugnant to the applicable law and no less such to the
spirit underlying that law. Private respondent who is a lawyer, knows
that Section 69 (d) of the Local Government Code plainly provides that
recall is validly initiated by a petition of 25% of the total number of
registered voters. Notwithstanding such awareness, private respondent
proceeded to file the petition for recall with only herself as the filer and
initiator. She claims in her petition that she has, together with many
others in Tumauini, Isabela, lost confidence in the leadership of
petitioner. But the petition does not bear the names of all these other
citizens of Tumauini who have reportedly also become anxious to oust
petitioner from the post of mayor. There is no doubt that private
respondent is truly earnest in her cause, and the very fact that she
affixed her name in the petition shows that she claims responsibility for
the seeming affront to petitioner's continuance in office. But the same
cannot be said of all the other people whom private respondent claims
to have sentiments similar to hers. While the people are vested with
the power to recall their elected officials, the same power is
accompanied by the concomitant responsibility to see through all the
consequences of the exercise of such power, including rising above
anonymity, confronting the official sought to be recalled, his family, his
friends, and his supporters, and seeing the recall election to its ultimate
end. The procedure of allowing just one person to file the initiatory
recall petition and then setting a date for the signing of the petition,
which amounts to inviting and courting the public which may have not,
in the first place, even entertained any displeasure in the performance
of the official sought to be recalled, is not only violative of statutory law
but also tainted with an attempt to go around the law. We can not and
must not, under any and all circumstances, countenance a
circumvention of the explicit 25% minimum voter requirement in the
initiation of the recall process.
WHEREFORE, premises considered, the PETITION
FOR CERTIORARI is hereby GRANTED. COMELEC Resolution No.
96-2951 is hereby DECLARED NULL and VOID and accordingly SET
ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made
permanent.
Costs against private respondent.
SO ORDERED.
G.R. No. 140560 May 4, 2000
JOVITO O. CLAUDIO, petitioner,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND
MANAGEMENT, COMMISSION ON AUDIT and RICHARD
ADVINCULA, respondents.
G.R. No. 140714 May 4, 2000
PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein
represented by its Chairman, RICHARD ADVINCULA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET
AND MANAGEMENT, COMMISSION ON AUDIT and HON. JOVITO
O. CLAUDIO, respondents.
MENDOZA, J.:
These are petitions arising from the proceedings initiated by the
Preparatory Recall Assembly of Pasay City (PRA) in the Commission
on Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE
PREPARATORY RECALL ASSEMBLY RESOLUTION NO. 01, S-1999
ADOPTED ON 29 MAY 1999 FOR THE RECALL OF MAYOR JOVITO
CLAUDIO OF PASAY CITY. G.R. No. 140560 is a petition
for certiorari and prohibition, seeking the nullification of the
resolution, 1 dated October 18, 1999, of the COMELEC giving due
course to the petition for the recall of petitioner Jovito O. Claudio as
mayor of Pasay City. On the other hand, G.R. No. 140714 is a petition
for mandamus filed by the PRA, represented by its Chair, Richard
Advincula, to compel the COMELEC to set the date for the holding of
recall elections in Pasay City pursuant to the aforecited resolution of
the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected
mayor of Pasay City in the May 11, 1998 elections. He assumed office
on July 1, 1998.
Sometime during the second week of May 1999, the chairs of several
barangays in Pasay City gathered to discuss the possibility of filing a
petition for recall against Mayor Claudio for loss of confidence. On May
19, 1999, at the residence of barangay chair Benjamin Lim, Jr. in
Barangay 11, Zone 4, Pasay City, several barangay chairs formed an
ad hoc committee for the purpose of convening the PRA. Richard
Advincula, private respondent in G.R. No. 140560 and petitioner in
G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of barangay
chairs, kagawads, and sangguniang kabataan chairs of Pasay City,
adopted Resolution No. 01, S-1999, entitled RESOLUTION TO
INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF
PASAY CITY FOR LOSS OF CONFIDENCE. In a letter dated June 29,
1999, Advincula, as chair of the PRA, invited the Mayor, Vice-Mayor,
Station Commander, and thirteen (13) Councilors of Pasay City to
witness the formal submission to the Office of the Election Officer on
July 2, 1999 of the petition for recall.
As scheduled, the petition for recall was filed on July 2, 1999,
accompanied by an affidavit of service of the petition on the Office of
the City Mayor. Pursuant to the rules of the COMELEC, copies of the
petition were posted on the bulletin boards of the local COMELEC
office, the City Hall, the Police Department, the public market at
Libertad St. and Taft Avenue, and at the entrance of the Sta. Clara
Church on P. Burgos St., all in Pasay City. Subsequently, a verification
of the authenticity of the signatures on the resolution was conducted by
Ligaya Salayon, the election officer for Pasay City designated by the
COMELEC.
Oppositions to the petition were filed by petitioner Jovito O. Claudio,
Rev. Ronald Langub, and Roberto L. Angeles, alleging procedural and
substantive defects in the petition, to wit: (1) the signatures affixed to
the resolution were actually meant to show attendance at the PRA
meeting; (2) most of the signatories were only representatives of the
parties concerned who were sent there merely to observe the
proceedings; (3) the convening of the PRA took place within the one-
year prohibited period; (4) the election case, 2 filed by Wenceslao
Trinidad in this Court, seeking the annulment of the proclamation of
petitioner Claudio as mayor of Pasay City, should first be decided
before recall proceedings against petitioner could be filed; and (5) the
recall resolution failed to obtain the majority of all the members of the
PRA, considering that 10 were actually double entries, 14 were not
duly accredited members of the barangays, 40 sangguniang kabataan
officials had withdrawn their support, and 60 barangay chairs executed
affidavits of retraction.
In its resolution of October 18, 1999, the COMELEC granted the
petition for recall and dismissed the oppositions against it. On the issue
of whether the PRA was constituted by a majority of its members, the
COMELEC held that the 1,073 members who attended the May 29,
1999 meeting were more than necessary to constitute the PRA,
considering that its records showed the total membership of the PRA
was 1,790, while the statistics of the Department of Interior and Local
Government (DILG) showed that the total membership of the PRA was
1,876. In either case, since only a majority is required to constitute the
PRA, clearly, a majority had been obtained in support of the recall
resolution. Based on the verification made by election officer Ligaya
Salayon, the COMELEC found the signatures of 958 members of the
PRA sufficient. On whether the pendency of the case questioning the
proclamation of petitioner was a prejudicial question which must first
be decided before any recall election could be held, the COMELEC
ruled that it was not and that petitioner was merely using the pendency
of the case to delay the recall proceedings. Finally, on whether the
petition for recall violated the bar on recall within one year from the
elective official's assumption of office, the COMELEC ruled in the
negative, holding that recall is a process which starts with the filing of
the petition for recall. Since the petition was filed on July 2, 1999,
exactly one year and a day after petitioner Claudio's assumption of
office, it was held that the petition was filed on time.
Hence, these petitions. Oral arguments were held in these cases in
Baguio City on April 4, 2000, after which the Court, by the vote of 8 to
6 of its members, 3 resolved to dismiss the petition in G.R. No. 140560
for lack of showing that the COMELEC committed a grave abuse of
discretion. On the other hand, the Court unanimously dismissed the
petition in G.R. No. 140714 on the ground that the issue raised therein
had become moot and academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the COMELEC set
the date of the recall elections in Pasay City on April 15, 2000.
Consequently, the petition for mandamus in G.R. No. 140714 to
compel the COMELEC to fix a date for the recall elections in Pasay
City is no longer tenable. We are thus left with only petitioner Claudio's
action for certiorari and prohibition.
The bone of contention in this case is §74 of the Local Government
Code (LCG) 4 which provides:
Limitations on Recall. — (a) Any elective local
official may be the subject of a recall election only
once during his term of office for loss of
confidence.
(b) No recall shall take place within one (1) year
from the date of the official's assumption to office
or one (1) year immediately preceding a regular
local election.
As defined at the hearing of these cases on April 4, 2000, the issues
are:
WHETHER, under Section 74 of the Local
Government Code of 1991 (R.A. No. 7160) . . . .
A. The word "recall" in paragraph (b) covers a
process which includes the convening of the
Preparatory Recall Assembly and its approval of
the recall resolution.
B. The term "regular local election" in the last
clause of paragraph (b) includes the election
period for that regular election or simply the date
of such election.
(1)
On Whether the Word "Recall" in Paragraph (b) of
§74 of the Local Government Code Includes the
Convening of the Preparatory Recall Assembly
and the Filing by it of a Recall Resolution.
Petitioner contends that the term "recall" in §74(b) refers to a process,
in contrast to the term "recall election" found in §74(a), which obviously
refers to an election. He claims that "when several barangay chairmen
met and convened on May 19, 1999 and unanimously resolved to
initiate the recall, followed by the taking of votes by the PRA on May
29, 1999 for the purpose of adopting a resolution "to initiate the recall
of Jovito Claudio as Mayor of Pasay City for loss of confidence," the
process of recall began" and, since May 29, 1999 was less than a year
after he had assumed office, the PRA was illegally convened and all
proceedings held thereafter, including the filing of the recall petition on
July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the process of recall
starts with the filing of the petition for recall and ends with the conduct
of the recall election, and that, since the petition for recall in this case
was filed on July 2, 1999, exactly one year and a day after petitioner's
assumption of office, the recall was validly initiated outside the one-
year prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term
"recall" as used in §74 refers to a process. They disagree only as to
when the process starts for purposes of the one-year limitation in
paragraph (b) of §74.
We can agree that recall is a process which begins with the convening
of the preparatory recall assembly or the gathering of the signatures at
least 25% of the registered voters of a local government unit, and then
proceeds to the filing of a recall resolution or petition with the
COMELEC, the verification of such resolution or petition, the fixing of
the date of the recall election, and the holding of the election on the
scheduled date. 5 However, as used in paragraph (b) of §74, "recall"
refers to the election itself by means of which voters decide whether
they should retain their local official or elect his replacement. Several
reasons can be cited in support of this conclusion.
First, §74 deals with restrictions on the power of recall. It is in fact
entitled "Limitations on Recall." On the other hand, §69 provides that
"the power of recall . . . shall be exercised by the registered voters of a
local government unit to which the local elective official belongs." Since
the power vested on the electorate is not the power to initiate recall
proceedings 6 but the power to elect an official into office, the
limitations in §74 cannot be deemed to apply to the entire recall
proceedings. In other words, the term "recall" in paragraph (b) refers
only to the recall election, excluding the convening of the PRA and the
filing of a petition for recall with the COMELEC, or the gathering of the
signatures of at least 25 % of the voters for a petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan
Province in 1993) or petitions for recall filed with the COMELEC —
there is no legal limit on the number of times such processes may be
resorted to. These are merely preliminary steps for the purpose of
initiating a recall. The limitations in §74 apply only to the exercise of
the power of recall which is vested in the registered voters. It is this —
and not merely the preliminary steps required to be taken to initiate a
recall — which paragraph (b) of §74 seeks to limit by providing that no
recall shall take place within one year from the date of assumption of
office of an elective local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC 7 where
two objections were raised against the legality of PRAs: (1) that even
the power to initiate recall proceedings is the sole prerogative of the
electorate which cannot be delegated to PRAs, and (2) that by vesting
this power in a PRA, the law in effect unconstitutionally authorizes it to
shorten the term of office of incumbent elective local officials. Both
objections were dismissed on the ground that the holding of a PRA is
not the recall itself. With respect to the first objection, it was held that it
is the power to recall and not the power to initiate recall that the
Constitution gave to the people. With respect to the second objection,
it was held that a recall resolution "merely sets the stage for the official
concerned before the tribunal of the people so he can justify why he
should be allowed to continue in office. [But until] the people render
their sovereign judgment, the official concerned remains in office . . . ."
If these preliminary proceedings do not produce a decision by the
electorate on whether the local official concerned continues to enjoy
the confidence of the people, then, the prohibition in paragraph (b)
against the holding of a recall, except one year after the official's
assumption of office, cannot apply to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to
recall election is to be found in the purpose of the limitation itself.
There are two limitations in paragraph (b) on the holding of recalls: (1)
that no recall shall take place within one year from the date of
assumption of office of the official concerned, and (2) that no recall
shall take place within one year immediately preceding a regular local
election.
The purpose of the first limitation is to provide a reasonable basis for
judging the performance of an elective local official. In the Bower
case 8 cited by this Court in Angobung v. COMELEC, 9 it was held that
"The only logical reason which we can ascribe for requiring the electors
to wait one year before petitioning for a recall election is to prevent
premature action on their part in voting to remove a newly elected
official before having had sufficient time to evaluate the soundness of
his policies and decisions." The one-year limitation was reckoned as of
the filing of a petition for recall because the Municipal Code involved in
that case expressly provided that "no removal petition shall be filed
against any officer or until he has actually held office for at least twelve
months." But however the period of prohibition is determined, the
principle announced is that the purpose of the limitation is to provide a
reasonable basis for evaluating the performance of an elective local
official. Hence, in this case, as long as the election is held outside the
one-year period, the preliminary proceedings to initiate a recall can be
held even before the end of the first year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated
before the official concerned has been in office for one-year would be
to allow him to be judged without sufficient basis. As already stated, it
is not the holding of PRA nor the adoption of recall resolutions that
produces a judgment on the performance of the official concerned; it is
the vote of the electorate in the election that does. Therefore, as long
as the recall election is not held before the official concerned has
completed one year in office, he will not be judged on his performance
prematurely.
Third, to construe the term "recall" in paragraph (b) as including the
convening of the PRA for the purpose of discussing the performance in
office of elective local officials would be to unduly restrict the
constitutional right of speech and of assembly of its members. The
people cannot just be asked on the day of the election to decide on the
performance of their officials. The crystallization and formation of an
informed public opinion takes time. To hold, therefore, that the first
limitation in paragraph (b) includes the holding of assemblies for the
exchange of ideas and opinions among citizens is to unduly curtail one
of the most cherished rights in a free society. Indeed, it is wrong to
assume that such assemblies will always eventuate in a recall election.
To the contrary, they may result in the expression of confidence in the
incumbent.
Our esteemed colleague Justice Puno says in his dissent that the
purpose of the one-year period in paragraph (b) is to provide the local
official concerned a "period of repose" during which "[his] attention
should not be distracted by any impediment, especially by disturbance
due to political partisanship." Unfortunately, the law cannot really
provide for a period of honeymoon or moratorium in politics. From the
day an elective official assumes office, his acts become subject to
scrutiny and criticism, and it is not always easy to determine when
criticism of his performance is politically motivated and when it is not.
The only safeguard against the baneful and enervating effects of
partisan politics is the good sense and self restraint of the people and
its leaders against such shortcomings of our political system. A respite
from partisan politics may have the incidental effect of providing respite
from partisanship, but that is not really the purpose of the limitation on
recall under the law. The limitation is only intended to provide a
sufficient basis for evaluating and judging the performance of an
elected local official.
In any event, it is argued that the judgments of PRAs are not "as
politically unassailable as recalls initiated directly by the people."
Justice Puno cites the "embarrassing repudiation by the people of
[Kaloocan City's] Preparatory Recall Assembly" when, instead of
ousting Mayor Rey Malonzo, they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing
election the local official whose recall is sought is actually reelected.
Laws converting municipalities into cities and providing for the holding
of plebiscites during which the question of cityhood is submitted to the
people for their approval are not always approved by the people. Yet,
no one can say that Congress is not a good judge of the will of the
voters in the locality. In the case of recall elections in Kaloocan City,
had it been shown that the PRA was resorted to only because those
behind the move to oust the incumbent mayor failed to obtain the
signatures of 25% of the voters of that city to a petition for his recall,
there may be some plausibility for the claim that PRAs are not as good
a gauge of the people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a
local government unit cannot be more representative of the sentiments
of the people than those initiated by PRAs whose members represent
the entire electorate in the local government unit. Voters who directly
initiate recalls are just as vulnerable to political maneuverings or
manipulations as are those composing PRAs.
The other point regarding Justice Puno's claim is that the question here
is not whether recalls initiated by 25% of the voters are better. The
issue is whether the one-year period of limitation in paragraph (b)
includes the convening of the PRA. Given that question, will convening
the PRA outside this period make it any more representative of the
people, as the petition filed by 25% of the registered voters is claimed
to be?
To sum up, the term "recall" in paragraph (b) refers to the recall
election and not to the preliminary proceedings to initiate recall —
1. Because §74 speaks of limitations on "recall"
which, according to §69, is a power which shall be
exercised by the registered voters of a local
government unit. Since the voters do not exercise
such right except in an election, it is clear that the
initiation of recall proceedings is not prohibited
within the one-year period provided in paragraph
(b);
2. Because the purpose of the first limitation in
paragraph (b) is to provide voters a sufficient basis
for judging an elective local official, and final
judging is not done until the day of the election;
and
3. Because to construe the limitation in paragraph
(b) as including the initiation of recall proceedings
would unduly curtail freedom of speech and of
assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than
one year after petitioner assumed office as mayor of that city, we hold
that there is no bar to its holding on that date.
(2)
On Whether the Phrase "Regular Local Election"
in the Same Paragraph (b) of §74 of the Local
Government Code includes the Election Period for
that Regular Election or Simply the Date of Such
Election.
Petitioner contends, however, that the date set by the COMELEC for
the recall election is within the second period of prohibition in
paragraph (b). He argues that the phrase "regular local elections" in
paragraph (b) does not only mean "the day of the regular local
election" which, for the year 2001 is May 14, but the election period as
well, which is normally at least forty five (45) days immediately before
the day of the election. Hence, he contends that beginning March 30,
2000, no recall election may be held.
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take place
within . . . one (1) year immediately preceding a regular local election."
Had Congress intended this limitation to refer to the campaign period,
which period is defined in the Omnibus Election Code, 10 it could have
expressly said so.
Moreover, petitioner's interpretation would severely limit the period WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while
during which a recall election may be held. Actually, because no recall the petition in G.R. No. 140714 is DISMISSED for having been
election may be held until one year after the assumption of office of an rendered moot and academic.
elective local official, presumably on June 30 following his election, the
free period is only the period from July 1 of the following year to about
SO ORDERED.
the middle of May of the succeeding year. This is a period of only nine
months and 15 days, more or less. To construe the second limitation in
paragraph (b) as including the campaign period would reduce this G.R. No. 111230 September 30, 1994
period to eight months. Such an interpretation must be rejected,
because it would devitalize the right of recall which is designed to
ENRIQUE T. GARCIA, ET AL., petitioners,
make local government units "more responsive and accountable."
vs.
COMMISSION ON ELECTIONS and SANGGUNIANG BAYAN OF
Indeed, there is a distinction between election period and campaign MORONG, BATAAN, respondents.
period. Under the Omnibus Election Code, 11 unless otherwise fixed by
the COMELEC, the election period commences ninety (90) days
before the day of the election and ends thirty (30) days thereafter. Alfonzo M. Cruz Law Offices for petitioners.
Thus, to follow petitioner's interpretation that the second limitation in
paragraph (b) includes the "election period" would emasculate even
more a vital right of the people.
PUNO, J.:
To recapitulate the discussion in parts 1 and 2, §74 imposes limitations
on the holding of recall elections. First, paragraph (a) prohibits the
holding of such election more than once during the term of office of an The 1987 Constitution is borne of the conviction that people power can
elective local official. Second, paragraph (b) prohibits the holding of be trusted to check excesses of government. One of the means by
such election within one year from the date the official assumed office. which people power can be exercised is thru initiatives where local
And third, paragraph (b) prohibits the holding of a recall election within ordinances and resolutions can be enacted or repealed. An effort to
one year immediately preceding a regular local election. As succinctly trivialize the effectiveness of people's initiatives ought to be rejected.
stated in Paras v. COMELEC, 12 "[p]aragraph (b) construed together
with paragraph (a) merely designates the period when such elective In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang
local official may be subject to recall election, that is, during the second Bayan ng Morong, Bataan agreed to the inclusion of the municipality of
year of office." Morong as part of the Subic Special Economic Zone in accord with
Republic Act
(3) No. 7227.

On Whether the Recall RESOLUTION was Signed On May 24, 1993, petitioners filed a petition 2 with the Sangguniang
by a Majority of the PRA and Duly Verified. Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye
1993. The petition states:

Petitioner alleges other grounds for seeking the annulment of the

resolution of the COMELEC ordering the holding of a recall election. I. Bawiin, nulipikahin at pawalang-bisa ang
He contends that a majority of the signatures of the members of the Pambayang Kapasyahan Blg. 10, Serye 1993 ng
PRA was not obtained because 74 members did not really sign the Sangguniang Bayan para sa pag-anib ng Morong
recall resolution. According to petitioner, the 74 merely signed their sa SSEZ na walang kondisyon.
names on pages 94-104 of the resolution to signify their attendance
and not their concurrence. Petitioner claims that this is shown by the II. Palitan ito ng isang Pambayang Kapasiyahan
word "Attendance" written by hand at the top of the page on which the na aanib lamang ang Morong sa SSEZ kung ang
signatures of the 74 begin. mga sumusunod na kondisyones ay ipagkakaloob,
ipatutupad at isasagawa para sa kapakanan at
This contention has no basis. To be sure, this claim is being raised for interes ng Morong at Bataan:
the first time in this case. It was not raised before the COMELEC, in
which the claim made by petitioner was that some of the names in the (A). Ibalik sa Bataan ang
petition were double entries, that some members had withdrawn their "Virgin Forests" — isang
support for the petition, and that Wenceslao Trinidad's pending election bundok na hindi nagagalw at
protest was a prejudicial question which must first be resolved before punong-puno ng malalaking
the petition for recall could be given due course. The order of the punong-kahoy at iba'-ibang
COMELEC embodying the stipulations of the parties and defining the halaman.
issues to be resolved does not include the issue now being raised by
petitioner.
(B) Ihiwalay ang Grande
Island sa SSEZ at ibalik ito sa
Although the word "Attendance" appears at the top of the page, it is Bataan.
apparent that it was written by mistake because it was crossed out by
two parallel lines drawn across it. Apparently, it was mistaken for the
attendance sheet which is a separate document. It is absurd to believe (K). Isama ang mga lupain ng
that the 74 members of the PRA who signed the recall resolution Bataan na nakapaloob sa
signified their attendance at the meeting twice. It is more probable to SBMA sa pagkukuenta ng
believe that they signed pages 94-104 to signify their concurrence in salaping ipinagkakaloob ng
the recall resolution of which the pages in question are part. pamahalaang national o
"Internal Revenue Allotment"
(IRA) sa Morong, Hermosa at
The other point raised by petitioner is that the recall petition filed in the sa Lalawigan.
COMELEC was not duly verified, because Atty. Nelson Ng, who
notarized it, is not commissioned as notary public for Pasay City but for
Makati City. As in the case of the first claim, this issue was not raised (D). Payagang magtatag rin
before the COMELEC itself. It cannot, therefore, be raised now. ng sariling "special economic
zones" ang bawat bayan ng
 Morong, Hermosa at
Dinalupihan.
(E). Ibase sa laki ng kanya-
kanyang lupa ang
pamamahagi ng kikitain ng
SBMA.
(G). Ibase rin ang alokasyon
ng pagbibigay ng trabaho sa
laki ng nasabing mga lupa.
(H). Pabayaang bukas ang
pinto ng SBMA na nasa
Morong ng 24 na oras at
bukod dito sa magbukas pa
ng pinto sa hangganan
naman ng Morong at
Hermosa upang magkaroon
ng pagkakataong umunlad rin
ang mga nasabing bayan, pati
na rin ng iba pang bayan ng
Bataan.
(I). Tapusin ang
pagkokonkreto ng mga daang
Morong-Tala-Orani at
Morong-Tasig-Dinalupihan
para sa kabutihan ng mga
taga-Bataan at tuloy
makatulong sa pangangalaga
ng mga kabundukan.
(J). Magkaroon ng sapat na
representasyon sa pamunuan
ng SBMA ang Morong,
Hermosa at Bataan.
The municipality of Morong did not take any action on the petition
within thirty (30) days after its submission. Petitioners then resorted to
their power of initiative under the Local Government Code of
1991. 3 They started to solicit the required number of signatures 4 to
cause the repeal of said resolution. Unknown to the petitioners,
however, the Honorable Edilberto M. de Leon, Vice Mayor and
Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter
dated June 11, 1993 to the Executive Director of COMELEC
requesting the denial of " . . . the petition for a local initiative and/or
referendum because the exercise will just promote divisiveness,
counter productive and futility." 5 We quote the letter, viz:
The Executive Director
COMELEC
Intramuros, Metro Manila
S i r:
In view of the petition filed by a group of
proponents headed by Gov. Enrique T. Garcia,
relative to the conduct of a local initiative and/or
referendum for the annulment of Pambayang
Kapasyahan Blg. 10, Serye 1993, may we
respectfully request to deny the petition referred
thereto considering the issues raised by the
proponents were favorably acted upon and
endorsed to Congress and other government
agencies by the Sangguniang Bayan of Morong.
For your information and guidance, we are
enumerating hereunder the issues raised by the
petitioners with the corresponding actions
undertaken by the Sangguniang Bayan of Morong,
to wit:
ISSUES RAISED BY PROPONENTS
I. Pawalang-bisa ang Pambayang Kapasyahan
Blg. 10, Serye ng taong 1993.
II. Palitan ito ng isang Kapasyahang Pag-anib sa
SSEZ kung:
a) Ibabalik sa Morong ang
pag-aaring Grande Island,
kabundukan at Naval
Reservation;
b) Ibase sa aring Lupa ng
LGU ang kikitain at
mapapasok na manggagawa
nila sa SSEZ;
c) Isama ang nasabing lupa
sa pagkukuwenta ng "IRA" ng
Morong, Hermosa at
Dinalupihan;
d) Makapagtatag ng sariling
"economic zones" ang
Morong, Hermosa at
Dinalupihan;
e) Pabayaan bukas ang pinto
ng Morong patungong SSEZ
at magbukas ng dalawang (2)
pinto pa;
(f) Konkretohin ang daang
Morong papunta sa Orani at
Dinalupihan;
g) Pumili ng SBMA Chairman
na taga-ibang lugar.
ACTIONS UNDERTAKEN BY THE SB OF MORONG
1. By virtue of R.A. 7227, otherwise known as the
Bases Conversion Development Act of 1992, all
actions of LGU's correlating on the above issues
are merely recommendatory in nature when such
provisions were already embodied in the statute.
2. Corollary to the notion, the Sangguniang Bayan
of Morong passed and approved Pambayang
Kapasyahan Blg. 18, Serye 1993, requesting
Congress of the Philippines to amend certain
provisions of R.A. 7227, wherein it reasserted its
position embodied in Pambayan Kapasyahan Blg.
08 and Blg. 12, Serye ng taong 1992, (Attached
and marked as Annex "A:) which tackled the same
issues raised by the petitioners particularly items
a), b), c), e), and g).
3. Item d) is already acted upon by BCDA
Chairman Arsenio Bartolome III in its letter to His
Excellency President Fidel V. Ramos, dated May
7, 1993 (Attached and marked as Annex "B") with
clarifying letter from BCDA Vice-Chairman Rogelio
L. Singson regarding lands on Mabayo and
Minanga dated June 3, 1993 that only lands inside
the perimeter fence are envisioned to be part of
SBMA.
 4. Item f), President Ramos in his marginal note aforementioned local
over the letter request of Morong, Bataan Mayor legislative assembly is
Bienvenido L. Vicedo, the Sangguniang Bayan undoubtedly a proper subject
and Congressman Payumo, when the Resolution of initiative. (Sec. 32, Art. VI,
of Concurrence to SBMA was submitted last April Constitution)
6, 1993, order the priority implementation of
completion of Morong-Dinalupihan (Tasik-Road)
5.02 For mandamus, pursuant to Sec. 3, Rule 65,
Project, including the Morong-Poblacion-Mabayo
Rules of Court, to command the respondent
Road to DPWH. (Attached and marked as Annex
Comelec to schedule forthwith the continuation of
"C").
the signing of the petition, and should the required
number of signatures be obtained, set a date for
Based on the foregoing facts, the Sangguniang the initiative within forty-five (45) days thereof.
Bayan of Morong had accommodated the clamor
of the petitioners in accordance with its limited
5.02.1 Respondent Comelec's
powers over the issues. However, the
authority in the matter of local
Sangguniang Bayan of Morong cannot afford to
initiative is merely ministerial.
wait for amendments by Congress of R.A. 7227
It is duty-bound to supervise
that will perhaps drag for several months or years,
the gathering of signatures in
thereby delaying the development of Morong,
support of the petition and to
Bataan.
set the date of the initiative
once the required number of
Henceforth, we respectfully reiterate our request to signatures are obtained.
deny the petition for a local initiative and/or
referendum because the exercise will just promote
If the
divisiveness, counter productive and futility.
required
number
Thank you and more power. of
signature
s is
Very truly yours,
obtained,
the
(SGD.) EDILBERTO M. DE LEON Comelec
Mun. Vice Mayor/Presiding Officer shall then
set a date
for the
In its session of July 6, 1993, the COMELEC en banc initiative
resolved to deny the petition for local initiative on the ground
during
that its subject is "merely a resolution (pambayang which the
kapasyahan) and not an ordinance." 6 On July 13, 1993, the propositio
COMELEC en banc further resolved to direct Provincial
n shall be
Election Supervisor, Atty. Benjamin N. Casiano, to hold submitted
action on the authentication of signatures being gathered by to the
petitioners. 7
registered
voters in
These COMELEC resolutions are sought to be set aside in the petition the local
at bench. The petition makes the following submissions: governme
nt unit
concerne
5. This is a petition for certiorari and mandamus. d for their
approval
5.01 For certiorari, conformably to Sec. 7, Art. IX within
of the Constitution, to set aside Comelec sixty (60)
Resolution Nos. 93-1676 and 93-1623 (Annexes days from
"E" and "H") insofar as it disallowed the initiation of the date
a local initiative to annul PAMBAYANG of
KAPASYAHAN BLG. 10, SERYE 1993 including certificati
the gathering and authentication of the required on by the
number of signatures in support thereof. Comelec,
as
provided
5.01.1 As an administrative in
agency, respondent Comelec subsectio
is bound to observe due n (g)
process in the conduct of its hereof, in
proceedings. Here, the case of
subject resolutions, Annexes provinces
"E" and "H", were issued ex and
parte and without affording cities,
petitioners and the other forty-five
proponents of the initiative the (45) days
opportunity to be heard in case of
thereon. More importantly, municipali
these resolutions and/or ties, and
directives were issued with thirty (30)
grave abuse of discretion. A days in
Sangguniang Bayan case of
resolution being an act of the
 barangay
s. The
initiative
shall then
be held
on the
date set,
after
which the
results
thereof
shall be
certified
and
proclaime
d by the
Comelec.
(Sec. 22,
par. (h)
R.A.
7160.
Respondent COMELEC opposed the petition. Through the
Solicitor General, it contends that under the Local
Government Code of 1991, a resolution cannot be the
subject of a local initiative. The same stance is assumed by
the respondent Sangguniang Bayan of Morong. 8
We grant the petition.
The case at bench is of transcendental significance because it involves
an issue of first impression — delineating the extent of the all important
original power of the people to legislate. Father Bernas explains that
"in republican systems, there are generally two kinds of legislative
power, original and derivative. Original legislative power is possessed
by the sovereign people. Derivative legislative power is that which has
been delegated by the sovereign people to legislative bodies and is
subordinate to the original power of the people."9
Our constitutional odyssey shows that up until 1987, our people have
not directly exercised legislative power, both the constituent power to
amend or revise the Constitution or the power to enact ordinary laws.
Section 1, Article VI of the 1935 Constitution delegated legislative
power to Congress, thus "the legislative power shall be vested in a
Congress of the Philippines, which shall consist of a Senate and a
House of Representatives." Similarly, section 1, Article VIII of the 1973
Constitution, as amended, provided that "the Legislative power shall be
vested in a Batasang Pambansa." 10
Implicit in the set up was the trust of the people in Congress to enact
laws for their benefit. So total was their trust that the people did not
reserve for themselves the same power to make or repeal laws. The
omission was to prove unfortunate. In the 70's and until the EDSA
revolution, the legislature failed the expectations of the people
especially when former President Marcos wielded lawmaking powers
under Amendment No. 6 of the 1973 Constitution. Laws which could
have bridled the nation's downslide from democracy to authoritarianism
to anarchy never saw the light of day.
In February 1986, the people took a direct hand in the determination of
their destiny. They toppled down the government of former President
Marcos in a historic bloodless revolution. The Constitution was
rewritten to embody the lessons of their sad experience. One of the
lessons is the folly of completely surrendering the power to make laws
to the legislature. The result, in the perceptive words of Father Bernas,
is that the new Constitution became "less trusting of public officials
than the American Constitution." 11
For the first time in 1987, the system of people's initiative was thus
installed in our fundamental law. To be sure, it was a late awakening.
As early as 1898, the state of South Dakota has adopted initiative and
referendum in its constitution 12 and many states have followed
suit. 13 In any event, the framers of our 1987 Constitution realized the
value of initiative and referendum as an ultimate weapon of the people
to negate government malfeasance and misfeasance and they put in
place an overarching system. Thus, thru an initiative, the people were
given the power to amend the Constitution itself. Sec. 2 of Art. XVII
provides: "Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein." Likewise, thru an initiative, the
people were also endowed with the power to enact or reject any act or
law by congress or local legislative body. Sections 1 and 32 of Article
VI provide:
Sec. 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of
a Senate and a House of Representatives except
to the extent reserved to the people by the
provisions on initiative and referendum.
xxx xxx xxx
Sec. 32. The Congress shall, as early as possible,
provide for a system of initiative and referendum,
and the exceptions therefrom, whereby the people
can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the
Congress or local legislative body after the
registration of a petition therefor signed by at least
ten per centum of the total number of registered
voters, of which every legislative district must be
represented by at least three per centum of the
registered voters thereto.
The COMELEC was also empowered to enforce and
administer all laws and regulations relative to the conduct of
an initiative and referendum. 14 Worthwhile noting is the
scope of coverage of an initiative or referendum as
delineated by section 32 Art. VI of the Constitution, supra
— any act or law passed by Congress or local legislative
body.
In due time, Congress respondent to the mandate of the Constitution. It
enacted laws to put into operation the constitutionalized concept of
initiative and referendum. On August 4, 1989, it approved Republic Act
No. 6735 entitled "An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor." Liberally borrowed
from American laws, 15 R.A. No. 6735, among others, spelled out the
requirements 16 for the exercise of the power of initiative and
referendum, the conduct of national initiative and
referendum; 17 procedure of local initiative and referendum; 18 and their
limitations. 19 Then came Republic Act No. 7160, otherwise known as
The Local Government Code of 1991. Chapter 2, Title XI, Book I of the
Code governed the conduct of local initiative and referendum.
In light of this legal backdrop, the essential issue to be resolved in the
case at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993
of the Sangguniang Bayan of Morong, Bataan is the proper subject of
an initiative. Respondents take the negative stance as they contend
that under the Local Government Code of 1991 only an ordinance can
be the subject of initiative. They rely on section 120, Chapter 2, Title
XI, Book I of the Local Government Code of 1991 which provides:
"Local Initiative Defined. — Local initiative is the legal process whereby
the registered voters of a local government unit may directly propose,
enact, or amend any ordinance."
We reject respondents' narrow and literal reading of the above
provision for it will collide with the Constitution and will subvert the
intent of the lawmakers in enacting the provisions of the Local
Government Code of 1991 on initiative and referendum.
The Constitution clearly includes not only ordinances but resolutions as
appropriate subjects of a local initiative. Section 32 of Article VI
provides in luminous language: "The Congress shall, as early as
possible, provide for a system of initiative and referendum, and the
exceptions therefrom, whereby the people can directly propose and
enact laws or approve or reject any act or law or part thereof passed
by the Congress, or local legislative body . . ." An act includes a
resolution. Black 20 defines an act as "an expression of will or purpose .
. . it may denote something done . . . as a legislature, including not
merely physical acts, but also decrees, edicts, laws,
judgments, resolves, awards, and determinations . . . ." It is basic that
a law should be construed in harmony with and not in violation of the
constitution. 21 In line with this postulate, we held in In Re Guarina that
"if there is doubt or uncertainty as to the meaning of the legislative, if
the words or provisions are obscure, or if the enactment is fairly
susceptible of two or more constructions, that interpretation will be
adopted which will avoid the effect of unconstitutionality, even though it
may be necessary, for this purpose, to disregard the more usual or
apparent import of the language used." 22
The constitutional command to include acts (i.e., resolutions) as
appropriate subjects of initiative was implemented by Congress when it
enacted Republic Act No. 6735 entitled "An Act Providing for a System
of Initiative and Referendum and Appropriating Funds Therefor." Thus,
its section 3(a) expressly includes resolutions as subjects of initiatives
on local legislations, viz:
Sec. 3. Definition of Terms — For purposes of this
Act, the following terms shall mean;
There can hardly be any doubt that when Congress enacted Republic
Act No. 6735 it intend resolutions to be proper subjects of local
initiatives. The debates confirm this intent. We quote some of the
interpellations when the Conference Committee Report on the
disagreeing provisions between Senate Bill No. 17 and House Bill No.
21505 were being considered in the House of Representatives, viz:
THE SPEAKER PRO TEMPORE. The Gentleman
from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee
Report on the disagreeing provisions between
Senate Bill No. 17 and the consolidated House Bill
No. 21505 which refers to the system providing for
the initiative ad referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the
House versions, so both versions are totally intact
in the bill. The Senators ironically provided for
local initiative and referendum and the House of
Representatives correctly provided for initiative
and referendum on the Constitution and on
national legislation.
I move that we approve the consolidated bill.

(a) "Initiative" is the power of

MR. ALBANO. Mr. Speaker.
the people to propose
amendments to the
Constitution or to propose and THE SPEAKER PRO TEMPORE. What is the
enact legislations through an pleasure of the Minority Floor Leader?
election called for the
purpose.
MR. ALBANO. Will the distinguished sponsor
answer just a few questions?
There are three (3) systems of
initiative, namely:
THE SPEAKER PRO TEMPORE. What does the
sponsor say?
a.1. Initiative on the
Constitution which refers to a
petition proposing MR. ROCO. Willingly, Mr. Speaker.
amendments to the
Constitution. THE SPEAKER PRO TEMPORE. The Gentleman
will please proceed.
a.2. Initiative on statutes
which refers to a petition MR. ALBANO. I heard the sponsor say that the
proposing to enact a national only difference in the two bills was that in the
legislation; and Senate version there was a provision for local
initiative and referendum, whereas the House
a.3. Initiative on local version has none.
legislation which refers to a
petition proposing to enact a MR. ROCO. In fact, the Senate version provided
regional, provincial, city, purely for local initiative and referendum, whereas
municipal, or barangay in the House version, we provided purely for
law, resolution, or ordinance. national and constitutional legislation.
(Emphasis ours)
MR. ALBANO. Is it our understanding, therefore,
Similarly, its section 16 states: "Limitations Upon Local that the two provisions were incorporated.?
Legislative Bodies — Any proposition on ordinance
or resolution approved through the system of initiative and
referendum as herein provided shall not be repealed, MR. ROCO. Yes, Mr. Speaker.
modified or amended, by the local legislative body
concerned within six (6) months from the date therefrom . . . MR. ALBANO. So that we will now have
." On January 16, 1991, the COMELEC also promulgated its a complete initiative and referendum both in the
Resolution No. 2300 entitled "In Re Rules and Regulations constitutional amendment and national legislation.
Governing the Conduct of Initiative on the Constitution, and
Initiative and Referendum, on National and Local Laws." It
likewise recognized resolutions as proper subjects of MR. ROCO. That is correct.
initiatives. Section 5, Article I of its Rules states: "Scope of
power of initiative — The power of initiative may be MR. ALBANO. And provincial as well as municipal
exercised to amend the Constitution, or to enact a national resolutions?
legislation, a regional, provincial, city, municipal or barangay
law, resolution or ordinance."
MR. ROCO. Down to barangay, Mr. Speaker.
 MR. ALBANO. And this initiative and referendum
is in consonance with the provision of the
Constitution whereby it mandates this Congress to
enact the enabling law, so that we shall have a
system which can be done every five years. Is it
five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For
constitutional amendments to the 1987
Constitution, it is every five years. 23
Contrary to the submission of the respondents, the subsequent
enactment of the local Government Code of 1991 which also dealt with
local initiative did not change the scope of its coverage. More
specifically, the Code did not limit the coverage of local initiatives to
ordinances alone. Section 120, Chapter 2, Title IX Book I of the Code
cited by respondents merely defines the concept of local initiative as
the legal process whereby the registered voters of a local government
unit may directly propose, enact, or amend any ordinance. It does not,
however, deal with the subjects or matters that can be taken up in a
local initiative. It is section 124 of the same Code which does. It states:
Sec. 124. Limitations on Local Initiatives. (a) The
power of local initiative shall not be exercised
more than once a year.
(b) Initiative shall extend only to subjects or
matters which are within the legal powers of the
Sanggunians to enact.
xxx xxx xxx
This provision clearly does not limit the application of local
initiatives to ordinances, but to all "subjects or matters which
are within the legal powers of the Sanggunians to enact,"
which undoubtedly includes resolutions. This interpretation is
supported by Section 125 of the same Code which provides:
"Limitations upon Sanggunians. — Any proposition or
ordinance approved through the system of initiative and
referendum as herein provided shall not be repealed,
modified or amended by the sanggunian concerned within
six (6) months from the date of the approval thereof . . . ."
Certainly, the inclusion of the word proposition is
inconsistent with respondents' thesis that only ordinances
can be the subject of local initiatives. The principal author of
the Local Government Code of 1991, former Senator
Aquilino Pimentel, espouses the same view. In his
commentaries on the said law, he wrote, viz: 24
4. Subject Matter Of Initiative. All sorts of
measures may be the subject of direct initiative for
as long as these are within the competence of the
Sanggunian to enact. In California, for example,
direct initiatives were proposed to enact a fishing
control bill, to regulate the practice of
chiropractors, to levy a special tax to secure a new
library, to grant a franchise to a railroad company,
and to prevent discrimination in the sale of
housing and similar bills.
Direct initiative on the local lever may, therefore,
cover all kinds of measures provided that these
are within the power of the local Sanggunians to
enact, subject of course to the other requisites
enumerated in the Section.
5. Form of Initiative. Regarding the form of the
measure, the section speaks only of "ordinance,"
although the measure may be contained in a
resolution. If the registered voters can propose
ordinances, why are they not allowed to propose
resolutions too? Moreover, the wording of Sec.
125, below, which deals not only with ordinances
but with "any proposition" implies the inclusion of
resolutions. The discussion hereunder will also
show support for the conclusion that resolutions
may indeed be the subject of local initiative.
We note that respondents do not give any reason why resolutions
should not be the subject of a local initiative. In truth, the reason lies in
the well known distinction between a resolution and an ordinance —
i.e., that a resolution is used whenever the legislature wishes to
express an opinion which is to have only a temporary effect while an
ordinance is intended to permanently direct and control matters
applying to persons or things in general. 25 Thus, resolutions are not
normally subject to referendum for it may destroy the efficiency
necessary to the successful administration of the business affairs of a
city. 26
In the case at bench, however, it can not be argued that the subject
matter of the resolution of the municipality of Morong merely
temporarily affects the people of Morong for it directs a permanent rule
of conduct or government. The inclusion of Morong as part of the Subic
Special Economic Zone has far reaching implications in the
governance of its people. This is apparent from a reading of section 12
of Republic Act No. 7227 entitled "An Act Accelerating the Conversion
of Military Reservations Into Other Productive Uses, Creating the
Bases Conversion and Development Authority For This Purpose,
Providing Funds Therefor and For Other Purposes." to wit:
Sec. 12. Subic Special Economic Zone. — Subject
to the concurrence by resolution of
the sangguniang panlungsod of the City of
Olongapo and the sangguniang bayan of the
Municipalities of Subic, Morong and Hermosa,
there is hereby created a Special Economic and
Free-port Zone consisting of the City of Olongapo
and the Municipality of Subic, Province of
Zambales, the lands occupied by the Subic Naval
Base and its contiguous extensions as embraced,
covered, and defined by the 1947 Military Bases
Agreement between the Philippines and the
United States of America as amended, and within
the territorial jurisdiction of the Municipalities of
Morong and Hermosa, Province of Bataan,
hereinafter referred to a as the Subic Special
Economic Zone whose metes and bounds shall be
delineated in a proclamation to be issued by the
President of the Philippines. Within thirty (30) days
after the approval of this Act, each local
government unit shall submit its resolution of
concurrence to join the Subic Special Economic
Zone to the Office of the President. Thereafter, the
President of the Philippines shall issue a
proclamation defining the metes and bounds of the
zone as provided herein.
The abovementioned zone shall be subject to the
following policies:
(a) Within the framework and subject to the
mandate and limitations of the Constitution and
the pertinent provisions of the Local Government
Code, the Subic Special Economic Zone shall be
developed into a self-sustaining, industrial,
commercial, financial and investment center to
generate employment opportunities in and around
the zone and to attract and promote productive
foreign investments;
(b) The Subic Special Economic Zone shall be
operated and managed as a separate customs
territory ensuring free flow or movement of goods
and capital within, into a exported out of the Subic
Special Economic Zone, as well as provide
incentives such as tax and duty-free importations
of raw material, capital and equipment. However,
exportations or removal of goods from the territory
of the Subic Special Economic Zone to the other Subic Bay Metropolitan Authority. The Subic Bay
parts of the Philippine territory shall be subject to Metropolitan Authority shall provide and establish
customs duties and taxes under the Customs and its own internal security and fire fighting forces;
Tariff Code and other relevant tax laws of the and
Philippines:
(i) Except as herein provided, the local
(c) The provision of existing laws, rules and government units comprising the Subic Special
regulations to the contrary notwithstanding, no Economic Zone shall retain their basic autonomy
taxes, local and national, shall be imposed within and identity. The cities shall be governed by their
the Subic Special Economic Zone. In lieu of respective charters and the municipalities shall
paying taxes, three percent (3%) of the of the operate and function in accordance with Republic
gross income earned by all businesses and Act No. 7160, otherwise known as the Local
enterprises within the Subic Special Economic Government Code of 1991.
Zone shall be remitted to the National Government
one percent (1%) each to the local government
In relation thereto, section 14 of the same law provides:
units affected by the declaration of the zone in
proportion to their population area, and other
factors. In addition, there is hereby established a Sec. 14. Relationship with the Conversion
development fund of one percent (1%) of the Authority and the Local Government Units. —
gross income earned by all businesses and
enterprises within the Subic Special Economic
Zone to be utilized for the development of (a) The provisions of existing laws, rules and
regulations to the contrary notwithstanding, the
municipalities outside the City of Olongapo and
the Municipality of Subic, and other municipalities Subic Authority shall exercise administrative
contiguous to the base areas. powers, rule-making and disbursement of funds
over the Subic Special Economic Zone in
conformity with the oversight function of the
In case of conflict between national and local laws Conversion Authority.
with respect to tax exemption privileges in the
Subic Special Economic Zone, the same shall be
resolved in favor of the latter; (b) In case of conflict between the Subic Authority
and the local government units concerned on
matters affecting the Subic Special Economic
(d) No exchange control policy shall be applied zone other than defense and security, the decision
and free markets for foreign exchange, gold, of the Subic Authority shall prevail.
securities and futures shall be allowed and
maintained in the Subic Special Economic Zone;
Considering the lasting changes that will be wrought in the
social, political, and economic existence of the people of
(e) The Central Bank, through the Monetary Morong by the inclusion of their municipality in the Subic
Board, shall supervise and regulate the operations Special Economic Zone, it is but logical to hear their voice on
of banks and other financial institutions within the the matter via an initiative. It is not material that the decision
Subic Special Economic Zone; of the municipality of Morong for the inclusion came in the
form of a resolution for what matters is its enduring effect on
the welfare of the people of Morong.
(f) Banking and finance shall be liberalized with
the establishment of foreign currency depository
units of local commercial banks and offshore Finally, it cannot be gained that petitioners were denied due process.
banking units of foreign banks with minimum They were not furnished a copy of the letter-petition of Vice Mayor
Central Bank regulation; Edilberto M. de Leon to the respondent COMELEC praying for denial
of their petition for a local initiative on Pambayang Kapasyahan Blg.
10, Serye 1993. Worse, respondent COMELEC granted the petition
(g) Any investor within the Subic Special
without affording petitioners any fair opportunity to oppose it. This
Economic Zone whose continuing investment shall
procedural lapse is fatal for at stake is not an ordinary right but the
not be less than Two hundred fifty thousand
sanctity of the sovereignty of the people, their original power to
dollars ($250,000), his/her spouse and dependent
legislate through the process of initiative. Ours is the duty to listen and
children under twenty-one (21) years of age, shall
the obligation to obey the voice of the people. It could well be the only
be granted permanent resident status within the
force that could foil the mushrooming abuses in government.
Subic Special Economic Zone. They shall have
freedom of ingress and egress to and from the
Subic Special Economic Zone without any need of IN VIEW WHEREOF, the petition is GRANTED and COMELEC
special authorization from the Bureau of Resolution 93-1623 dated July 6, 1993 and Resolution 93-1676 dated
Immigration and Deportation. The Subic Bay July 13, 1993 are ANNULLED and SET ASIDE. No costs.
Metropolitan Authority referred to in Section 13 of
this Act may also issue working visas renewable
SO ORDERED.
every two (2) years to foreign executives and other
aliens possessing highly-technical skills which no
Filipino within the Subic Special Economic Zone
possesses, as certified by the Department of
Labor and Employment. The names of aliens
granted permanent residence status and working
visas by the Subic Bay Metropolitan Authority shall
be reported to the Bureau of Immigration and
Deportation within thirty (30) days after issuance
thereof.

(h) The defense of the zone and the security of its

perimeters shall be the responsibility of the
National Government in coordination with the