(d) Those with dual citizenship.
CICERON P. ALTAREJOS, petitioner, vs. COMMISSION ON ELECTIONS, JOSE ALMIE and
VERNON VERSOZA, respondents.
This is a petition for certiorari, with prayer for the issuance of a
temporary restraining order and/or a writ of prohibitory and
mandatory injunction, to set aside the Resolution promulgated by the
Commission on Elections (COMELEC), First Division, on March 22, 2004
disqualifying petitioner Ciceron P. Altarejos from running as mayor of
San Jacinto, Masbate, and another resolution of the COMELEC en
banc promulgated on May 7, 2004 denying petitioners motion for
reconsideration.
The factual antecedents are as follows:
Petitioner Altarejos was a candidate for mayor in the
Municipality of San Jacinto, Masbate in the May 10, 2004 national and
local elections.
On January 15, 2004, private respondents Jose Almie Altiche and
Vernon Versoza, registered voters of San Jacinto, Masbate, filed with
the COMELEC, a petition to disqualify and to deny due course or cancel
the certificate of candidacy of petitioner on the ground that he is not a
Filipino citizen and that he made a false representation in his
certificate of candidacy that [he] was not a permanent resident of or
immigrant to a foreign country.
Private respondents alleged that based on a letter[1] from the
Bureau of Immigration dated June 25, 2001, petitioner was a holder of
a permanent U.S. resident visa, an Alien Certificate of Registration No.
E139507 issued on November 3, 1997, and an Immigration Certificate
of Residence No. 320846 issued on November 3, 1997 by the Bureau
of Immigration.[2]
On January 26, 2004, petitioner filed an Answer[3] stating, among
others, that he did not commit false representation in his application
for candidacy as mayor because as early as December 17, 1997, he
was already issued a Certificate of Repatriation by the Special
Committee on Naturalization, after he filed a petition for repatriation
pursuant to Republic Act No. 8171. Thus, petitioner claimed that his
Filipino citizenship was already restored, and he was qualified to run
as mayor in the May 10, 2004 elections. Petitioner sought the
dismissal of the petition.
On the date of the hearing, the parties were required to submit
their Memoranda within three days. Private respondents filed their
Memorandum, while petitioner did not file one within the required
period.[4] Petitioner, however, filed a Reply
Memorandum[5] subsequently.
Atty. Zacarias C. Zaragoza, Jr., regional election director for
Region V and hearing officer of this case, recommended that
petitioner Altarejos be disqualified from being a candidate for the
position of mayor of San Jacinto, Masbate in the May 10, 2004
national and local elections. He found, thus:x x x
The provisions of law governing the qualifications and
disqualifications of elective local officials are found in Sections 39 and
40 of Republic Act No. 7160 otherwise known as the Local
Government Code of 1991, which provide as follows:
SEC. 39. Qualifications. (a) An elective local official must be a citizen
of the Philippines; a registered voter in the barangay, municipality,
city or province or, in the case of member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang bayan, the
district where he intends to be elected; a resident therein for at least
one (1) year immediately preceding the day of the election; and able
to read and write Filipino or any other local language or dialect.
xxx.
(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.
[SEC. 40. Disqualifications. The following persons are disqualified from
running for any elective position:]
xxx.
xxx.
(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; xxx
Under the terms of the above quoted statutory provisions, it is
required that an elective local official must be a citizen of the
Philippines, and he must not have a dual citizenship; must not be a
permanent resident in a foreign country or must not have acquired the
right to reside abroad.
In the present case, it has been established by clear and convincing
evidence that respondent is a citizen of the United States of America.
Such fact is proven by his Alien Certificate of Registration (ACR) No.
E139507 issued on 3 November 1997 and Immigration Certificate of
Residence (ICR) with No. 320846 issued on 3 November 1997 by the
Alien Registration Division, Bureau of Immigration and Deportation.
This was further confirmed in a letter dated 25 June 2001 of then
Commissioner ANDREA D. DOMINGO of the Bureau of Immigration
and Deportation.
Although respondent had petitioned for his repatriation as a Filipino
citizen under Republic Act No. 8171 on 17 December 1997, this did not
restore to respondent his Filipino citizenship, because Section 2 of the
aforecited Republic Act No. 8171 specifically provides that repatriation
shall be effected by taking the necessary oath of allegiance to the
Republic of the Philippines and registration in the proper civil registry
and in the Bureau of Immigration.
It appears from the records of this case that respondent failed to
prove that he has fully complied with requirements of the above-
quoted Section 2 of Republic Act 8171 to perfect his repatriation and
reacquire his Filipino citizenship. Respondent has not submitted any
document to prove that he has taken his oath of allegiance to the
Republic of the Philippines and that he has registered his fact of
repatriation in the proper civil registry and in the Bureau of
Immigration. In fact, in a letter date 25 June 2001, Commissioner
ANDREA DOMINGO stated that RESPONDENT is still a holder of visa
under Section 13 (g) of the Philippine Immigration Act of 1940 as
amended, with an indefinite authorized stay in the Philippines,
implying that respondent did not register his supposed Certificate of
Repatriation with the Bureau of Immigration otherwise his Alien Visa
would have already been cancelled. The rule is that in case of doubt
concerning the grant of citizenship, such doubt should be resolved in
favor of the State and against the applicant (Cheng vs. Republic, L-
16999, 22 June 1965).
xxx
Not having been able to prove that he has fully reacquired his Filipino
citizenship after being naturalized as a citizen of the United States, it is
clear that respondent is not qualified to be candidate for the position
of Mayor of San Jacinto, Masbate, in the 10 May 2004 National and
Local Elections, pursuant to the aforequoted Sections 39 and 40 of the
Local Government Code of 1991.
As a further consequence of his not being a Filipino citizen, respondent
has also committed false representation in his certificate of candidacy
by stating therein that he is a natural-born Filipino citizen, when in
fact, he has not yet even perfected the reacquisition of Filipino
citizenship. Such false representation constitutes a material
misrepresentation as it relates to his qualification as a candidate for
public office, which could be a valid ground for the cancellation of his
certificate of candidacy under Section 78 of the Omnibus Election
Code x x x. [6]
In its Resolution promulgated on March 22, 2004, the COMELEC,
First Division, adopted the findings and recommendation of Director
Zaragoza. The dispositive portion of said Resolution stated, thus:
WHEREFORE, premises considered, respondent CICERON PEREZ
ALTAREJOS is hereby disqualified to run as Mayor of San Jacinto,
Masbate. Accordingly, his certificate of candidacy for the position of
Municipal Mayor of San Jacinto, Masbate is denied due course and
cancelled and his name deleted from the certified list of candidates for
the May 10, 2004 elections.[7]
On March 25, 2004, petitioner filed a motion for reconsideration
and attached the following documents to prove that he had
completed all the requirements for repatriation which thus entitled
him to run for an elective office, viz:
(1) Oath of Allegiance dated December 17, 1997;
(2) Identification Certificate No. 116543 issued by the Bureau of
Immigration on March 1, 2004;
(3) Certification from the City Civil Registration Office, Makati
City, that the Certificate of Repatriation and Oath of Allegiance of
petitioner was received by said office and registered, with the
corresponding fee paid, on February 18, 2004;
(4) A letter dated December 17, 1997 from the Special
Committee on Naturalization to the Bureau on Immigration and
Deportation that it was furnishing said office with the Oath of
Allegiance and Certificate of Repatriation of petitioner for the
cancellation of petitioners registration in said office as an alien, and
the issuance to him of the corresponding Identification Card as Filipino
citizen;
(5) A letter dated December 17, 1997 from the Special
Committee on Naturalization to the Local Registrar of San Jacinto,
Masbate that it was sending petitioners Oath of Allegiance and
Certificate of Repatriation for registration in their records and for
petitioners reacquisition of his former Philippine citizenship.
On May 7, 2004, the COMELEC en banc promulgated a resolution
denying the motion for reconsideration, the dispositive portion of
which reads:
WHEREFORE, premises considered, the Commission (En
Banc) RESOLVED as it hereby RESOLVES to DENY the Motion for
Reconsideration for UTTER LACK OF MERIT and AFFIRMS the
Resolution of the First Division.[8]
The Comelec en banc held, thus:
The Comelec Rules of Procedure provides that insufficiency of
evidence to justify the decision is a ground for a motion for
reconsideration (Rule 19, Section 1). The evidence referred to in the
above provision and to be considered in the Motion for
Reconsideration are those which were submitted during the hearing
and attached to the respective Memoranda of the parties which are
already part of the records of the case. In this regard, the evidence of
the respondent were not able to overcome the evidence of the
petitioners.
When the entire records of the case was forwarded to the Commission
(First Division) the respondents only evidence was his Certificate of
Repatriation dated 17 December 1977 and marked as Annex 1 of his
answer. This piece of evidence was not enough to controvert the
evidence of the petitioners which consist of the letter of the then
Bureau of Immigration Commissioner Andrea Domingo dated 25 June
2001 which stated that as of the even date respondent is a holder of
permanent resident visa (page 15 of the records) and the certification
of Josephine C. Camata dated 28 January 2004 certifying, that the
name of the respondent could not be found in the records of
repatriation. (page 42 of the records) The questioned resolution, is
therefore, in order as the evidence submitted by the respondent were
insufficient to rebut the evidence of the petitioner.
Now, the respondent, in his Motion for Reconsideration, attempted to
introduce to the record new pieces of evidence, which introduction is
not anymore allowed in a Motion for Reconsideration. These are the
following a) Annex 2 Oath of Allegiance; b) Annex 3 Bureau of
Immigration Identification Certificate; c) Annex 4 Certification of the
City Civil Registrar of Makati City; d) Annex 5 Letter addressed to the
Local Civil Registrar of San Jacinto, Masbate by Aurora P. Cortes of
Special Committee on Naturalization; and e) Annex 6 Letter addressed
to the Bureau of Immigration and Deportation by Aurora P. Cortes of
Special Committee on Naturalization.
Assuming that the new evidence of the respondent are admitted, with
more reason should we cancel his certificate of candidacy for his act of
[misrepresenting] himself as a Filipino citizen when at the time he filed
his certificate of candidacy, he has not yet perfected the process of
repatriation. He failed to comply with the requirements under Section
2 of [Republic Act No.] 8171 which provides that repatriation shall be
effected by taking the necessary oath of allegiance to the Republic of
the Philippines and registration in the proper civil registry and in the
Bureau of Immigration.
The certification was issued by the same Ms. Josephine C. Camata, City
Civil Registrar, dated February 18, 2004. This time, she certifies that
Ciceron Perez Altarejos was registered under Registry No. 1, Page 19,
Book No. 1, Series of 2004 and paid under OR nos. 88325/8833256
dated February 18, 2004. (page 65 of the records). Obviously, he was
able to register in the proper civil registry only on February 18, 2004.
The respondent was able to register with the Bureau of Immigration
only on March 1, 2004 as evidenced by the Bureau of Immigration
Identification Certificate attached to the Motion as Annex 3.
This fact confirms the finding of the Commission (First Division) that at
the time respondent filed his certificate of candidacy he is yet to
complete the requirement under section two (2) of RA 8171.
As a consequence of not being a Filipino citizen, he has committed
false representation in his certificate of candidacy. Such false
representation constitutes a material misrepresentation as it relates to
his qualification as a candidate. As such the certificate of candidacy
may be cancelled on such ground. (Ycain vs. Caneja, 18 Phil. 778)[9]
On May 10, 2004, the election day itself, petitioner filed this
petition praying that: (1) The petition be given due course and a
temporary restraining order and/or writ of preliminary injunction be
issued ex parte restraining the respondents and all persons acting on
their behalf, from fully implementing the questioned COMELEC
Resolutions promulgated on March 22, 2004 and May 7, 2004; (2) a
writ of preliminary mandatory injunction be issued ordering the
COMELEC and all persons acting on its behalf to allow petitioner to run
as Mayor of San Jacinto, Masbate in the May 10, 2004 elections, and
to count and canvass the votes cast in his favor and to proclaim him as
the winning mayor of San Jacinto, Masbate; and (3) after proper
proceedings, judgment be rendered declaring null and void and setting
aside the COMELEC Resolutions promulgated on March 22, 2004 and
May 7, 2004 and other related Orders of the COMELEC or its
representatives which have the effect of illegally preventing petitioner
from running as Mayor of San Jacinto, Masbate.
In its Comment,[10] the Office of the Solicitor General stated that,
based on the information relayed to it by the COMELEC, petitioners
name, as a mayoralty candidate in San Jacinto, Masbate, was retained
in the list of candidates voted upon by the electorate in the said
municipality. Hence, the cancellation of petitioners certificate of
candidacy was never implemented. The COMELEC also informed the
Office of the Solicitor General that petitioners opponent, Dr. Emilio
Aris V. Espinosa, was already proclaimed duly elected Mayor of San
Jacinto, Masbate.
The Office of the Solicitor General contends that said
supervening event has rendered the instant petition moot and
academic, and it prayed for the dismissal of the petition.
In his Reply,[11] petitioner opposed the dismissal of his petition.
He claims that the COMELEC resolutions disqualifying him from
running as a mayoralty candidate adversely affected his candidacy,
since his supporters were made to believe that his votes would not be
counted. Moreover, he stated that said COMELEC resolutions cast a
doubt on his Philippine citizenship.
Petitioner points out that he took his Oath of Allegiance to the
Republic of the Philippines on December 17, 1997. In view thereof, he
ran and was even elected as Mayor of San Jacinto, Masbate during the
1998 elections. He argues that if there was delay in the registration of
his Certificate of Repatriation with the Bureau of Immigration and with
the proper civil registry, the same was brought about by the inaction
on the part of said offices since the records of the Special Committee
on Naturalization show that his Certificate of Repatriation and Oath of
Allegiance have long been transmitted to said offices.
Petitioner also asserts that the subsequent registration of his
Certificate of Repatriation with the Bureau of Immigration and with
the Civil Registry of Makati City prior to the May 10, 2004 elections has
the effect of curing the defect, if any, in the reacquisition of his Filipino
citizenship as his repatriation retroacted to the date of his application
for repatriation as held inFrivaldo v. Comelec.
The pertinent issues raised are the following: (1) Is the
registration of petitioners repatriation with the proper civil registry
and with the Bureau of Immigration a prerequisite in effecting
repatriation; and (2) whether or not the COMELEC en banc committed
grave abuse of discretion amounting to excess or lack of jurisdiction in
affirming the Resolution of the COMELEC, First Division.
As stated by the Office of the Solicitor General, where the issues
have become moot and academic, there is no justiciable controversy,
thereby rendering the resolution of the same of no practical use or
value.[12] Nonetheless, courts will decide a question otherwise moot
and academic if it is capable of repetition, yet evading review.[13]
First Issue: Is the registration of petitioners repatriation with
the proper civil registry and with the Bureau of Immigration a
prerequisite in effecting repatriation?
The provision of law applicable in this case is Section 2 of
Republic Act No. 8171,[14] thus:
SEC. 2. Repatriation shall be effected by taking the necessary oath of
allegiance to the Republic of the Philippines and registration in the
proper civil registry and in the Bureau of Immigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien certificate of
registration and issue the certificate of identification as Filipino citizen
to the repatriated citizen.
The law is clear that repatriation is effected by taking the oath of
allegiance to the Republic of the Philippines and registration in the
proper civil registry and in the Bureau of Immigration. Hence, in
addition to taking the Oath of Allegiance to the Republic of the
Philippines, the registration of the Certificate of Repatriation in the
proper civil registry and the Bureau of Immigration is a prerequisite in
effecting the repatriation of a citizen.
In this case, petitioner took his Oath of Allegiance on December
17, 1997, but his Certificate of Repatriation was registered with the
Civil Registry of Makati City only after six years or on February 18,
2004, and with the Bureau of Immigration on March 1, 2004.
Petitioner, therefore, completed all the requirements of repatriation
only after he filed his certificate of candidacy for a mayoralty position,
but before the elections.
When does the citizenship qualification of a candidate for an
elective office apply?
In Frivaldo v. Commission on Elections,[15] the Court ruled that
the citizenship qualification must be construed as applying to the time
of proclamation of the elected official and at the start of his term. The
Court, through Justice Artemio V. Panganiban, discussed, thus:
Under Sec. 39 of the Local Government Code, (a)n elective local
official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or
province x x x where he intends to be elected;
* a resident therein for at least one (1) year immediately
preceding the day of the election;
* able to read and write Filipino or any other local
language or dialect.
* In addition, candidates for the position of governor x x x
must be at least twenty-three (23) years of age on
election day.
From the above, it will be noted that the law does not specify any
particular date or time when the candidate must possess citizenship,
unlike that for residence (which must consist of at least one years
residency immediately preceding the day of election) and age (at least
twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an
elective public office, and the purpose of the citizenship qualification is
none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country
or a unit of territory thereof. Now, an official begins to govern or to
discharge his functions only upon his proclamation and on the day the
law mandates his term of office to begin. Since Frivaldo re-assumed his
citizenship on June 30, 1995the very day the term of office of governor
(and other elective officials) beganhe was therefore already qualified
to be proclaimed, to hold such office and to discharge the functions
and responsibilities thereof as of said date. In short, at that time, he
was already qualified to govern his native Sorsogon. This is the liberal
interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was
enacted. x x x Paraphrasing this Courts ruling in Vasquez v. Giap and Li
Seng Giap & Sons, if the purpose of the citizenship requirement is to
ensure that our people and country do not end up being governed by
aliens, i.e., persons owing allegiance to another nation, that aim or
purpose would not be thwarted but instead achieved by construing
the citizenship qualification as applying to the time of proclamation
of the elected official and at the start of his term.[16](Emphasis
supplied.)
Moreover, in the case of Frivaldo v. Commission on Elections, the
Court ruled that the repatriation of Frivaldo RETROACTED to the date
of the filing of his application. In said case, the repatriation of Frivaldo
was by virtue of Presidential Decree No. 725, which took effect on
June 5, 1975. The Court therein declared that Presidential Decree No.
725 was a curative statute, which is retroactive in nature. The
retroactivity of Frivaldos repatriation to the date of filing of his
application was justified by the Court, thus:
xxx
The reason for this is simply that if, as in this case, it was the intent of
the legislative authority that the law should apply to past eventsi.e.,
situations and transactions existing even before the law came into
beingin order to benefit the greatest number of former Filipinos
possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such legislative
intention is to be given the fullest effect and expression, then there is
all the more reason to have the law apply in a retroactive or
retrospective manner to situations, events and transactions
subsequent to the passage of such law. That is, the repatriation
granted to Frivaldo x x x can and should be made to take effect as of
date of his application. As earlier mentioned, there is nothing in the
law that would bar this or would show a contrary intention on the part
of the legislative authority; and there is no showing that damage or
prejudice to anyone, or anything unjust or injurious would result from
giving retroactivity to his repatriation. Neither has Lee shown that
there will result the impairment of any contractual obligation,
disturbance of any vested right or breach of some constitutional
guaranty.
xxx
Another argument for retroactivity to the date of filing is that it would
prevent prejudice to applicants. If P.D. 725 were not to be given
retroactive effect, and the Special Committee decides not to act, i.e.,
to delay the processing of applications for any substantial length of
time, then the former Filipinos who may be stateless, as
Frivaldohaving already renounced his American citizenshipwas, may be
prejudiced for causes outside their control. This should not be. In case
of doubt in the interpretation or application of laws, it is to be
presumed that the law-making body intended right and justice to
prevail.[17]
Republic Act No. 8171[18] has impliedly repealed Presidential
`Decree No. 725. They cover the same subject matter: Providing for
the repatriation of Filipino women who have lost their Philippine
citizenship by marriage to aliens and of natural-born Filipinos. The
Courts ruling in Frivaldo v. Commission on Elections that repatriation
retroacts to the date of filing of ones application for repatriation
subsists for the same reasons quoted above.
Accordingly, petitioners repatriation retroacted to the date he
filed his application in 1997. Petitioner was, therefore, qualified to run
for a mayoralty position in the government in the May 10, 2004
elections. Apparently, the COMELEC was cognizant of this fact since it
did not implement the assailed Resolutions disqualifying petitioner to
run as mayor of San Jacinto, Masbate.
Second Issue: Whether or not the COMELEC en banc gravely
abused its discretion in affirming the Resolution of the COMELEC,
First Division?
The Court cannot fault the COMELEC en banc for affirming the
decision of the COMELEC, First Division, considering that petitioner
failed to prove before the COMELEC that he had complied with the
requirements of repatriation. Petitioner submitted the necessary
documents proving compliance with the requirements of repatriation
only during his motion for reconsideration, when the COMELEC en
banc could no longer consider said evidence. As the COMELEC en
banc correctly stated:
The Comelec Rules of Procedure provides that insufficiency of
evidence to justify the decision is a ground for a motion for
reconsideration (Rule 19, Section 1). The evidence referred to in the
above provision and to be considered in the Motion for
Reconsideration are those which were submitted during the hearing
and attached to the respective Memoranda of the parties which are
already part of the records of the case. In this regard, the evidence of
the respondent were not able to overcome the evidence of the
petitioners.[19]
It is, therefore, incumbent upon candidates for an elective office,
who are repatriated citizens, to be ready with sufficient evidence of
their repatriation in case their Filipino citizenship is questioned to
prevent a repetition of this case.
WHEREFORE, the petition seeking the nullification of the
Resolution of the COMELEC en banc of May 7, 2004, affirming the
Resolution of its First Division dated March 22, 2004, is hereby
DENIED. No costs.
SO ORDERED.
MAKIL U. PUNDAODAYA versus COMMISSION ON ELECTIONS and
ARSENIO DENSING NOBLE
This petition[1] for certiorari under Rule 65 assails the August 3, 2007
Resolution[2] of the Commission on Elections (COMELEC) En Banc in
SPA No. 07-202, which declared private respondent Arsenio Densing
Noble (Noble) qualified to run for municipal mayor of Kinoguitan,
Misamis Oriental, in the May 14, 2007 Synchronized National and
Local Elections.
The facts are as follows:
Petitioner Makil U. Pundaodaya (Pundaodaya) is married to Judith
Pundaodaya, who ran against Noble for the position of municipal
mayor of Kinoguitan, Misamis Oriental in the 2007 elections.
On March 27, 2007, Noble filed his Certificate of Candidacy, indicating
therein that he has been a resident of Purok 3, Barangay Esperanza,
Kinoguitan, Misamis Oriental for 15 years.
On April 3, 2007, Pundaodaya filed a petition for disqualification[3]
against Noble docketed as SPA No. 07-202, alleging that the latter
lacks the residency qualification prescribed by existing laws for
elective local officials; that he never resided nor had any physical
presence at a fixed place in Purok 3, Barangay Esperanza, Kinoguitan,
Misamis Oriental; and that he does not appear to have the intention of
residing therein permanently. Pundaodaya claimed that Noble is in
fact a resident of Lapasan, Cagayan de Oro City, where he also
maintains a business called OBERT Construction Supply.
In his Answer,[4] Noble averred that he is a registered voter and
resident of Barangay Esperanza, Kinoguitan, Misamis Oriental; that on
January 18, 1992, he married Bernadith Go, the daughter of then
Mayor Narciso Go of Kinoguitan, Misamis Oriental; that he has been
engaged in electoral activities since his marriage; and that he voted in
the said municipality in the 1998, 2001 and 2004 elections.
In a resolution dated May 13, 2007,[5] the Second Division of the
COMELEC ruled in favor of Pundaodaya and disqualified Noble from
running as mayor, thus:
Respondent Nobles claim that he is a registered voter and has actually
voted in the past three (3) elections in the said municipality does not
sufficiently establish that he has actually elected residency at
Kinoguitan, Misamis Oriental. Neither does campaigning in previous
elections sufficiently establish residence.
Respondent Noble failed to show that he has indeed acquired domicile
at Kinoguitan, Misamis Oriental. He failed to prove not only his bodily
presence in the new locality but has likewise failed to show that he
intends to remain at Kinoguitan, Misamis Oriental and abandon his
residency at Lapasan, Cagayan de Oro City.
WHEREFORE, premises considered, the instant Petition to Disqualify
Aresnio Densing Noble is hereby GRANTED.
SO ORDERED.[6]
Noble filed a motion for reconsideration of the above resolution. In
the meantime, he garnered the highest number of votes and was
proclaimed the winning candidate on May 15, 2007. Pundaodaya then
filed an Urgent Motion to Annul Proclamation.[7]
On August 3, 2007, the COMELEC En Banc reversed the decision of the
Second Division and declared Noble qualified to run for the mayoralty
position.
The COMELEC En Banc held that when Noble married Bernadith Go on
January 18, 1992, the couple has since resided in Kinoguitan, Misamis
Oriental; that he was a registered voter and that he participated in the
last three elections; and although he is engaged in business in Cagayan
de Oro City, the fact that he resides in Kinoguitan and is a registered
voter and owns property thereat, sufficiently meet the residency
requirement.[8] Thus:
WHEREFORE, premises considered, the Commission (en banc)
RESOLVED, as it hereby RESOLVES, to GRANT the instant Motion for
Reconsideration and to REVERSE AND SET ASIDE the Resolution
promulgated on May 13, 2007 issued by the Commission (Second
Division).
ACCORDINGLY, respondent ARSENIO DENSING NOBLE is QUALIFIED to
run for the local elective position of Municipal Mayor of the
Municipality of Kinoguitan, Misamis Oriental in the May 14, 2007
Synchronized National and Local Elections.
SO ORDERED.[9]
Pundaodaya filed the instant petition for certiorari, alleging that the
COMELEC En Banc acted with grave abuse of discretion when it
declared Noble qualified to run; when it did not annul Nobles
proclamation; and when it failed to proclaim the true winning
candidate, Judith Pundaodaya.
In a resolution dated November 13, 2007,[10] the Court required the
respondents to comment on the petition.
Public respondent, through the Office of the Solicitor General, filed a
Manifestation and Motion[11] praying that it be excused from filing a
separate comment and that the said pleading be considered sufficient
compliance with the November 13, 2007 Resolution.
Meanwhile, for Nobles failure to comply, the Court issued
Resolutions[12] dated July 15, 2008 and December 9, 2008 requiring
him to show cause why he should not be disciplinarily dealt with or
held in contempt, imposing a fine of P1,000.00, and requiring him to
file a comment. On June 2, 2009, the Court deemed Noble to have
waived the filing of the comment.[13]
The issues for resolution are: whether the COMELEC En Banc gravely
abused its discretion: 1) in declaring Noble qualified to run for the
mayoralty position; and 2) in failing to order the annulment of Nobles
proclamation and refusing to proclaim Judith Pundaodaya as the
winning candidate.
Section 39 of Republic Act No. 7160, otherwise known as the Local
Government Code, requires that an elective local official must be a
resident in the barangay, municipality, city or province where he
intends to serve for at least one year immediately preceding the
election.[14]
In Japzon v. Commission on Elections,[15] it was held that the term
residence is to be understood not in its common acceptation as
referring to dwelling or habitation, but rather to domicile or legal
residence, that is, the place where a party actually or constructively
has his permanent home, where he, no matter where he may be
found at any given time, eventually intends to return and remain
(animus manendi).
In Domino v. Commission on Elections,[16] the Court explained that
domicile denotes a fixed permanent residence to which, whenever
absent for business, pleasure, or some other reasons, one intends to
return. It is a question of intention and circumstances. In the
consideration of circumstances, three rules must be borne in mind,
namely: (1) that a man must have a residence or domicile somewhere;
(2) when once established it remains until a new one is acquired; and
(3) a man can have but one residence or domicile at a time.
If one wishes to successfully effect a change of domicile, he must
demonstrate an actual removal or an actual change of domicile, a
bona fide intention of abandoning the former place of residence and
establishing a new one, and definite acts which correspond with the
purpose.[17] Without clear and positive proof of the concurrence of
these three requirements, the domicile of origin continues.[18]
Records show that Nobles domicile of origin was Lapasan, Cagayan de
Oro City. However, he claims to have chosen Kinoguitan, Misamis
Oriental as his new domicile. To substantiate this, he presented before
the COMELEC his voter registration records;[19] a Certification dated
April 25, 2007 from Election Officer II Clavel Z. Tabada;[20] his
Marriage Certificate;[21] and affidavits of residents of Kinoguitan[22]
attesting that he established residence in the municipality after his
marriage to Bernadith Go. In addition, he presented receipts[23] from
the Provincial Treasurer for payment of his water bills, and
Certifications from the Municipal Treasurer and Municipal Engineer
that he has been a consumer of the Municipal Water System since
June 2003. To prove ownership of property, he also presented a Deed
of Sale[24] over a real property dated June 3, 1996.
The above pieces of documentary evidence, however, fail to convince
us that Noble successfully effected a change of domicile. As correctly
ruled by the COMELEC Second Division, private respondents claim that
he is a registered voter and has actually voted in the past 3 elections in
Kinoguitan, Misamis Oriental do not sufficiently establish that he has
actually elected residency in the said municipality. Indeed, while we
have ruled in the past that voting gives rise to a strong presumption of
residence, it is not conclusive evidence thereof. [25] Thus, in Perez v.
Commission on Elections,[26] we held that a persons registration as
voter in one district is not proof that he is not domiciled in another
district. The registration of a voter in a place other than his residence
of origin is not sufficient to consider him to have abandoned or lost his
residence.[27]
To establish a new domicile of choice, personal presence in the place
must be coupled with conduct indicative of that intention. It requires
not only such bodily presence in that place but also a declared and
probable intent to make it ones fixed and permanent place of
abode.[28]
In this case, Nobles marriage to Bernadith Go does not establish his
actual physical presence in Kinoguitan, Misamis Oriental. Neither does
it prove an intention to make it his permanent place of residence. We
are also not persuaded by his alleged payment of water bills in the
absence of evidence showing to which specific properties they pertain.
And while Noble presented a Deed of Sale for real property, the
veracity of this document is belied by his own admission that he does
not own property in Kinoguitan, Misamis Oriental.[29]
On the contrary, we find that Noble has not abandoned his original
domicile as shown by the following: a) Certification dated April 12,
2007 of the Barangay Kagawad of Barangay Lapasan, Cagayan de Oro
City stating that Noble is a resident of the barangay;[30] b)
Affidavit[31] of the Barangay Kagawad of Esperanza, Kinoguitan,
Misamis Oriental dated April 14, 2007, attesting that Noble has not
resided in Barangay Esperanza in Kinoguitan; c) photos[32] and official
receipts[33] showing that Noble and his wife maintain their residence
and businesses in Lapasan; d) tax declarations[34] of real properties in
Cagayan de Oro City under the name of Noble; and e) the Household
Record of Barangay Inhabitants[35] of Mayor Narciso Go, which did
not include Noble or his wife, Bernadith Go, which disproves Nobles
claim that he resides with his father-in-law.
From the foregoing, we find that Nobles alleged change of domicile
was effected solely for the purpose of qualifying as a candidate in the
2007 elections. This we cannot allow. In Torayno, Sr. v. Commission on
Elections, [36] we held that the one-year residency requirement is
aimed at excluding outsiders from taking advantage of favorable
circumstances existing in that community for electoral gain.
Establishing residence in a community merely to meet an election law
requirement defeats the purpose of representation: to elect through
the assent of voters those most cognizant and sensitive to the needs
of the community.[37] Thus, we find Noble disqualified from running
as municipal mayor of Kinoguitan, Misamis Oriental in the 2007
elections.
Notwithstanding Nobles disqualification, we find no basis for the
proclamation of Judith Pundaodaya, as mayor. The rules on succession
under the Local Government Code, explicitly provides:
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-
Governor, Mayor, and Vice-Mayor. If a permanent vacancy occurs in
the office of the xxx mayor, the xxx vice-mayor concerned shall
become the xxx mayor.
xxxx
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 or is removed from office, voluntarily resigns, or
is otherwise permanently incapacitated to discharge the functions of
his office.
x x x x (Emphasis ours)
Thus, considering the permanent vacancy in the Office of the Mayor of
Kinoguitan, Misamis Oriental occasioned by Nobles disqualification,
the proclaimed Vice-Mayor shall then succeed as mayor.[38]
WHEREFORE, the petition is GRANTED. The August 3, 2007 Resolution
of the COMELEC En Banc in SPA No. 07-202 declaring respondent
Arsenio Densing Noble qualified to run as Mayor of Kinoguitan,
Misamis Oriental, is REVERSED AND SET ASIDE. In view of the
permanent vacancy in the Office of the Mayor of Kinoguitan, Misamis
Oriental, the proclaimed Vice-Mayor is ORDERED to succeed as Mayor.
SO ORDERED.
BENJAMIN P. ABELLA vs. COMMISSION ON ELECTIONS and ADELINA
Y. LARRAZABAL, respondents.
G.R. No. 100739 September 3, 1991
ADELINA Y. LARRAZABAL, petitioner, vs. COMMSSION ON
ELECTIONS and SILVESTRE DE LA CRUZ, respondents.
GUTIERREZ, JR., J.:p
The main issue in these consolidated petitions centers on who is the
rightful governor of the province of Leyte 1) petitioner Adelina
Larrazabal (G.R. No. 100739) who obtained the highest number of
votes in the local elections of February 1, 1988 and was proclaimed as
the duly elected governor but who was later declared by the
Commission on Elections (COMELEC) "... to lack both residence and
registration qualifications for the position of Governor of Leyte as
provided by Art. X, Section 12, Philippine Constitution in relation to
Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is
hereby disqualified as such Governor"; 2) petitioner Benjamin Abella
(G.R. No. 100710), who obtained the second highest number of votes
for the position of governor but was not allowed by the COMELEC to
be proclaimed as governor after the disqualification of Larrazabal; or
3) Leopoldo E. Petilla, the vice-governor of the province of. Leyte.
This is the fourth time that the controversy relating to the local
elections in February 1, 1988 for governor of the province of Leyte is
elevated to this Court. The antecedent facts of these cases are stated
in the earlier consolidated cases of BENJAMIN P. ABELLA and
SILVESTRE T. DE LA CRUZ, petitioners, v. ADELINA INDAY LARRAZABAL,
PROVINCIAL BOARD OF CANVASSERS OF LEYTE and COMMISSION ON
ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P.
ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA
LARRAZABAL and COMMISSION ON ELECTIONS, respondents (G. R. No.
88004) 180 SCRA 509 [1989]), to wit:
The Court has ordered the consolidation of G.R. Nos 87721-30 and
G.R. No. 88004 involving the same parties and the same election in
1988 for the office of provincial governor of Leyte. Challenged in the
petitions for certiorari are the resolutions of the respondent
Commission on Elections dismissing the pre-proclamation and
disqualification cases filed by the herein petitioners against private
respondent Adelina Larrazabal.
Petitioner Benjamin P. Abella was the official candidate of the Liberal
Party for provincial governor of Leyte in the local election held on
February 1, 1988. The private respondent is the wife of Emeterio V.
Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban
who was disqualified by the Commission on Elections on January 18,
1988, for lack of residence. (G.R. No. 88004, Rollo, pp. 102-104) (He
filed a petition for certiorari to challenge this resolution. He, however,
filed an urgent ex-parte motion to withdraw petition which was
granted in a resolution dated January 21, 1988 and the case was
dismissed. [G.R. No. 81313]) On January 31, 1988, the day before the
election, she filed her own certificate of candidacy in substitution of
her husband. (Ibid., p. 48) The following day, at about 9:30 o'clock in
the morning, Silvestre de la Cruz, a registered voter of Tacloban City,
filed a petition with the provincial election supervisor of Leyte to
disqualify her for alleged false statements in her certificate of
candidacy regarding her residence. (Id., pp. 113-118) This was
immediately transmitted to the main office of the Commission on
Elections, which could not function, however, because all but one of
its members had not yet been confirmed by the Commission on
Appointments. De la Cruz then came to this Court, which issued a
temporary restraining order on February 4, 1988, enjoining the
provincial board of canvassers of Leyte 'from proclaiming Adelina
Larrazabal as the winning candidate for the Office of the Governor in
the province of Leyte, in the event that she obtains the winning margin
of votes in the canvass of election returns of said province.' (Id., p.
179) On March 1, 1988, the Commission on Elections having been fully
constituted, we remanded the petition thereto for appropriate action,
including maintenance or lifting of the Court's temporary restraining
order of February 4, 1988. (Id. pp. 182-184)
In the meantime, petitioner Abella, after raising various verbal
objections (later duly reduced to writing) during the canvass of the
election returns, seasonably elevated them to the Commission on
Elections in ten separate appeals docketed as SPC Nos. 88-627 to
88627-I. Pending resolution of these cases, Abella intervened on
March 7, 1988 in the disqualification case, docketed as SPC No. 88-
546, and the following day filed a complaint, with the Law Department
of the COMELEC charging the private respondent with falsification and
misrepresentation of her residence in her certificate of candidacy. On
March 22, 1988, the public respondent consolidated the pre-
proclamation and disqualification cases with the Second Division.
On February 3, 1989, this Division unanimously upheld virtually all the
challenged rulings of the provincial board of canvassers, mostly on the
ground that the objection raised were merely formal and did not
affect the validity of the returns or the ballots, and ordered the
proclamation of the winner after completion of the canvass. (G.R. Nos.
87721-30, Rollo, pp. 18-50) On that same date, the disqualification
case was also dismissed by a 2-1 decision, and the matter was referred
to the Law Department for 'preliminary investigation for possible
violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos.
88004, Rollo, pp. 26-40)
The motion for reconsideration of the resolution on the pre-
proclamation cases was denied by the COMELEC en banc on April 13,
1989, with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56)
These cases are the subject of G.R. Nos. 87721-30, where we issued on
April 18, 1989, another temporary restraining order to the provincial
board of canvassers of Leyte to CEASE and DESIST from resuming the
canvass of the contested returns and/or from proclaiming private
respondent Adelina Larrazabal Governor of Leyte.
The motion for reconsideration of the resolution on the qualification
case was also denied by the COMELEC en banc on May 4, 1989, but
with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61;
penned by Commissioner Abueg, Jr., with Commissioners Africa Rama,
and Yorac, dissenting) The dismissal of this case is the subject of G.R.
No. 88004. (at pp. 511-513)
Disposing of the consolidated petitions, this Court rendered judgment
as follows:
1. In G.R.Nos. 87721-30, the decision dated February 3, 1989,
the resolution dated April 13, 1989, are affirmed and the petition is
DISMISSED.
2. In G.R. No. 88004, the decision dated February 3,1989, and
the resolution dated May 4, 1989, are REVERSED and SET ASIDE.
Respondent Commission on Elections is ORDERED to directly hear and
decide SPC Case No. 88-546 under Section 78 of the Omnibus Election
Code, with authority to maintain or lift our temporary restraining
order of April 18, 1989, according to its own assessment of the
evidence against the private respondent.
The parties are enjoined to resolve this case with all possible speed, to
the end that the Governor of Leyte may be ascertained and installed
without further delay. (p. 520)
In view of these rulings, the COMELEC, upon motion of Larrazabal,
lifted its temporary restraining order against her proclamation paving
Larrazabal's proclamation and her assumption to the Office of
Governor of Leyte while the hearings in the disqualification case (SPC
No. 88-546) continued.
On February 14, 1991, the second division in a 2-1 vote rendered a
decision disqualifying Larrazabal as governor.
On July 18, 1991, the Commission en banc issued a resolution which
denied Larrazabal's motion to declare decision void and/or motion for
reconsideration and affirmed the second division's decision. In the
same resolution, the Commission disallowed Abella's proclamation as
governor of Leyte.
Hence, these petitions.
We treat the various Comments as Answers and decide the petitions
on their merits.
Acting on a most urgent petition (motion) for the issuance of a
restraining order filed by petitioner Larrazabal, this Court issued a
temporary restraining order on August 1, 1991.
xxx xxx xxx
... [E]ffective immediately and continuing until further orders from this
Court, ordering the respondent on on Elections to CEASE and DESIST
from enforcing, implementing and executing the decision and
resolution, respectively dated February 14, 1991 and July 18, 1991.
It appearing that despite the filing of this petition before this Court
and during its pendency, the incumbent Vice-Governor of Leyte Hon.
Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and
assumed the governorship as contained in his telegraphic message,
pursuant to COMELEC resolution SPC No. 88-546, promulgated on July
18, 1991, the Court further Resolved to ORDER Hon. Leopoldo E.
Petilla to MAINTAIN the status quo ante then prevailing and/or
existing before the filing of this petition and to DESIST from assuming
the office of the Governor and from discharging the duties and
functions thereof. (Rollo-100739, p. 204)
In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC
completely disregarded our pronouncement in G.R. No. 88004 in that
instead of acting on SPC Case No. 88-546 under section 78 of the
Election Code, the COMELEC proceeded with a disqualification case
not contemplated in G.R. No. 88004.
The argument is not meritorious.
The questioned decision and resolution of the COMELEC conform with
this Court's decision in G.R. No. 88004.
Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella,
petitioner in G.R. No. 100710 was allowed to intervene in the case)
filed a petition with the COMELEC to disqualify petitioner Larrazabal
from running as governor of Leyte on the ground that she
misrepresented her residence in her certificate of candidacy as
Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc
City like her husband who was earlier disqualified from running for the
same office. The COMELEC dismissed the petition and referred the
case to its Law Department for proper action on the ground that the
petition was a violation of Section 74 of the Election Code and,
pursuant to it rules, should be prosecuted as an election offense under
Section 262 of the Code.
This Court reversed and set aside the COMELEC's ruling, to wit:
The Court holds that the dismissal was improper. The issue of
residence having been squarely raised before it, it should not have
been shunted aside to the Law Department for a roundabout
investigation of the private respondent's qualification through the
filing of a criminal prosecution, if found to be warranted, with
resultant disqualification of the accused in case of conviction. The
COMELEC should have opted for a more direct and speedy process
available under the law, considering the vital public interest involved
and the necessity of resolving the question of the earliest possible
time for the benefit of the inhabitants of Leyte.
In the view of the Court, the pertinent provision is Section 78 in
relation to Section 6 of R.A. No. 6646.
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 any 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.
Section 6 of R.A. 6646 states as follows:
Effect of Disqualification Case. — Any candidate who has been
declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be
disqualified and he is voted in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong. ...
xxx xxx xxx
The above-stressed circumstances should explain the necessity for
continuing the investigation of the private respondent's challenged
disqualification even after the election notwithstanding that such
matter is usually resolved before the election. Independently of these
circumstances, such proceedings are allowed by Section 6 of RA. 6646
if for any reason a candidate is not declared by final judgment before
an election to be disqualified ...
In fine, the Court directed the COMELEC to determine the residence
qualification of petitioner Larrazabal in SPC Case No. 88-546.
Concomitant with this directive would be the disqualification of
petitioner Larrazabal in the event that substantial evidence is adduced
that she really lacks the residence provided by law to qualify her to run
for the position of governor in Leyte.
In line with the Court's directive, the COMELEC conducted hearings in
SPC Case No. 88-546 to resolve the qualification of Larrazabal on the
basis of two (2) legal issues raised by Silvestre T. de la Cruz namely,
Larrazabal's lack of legal residence in the province of Leyte and her not
being a registered voter in the province, as required by Title II, Chapter
I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the
Constitution, to wit:
Sec. 42. Qualification. — (1) An elective local official must be a citizen
of the Philippines, at least twenty-three years of age on election day, a
qualified voter registered as such in the barangay, municipality, city or
province where he proposes to be elected, a resident therein for at
least one year at the time of the filing of his certificate of candidacy,
and able to read and write English, Pilipino, or any other local language
or dialect.
xxx xxx xxx
Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The
voters of component cities within a province, whose charters contain
no such prohibition, shall not be deprived of their right to vote for
elective provincial officials.
The position of petitioners De la Cruz and Abena was that respondent
Larrazabal is neither a resident nor a registered voter of Kananga,
Leyte as she claimed but a resident and registered voter of Ormoc City,
a component city of the province of Leyte but independent of the
province pursuant to Section 12, Article X of the Constitution thereby
disqualifying her for the position of governor of Leyte. They presented
testimonial as well as documentary evidence to prove their stance.
On the other hand, respondent Larrazabal maintained that she was a
resident and a registered voter of Kananga, Leyte. She, too presented
testimonial as well as documentary evidence to prove her stand.
The COMELEC ruled against the respondent, now petitioner
Larrazabal.
In its questioned decision and resolution, the COMELEC found that
petitioner Larrazabal was neither a resident of Kananga, Leyte nor a
registered voter thereat. With these findings, the COMELEC
disqualified the petitioner as governor of the province of Leyte.
The petitioner, however, avers that the COMELEC decision is
erroneous when it relied on the provisions of the Family Code to rule
that the petitioner lacks the required residence to qualify her to run
for the position of governor of Leyte. She opines that under "the
Election Law, the matter of determination of the RESIDENCE is more
on the principle of INTENTION, the animus revertendi rather than
anything else."
In this regard she states that ... "her subsequent physical transfer of
residence to Ormoc City thereafter, did not necessarily erased (sic) or
removed her Kananga residence, for as long as she had the ANIMUS
REVERTENDI evidenced by her continuous and regular acts of
returning there in the course of the years, although she had physically
resided at Ormoc City." (Petition, Rollo, p. 40)
As can be gleaned from the questioned decision, the COMELEC based
its finding that the petitioner lacks the required residence on the
evidence of record to the effect that despite protestations to the
contrary made by the petitioner, she has established her residence at
Ormoc City from 1975 to the present and not at Kananga, Leyte. Her
attempt to purportedly change her residence one year before the
election by registering at Kananga, Leyte to qualify her to ran for the
position of governor of the province of Leyte clearly shows that she
considers herself already a resident of Ormoc City. In the absence of
any evidence to prove otherwise, the reliance on the provisions of the
Family Code was proper and in consonance with human experience.
The petitioner did not present evidence to show that she and her
husband maintain separate residences, she at Kananga, Leyte and her
husband at Ormoc City. The second division of the COMELEC in its
decision dated February 14, 1991 states:
xxx xxx xxx
But there is the more fundamental issue of residence. The only
indications of a change of residence so far as respondent is concerned
are: the address indicated in the application for cancellation filed by
respondent indicating her postal address as Kananga, Leyte, the
annotation in her Voter's affidavit for Precinct No. 15 that her
registration was cancelled due to lack of residence; the testimony of
Anastacia Dasigan Mangbanag that she entered into a contract of
lease with option to buy with the spouses Emeterio and Inday
Larrazabal over two parcels of land the witness owned in Mahawan,
Kananga, Leyte; that she sees the spouses in the leased house in
Kananga, that she was informed by Inday Larrazabal that the spouses
had decided to buy their property because she wanted to beautify the
house for their residence. She attached as annex the written contract
signed by her and the spouses; and the testimony of Adolfo Larrazabal
Exh. "10" cousin of the spouses that 'at a family meeting ... the
political plan of the Larrazabal clan was discussed, among which were
(sic) the problem of Terry's residence in Ormoc City' and that it was
decided in said meeting ... that Inday Larrazabal, wife of Terry, will
transfer her Ormoc Registration as a voter to Kananga, Leyte (so) she
will be able to vote for Terry and also help me in my candidacy; that
they have been staying in Kananga, very often as they have properties
in Lonoy and a house in Mahawan.
The references to residence in the documents of cancellation and
registration are already assessed for their evidentiary value in relation
to the documents themselves above. The question must therefore be
addressed in relation to the testimony of Anastacia Dasigan
Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is
that they leased properties in Mahawan, Leyte and that they are seen
in the house on the land leased. But the contract of lease with option
to purchase itself indicates as to where the legal residence of the
Jarrazabal is. The pertinent portion states:
SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of
legal age, Filipino, and residents of Ormoc City, Philippines, hereinafter
referred to as the LESSEES.
The acknowledgment also indicates that Emeterio V. Larrazabal
presented his Residence Certificate No. 155774914 issued in Ormoc
City.
The testimony of Adolfo Larrazabal reenforces this conclusion. It
admits, as of the second or third week of November, that the
residence of Emeterio Larrazabal was Ormoc City and that Inday
Larrazabal was going to transfer her registration so she may be able to
vote for him.
For the purpose of running for public office, the residence
requirement should be read as legal residence or domicile, not any
place where a party may have properties and may visit from time to
time.
The Civil Code is clear that '[F]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is the
place of their habitual residence.
Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as
follows:
Art. 68. The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.
Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide. The court may exempt one
spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is not compatible
with the solidarity of the family.
Husband and wife as a matter of principle live together in one legal
residence which is their usual place of abode. (COMELEC decision, pp.
21-23; Rollo – 100710, pp. 67-69; Emphsis supplied)
As regards the principle of ANIMUS REVERTENDI we ruled in the case
of Faypon v. Quirino, 96 Phil. 294 [1954]):
xxx xxx xxx
... [M]ere absence from one's residence or origin-domicile-to pursue
studies, engage in business, or practice his avocation, is not sufficient
to constitute abandonment or loss of such residence.' ... The
determination of a persons legal residence or domicile largely depends
upon intention which may be inferred from his acts, activities and
utterances. The party who claims that a person has abandoned or left
his residence or origin must show and prove pre-ponderantly such
abandonment or loss.
xxx xxx xxx
... A citizen may leave the place of his birth to look for 'greener
pastures' as the saying goes, to improve his life, and that, of course,
includes study in other places, practice of his avocation, or engaging in
business. When an election is to be held, the citizen who left his
birthplace to improve his lot may desire to return to his native town to
cast his ballot but for professional or business reasons, or for any
other reason, he may not absent himself from the place of his
professional or business activities; so there he registers as voter as he
has the qualifications to be one and is not willing to give up or lose the
opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin, has not
forsaken him. ... (at pp. 297-300)
In the instant case, there is no evidence to prove that the petitioner
temporarily left her residence in Kananga, Leyte in 1975 to pursue any
calling, profession or business. What is clear is that she established her
residence in Ormoc City with her husband and considers herself a
resident therein. The intention of animus revertendi not to abandon
her residence in Kananga, Leyte therefor, is nor present. The fact that
she occasionally visits Kananga, Leyte through the years does not
signify an intention to continue her residence therein. It is common
among us Filipinos to often visit places where we formerly resided
specially so when we have left friends and relatives therein although
for intents and purposes we have already transferred our residence to
other places.
Anent the issue of whether or not the petitioner is a registered voter
of Kananga, Leyte, the petitioner insists that she is such a registered
voter based on the following antecedents: 1) She cancelled her
registration in Ormoc City on November 25, 1987, and 2) she then
transferred her registration to Kananga, Leyte on November 25, 1987
by registering thereat and 3) she later voted on election day (February
1, 1988) in Kananga, Leyte.
Despite the insistence of the petitioner, the evidence shows that her
supposed cancellation of registration in Ormoc City and transfer of
registration in Kananga, Leyte, is not supported by the records. As the
COMELEC stated:
The train of events, which led to respondent's g of her certificate of
candidacy on the basis of her registration started on November 25,
1987, when she allegedly filed all application for cancellation of
registration Exh. "2-B". Subsequent to this request, her voter's
affidavit in Precinct 15, Ormoc City with Serial No. 0918394 J was
annotated with the words 'cancelled upon application of the voter due
to transfer of residence.' Thereafter, she registered in Precinct No. 17,
Mahawan, Kananga, Leyte on November 28,1987 which registration
was contained in Voter's Affidavit with Serial No. 0190840-J The
cancellation of registration was submitted to the Board of Election
Inspectors on January 9, 1988 (Revision Day) on the submission of the
sworn application at 4:30 p.m. allegedly by a clerk from the Election
Registrar's Office with only the poll clerk and the third member
because the Chairman of the Board of Election Inspectors allegedly left
earlier and did not come back. Exh. "3-B".
We find the version pressed by respondent unworthy of belief. The
story is marked by so many bizarre cirumtances not consistent with
the ordinary course of events or the natural behavior of persons.
Among these are:
(1) The application for cancellation of registration by
respondent Adelina Y. Larrazabal happened to be misplaced by a clerk
in the Election Registrar's Office for Ormoc City so it was not sent to
the Board of Election Inspectors in a sealed envelope;
(2) The 'inadverterment' (sic) misplacement was discovered only
on January 9,1988;
(3) The voter's affidavit was delivered by itself without any
endorsement or covering letter from the Election Registrar or anybody
else;
(4) The election clerk delivered the application for cancellation
only towards the last hour of the revision day, allegedly at 4:30 P.M.,
January 9, 1988;
(5) All the members of the Board of Election Inspectors had
already signed the Minutes indicating that no revision of the voter's
list was made as of 5:00 PM
(6) The poll clerk and the third member prepared another
minutes stating that the election clerk had delivered the application
for cancellation at 4:30 P.M. without any reference to the minutes
they had previously signed;
(7) Emeterio Larrazabal, who was supposed to have registered
in Precinct 17, Mahawan, Kananga, was supposed to have filled up an
application for cancellation of his registration in Precinct No. 15,
Ormoc City at Precinct 17 concurrent with his registration. His
application for cancellation was never submitted in evidence.
(8) The serial number of the voter's affidavits of the spouses
Larrazabal in Precinct No. 17 are far removed from the serial numbers
of the other new registrants in November 28, 1987 in the same
precinct.
The most telling evidence is the list of voters (Form 2-A), Exh. "G", that
the Chairman and the poll clerk had written in Part II of the same,
closed by the signatures of both officials showing that there were only
nine (9) additional registered voters in Precinct 17, Mahawan,
Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita;
Limosnero W; Pame Virginia; Savenario, Analiza; Verallo, Ofelia; Basan,
Juanita; and Acgang Bonifacio. This is consistent with the list of new
voters after the November 28, 1987 for Precinct No. 17, Mahawan,
Kananga, Leyte submitted by the Election of Kananga to the National
Central File of the Commission per certification of the Chief, National
Central File Division on January 25, 1988 dated January 25, 1988, Exh.
'C'. The affidavits submitted by the Election Registrar to the
Commission could only have come from the Board of Election
Inspectors of Precinct No. 17, after the November 28, 1987
registration, for the Election Registrar could not have had the
affidavits of these new registrants apart from those supplied by the
Precinct itself. Why were not the affidavits of the Larrazabals
included? Was this part of the incredibly bizarre series of inadvertence
and neglect that spanned Ormoc City and Kananga? This also explains
the certification dated January 29, 1988, of the Election Registrar of
Kananga that as of that date Mrs. Adelina Larrazabal was not a
registered voter in any of the' precincts in Kananga. Exh. "L". It was
only on February 15, 1988, or two weeks after the election day that
the same Registrar certified for the first time that there were two
voters lists, the first without the names of the Larrazabals and the
second, which appeared only after February 1, submitted by the
Chairman of the Board for Precinct 17 which contained the spouses
Larrazabals' names.
It might also be stressed that one set of voter's list Exh. "G" had the
signature of both the Chairman, poll clerk and third member of the
board, while the one which appeared later which included the names
of the Larrazabal had the signature only of the Chairman. Exh. "I".
From the certification of the National Central Files, it appears that the
Serial Nos. of the newly registered voters were as follows: 0189821-J
018922-J 0189823-J 0189824-J 0189825-J 0189826-J 0189827-J
0189828-J 0189839-J The alleged registration of Emeterio V.
Larrazabal and Adelina Y. Larrazabal are inexplicably effected through
voter's affidavits with Serial Nos. 0190893J and 01 90840-J. These
serial numbers are traced per record of the Commission to Precinct
No. 6, municipality of Kananga, Leyte. Per official Project of precincts
on file with the Commission, Precinct No. 6 is a poblacion precinct
located in Kananga, Municipal High School Building. How these
documents came to be used in Precinct No. 17 in Barangay Mahawan
and only by the Larrazabals has never been explained.
It also takes a lot of straining to believe the story about the effort to
cancel registration on November 25, 1987, which application surfaced
before the Board of Election inspectors for Precinct No. 15, Ormoc City
only on January 9, 1988, Revision Day. As pointed out by Petitioner, it
is absurd that it would only be on Revision Day, normally set aside for
the purpose of receiving inclusion and exclusion orders from the
courts, that the application for cancellation would be coincidentally
found and delivered to the Board of Election Inspectors for Precinct
15. Furthermore, the entire membership of the Board of Inspectors for
said precinct, signed a Minutes, Exh. "3-A" which indicates that no
order of inclusion or exclusion was received from any court and that
the board proceeded with the numbering of a total 229 voters for the
precinct. The Minutes also indicates that the Board adjourned at 5:00
p.m. Exh. "3-B" which was supposedly prepared after Exh. "3-A" signed
only by the poll clerk and third member indicates that at 4:30 P.M. an
unidentified clerk from the Election Registrar's Office arrived with the
application for cancellation of Vilma Manzano and Adelina Larrazabal.
It also appears that on November 28, 1987, the Board of Election
Inspectors for Precinct 15, Ormoc City prepared the list of voters for
said precinct, Exh. 'N' where the name of Adelina Y. Larrazabal appears
as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98. At
the back of the list there is a certification that there was no voter
which was included by court order and that to voters, one Montero
and one Salvame were excluded by virtue of such order. As of January
29, 1988, when the certified true copy of the Voter's List for Precinct
15 was furnished the petitioner, no additional entry was reflected on
the list which would show what transpired on January 9, 1988, as
alleged by the Election Registrar for Ormoc City and the poll clerk and
third member of the board of inspectors that a cancellation was
effected. It taxes credulity therefore, to lend belief to Exh. "2-C", when
was issued by the City Registrar for Ormoc only on February 1, 1990,
which for the first time showed handwritten annotations of
cancellation of the registration of Adelina Larrazabal and Vilma
Manzano by witnesses Gratol and Patonog. If this evidence did not
exist at the time of the entry which purports to have been on January
9, 1988, this evidence could have been used to confront within
Carolina Quezon when she testified and identified Exh. "N" on April 14,
1988. In fact if these entries indicating (sic) were made, they would
have been evident in Exh. 'W. The failure to confront Quezon with the
entries and the late submission of Exh. "2-C" can only lead to two
conclusions: these entries did not exist as of January 29, 1988 when
the certification of the list of voters was made and that they were
annotated in the voter's list after that date. This is consistent with Exh.
"P" which was issued on February 11, 1988.
The relative weight of the parties' evidence supports petitioner's
thesis that respondent was not a registered voter in Precinct No. 17,
Brgy. Mahawan, Kananga, Leyte, and, that she and her husband
Emeterio Larrazabal continued to be registered voters in Precinct No.
15, Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-27)
The Court is bound by these factual findings as they are supported by
substantial evidence:
In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the
need to preserve the 'independence and all the needed concomitant
powers' of the Commission on Elections, Justice Antonio P. Barredo
declared that it is but proper that the Court should accord the greatest
measures of presumption of regularity to its course of action ... to the
end it may achieve its designed place in the democratic fabric of our
government ... (Abella v. Larrazabal, supra)
Failing in her contention that she is a resident and registered voter of
Kananga, Leyte, the petitioner poses an alternative position that her
being a registered voter in Ormoc City was no impediment to her
candidacy for the position of governor of the province of Leyte.
Section 12, Article X of the Constitution provides:
Cities that are highly urbanized, as determined by law, and component
cities whose charters prohibit their voters from voting for provincial
elective officials, shall be independent of the province. The voters of
component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective
provincial officials.
Section 89 of Republic Act No. 179 creating the City of Ormoc
provides:
Election of provincial governor and members of the Provincial Board of
the members of the Provincial Board of the Province of Leyte — The
qualified voters of Ormoc City shall not be qualified and entitled to
vote in the election of the provincial governor and the members of the
provincial board of the Province of Leyte.
Relating therefore, section 89 of R.A. 179 to section 12, Article X of the
Constitution one comes up with the following conclusion: that Ormoc
City when organized was not yet a highly-urbanned city but is,
nevertheless, considered independent of the province of Leyte to
which it is geographically attached because its charter prohibits its
voters from voting for the provincial elective officials. The question
now is whether or not the prohibition against the 'city's registered
voters' electing the provincial officials necessarily mean, a prohibition
of the registered voters to be elected as provincial officials.
The petitioner citing section 4, Article X of the Constitution, to wit:
Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to
component cities and municipalities and cities and municipalities with
respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions.
submits that "while a Component City whose charter prohibits its
voters from participating in the elections for provincial office, is indeed
independent of the province, such independence cannot be equated
with a highly urbanized city; rather it is limited to the administrative
supervision aspect, and nowhere should it lead to the conclusion that
said voters are likewise prohibited from running for the provincial
offices." (Petition, p. 29)
The argument is untenable.
Section 12, Article X of the Constitution is explicit in that aside from
highly-urbanized cities, component cities whose charters prohibit their
voters from voting for provincial elective officials are independent of
the province. In the same provision, it provides for other component
cities within a province whose charters do not provide a similar
prohibition. Necessarily, component cities like Ormoc City whose
charters prohibit their voters from voting for provincial elective
officials are treated like highly urbanized cities which are outside the
supervisory power of the province to which they are geographically
attached. This independence from the province carries with it the
prohibition or mandate directed to their registered voters not to vote
and be voted for the provincial elective offices. The resolution in G.R.
No. 80716 entitled Peralta v. The Commission on Elections, et al. dated
December 10, 1987 applies to this case. While the cited case involves
Olongapo City which is classified as a highly urbanized city, the same
principle is applicable.
Moreover, Section 89 of Republic Act 179, independent of the
constitutional provision, prohibits registered voters of Ormoc City
from voting and being voted for elective offices in the province of
Leyte. We agree with the COMELEC en banc that "the phrase 'shall not
be qualified and entitled to vote in the election of the provincial
governor and the members of the provincial board of the Province of
Leyte' connotes two prohibitions — one, from running for and the
second, from voting for any provincial elective official." (Resolution En
Banc, p. 6)
The petitioner takes exception to this interpretation. She opines that
such interpretation is "wrong English" since nowhere in the provision
is there any reference to a prohibition against running for provincial
elective office. She states that if the prohibition to run was indeed
intended, the provision should have been phrased "Shall not be
qualified TO RUN in the election FOR provincial governor." A comma
should have been used after the word qualified and after the word
"vote" to clearly indicate that the phrase "in the election of the
provincial governor" is modified separately and distinctly by the words
"not qualified" and the words "not entitled to vote." (Petition, p. 19)
The Court finds the petitioner's interpretation fallacious.
In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court
interpreted Section 20 of Presidential Decree No. 957 in relation to the
conjunction and, to wit:
Time of Completion. — Every owner or developer shall construct and
provide the facilities, improvements, infrastructures and other forms
of development, including water supply and lighting facilities, which
are offered and indicated in the approved subdivision or condominium
plans. ...
The Court ruled:
We further reject petitioner's strained and tenuous application of the
called doctrine of last antecedent in the interpretation of Section 20
and, correlatively, of Section 21. He would thereby have the
enumeration of 'facilities, improvements, infrastructures and other
forms of development' interpreted to mean that the demonstrative
Phrase 'which are offered and indicated in the approved subdivision
plans, etc,' refer only to 'other forms of development' and not to
'facilities, improvements and infrastructures.' While this subserves his
purpose, such bifurcation whereby the supposed adjectives phrase is
set apart from the antecedent words, is illogical and erroneous. The
complete and applicable rule is ad proximum antedecens flat
relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57
citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative
words refer to the nearest antecedent, unless it be prevented by the
context. In the present case, the employment of the word 'and'
between 'facilities, improvements, infrastructures' and 'other forms of
development,' far from supporting petitioner's theory, enervates it
instead since it is basic in legal hermeneutics that and is not meant to
separate words but is a conjunction used to denote a joinder or union.
(at pp. 81-83)
Applying these principles to the instant case, the conjunction and
between the phrase shall not be qualified and entitled to vote refer to
two prohibitions as ruled by the COMELEC in relation to the
demonstrative phrase "in the election of the provincial governor and
the members of the provincial board of the Province of Leyte."
Finally, the petitioner contends that the February 14, 1991 decision of
the COMELEC's second division is null and void on the ground that on
that date, the term of Commissioner Andres Flores, one of the
signatories of the majority opinion (vote was 2-1) had already expired
on February 2, 1991. (Commissioner Flores was nominated by the
President on January 30, 1988 and was confirmed by the Commission
on Appointments on February 15, 1988. His term of office was fixed by
the President for three years from February 15, 1988 to February 15,
1991.)
The petitioner postulates that the President has no power to fix the
terms of office of the Commissioners of the COMELEC because the
Constitution impliedly fixes such terms of office. With regards to
Commissioner Flores, the petitioner professes that Flores' term of
three (3) years expired on February 2, 1991 based in section 1(2),
Article IX, C, of the Constitution, to wit:
xxx xxx xxx
(2) The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on Appointments
for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two
Members for five years, and the last Members for three years, without
reappointment. Any appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity. In relation
to the Transitory Provision of the 1987 Constitution (Article XVIII)
particularly Section 15 thereof, to wit:
xxx xxx xxx
The incumbent Members of the Civil Service Commission, the
Commission on Elections, and the Commission on Audit shall continue
in office for one year after the ratification of this Constitution, unless
they are sooner removed for cause or become incapacitated to
discharge The duties of their office or appointed to a new term
thereunder. In no case shall any Member serve longer than seven
years including service before the ratification of this Constitution.
There is no need to pass upon this constitutional issue raised by the
petitioner. The Court ruled in the case of Alger Electric, Inc. v. Court of
Appeals (135 SCRA 37 [1985]):
xxx xxx xxx
... This Court does not decide questions of a constitutional nature
unless absolutely necessary to a decision of the case. If there exists
some other ground based on statute or general law or other grounds
of construction, we decide the case on a non-constitutional
determination. (See Burton v. United States, 196 U.S. 283; Siler v.
Louisville & Nashville R. Co. 213 U.S. 175; Berea College v. Kentucky
211 U.S. 45.) (at p. 45)
Even if we concede that Commissioner Flores' term expired on
February 2, 1991, we fail to see how this could validate the holding of
an elective office by one who is clearly disqualified from running for
that position and the continued exercise of government powers by
one without legal authority to do so. The powers of this Court are
broad enough to enjoin the violation of constitutional and statutory
provisions by public officers especially where, as in this case, we
merely affirm the decision of the COMELEC en banc promulgated at a
time when Commissioner Flores was no longer a member.
Moreover, under the peculiar circumstances of this case, the decision
of the second division of COMELEC would still be valid under the de
facto doctrine.
Commissioner Flores was appointed for a three-year term from
February 15, 1988 to February 15, 1991. In these three years he
exercised his duties and functions as Commissioner. Granting in the
absence of a statute expressly stating when the terms of the COMELEC
Chairman and members commence and expire, that his term expired
on February 2, 1991 to enable a faithful compliance with the
constitutional provision that the terms of office in the COMELEC are
on a staggered basis commencing and ending at fixed intervals, his
continuance in office until February 15, 1991 has a color of validity.
Therefore, all his official acts from February 3, 1991 to February 15,
1991, are considered valid. The Court ruled in the case of Leyte Acting
Vice-Governor Aurelio D. Menzon v. Leyte Acting Governor Leopoldo
E. Perilla, et al. G.R. No. 90762, May 20, 1991:
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.
Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second
highest number of votes, next to Larrazabal in the local elections of
February 1, 1988 in the province of Leyte. The COMELEC en banc, after
affirming the February 14, 1991 decision of its second division
disqualifying arrazabal as governor disallowed Abella from assuming
position of governor in accordance with section 6, Republic Act No.
6646 and the rulings in the cases of Frivaldo v. Commission on
Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on
Elections (176 SCRA 1 [1989]).
Abella claims that the Frivaldo and Labo cases were misapplied by the
COMELEC. According to him these cases are fundamentally different
from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions
for a quo warranto filed under section 253 of the Omnibus Code,
contesting the eligibility of the respondents after they had been
proclaimed duly elected to the Office from which they were sought to
be unseated while SPC No. 88-546 which was filed before
proclamation under section 78 of the Omnibus Election Code sought
to deny due course to Larrazabal's certificate of candidacy for material
misrepresentations and was seasonably filed on election day. He,
therefore, avers that since under section 6 of Republic Act 6646 it is
provided therein that:
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes case for him shall not
be counted.
the votes cast in favor of Larrazabal who obtained the highest number
of votes are not considered counted making her a non-candidate, he,
who obtained the second highest number of votes should be installed
as regular Governor of Leyte in accordance with the Court's ruling in
G.R. No. 88004.
The petitioner's arguments are not persuasive.
While it is true that SPC No. 88-546 was originally a petition to deny
due course to the certificate of candidacy of Larrazabal and was filed
before Larrazabal could be proclaimed the fact remains that the local
elections of February 1, 1988 in the province of Leyte proceeded with
Larrazabal considered as a bona-fide candidate. The voters of the
province voted for her in the sincere belief that she was a qualified
candidate for the position of governor. Her votes were counted and
she obtained the highest number of votes. The net effect is that the
petitioner lost in the election. He was repudiated by the electorate. In
the Frivaldo and Labo cases, this is precisely the reason why the
candidates who obtained the second highest number of votes were
not allowed to assume the positions vacated by Frivaldo the
governorship of Sorsogon, and Labo, the position of mayor in Baguio
City. The nature of the proceedings therefore, is not that compelling.
What matters is that in the event a candidate for an elected position
who is voted for and who obtains the highest number of votes is
disqualified for not possessing the eligibility requirements at the time
of the election as provided by law, the candidate who obtains the
second highest number of votes for the same position can not assume
the vacated position. It should be stressed that in G.R. No. 88004, the
Court set aside the dismissal of SPC No. 88-546, and directed the
COMELEC to conduct hearings to determine whether or not Larrazabal
was qualified to be a candidate for the position of governor in the
province of Leyte. This is the import of the decision in G.R. No. 88004.
Thus, the Court ruled in the case of Labo, Jr. v. Commission on
Elections:
Finally, there is the question of whether or not the private respondent,
who filed the quo warranto petition, can replace the petitioner as
mayor. He cannot. The simple reason is that as he obtained only the
second highest number of votes in the election, he was obviously not
the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in 1985. In that case, the candidate
who placed second was proclaimed elected after the votes for his
winning rival, who was disqualified as a turncoat and considered a
non-candidate, were all disregard as stray. In effect, the second placer
won by default. That decision was supported by eight members of the
Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr.,
Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.)
with three dissenting (Teehankee, Acting C.J., Abad Santos and
Melencio-Herrera, JJ.) and another two reserving their vote. (Plana
and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo v. Ramos,
(136 SCRA 435) which represents the more logical and democratic
rule. That case, which reiterated the doctrine first announced in 1912
in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of
the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and
Alampay, JJ., concurring) without any dissent, although one reserved
his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two
others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the
Court held:
... it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not
choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election for
that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can
be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes
is later declared to be disqualified or not eligible for the office to which
he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the
winner of the elective office. The votes cast for a dead, disqualified, or
non-eligible person may not be valid the vote the winner into office or
maintain him there. However the absence of a statute which clearly
asserts a contrary politics and legislative policy on the matter, if the
votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or
meaningless. (at pp. 20-21)
In sum, the Court does not find any reason to reverse and set aside the
questioned decision and resolution of the COMELEC. The COMELEC
has not acted without or in excess of jurisdiction or in grave abuse of
discretion.
WHEREFORE, the instant petitions are DISMISSED. The questioned
decision of the second division of the Commission on Elections dated
February 14, 1991 and the questioned Resolution en banc of the
Commission dated July 18, 1991 are hereby AFFIRMED. The temporary
restraining order issued on August 1, 1991 is LIFTED. Costs against the
petitioners.
SO ORDERED.
LINA DELA PENA JALOVER, GEORGIE A. HUISO and VELVET BARQUIN
ZAMORA, Petitioners, vs JOHN HENRY R. OSMEÑA and
COMMISSION ON ELECTIONS (COMELEC), Respondents.
The minimum requirement under our Constitution1 and election laws2
for the candidates' residency in the political unit they seek to
represent has never been intended to be an empty formalistic
condition; it carries with it a very specific purpose: to prevent
"stranger[s] or newcomer[s] unacquainted with the conditions and
needs of a community" from seeking elective offices in that
community.3
The requirement is rooted in the recognition that officials of districts
or localities should not only be acquainted with the metes and bounds
of their constituencies; more importantly, they should know their
constituencies and the unique circumstances of their constituents -
their needs, difficulties, aspirations, potentials for growth and
development, and all matters vital to their common welfare.4
Familiarity or the opportunity to be familiar with these circumstances
can only come with residency in the constituency to be represented.5
The Case
Before us is the Petition for Certiorari6 under Rule 64 inrelation with
Rule 65 of the Rules of Court, seeking to annul the Resolutions dated
April 3, 2013,7 and August 8, 2013,8 of the Commission on Elections
(COMELEC) in SPA No. 13-079. The COMELEC resolutions denied the
petitioners’ Petition to Cancel Certificate of Candidacy of the private
respondent John Henry R. Osmeña.
This review, based on the nature of the petition and the petitioners’
objective, is based on a very limited ground - the jurisdictional issue of
whether the COMELEC acted without or in excess of itsjurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction.9
Factual Antecedents
On October 3, 2012, Osmeña filed his Certificate of Candidacy (COC)
for the position of mayor, Toledo City, Cebu.10 In his COC, Osmeña
indicated that he had been a resident of Toledo City for fifteen (15)
years prior to the May 2013 elections. Before running for the
mayoralty position, Osmeña also served as the representative of the
3rd Congressional District of the Province of Cebu from 1995-1998,
which incidentally includes the City of Toledo.11
Soon thereafter, the petitioners filed before the COMELEC a "Petition
to Deny Due Course and to Cancel Certificate of Candidacy and to
Disqualify a Candidate for Possessing Some Grounds for
Disqualification,"12 docketed as SPA No. 13-079.
The Parties’ Claims and Evidence
Citing Section 7813 in relation with Section 7414 of the Omnibus
Election Code,the petitioners alleged beforethe COMELEC that
Osmeña made material misrepresentations of fact in the latter’s COC
and likewise failed to comply with the residency requirement under
Section 39 of the Local Government Code.15 In particular, the
petitioners claimed that Osmeña falsely declared under oath in his
COC that he had already been a resident of Toledo City fifteen (15)
years prior to the scheduled May 13, 2013 local elections.16
In support of their petition, the petitioners submitted the following: a)
a certification from the Toledo City Assessor’s Office, dated October 5,
2012, showing that Osmeña does not own any real property in Toledo
City;17 b) a tax declaration of Osmeña’s alleged residence at Ibo,
Toledo City showing that it is owned by Osmeña’s son;18 c)
photographs of Osmeña’s alleged dilapidated residence in
BarangayIbo, Toledo City, which the petitioners claim is not in keeping
with Osmeña’s prominence, wealth and stature in society;19 d) a
certification from the Business Permit and Licensing Office, that
Osmeña never applied nor has he been issued any business permit by
Toledo City;20 and e) several affidavits,21 including that of the
barangaycaptain of Ibo, Toledo City,22 attesting that Osmeña was
never a resident of Toledo City and that he has only been seenin the
city in September 2012 to conduct political meetings.
Osmeña denied the petitioners’ allegations. In his defense, Osmeña
argued that even prior to his actual transfer of residence to Ibo,
Toledo City, in 2004, he had been able to establish ties with Toledo
City in view of his family’s business interests and his political
linkages.23 According to Osmeña, in 1995, he bought a piece of land in
Ibo, Toledo City, where he built two (2) houses from 1998 to 200224
and became a permanent resident thereof in 2004.25 Osmeña further
averred thathe became a registered voter of Toledo City in 200626 and
that he leased at least two (2) properties in Toledo City for his
headquarters.27 In addition, he claimed that in December 2011, he
bought a five (5) hectare parcel of land in Das, Toledo City.28
In support of his allegations, Osmeña submitted the following pieces
of evidence: a) certification from the House of Representatives that
Osmeña was the duly elected representative of the 3rd District of
Cebu in the 10th Congress from 1995 to 1998;29 b) Tax Declaration
No. 2001-149019-0102830 and Deed of Absolute Sale between Dr.
James Gaite and Osmeña’s son concerning the Ibo, Toledo City
property;31 c) photographs of the exterior and interior of the Ibo,
Toledo City property;32 d) application for transfer of voter’s
registration record, dated April 24, 2006;33 e) a certification from
Mantuhac Construction stating that it was Osmeña who paid for the
construction of the Ibo, Toledo City property;34 f) utility bills to prove
that the house in Ibo, Toledo City, has continually been occupied by
Osmeña;35 g) Contract of Lease covering a house and lot in Poblacion,
Toledo City;36 h) a Deed of Extrajudicial Settlement with Sale covering
the 5 hectare property in Das, Toledo City;37 and i) several affidavits
attesting to the fact that Osmeña actually resides38 and has profound
socio-civic and political linkages in Toledo City.39
The Ruling of the COMELEC's Second Division
The COMELEC Second Division dismissed the petition on the ground
that Osmeña did not commit any material misrepresentation in his
COC.40 Citing Velasco v. COMELEC,41 the Second Division found that
Osmeña was able to explain why he indicated in his COC that the
period of his residence in Toledo City prior to the May 23, 2013
elections is 15 years.42 This was his belief, as according to him, he has
ties with Toledo City since childhood and that even as a Senator,he
continued to bring projects to Toledo City.43 The Second Division
further found that Osmeña complied with the residency
requirement.44
The petitioners timely moved for a reconsideration of the April 3, 2013
Resolution of the COMELEC.45 Before the COMELEC resolved the
motion, however, the Board of Canvassers of Toledo City proclaimed
Osmeña as the winning candidate for the mayoralty seat.46
The COMELEC En Banc Ruling
The COMELEC en bancsubsequently denied the petitioners’ motion for
reconsideration.47 Citing Sabili v. COMELEC and Librea,48 the
COMELEC en bancstated that it is not required that a candidate should
have his own house in order to establish his residence or domicile in a
place.49 It is enough that he should live in the locality even in a rented
house or that of a friend or a relative.50
The Petition and Comments
The petition is based on the following grounds/arguments:51
1. The August 8, 2013 Resolution of the COMELEC en banc, which
affirmed its Second Division’s Resolution finding that Osmeña had not
committed any false material representation in his COC, is null and
void since Osmeña is not a resident of Toledo City, contrary to what he
stated in his COC;
2. Osmeña has not established by substantial evidence that he is a
resident of Barangay Ibo of Toledo City and thus, should not be
allowed to serve as Mayor of Toledo City;
3. Osmeña’s Certificate of Candidacy should have been cancelled and
it is as if there was no one who challenged the candidacy of then
incumbent Toledo City Mayor Aurelio P. Espinosa;
4. The fact that Osmeña prevailed during the May 13, 2013 elections
does not make him eligible for the position. To rule in favor of the
apparent will of the people would ultimately create greater prejudice
to democratic institutions and juristic traditions of the Constitution;
5. The petitioner’s evidence of Osmeña’s lack of residence is not
inconclusive. The purpose ofthe election law would be thwarted by
upholding Osmeña’s right to the office;
6. The COMELEC showed partiality to Osmeña by admitting his
belatedly filed Answer to the Petition, and his Amended Memorandum
and Supplemental Amended Memorandum.
In his Comment, Osmeña asserts that: 1) the COMELEC’s findings of
fact are supported by substantial evidence, and as such, are final and
nonreviewable; 2) there was no material misrepresentation in his COC;
3) there was no deliberate attempt to mislead, misinform or hide a
fact on the part of Osmeña; 4) the purpose of the minimum residency
requirement is served because Osmeña has a significant relationship
with, and intimate knowledge of, the City of Toledo; and 5) Osmeña
has the mandate of the City of Toledo.52
The Office of the Solicitor General (OSG) likewise filed a Comment on
behalf of the COMELEC. The OSG argues that the COMELEC did not
commit any grave abuse of discretion since Osmeña was able to
adduce substantial evidence to prove that he was a resident of Toledo
City at least one (1) year before the May 2013 elections.
The Court’s Ruling
We dismiss the petition for lack of merit.
Limited Review in Certiorari Petitions
"Grave abuse of discretion" defies exact definition; generally, it refers
to "capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction;" the abuse of discretion must be patent and gross
as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to actat all in contemplation oflaw,
as where the power is exercised in an arbitrary and despotic manner
by reason of passion and hostility.53 Mere abuse of discretion is not
enough; it must be grave.54 We have held, too, that the use of wrong
or irrelevant considerations in deciding an issue is sufficient to taint a
decision-maker's action with grave abuse of discretion.55
Closely related with the limited focus of the present petition is the
condition, under Section 5, Rule 64 of the Rules of Court, that findings
of fact of the COMELEC, supported by substantial evidence, shall be
final and non-reviewable. Substantial evidence is that degree of
evidence that a reasonable mindmight accept to support a
conclusion.56 In light of our limited authority to review findings of
fact, we do not ordinarily review in a certioraricase the COMELEC's
appreciation and evaluation of evidence. Any misstep by the COMELEC
in this regard generally involves an error of judgment, not of
jurisdiction.
In exceptional cases, however, when the COMELEC's action on the
appreciation and evaluation of evidence oversteps the limits of its
discretion to the point of being grossly unreasonable, the Court is not
only obliged, but has the constitutional duty to intervene.57 When
grave abuse of discretion is present, resulting errors arising from the
grave abuse mutatefrom error of judgment to one of jurisdiction.58
Nature of the Case Subject of the Petition
The present petition arose from a petition to deny due course or to
cancel Osmeña’s COC. Section 74, in relation with Section 78 of the
Omnibus Election Code governs the cancellation of, and grant or
denial of due course to, the COCs. The combined application of these
sections requires that the facts stated in the COC by the would-be
candidate be true, as any false representation of a material fact is a
ground for the COC’s cancellation or the withholding of due course. To
quote these provisions:
SEC. 74. Contents of certificate of candidacy. - The certificate of
candidacy shall state that the personfiling 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 assumed 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. (Emphasis ours)
xxxx
SEC. 78. Petition to deny due course toor cancel a certificate of
candidacy. - A verified petition seeking todeny due course or to cancel
a certificate of candidacy may be filed by any 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.
The false representation that these provisions mention pertains to a
material fact, not to a mere innocuous mistake.59 This is emphasized
by the consequences of any material falsity: a candidate who falsifies a
material fact cannot run; if he runs and is elected, cannot serve; in
both cases, he or she can be prosecuted for violation of the election
laws.60 Obviously, these facts are those that refer to a candidate’s
qualifications for elective office, such as his or her citizenship and
residence.61
Separate from the requirement of materiality, a false representation
under Section 78 must consist of a "deliberate attempt to mislead,
misinform, or hide a fact, which would otherwise render a candidate
ineligible."62 In other words, it must be made with the intention to
deceive the electorate as to the would-be candidate's qualifications
for public office. In Mitra v. COMELEC,63 we held that the
misrepresentation that Section 78 addresses cannot be the result of a
mere innocuous mistake, and cannot exist in a situation where the
intent to deceive is patently absent, or where no deception of the
electorate results. The deliberate character of the misrepresentation
necessarily follows from a consideration of the consequences of any
material falsity: a candidate who falsifies a material fact cannot run.64
No grave abuse of discretion on the part of COMELEC
To establish a new domicile of choice, personal presence in the place
must be coupled with conduct indicative of this intention. It requires
not only such bodily presence in that placebut also a declared and
probable intent to make it one’s fixed and permanent place of
abode.65
The critical issue, however, pertainsto Osmeña’s bodily presence in
Toledo City and the declaration he made in his COC on this point. The
petitioners claim that Osmeña was only seen in Toledo City in the
month of September 2012 to conduct political meetings. They also
stress that the dilapidated property in Ibo, Toledo City is not even
owned by Osmeña, and is not in keeping with the latter’s stature — a
former Senator and a member of a political clan.
In support of their contention,the petitioners submitted various
affidavits of Toledo City residents claiming that Osmeña was never
seen in Toledo66 and pictures of the dilapidated Ibo, Toledo City
property. Osmeña, meanwhile submitted photographs of the Ibo,
Toledo City property, and various affidavits confirming his residence
for more than one year in Toledo City.67 Under these seemingly
directly contradictory evidence, we find that the COMELEC did not
commit any grave abuse of discretion in upholding the residency of
Osmeña.
As the COMELEC aptly found, Osmeña had sufficiently established by
substantial evidence his residence in Toledo City, Cebu.68 As early as
April 24, 2006,69 Osmeña applied for the transfer of his voter’s
registration record to Toledo City, which was granted on April 24,
2012.70 Osmeña likewise purchased a parcel of land in Ibo, Toledo City
in 1995 and commenced the construction of an improvement, which
would eventually serve as his residence since 2004.71 Osmeña even
acquired another parcel of land72 in Das, Toledo City in December
201173 and transferred his headquarters to Poblacion74 and Bato,
Toledo City as early as 2011. The existence of Osmeña’s headquarters
in Bato, Toledo City, was even confirmed by the Mr. Orlando
PamaCasia, witness for the petitioners.75 Finally, Osmeña has always
maintained profound political and socio-civic linkages in Toledo City—
a fact thatthe petitioners never disputed.
The petitioners, in the present case, largely rely on statements that
Osmeña was "hardly seen" in Toledo City, Cebu to support their claim
of error of jurisdiction. These affidavits, however, deserve little
consideration and loudly speak of their inherent weakness as
evidence.
The law does not require a person to be in his home twenty-four (24)
hours a day, seven (7) days a week, tofulfill the residency
requirement.76 In Fernandez v. House Electoral Tribunal,77 we ruled
that the "fact that a few barangay health workers attested that they
had failed to see petitioner whenever they allegedly made the rounds
in Villa de Toledo is of no moment, especially considering thatthere
were witnesses (including petitioner's neighbors in Villa de Toledo)
that were in turn presented by petitioner to prove that he was actually
a resident of Villa de Toledo, in the address he stated in his COC. x x x
It may be that whenever these health workers do their rounds
petitioner was out of the house to attend to his own employment or
business."
Under the circumstances, the evidence submitted by the petitioners
do not conclusively prove that Osmeña did not in fact reside in Toledo
City for at least the year before election day; most especially since the
sworn statements of some Toledo City residents attesting that they
never saw Osmeña inToledo City were controverted by similar sworn
statements by other ToledoCity residents who claimed that Osmeña
resided in Toledo City.
Similarly, the fact that Osmeña has no registered property under his
name does not belie his actual residence in Toledo City because
property ownership is not among the qualifications required of
candidates for local election.78 It is enough that he should livein the
locality, even in a rented house or that of a friend or relative.79 To use
ownership of property in the district as the determinative indicium of
permanence of domicile or residence implies that only the landed can
establish compliance with the residency requirement.80 In Perez v.
COMELEC,81 we sustained the COMELEC when it considered as
evidence tending to establish a candidate’s domicile of choice the
mere lease (rather than ownership) of an apartment by a candidate in
the same province where he ran for the position of governor.
We cannot accord credence either to the petitioners’ contention that
the dilapidated house in Ibo, Toledo City, could not serve as Osmeña’s
residence in view of the latter’s stature. At the outset, the
photographs submitted by Osmeña in evidence show that the house is
modestly furnished and contains the comforts of a simple
abode.Moreover, the petitioners’ speculation involves the use of
subjective non-legal standards, which we previously condemnedin the
case of Mitra v. Commission on Elections.82 In Mitra,83 we
pronounced:
The respondents significantly ask usin this case to adopt the same
faulty approach of using subjective norms, as they now argue that
given his stature as a member of the prominent Mitra clan of Palawan,
and as a three term congressman, it is highly incredible that a small
room in a feed mill has served as his residence since 2008.
We reject this suggested approach outright for the same reason we
condemned the COMELEC's use of subjective non-legal standards.
Mitra's feed mill dwelling cannot be considered in isolation and
separately from the circumstancesof his transfer of residence,
specifically, his expressed intent totransfer to a residence outside of
Puerto Princesa City to make him eligible to run for a provincial
position; his preparatory moves starting in early 2008; his initial
transfer through a leased dwelling; the purchase of a lot for his
permanent home; and the construction of a house in this lot that,
parenthetically, is adjacent to the premises he leased pending the
completion of his house. These incremental moves do not offend
reason at all, in the way that the COMELEC's highly subjective non-
legal standards do. (Emphasis ours)
Osmeña’s actual physical presence in Toledo City is established not
only by the presence of a place (Ibo, Toledo City, house and lot) he can
actually live in, but also the affidavitsof various persons in Toledo City.
Osmeña’s substantial and real interest in establishing his domicile of
choice in Toledo City is also sufficiently shown not only by the
acquisition of additional property in the area and the transfer of his
voter registration and headquarters, but also his participation in the
community’s socio-civic and political activities.
Osmeña has been proclaimed winner in the electoral contest and has
therefore the mandate of the electorate
Before his transfer of residence, Osmeña already had intimate
knowledge of Toledo City, particularly ofthe whole 3rd legislative
district that he represented for one term. Thus, he manifests a
significant level of knowledge of and sensitivity to the needs of the
said community. Moreover, Osmeña won the mayoralty position as
the choice of the people of Toledo City.
We find it apt to reiterate in this regard the principle enunciated in the
case of Frivaldo v. Comelec,84 that "[i]n any action involving the
possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issuesin a manner that would give
effect to the will of the majority, for it is merely sound public policy to
cause elective offices to be filled by those who are the choice of the
majority."85
To successfully challenge a winning candidate’s qualifications, the
petitioner must clearly demonstrate thatthe ineligibility is so patently
antagonistic to constitutional and legal principles that overriding such
ineligibility and thereby giving effectto the apparent will of the people
would ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so
zealously protect and promote.86 The reason for such liberality stems
from the recognition that laws governing election contests must be
construed to the end that the will of the people in the choice of public
officials may not be defeated by mere technical objections.87
Nonetheless, we wish to remind that COC defects beyond matters of
formand that involve material misrepresentations cannot avail of the
benefit of our ruling that COC mandatory requirements before
elections are considered merely directory after the people shall have
spoken.88 Where a material COC misrepresentation under oathis
made, thereby violating both our election and criminal laws, we are
faced as well with an assault on the will of the people of the
Philippines as expressed in our laws.89 In a choice between provisions
on material qualifications of elected officials, on the one hand, and the
will of the electorate in any given locality, on the other, we believe and
so hold that we cannot choose the electorate’s will.90
With the conclusion that Osmeñadid not commit any material
misrepresentation in his COC, we see no reason in this case to appeal
to the primacy of the electorate’s will. Wecannot deny, however, that
the people of Toledo City have spoken in an election where residency
qualification had been squarely raised and their voice has erased any
doubt about their verdict on Osmeña’s qualifications.
The petitioners failed to substantiate their claim of partiality on the
part of the COMELEC in admitting Osmeña’s Answer, Amended
Memorandum
Lastly, the petitioners insist that the COMELEC committed grave abuse
of discretion in admitting Osmeña’s belatedly filed Answer, Amended
Memorandum and Supplemental Memorandum. The petitioners,
however, failed to substantiate this allegation in their petition.In fact,
the petitioners admitted that they do not exactly know when Osmeña
was served with summons by the clerk or commission.91 They only
speculated that Osmeña’s Answer was filed one day delayed. Similarly,
we do not find any error on the part of the COMELEC in allowing the
filing of Osmeña’s amended memorandum, after obtaining leave from
the COMELEC. As Osmeña aptly pleaded in his motion for leave, the
amendments consisted of mere technical errors; the lower portions
and the most crucial parts of the Memorandum were omitted in its
final printing92 because the printer was inadvertently configured to
use an incorrect paper size.
Moreover, amendments are actually favored in order to allow the
complete presentation of the real controversies.1âwphi1 We had this
to say in this regard in Contech Construction Technology and Dev’t
Corp. v. Court of Appeals:93
"It is a recognized rule of procedure that pleadings shall be construed
liberally so as to render substantial justice to the parties and in order
that actual merits ofthe controversy may speedily be determined
without regard to technicalities and in the most expeditious and
inexpensive manner. The judicial attitude has always been favorable
and liberal in allowing amendments to a pleading. The rationale
behind the rule is to avoid multiplicity of suits and in order that the
real controversies between the parties are presented, their rights are
determined and the case decided on the merits without unnecessary
delay. When the situation is such that if the proposed amendment is
not allowed, another action would be instituted, thus making two
actions, two trials, and two appeals possible and probable, the said
amendment should be admitted. Hence, should the trial court find the
allegations in the pleadings to be inadequate, it should allow the party
concerned to file proper amendments to pleadings in accordance with
the mandate of the Rules of Court that amendments to pleadings are
favored and should be liberally allowed."
In these lights, we can only conclude, in the context of the cancellation
proceeding before us, that the petitioners have not presented a
convincing case sufficient to show that the COMELEC committed an
error of jurisdiction in upholding the residency of Osmeiia in Toledo
City and the validity of his representation on this point in his COC.
WHEREFORE, premises considered, we hereby DISMISS the petition for
lack of merit. No costs.
SO ORDERED.
URBANO M. MORENO versus COMMISSION ON ELECTIONS TINGA,
and NORMA L. MEJES, CHICO-NAZARIO,Respondents
In this Petition[1] dated July 6, 2005, Urbano M. Moreno (Moreno)
assails the Resolution[2] of the Commission on Elections (Comelec) en
banc dated June 1, 2005, affirming the Resolution[3] of the Comelec
First Division dated November 15, 2002 which, in turn, disqualified him
from running for the elective office of Punong Barangay of Barangay
Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay
and Sangguniang Kabataan Elections.
The following are the undisputed facts:
Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from
running for Punong Barangay on the ground that the latter was
convicted by final judgment of the crime of Arbitrary Detention and
was sentenced to suffer imprisonment of Four (4) Months and One (1)
Day to Two (2) Years and Four (4) Months by the Regional Trial Court,
Branch 28 of Catbalogan, Samar on August 27, 1998.
Moreno filed an answer averring that the petition states no cause of
action because he was already granted probation. Allegedly, following
the case of Baclayon v. Mutia,[4] the imposition of the sentence of
imprisonment, as well as the accessory penalties, was thereby
suspended. Moreno also argued that under Sec. 16 of the Probation
Law of 1976 (Probation Law), the final discharge of the probation shall
operate to restore to him all civil rights lost or suspended as a result of
his conviction and to fully discharge his liability for any fine imposed.
The order of the trial court dated December 18, 2000 allegedly
terminated his probation and restored to him all the civil rights he lost
as a result of his conviction, including the right to vote and be voted
for in the July 15, 2002 elections.
The case was forwarded to the Office of the Provincial Election
Supervisor of Samar for preliminary hearing. After due proceedings,
the Investigating Officer recommended that Moreno be disqualified
from running for Punong Barangay.
The Comelec First Division adopted this recommendation. On motion
for reconsideration filed with the Comelec en banc, the Resolution of
the First Division was affirmed. According to the Comelec en banc, Sec.
40(a) of the Local Government Code provides that 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, are disqualified from running for
any elective local position.[5] Since Moreno was released from
probation on December 20, 2000, disqualification shall commence on
this date and end two (2) years thence. The grant of probation to
Moreno merely suspended the execution of his sentence but did not
affect his disqualification from running for an elective local office.
Further, the Comelec en banc held that the provisions of the Local
Government Code take precedence over the case of Baclayon v. Mutia
cited by Moreno and the Probation Law because it is a much later
enactment and a special law setting forth the qualifications and
disqualifications of elective local officials.
In this petition, Moreno argues that the disqualification under the
Local Government Code applies only to those who have served their
sentence and not to probationers because the latter do not serve the
adjudged sentence. The Probation Law should allegedly be read as an
exception to the Local Government Code because it is a special law
which applies only to probationers. Further, even assuming that he is
disqualified, his subsequent election as Punong Barangay allegedly
constitutes an implied pardon of his previous misconduct.
In its Comment[6] dated November 18, 2005 on behalf of the
Comelec, the Office of the Solicitor General argues that this Court in
Dela Torre v. Comelec[7] definitively settled a similar controversy by
ruling that conviction for an offense involving moral turpitude stands
even if the candidate was granted probation. The disqualification
under Sec. 40(a) of the Local Government Code subsists and remains
totally unaffected notwithstanding the grant of probation.
Moreno filed a Reply to Comment[8] dated March 27, 2006,
reiterating his arguments and pointing out material differences
between his case and Dela Torre v. Comelec which allegedly warrant a
conclusion favorable to him. According to Moreno, Dela Torre v.
Comelec involves a conviction for violation of the Anti-Fencing Law, an
offense involving moral turpitude covered by the first part of Sec.
40(a) of the Local Government Code. Dela Torre, the petitioner in that
case, applied for probation nearly four (4) years after his conviction
and only after appealing his conviction, such that he could not have
been eligible for probation under the law.
In contrast, Moreno alleges that he applied for and was granted
probation within the period specified therefor. He never served a day
of his sentence as a result. Hence, the disqualification under Sec. 40(a)
of the Local Government Code does not apply to him.
The resolution of the present controversy depends on the application
of the phrase within two (2) years after serving sentence found in Sec.
40(a) of the Local Government Code, which reads:
Sec. 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence; [Emphasis
supplied.]
....
We should mention at this juncture that there is no need to rule on
whether Arbitrary Detention, the crime of which Moreno was
convicted by final judgment, involves moral turpitude falling under the
first part of the above-quoted provision. The question of whether
Arbitrary Detention is a crime involving moral turpitude was never
raised in the petition for disqualification because the ground relied
upon by Mejes, and which the Comelec used in its assailed resolutions,
is his alleged disqualification from running for a local elective office
within two (2) years from his discharge from probation after having
been convicted by final judgment for an offense punishable by Four (4)
Months and One (1) Day to Two (2) Years and Four (4) Months.
Besides, a determination that the crime of Arbitrary Detention
involves moral turpitude is not decisive of this case, the crucial issue
being whether Morenos sentence was in fact served.
In this sense, Dela Torre v. Comelec is not squarely applicable. Our
pronouncement therein that the grant of probation does not affect
the disqualification under Sec. 40(a) of the Local Government Code
was based primarily on the finding that the crime of fencing of which
petitioner was convicted involves moral turpitude, a circumstance
which does not obtain in this case. At any rate, the phrase within two
(2) years after serving sentence should have been interpreted and
understood to apply both to those who have been sentenced by final
judgment for an offense involving moral turpitude and to those who
have been sentenced by final judgment for an offense punishable by
one (1) year or more of imprisonment. The placing of the comma (,) in
the provision means that the phrase modifies both parts of Sec. 40(a)
of the Local Government Code.
The Courts declaration on the effect of probation on Sec. 40(a) of the
Local Government Code, we should add, ought to be considered an
obiter in view of the fact that Dela Torre was not even entitled to
probation because he appealed his conviction to the Regional Trial
Court which, however, affirmed his conviction. It has been held that
the perfection of an appeal is a relinquishment of the alternative
remedy of availing of the Probation Law, the purpose of which is to
prevent speculation or opportunism on the part of an accused who,
although already eligible, did not at once apply for probation, but did
so only after failing in his appeal.[9]
Sec. 40(a) of the Local Government Code appears innocuous enough at
first glance. The phrase service of sentence, understood in its general
and common sense, means the confinement of a convicted
person in a penal facility for the period adjudged by the court.[10] This
seemingly clear and unambiguous provision, however, has spawned a
controversy worthy of this Courts attention because the Comelec, in
the assailed resolutions, is alleged to have broadened the coverage of
the law to include even those who did not serve a day of their
sentence because they were granted probation.
Moreno argues, quite persuasively, that he should not have been
disqualified because he did not serve the adjudged sentence having
been granted probation and finally discharged by the trial court.
In Baclayon v. Mutia, the Court declared that an order placing
defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal
penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right
of suffrage. We thus deleted from the order granting probation the
paragraph which required that petitioner refrain from continuing with
her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of
suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period[11] imposed upon
Moreno were similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is
not even disqualified from running for a public office because the
accessory penalty of suspension from public office is put on hold for
the duration of the probation.
Clearly, the period within which a person is under probation cannot be
equated with service of the sentence adjudged. Sec. 4 of the Probation
Law specifically provides that the grant of probation suspends the
execution of the sentence. During the period of probation,[12] the
probationer does not serve the penalty imposed upon him by the
court but is merely required to comply with all the conditions
prescribed in the probation order.[13]
It is regrettable that the Comelec and the OSG have misapprehended
the real issue in this case. They focused on the fact that Morenos
judgment of conviction attained finality upon his application for
probation instead of the question of whether his sentence had been
served.
The Comelec could have correctly resolved this case by simply applying
the law to the letter. Sec. 40(a) of the Local Government Code
unequivocally disqualifies only those who have been sentenced by
final judgment for an offense punishable by imprisonment of one (1)
year or more, within two (2) years after serving sentence.
This is as good a time as any to clarify that those who have not served
their sentence by reason of the grant of probation which, we reiterate,
should not be equated with service of sentence, should not likewise be
disqualified from running for a local elective office because the two
(2)-year period of ineligibility under Sec. 40(a) of the Local
Government Code does not even begin to run.
The fact that the trial court already issued an order finally discharging
Moreno fortifies his position. Sec. 16 of the Probation Law provides
that [t]he final discharge of the probationer shall operate to restore to
him all civil rights lost or suspended as a result of his conviction and to
fully discharge his liability for any fine imposed as to the offense for
which probation was granted. Thus, when Moreno was finally
discharged upon the courts finding that he has fulfilled the terms and
conditions of his probation, his case was deemed terminated and all
civil rights lost or suspended as a result of his conviction were restored
to him, including the right to run for public office.
Even assuming that there is an ambiguity in Sec. 40(a) of the Local
Government Code which gives room for judicial interpretation,[14] our
conclusion will remain the same.
It is unfortunate that the deliberations on the Local Government Code
afford us no clue as to the intended meaning of the phrase service of
sentence, i.e., whether the legislature also meant to disqualify those
who have been granted probation. The Courts function, in the face of
this seeming dissonance, is to interpret and harmonize the Probation
Law and the Local Government Code. Interpretare et concordare legis
legibus est optimus interpretandi.
Probation is not a right of an accused but a mere privilege, an act of
grace and clemency or immunity conferred by the state, which is
granted to a deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of which he was
convicted.[15] Thus, the Probation Law lays out rather stringent
standards regarding who are qualified for probation. For instance, it
provides that the benefits of probation shall not be extended to those
sentenced to serve a maximum term of imprisonment of more than six
(6) years; convicted of any offense against the security of the State;
those who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one (1) month and
one (1) day and/or a fine of not less than P200.00; those who have
been once on probation; and those who are already serving sentence
at the time the substantive provisions of the Probation Law became
applicable.[16]
It is important to note that the disqualification under Sec. 40(a) of the
Local Government Code covers offenses punishable by one (1) year or
more of imprisonment, a penalty which also covers probationable
offenses. In spite of this, the provision does not specifically disqualify
probationers from running for a local elective office. This omission is
significant because it offers a glimpse into the legislative intent to
treat probationers as a distinct class of offenders not covered by the
disqualification.
Further, it should be mentioned that the present Local Government
Code was enacted in 1991, some seven (7) years after Baclayon v.
Mutia was decided. When the legislature approved the enumerated
disqualifications under Sec. 40(a) of the Local Government Code, it is
presumed to have knowledge of our ruling in Baclayon v. Mutia on the
effect of probation on the disqualification from holding public office.
That it chose not to include probationers within the purview of the
provision is a clear expression of the legislative will not to disqualify
probationers.
On this score, we agree with Moreno that the Probation Law should be
construed as an exception to the Local Government Code. While the
Local Government Code is a later law which sets forth the
qualifications and disqualifications of local elective officials, the
Probation Law is a special legislation which applies only to
probationers. It is a canon of statutory construction that a later
statute, general in its terms and not expressly repealing a prior special
statute, will ordinarily not affect the special provisions of such earlier
statute.[17]
In construing Sec. 40(a) of the Local Government Code in a way that
broadens the scope of the disqualification to include Moreno, the
Comelec committed an egregious error which we here correct. We
rule that Moreno was not disqualified to run for Punong Barangay of
Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized
Barangay and Sangguniang Kabataan Elections.
Finally, we note that Moreno was the incumbent Punong Barangay at
the time of his conviction of the crime of Arbitrary Detention. He
claims to have obtained a fresh mandate from the people of Barangay
Cabugao, Daram, Samar in the July 15, 2002 elections. This situation
calls to mind the poignant words of Mr. Justice now Chief Justice
Artemio Panganiban in Frivaldo v. Comelec[18] where he said that it
would be far better to err in favor of popular sovereignty than to be
right in complex but little understood legalisms.
WHEREFORE, the petition is GRANTED. The Resolution of the
Commission on Elections en banc dated June 1, 2005 and the
Resolution of its First Division dated November 15, 2002, as well as all
other actions and orders issued pursuant thereto, are ANNULLED and
SET ASIDE. The Commission on Elections is directed to proceed in
accordance with this Decision. No pronouncement as to costs.
SO ORDERED.
NESTOR B. MAGNO, petitioner, vs. COMMISSION ON ELECTIONS and
CARLOS C. MONTES, respondents.
Before this Court is a petition for certiorari under Rule 65 which seeks
to annul and set aside the resolution dated May 7, 2001 of the
Commission on Elections as well as the resolution dated May 12, 2001
denying petitioners motion for reconsideration.
This petition originated from a case filed by private respondent on
March 21, 2001 for the disqualification of petitioner Nestor Magno as
mayoralty candidate of San Isidro, Nueva Ecija during the May 14,
2001 elections on the ground that petitioner was previously convicted
by the Sandiganbayan of four counts of direct bribery penalized under
Article 210 of the Revised Penal Code. It appears that on July 25, 1995,
petitioner was sentenced to suffer the indeterminate penalty of 3
months and 11 days of arresto mayor as minimum to 1 year 8 months
and 21 days of prision correccional as maximum, for each of the four
counts of direct bribery. Thereafter, petitioner applied for probation
and was discharged on March 5, 1998 upon order of the Regional Trial
Court of Gapan, Nueva Ecija.
On May 7, 2001, the Commission on Elections (COMELEC) rendered a
decision granting the petition of private respondent and declaring that
petitioner was disqualified from running for the position of mayor in
the May 14, 2001 elections. In ruling against petitioner, the COMELEC
cited Section 12 of the BP 881 or the Omnibus Election Code which
provides as follows:
Sec. 12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than
eighteen (18) 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.
The above provision explicitly lifts the disqualification to run for an
elective office of a person convicted of a crime involving moral
turpitude after five (5) years from the service of sentence. According
to the COMELEC, inasmuch as petitioner was considered to have
completed the service of his sentence on March 5, 1998, his five-year
disqualification will end only on March 5, 2003.
On May 10, 2001, petitioner filed a motion for reconsideration but the
same was denied by the COMELEC in its resolution dated May 12,
2001.
Hence, this petition.
Petitioner argues that direct bribery is not a crime involving moral
turpitude. Likewise, he cites Section 40 of RA 7160, otherwise known
as the Local Government Code of 1991, which he claims is the law
applicable to the case at bar, not BP 881 or the Omnibus Election Code
as claimed by the COMELEC. Said provision reads:
Section 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.
xxxx
Petitioner insists that he had already served his sentence as of March
5, 1998 when he was discharged from probation. Such being the case,
the two-year disqualification period imposed by Section 40 of the
Local Government Code expired on March 5, 2000. Thus, petitioner
was qualified to run in the 2001 elections.
Meanwhile, Sonia Lorenzo was proclaimed by the COMELEC as the
duly elected mayor of San Isidro, Nueva Ecija. Thus, on June 19, 2001,
petitioner filed a supplemental petition which this Court merely noted
in its resolution dated June 26, 2001. In his supplemental petition,
petitioner assailed the proclamation of Sonia Lorenzo on the ground
that the propriety of his disqualification was still under review by this
Court. Petitioner likewise asked this Court to declare him as the duly
elected municipal mayor instead of Sonia Lorenzo.
On July 18, 2001, the Solicitor-General filed his manifestation and
agreed with petitioner that COMELEC should have applied Section 40
of the Local Government Code.
The main issue is whether or not petitioner was disqualified to run for
mayor in the 2001 elections. In resolving this, two sub-issues need to
be threshed out, namely: (1) whether the crime of direct bribery
involves moral turpitude and (2) whether it is the Omnibus Election
Code or the Local Government Code that should apply in this situation.
Regarding the first sub-issue, the Court has consistently adopted the
definition in Blacks Law Dictionary of moral turpitude as:
x x x an act of baseness, vileness, or depravity in the private duties
which a man owes his fellow men, or to society in general, contrary to
the accepted and customary rule of right and duty between man and
woman or conduct contrary to justice, honesty, modesty, or good
morals.[1]
Not every criminal act, however, involves moral turpitude. It
frequently depends on the circumstances surrounding the violation of
the law.[2]
In this case, we need not review the facts and circumstances relating
to the commission of the crime considering that petitioner did not
assail his conviction. By applying for probation, petitioner in effect
admitted all the elements of the crime of direct bribery:
1. the offender is a public officer;
2. the offender accepts an offer or promise or receives a gift or
present by himself or through another;
3. such offer or promise be accepted or gift or present be received by
the public officer with a view to committing some crime, or in
consideration of the execution of an act which does not constitute a
crime but the act must be unjust, or to refrain from doing something
which it is his official duty to do; and [Italics supplied]
4. the act which the offender agrees to perform or which he executes
is connected with the performance of his official duties.[3]
Moral turpitude can be inferred from the third element. The fact that
the offender agrees to accept a promise or gift and deliberately
commits an unjust act or refrains from performing an official duty in
exchange for some favors, denotes a malicious intent on the part of
the offender to renege on the duties which he owes his fellowmen and
society in general. Also, the fact that the offender takes advantage of
his office and position is a betrayal of the trust reposed on him by the
public. It is a conduct clearly contrary to the accepted rules of right
and duty, justice, honesty and good morals. In all respects, direct
bribery is a crime involving moral turpitude.
It is the second sub-issue which is problematical. There appears to be a
glaring incompatibility between the five-year disqualification period
provided in Section 12 of the Omnibus Election Code and the two-year
disqualification period in Section 40 of the Local Government Code.
It should be noted that the Omnibus Election Code (BP 881) was
approved on December 3, 1985 while the Local Government Code (RA
7160) took effect on January 1, 1992. It is basic in statutory
construction that in case of irreconcilable conflict between two laws,
the later enactment must prevail, being the more recent expression of
legislative will.[4] Legis posteriores priores contrarias abrogant. In
enacting the later law, the legislature is presumed to have knowledge
of the older law and intended to change it. Furthermore, the repealing
clause of Section 534 of RA 7160 or the Local Government Code states
that:
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any provisions of this Code are
hereby repealed or modified accordingly.
In accordance therewith, Section 40 of RA 7160 is deemed to have
repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code
provides that laws are repealed only by subsequent ones, and not the
other way around. When a subsequent law entirely encompasses the
subject matter of the former enactment, the latter is deemed
repealed.
In David vs. COMELEC[5], we declared that RA 7160 is a codified set of
laws that specifically applies to local government units. Section 40
thereof specially and definitively provides for disqualifications of
candidates for elective local positions. It is applicable to them only. On
the other hand, Section 12 of BP 881 speaks of disqualifications of
candidates for any public office. It deals with the election of all public
officers. Thus, Section 40 of RA 7160, insofar as it governs the
disqualifications of candidates for local positions, assumes the nature
of a special law which ought to prevail.
The intent of the legislature to reduce the disqualification period of
candidates for local positions from five to two years is evident. The
cardinal rule in the interpretation of all laws is to ascertain and give
effect to the intent of the law.[6] The reduction of the disqualification
period from five to two years is the manifest intent.
Therefore, although his crime of direct bribery involved moral
turpitude, petitioner nonetheless could not be disqualified from
running in the 2001 elections. Article 12 of the Omnibus Election Code
(BP 881) must yield to Article 40 of the Local Government Code (RA
7160). Petitioners disqualification ceased as of March 5, 2000 and he
was therefore under no such disqualification anymore when he ran for
mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections.
Unfortunately, however, neither this Court nor this case is the proper
forum to rule on (1) the validity of Sonia Lorenzos proclamation and
(2) the declaration of petitioner as the rightful winner. Inasmuch as
Sonia Lorenzo had already been proclaimed as the winning candidate,
the legal remedy of petitioner would have been a timely election
protest.
WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The
challenged resolutions of the Commission on Elections dated May 7,
2001 and May 12, 2001 are hereby reversed and set aside. The
petitioners prayer in his supplemental petition for his proclamation as
the winner in the May 14, 2001 mayoralty elections in San Isidro,
Nueva Ecija, not being within our jurisdiction, is hereby denied.
SO ORDERED.
ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS
MANZANO and the COMMISSION ON ELECTIONS, respondents.
Petitioner Ernesto S. Mercado and private respondent Eduardo B.
Manzano were candidates for vice mayor of the City of Makati in the
May 11, 1998 elections. The other one was Gabriel V. Daza III. The
results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275[1]
The proclamation of private respondent was suspended in view of a
pending petition for disqualification filed by a certain Ernesto Mamaril
who alleged that private respondent was not a citizen of the
Philippines but of the United States.
In its resolution, dated May 7, 1998,[2] the Second Division of the
COMELEC granted the petition of Mamaril and ordered the
cancellation of the certificate of candidacy of private respondent on
the ground that he is a dual citizen and, under 40(d) of the Local
Government Code, persons with dual citizenship are disqualified from
running for any elective position. The COMELECs Second Division said:
What is presented before the Commission is a petition for
disqualification of Eduardo Barrios Manzano as candidate for the office
of Vice-Mayor of Makati City in the May 11, 1998 elections. The
petition is based on the ground that the respondent is an American
citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent
admitted that he is registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration No. B-31632 and
alleged that he is a Filipino citizen because he was born in 1955 of a
Filipino father and a Filipino mother. He was born in the United States,
San Francisco, California, on September 14, 1955, and is considered an
American citizen under US Laws. But notwithstanding his registration
as an American citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent
Manzano is both a Filipino and a US citizen. In other words, he holds
dual citizenship.
The question presented is whether under our laws, he is disqualified
from the position for which he filed his certificate of candidacy. Is he
eligible for the office he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual
citizenship are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent
Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor
of Makati City.
On May 8, 1998, private respondent filed a motion for
reconsideration.[3] The motion remained pending even until after the
election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10,
1998, of the COMELEC, the board of canvassers tabulated the votes
cast for vice mayor of Makati City but suspended the proclamation of
the winner.
On May 19, 1998, petitioner sought to intervene in the case for
disqualification.[4] Petitioners motion was opposed by private
respondent.
The motion was not resolved. Instead, on August 31, 1998, the
COMELEC en banc rendered its resolution. Voting 4 to 1, with one
commissioner abstaining, the COMELEC en banc reversed the ruling of
its Second Division and declared private respondent qualified to run
for vice mayor of the City of Makati in the May 11, 1998 elections.[5]
The pertinent portions of the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San
Francisco, California, U.S.A. He acquired US citizenship by operation of
the United States Constitution and laws under the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935
Philippine Constitution, as his father and mother were Filipinos at the
time of his birth. At the age of six (6), his parents brought him to the
Philippines using an American passport as travel document. His
parents also registered him as an alien with the Philippine Bureau of
Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he
did not renounce Philippine citizenship and did not take an oath of
allegiance to the United States.
It is an undisputed fact that when respondent attained the age of
majority, he registered himself as a voter, and voted in the elections of
1992, 1995 and 1998, which effectively renounced his US citizenship
under American law. Under Philippine law, he no longer had U.S.
citizenship.
At the time of the May 11, 1998 elections, the resolution of the
Second Division, adopted on May 7, 1998, was not yet final.
Respondent Manzano obtained the highest number of votes among
the candidates for vice-mayor of Makati City, garnering one hundred
three thousand eight hundred fifty three (103,853) votes over his
closest rival, Ernesto S. Mercado, who obtained one hundred thousand
eight hundred ninety four (100,894) votes, or a margin of two
thousand nine hundred fifty nine (2,959) votes. Gabriel Daza III
obtained third place with fifty four thousand two hundred seventy five
(54,275) votes. In applying election laws, it would be far better to err
in favor of the popular choice than be embroiled in complex legal
issues involving private international law which may well be settled
before the highest court (Cf. Frivaldo vs. Commission on Elections, 257
SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the
resolution of the Second Division, adopted on May 7, 1998, ordering
the cancellation of the respondents certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be
QUALIFIED as a candidate for the position of vice-mayor of Makati City
in the May 11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati City Board of
Canvassers, upon proper notice to the parties, to reconvene and
proclaim the respondent Eduardo Luis Barrios Manzano as the winning
candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of
canvassers, on the evening of August 31, 1998, proclaimed private
respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid
resolution of the COMELEC en banc and to declare private respondent
disqualified to hold the office of vice mayor of Makati City. Petitioner
contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when
he:
1. He renounced his U.S. citizenship when he attained the age of
majority when he was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely) registered
himself as a voter and voted in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of
Vice-Mayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the
Second Division adopted on 7 May 1998 was not yet final so that,
effectively, petitioner may not be declared the winner even assuming
that Manzano is disqualified to run for and hold the elective office of
Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private
respondent Manzano whether petitioner Mercado has personality to
bring this suit considering that he was not an original party in the case
for disqualification filed by Ernesto Mamaril nor was petitioners
motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules
of Procedure of the COMELEC in support of his claim that petitioner
has no right to intervene and, therefore, cannot bring this suit to set
aside the ruling denying his motion for intervention:
Section 1. When proper and when may be permitted to intervene. Any
person allowed to initiate an action or proceeding may, before or
during the trial of an action or proceeding, be permitted by the
Commission, in its discretion to intervene in such action or proceeding,
if he has legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or when he is so
situated as to be adversely affected by such action or proceeding.
....
Section 3. Discretion of Commission. In allowing or disallowing a
motion for intervention, the Commission or the Division, in the
exercise of its discretion, shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties and whether or not the intervenors rights
may be fully protected in a separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in
the matter in litigation nor an interest to protect because he is a
defeated candidate for the vice-mayoralty post of Makati City [who]
cannot be proclaimed as the Vice-Mayor of Makati City even if the
private respondent be ultimately disqualified by final and executory
judgment.
The flaw in this argument is it assumes that, at the time petitioner
sought to intervene in the proceedings before the COMELEC, there
had already been a proclamation of the results of the election for the
vice mayoralty contest for Makati City, on the basis of which petitioner
came out only second to private respondent. The fact, however, is that
there had been no proclamation at that time. Certainly, petitioner had,
and still has, an interest in ousting private respondent from the race at
the time he sought to intervene. The rule in Labo v. COMELEC,[6]
reiterated in several cases,[7] only applies to cases in which the
election of the respondent is contested, and the question is whether
one who placed second to the disqualified candidate may be declared
the winner. In the present case, at the time petitioner filed a Motion
for Leave to File Intervention on May 20, 1998, there had been no
proclamation of the winner, and petitioners purpose was precisely to
have private respondent disqualified from running for [an] elective
local position under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who
originally instituted the disqualification proceedings), a registered
voter of Makati City, was competent to bring the action, so was
petitioner since the latter was a rival candidate for vice mayor of
Makati City.

Nor is petitioners interest in the matter in litigation any less because
he filed a motion for intervention only on May 20, 1998, after private
respondent had been shown to have garnered the highest number of
votes among the candidates for vice mayor. That petitioner had a right
to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from 6 of R.A. No. 6646, otherwise
known as the Electoral Reforms Law of 1987, which provides:
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of
the proclamation of such candidate whenever the evidence of guilt is
strong.
Under this provision, intervention may be allowed in proceedings for
disqualification even after election if there has yet been no final
judgment rendered.
The failure of the COMELEC en banc to resolve petitioners motion for
intervention was tantamount to a denial of the motion, justifying
petitioner in filing the instant petition for certiorari. As the COMELEC
en banc instead decided the merits of the case, the present petition
properly deals not only with the denial of petitioners motion for
intervention but also with the substantive issues respecting private
respondents alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private
respondent Manzano possesses dual citizenship and, if so, whether he
is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought
under 40 of the Local Government Code of 1991 (R.A. No. 7160),
which declares as disqualified from running for any elective local
position: . . . (d) Those with dual citizenship. This provision is
incorporated in the Charter of the City of Makati.[8]
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor
General, who sides with him in this case, contends that through 40(d)
of the Local Government Code, Congress has command[ed] in explicit
terms the ineligibility of persons possessing dual allegiance to hold
local elective office.
To begin with, dual citizenship is different from dual allegiance. The
former arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously
considered a national by the said states.[9] For instance, such a
situation may arise when a person whose parents are citizens of a
state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and
without any voluntary act on his part, is concurrently considered a
citizen of both states. Considering the citizenship clause (Art. IV) of our
Constitution, it is possible for the following classes of citizens of the
Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if
by the laws of their fathers country such children are citizens of that
country;
(3) Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission they are
deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines
may, without performing any act, be also a citizen of another state;
but the above cases are clearly possible given the constitutional
provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is the
result of an individuals volition.
With respect to dual allegiance, Article IV, 5 of the Constitution
provides: Dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law. This provision was included in the 1987
Constitution at the instance of Commissioner Blas F. Ople who
explained its necessity as follows:[10]
. . . I want to draw attention to the fact that dual allegiance is not dual
citizenship. I have circulated a memorandum to the Bernas Committee
according to which a dual allegiance - and I reiterate a dual allegiance -
is larger and more threatening than that of mere double citizenship
which is seldom intentional and, perhaps, never insidious. That is often
a function of the accident of mixed marriages or of birth on foreign
soil. And so, I do not question double citizenship at all.
What we would like the Committee to consider is to take
constitutional cognizance of the problem of dual allegiance. For
example, we all know what happens in the triennial elections of the
Federation of Filipino-Chinese Chambers of Commerce which consists
of about 600 chapters all over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is the fact that the Filipino-
Chinese community is represented in the Legislative Yuan of the
Republic of China in Taiwan. And until recently, the sponsor might
recall, in Mainland China in the Peoples Republic of China, they have
the Associated Legislative Council for overseas Chinese wherein all of
Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of
diplomatic friction. At that time, the Filipino-Chinese were also
represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled
kind of allegiance of Filipinos, of citizens who are already Filipinos but
who, by their acts, may be said to be bound by a second allegiance,
either to Peking or Taiwan. I also took close note of the concern
expressed by some Commissioners yesterday, including Commissioner
Villacorta, who were concerned about the lack of guarantees of
thorough assimilation, and especially Commissioner Concepcion who
has always been worried about minority claims on our natural
resources.
Dual allegiance can actually siphon scarce national capital to Taiwan,
Singapore, China or Malaysia, and this is already happening. Some of
the great commercial places in downtown Taipei are Filipino-owned,
owned by Filipino-Chinese it is of common knowledge in Manila. It can
mean a tragic capital outflow when we have to endure a capital
famine which also means economic stagnation, worsening
unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on
Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL
TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of
these citizens with dual allegiance, thus:[11]
. . . A significant number of Commissioners expressed their concern
about dual citizenship in the sense that it implies a double allegiance
under a double sovereignty which some of us who spoke then in a
freewheeling debate thought would be repugnant to the sovereignty
which pervades the Constitution and to citizenship itself which implies
a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including,
of course, the obligation to rise to the defense of the State when it is
threatened, and back of this, Commissioner Bernas, is, of course, the
concern for national security. In the course of those debates, I think
some noted the fact that as a result of the wave of naturalizations
since the decision to establish diplomatic relations with the Peoples
Republic of China was made in 1975, a good number of these
naturalized Filipinos still routinely go to Taipei every October 10; and it
is asserted that some of them do renew their oath of allegiance to a
foreign government maybe just to enter into the spirit of the occasion
when the anniversary of the Sun Yat-Sen Republic is commemorated.
And so, I have detected a genuine and deep concern about double
citizenship, with its attendant risk of double allegiance which is
repugnant to our sovereignty and national security. I appreciate what
the Committee said that this could be left to the determination of a
future legislature. But considering the scale of the problem, the real
impact on the security of this country, arising from, let us say,
potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at
the proper time that will prohibit, in effect, or regulate double
citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the
Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase dual
citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be
understood as referring to dual allegiance. Consequently, persons with
mere dual citizenship do not fall under this disqualification. Unlike
those with dual allegiance, who must, therefore, be subject to strict
process with respect to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate
their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive
members of the Constitutional Commission, pointed out: [D]ual
citizenship is just a reality imposed on us because we have no control
of the laws on citizenship of other countries. We recognize a child of a
Filipino mother. But whether or not she is considered a citizen of
another country is something completely beyond our control.[12]
By electing Philippine citizenship, such candidates at the same time
forswear allegiance to the other country of which they are also citizens
and thereby terminate their status as dual citizens. It may be that,
from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is
of no moment as the following discussion on 40(d) between Senators
Enrile and Pimentel clearly shows:[13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of line
41, page 17: Any person with dual citizenship is disqualified to run for
any elective local position. Under the present Constitution, Mr.
President, someone whose mother is a citizen of the Philippines but
his father is a foreigner is a natural-born citizen of the Republic. There
is no requirement that such a natural born citizen, upon reaching the
age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging to the
Republic of the Philippines, may such a situation disqualify the person
to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at
the moment when he would want to run for public office, he has to
repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but
the country of origin or the country of the father claims that person,
nevertheless, as a citizen? No one can renounce. There are such
countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public
office would, in effect, be an election for him of his desire to be
considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does
not require an election. Under the Constitution, a person whose
mother is a citizen of the Philippines is, at birth, a citizen without any
overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under
the Gentlemans example, if he does not renounce his other
citizenship, then he is opening himself to question. So, if he is really
interested to run, the first thing he should do is to say in the Certificate
of Candidacy that: I am a Filipino citizen, and I have only one
citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine
law, Mr. President. He will always have one citizenship, and that is the
citizenship invested upon him or her in the Constitution of the
Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises
acts that will prove that he also acknowledges other citizenships, then
he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization
must renounce all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty[14] of which at the time he is a
subject or citizen before he can be issued a certificate of naturalization
as a citizen of the Philippines. In Parado v. Republic,[15] it was held:
[W]hen a person applying for citizenship by naturalization takes an
oath that he renounces his loyalty to any other country or government
and solemnly declares that he owes his allegiance to the Republic of
the Philippines, the condition imposed by law is satisfied and complied
with. The determination whether such renunciation is valid or fully
complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter
should apply the law duly enacted by the legislative department of the
Republic. No foreign law may or should interfere with its operation
and application. If the requirement of the Chinese Law of Nationality
were to be read into our Naturalization Law, we would be applying not
what our legislative department has deemed it wise to require, but
what a foreign government has thought or intended to exact. That, of
course, is absurd. It must be resisted by all means and at all cost. It
would be a brazen encroachment upon the sovereign will and power
of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San Francisco,
California on September 4, 1955, of Filipino parents. Since the
Philippines adheres to the principle of jus sanguinis, while the United
States follows the doctrine of jus soli, the parties agree that, at birth at
least, he was a national both of the Philippines and of the United
States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent
effectively renounced his U.S. citizenship under American law, so that
now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in
Philippine elections is not sufficient evidence of renunciation and that,
in any event, as the alleged renunciation was made when private
respondent was already 37 years old, it was ineffective as it should
have been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent
renounced his American citizenship, the COMELEC must have in mind
349 of the Immigration and Nationality Act of the United States, which
provided that A person who is a national of the United States, whether
by birth or naturalization, shall lose his nationality by: . . . (e) Voting in
a political election in a foreign state or participating in an election or
plebiscite to determine the sovereignty over foreign territory. To be
sure this provision was declared unconstitutional by the U.S. Supreme
Court in Afroyim v. Rusk[16] as beyond the power given to the U.S.
Congress to regulate foreign relations. However, by filing a certificate
of candidacy when he ran for his present post, private respondent
elected Philippine citizenship and in effect renounced his American
citizenship. Private respondents certificate of candidacy, filed on
March 27, 1998, contained the following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR
NATURALIZED) NATURAL-BORN
....
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY
SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND
WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL
OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE
DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF
VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF
EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE
TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his
American citizenship, effectively removing any disqualification he
might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held:[17]
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his repatriation not effectively
give him dual citizenship, which under Sec. 40 of the Local
Government Code would disqualify him from running for any elective
local position? We answer this question in the negative, as there is
cogent reason to hold that Frivaldo was really STATELESS at the time
he took said oath of allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote that he had long
renounced and had long abandoned his American citizenship-long
before May 8, 1995. At best, Frivaldo was stateless in the interim-
when he abandoned and renounced his US citizenship but before he
was repatriated to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December
19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by
Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.
There is, therefore, no merit in petitioners contention that the oath of
allegiance contained in private respondents certificate of candidacy is
insufficient to constitute renunciation of his American citizenship.
Equally without merit is petitioners contention that, to be effective,
such renunciation should have been made upon private respondent
reaching the age of majority since no law requires the election of
Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted
that he is registered as an American citizen in the Bureau of
Immigration and Deportation and that he holds an American passport
which he used in his last travel to the United States on April 22, 1997.
There is no merit in this. Until the filing of his certificate of candidacy
on March 21, 1998, he had dual citizenship. The acts attributed to him
can be considered simply as the assertion of his American nationality
before the termination of his American citizenship. What this Court
said in Aznar v. COMELEC[18] applies mutatis mutandis to private
respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and
an American, the mere fact that he has a Certificate stating he is an
American does not mean that he is not still a Filipino. . . . [T]he
Certification that he is an American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities or citizenships.
Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship.
When We consider that the renunciation needed to lose Philippine
citizenship must be express, it stands to reason that there can be no
such loss of Philippine citizenship when there is no renunciation, either
express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a
Filipino citizen; that he is not a permanent resident or immigrant of
another country; that he will defend and support the Constitution of
the Philippines and bear true faith and allegiance thereto and that he
does so without mental reservation, private respondent has, as far as
the laws of this country are concerned, effectively repudiated his
American citizenship and anything which he may have said before as a
dual citizen.
On the other hand, private respondents oath of allegiance to the
Philippines, when considered with the fact that he has spent his youth
and adulthood, received his education, practiced his profession as an
artist, and taken part in past elections in this country, leaves no doubt
of his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his
undertaking made under oath. Should he betray that trust, there are
enough sanctions for declaring the loss of his Philippine citizenship
through expatriation in appropriate proceedings. In Yu v. Defensor-
Santiago,[19] we sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath as a naturalized
citizen, he applied for the renewal of his Portuguese passport and
declared in commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against any one
who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting renunciation
of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON
ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.
DECISION
FRANCISCO, J.:
Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O.
Marquez, Jr. (Rodriguez and Marquez, for brevity) were protagonists
for the gubernatorial post of Quezon Province in the May 1992
elections. Rodriguez won and was proclaimed duly-elected governor.
Marquez challenged Rodriguez victory via petition for quo warranto
before the COMELEC (EPC No. 92-28). Marquez revealed that
Rodriguez left the United States where a charge, filed on November
12, 1985, is pending against the latter before the Los Angeles
Municipal Court for fraudulent insurance claims, grand theft and
attempted grand theft of personal property. Rodriguez is therefore a
"fugitive from justice" which is a ground for his
disqualification/ineligibility under Section 40(e) of the Local
Government Code (R.A. 7160), so argued Marquez.
The COMELEC dismissed Marquez quo warranto petition (EPC No. 92-
28) in a resolution of February 2, 1993, and likewise denied a
reconsideration thereof.
Marquez challenged the COMELEC dismissal of EPC No. 92-28 before
this Court via petition for certiorari, docketed as G.R. No. 112889. The
crux of said petition is whether Rodriguez is a "fugitive from justice" as
contemplated by Section 40(e) of the Local Government Code based
on the alleged pendency of a criminal charge against him (as
previously mentioned).
In resolving that Marquez petition (112889), the Court in "Marquez, Jr.
vs. COMELEC" promulgated on April 18, 1995, now appearing in
Volume 243, page 538 of the SCRA and hereinafter referred to as the
MARQUEZ Decision, declared that:
x x x, fugitive from justice includes not only those who flee after
conviction to avoid punishment but likewise those who, after being
charged, flee to avoid prosecution. This definition truly finds support
from jurisprudence (x x x), and it may be so conceded as expressing
the general and ordinary connotation of the term."[1]
Whether or not Rodriguez is a "fugitive from justice" under the
definition thus given was not passed upon by the Court. That task was
to devolve on the COMELEC upon remand of the case to it, with the
directive to proceed therewith with dispatch conformably with the
MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He
also filed an "Urgent Motion to Admit Additional Argument in Support
of the Motion for Reconsideration" to which was attached a
certification from the Commission on Immigration showing that
Rodriguez left the US on June 25, 1985 roughly five (5) months prior to
the institution of the criminal complaint filed against him before the
Los Angeles court. The Court however denied a reconsideration of the
MARQUEZ Decision.
In the May 8, 1995 election, Rodriguez and Marquez renewed their
rivalry for the same position of governor. This time, Marquez
challenged Rodriguez' candidacy via petition for disqualification before
the COMELEC, based principally on the same allegation that Rodriguez
is a "fugitive from justice." This petition for disqualification (SPA No.
95-089) was filed by Marquez on April 11, 1995 when Rodriguez'
petition for certiorari (112889) from where the April 18, 1995
MARQUEZ Decision sprung was still then pending before the Court.
On May 7, 1995 and after the promulgation of the MARQUEZ Decision,
the COMELEC promulgated a Consolidated Resolution for EPC No. 92-
28 (quo warranto case) and SPA No. 95-089 (disqualification case). In
justifying a joint resolution of these two (2) cases, the COMELEC
explained that:
1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases;
2. the parties, facts and issue involved are identical in both cases
3. the same evidence is to be utilized in both cases in determining the
common issue of whether Rodriguez is a "fugitive from justice"
4. on consultation with the Commission En Banc, the Commissioners
unanimously agreed that a consolidated resolution of the two (2)
cases is not procedurally flawed.
Going now into the meat of that Consolidated Resolution, the
COMELEC, allegedly having kept in mind the MARQUEZ Decision
definition of "fugitive from justice", found Rodriguez to be one. Such
finding was essentially based on Marquez' documentary evidence
consisting of
1. an authenticated copy of the November 12, 1995 warrant of arrest
issued by the Los Angeles Municipal Court against Rodriguez, and
2. an authenticated copy of the felony complaint
which the COMELEC allowed to be presented ex-parte after Rodriguez
walked-out of the hearing of the case on April 26, 1995 following the
COMELEC's denial of Rodriguez' motion for postponement. With the
walk-out, the COMELEC considered Rodriguez as having waived his
right to disprove the authenticity of Marquez' aforementioned
documentary evidence. The COMELEC thus made the following
analysis:
"The authenticated documents submitted by petitioner (Marquez) to
show the pendency of a criminal complaint against the respondent
(Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A.,
and the fact that there is an outstanding warrant against him amply
proves petitioner's contention that the respondent is a fugitive from
justice. The Commission cannot look with favor on respondent's
defense that long before the felony complaint was allegedly filed,
respondent was already in the Philippines and he did not know of the
filing of the same nor was he aware that he was being proceeded
against criminally. In a sense, thru this defense, respondent implicitly
contends that he cannot be deemed a fugitive from justice, because to
be so, one must be aware of the filing of the criminal complaint, and
his disappearance in the place where the long arm of the law, thru the
warrant of arrest, may reach him is predicated on a clear desire to
avoid and evade the warrant. This allegation in the Answer, however,
was not even fortified with any attached document to show when he
left the United States and when he returned to this country, facts
upon which the conclusion of absence of knowledge about the
criminal complaint may be derived. On the contrary, the fact of arrest
of respondent's wife on November 6, 1985 in the United States by the
Fraud Bureau investigators in an apartment paid for respondent in
that country can hardly rebut whatever presumption of knowledge
there is against the respondent."[2]
And proceeding therefrom, the COMELEC, in the dispositive portion,
declared:
"WHEREFORE, considering that respondent has been proven to be
fugitive from justice, he is hereby ordered disqualified or ineligible
from assuming and performing the functions of Governor of Quezon
Province. Respondent is ordered to immediately vacate said office.
Further, he is hereby disqualified from running for Governor for
Quezon Province in the May 8, 1995 elections. Lastly, his certificate of
candidacy for the May 8, 1995 elections is hereby set aside."
At any rate, Rodriguez again emerged as the victorious candidate in
the May 8, 1995 election for the position of governor.
On May 10 and 11, 1995, Marquez filed urgent motions to suspend
Rodriguez' proclamation which the COMELEC granted on May 11,
1995. The Provincial Board of Canvassers nonetheless proclaimed
Rodriguez on May 12, 1995.
The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No.
95-089 and the May 11, 1995 Resolution suspending Rodriguez'
proclamation thus gave rise to the filing of the instant petition for
certiorari (G.R. No. 120099) on May 16, 1995.
On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The
Proclamation Of Rodriguez To Proclaim Marquez And To Cite The
Provincial Board of Canvassers in Contempt" before the COMELEC (in
EPC No. 92-28 and SPA No. 95-089).
Acting on Marquez' omnibus motion, the COMELEC, in its Resolution
of June 23, 1995, nullified Rodriguez' proclamation and ordered
certain members of the Quezon Province Provincial Board of
Canvassers to explain why they should not be cited in contempt for
disobeying the poll body's May 11, 1995 Resolution suspending
Rodriguez' proclamation. But with respect to Marquez' motion for his
proclamation, the COMELEC deferred action until after this Court has
resolved the instant petition (G.R. No. 120099).
Rodriguez filed a motion to admit supplemental petition to include the
aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7
and May 11, 1995 Resolutions (Consolidated Resolution and Order to
suspend Rodriguez' proclamation, respectively).
As directed by the Court, oral arguments were had in relation to the
instant petition (G.R. No. 120099) on July 13, 1995.
Marquez, on August 3, 1995, filed an "Urgent Motion For Temporary
Restraining Order Or Preliminary Injunction" which sought to restrain
and enjoin Rodriguez "from exercising the powers, functions and
prerogatives of Governor of Quezon x x x." Acting favorably thereon,
the Court in a Resolution dated August 8, 1995 issued a temporary
restraining order. Rodriguez' "Urgent Motion To Lift Temporary
Restraining Order And/Or For Reconsideration" was denied by the
Court in an August 15, 1995 Resolution. Another similar urgent motion
was later on filed by Rodriguez which the Court also denied.
In a Resolution dated October 24, 1995, the Court
"x x x RESOLVED to DIRECT the Chairman of the Commission on
Elections ('COMELEC') to designate a Commissioner or a ranking
official of the COMELEC to RECEIVE AND EVALUATE such legally
admissible evidence as herein petitioner Eduardo Rodriguez may be
minded to present by way of refuting the evidence heretofore
submitted by private respondent Bienvenido Marquez, Sr., or that
which can tend to establish petitioner's contention that he does not
fall within the legal concept of a fugitive from justice. Private
respondent Marquez may likewise, if he so desires, introduce
additional and admissible evidence in support of his own position. The
provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be
applied in the reception of the evidence. The Chairman of the
COMELEC shall have the proceedings completed and the
corresponding report submitted to this Court within thirty (30) days
from notice hereof."
The COMELEC complied therewith by filing before the Court, on
December 26, 1995, a report entitled "EVIDENCE OF THE PARTIES and
COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating
the parties' evidence, declared that Rodriguez is NOT a "fugitive from
justice" as defined in the main opinion of the MARQUEZ Decision, thus
making a 180-degree turnaround from its finding in the Consolidated
Resolution. In arriving at this new conclusion, the COMELEC opined
that intent to evade is a material element of the MARQUEZ Decision
definition. Such intent to evade is absent in Rodriguez' case because
evidence has established that Rodriguez arrived in the Philippines
(June 25, 1985) long before the criminal charge was instituted in the
Los Angeles Court (November 12, 1985).
But the COMELEC report did not end there. The poll body expressed
what it describes as its "persistent discomfort" on whether it read and
applied correctly the MARQUEZ Decision definition of "fugitive from
justice". So as not to miss anything, we quote the COMELEC's
observations in full:
x x x. The main opinion's definition of a 'fugitive from justice includes
not only those who flee after conviction to avoid punishment but also
those who, after being charged, flee to avoid prosecution.' It
proceeded to state that:
This definition truly finds support from jurisprudence (Philippine Law
Dictionary Third Edition, p. 399 by F.B. Moreno; Black's Law Dictionary,
Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103;
Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus, 275
Pacific Reporter 2d p. 792), and it may be so conceded as expressing
the general and ordinary connotation of the term.
But in the majority of the cases cited, the definition of the term
'fugitive from justice' contemplates other instances not explicitly
mentioned in the main opinion. Black's Law Dictionary begins the
definition of the term by referring to a 'fugitive from justice' as:
(A) person, who, having committed a crime, flees from jurisdiction of
the court where crime was committed or departs from his usual place
of abode and conceals himself within the district. x x x
Then, citing King v. Noe, the definition continues and conceptualizes a
'fugitive from justice' as:
x x x a person who, having committed or been charged with a crime in
one state, has left its jurisdiction and is found within the territory of
another when it is sought to subject him to the criminal process of the
former state. (our emphasis)
In Hughes v. Pflanz, the term was defined as:
a person who, having committed within a state a crime, when sought
for, to be subjected to criminal process, is found within the territory of
another state.
Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:
expression which refers to one having committed, or being accused, of
a crime in one jurisdiction and is absent for any reason from that
jurisdiction.
Specifically, one who flees to avoid punishment x x x (Italics ours)
From the above rulings, it can be gleaned that the objective facts
sufficient to constitute flight from justice are: (a) a person committed
a 'crime' or has been charged for the commission thereof; and (b)
thereafter, leaves the jurisdiction of the court where said crime was
committed or his usual place of abode.
Filing of charges prior to flight is not always an antecedent
requirement to label one a 'fugitive from justice. Mere commission of
a 'crime' without charges having been filed for the same and flight
subsequent thereto sufficiently meet the definition. Attention is
directed at the use of the word 'crime' which is not employed to
connote guilt or conviction for the commission thereof. Justice
Davide's separate opinion in G.R. No. 112889 elucidates that the
disqualification for being a fugitive does not involve the issue of the
presumption of innocence, the reason for disqualification being that a
person 'was not brought within the jurisdiction of the court because
he had successfully evaded arrest; or if he was brought within the
jurisdiction of the court and was tried and convicted, he has
successfully evaded service of sentence because he had jumped bail or
escaped. The disqualification then is based on his flight from justice.
Other rulings of the United States Supreme Court further amplify the
view that intent and purpose for departure is inconsequential to the
inquiry. The texts, which are persuasive in our jurisdiction, are more
unequivocal in their pronouncements. In King v. US (144 F. 2nd 729),
citing Roberts v. Reilly (116 US 80) the United States Supreme Court
held:
x x x it is not necessary that the party should have left the state or the
judicial district where the crime is alleged to have been committed,
after an indictment found, or for the purpose of avoiding an
anticipated prosecution, but that, having committed a crime within a
state or district, he has left and is found in another jurisdiction (Italics
supplied)
Citing State v. Richter (37 Minn. 436), the Court further ruled in
unmistakable language:
The simple fact that they (person who have committed crime within a
state) are not within the state to answer its criminal process when
required renders them, in legal intendment, fugitives from justice.
THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R.
NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN
THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE
PHILIPPINES MAKE PETITIONER A 'FUGITIVE FROM JUSTICE.'
From the foregoing discussions, the determination of whether or not
Rodriguez is a fugitive from justice hinges on whether or not
Rodriguez' evidence shall be measured against the two instances
mentioned in the main opinion, or is to be expanded as to include
other situations alluded to by the foreign jurisprudence cited by the
Court. In fact, the spirited legal fray between the parties in this case
focused on each camp's attempt to construe the Court's definition so
as to fit or to exclude petitioner within the definition of a 'fugitive
from justice'. Considering, therefore, the equally valid yet different
interpretations resulting from the Supreme Court decision in G.R. No.
112889, the Commission deems it most conformable to said decision
to evaluate the evidence in light of the varied constructions open to it
and to respectfully submit the final determination of the case to the
Honorable Supreme Court as the final interpreter of the law."
The instant petition dwells on that nagging issue of whether Rodriguez
is a "fugitive from justice, the determination of which, as we have
directed the COMELEC on two (2) occasions (in the MARQUEZ Decision
and in the Court's October 24, 1995 Resolution), must conform to how
such term has been defined by the Court in the MARQUEZ Decision. To
reiterate, a "fugitive from justice":
"x x x includes not only those who flee after conviction to avoid
punishment but likewise who, after being charged, flee to avoid
prosecution."
The definition thus indicates that the intent to evade is the compelling
factor that animates one's flight from a particular jurisdiction. And
obviously, there can only be an intent to evade prosecution or
punishment when there is knowledge by the fleeing subject of an
already instituted indictment, or of a promulgated judgment of
conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that
his arrival in the Philippines from the US on June 25, 1985, as per
certifications issued by the Bureau of Immigrations dated April 27[3]
and June 26 of 1995,[4] preceded the filing of the felony complaint in
the Los Angeles Court on November 12, 1985 and of the issuance on
even date of the arrest warrant by that same foreign court, by almost
five (5) months. It was clearly impossible for Rodriguez to have known
about such felony complaint and arrest warrant at the time he left the
US, as there was in fact no complaint and arrest warrant much less
conviction to speak of yet at such time. What prosecution or
punishment then was Rodriguez deliberately running away from with
his departure from the US? The very essence of being a "fugitive from
justice" under the MARQUEZ Decision definition, is just nowhere to be
found in the circumstances of Rodriguez.
With that, the Court gives due credit to the COMELEC in having made
the. same analysis in its "x x x COMMISSION'S EVALUATION". There
are, in fact, other observations consistent with such analysis made by
the poll body that are equally formidable so as to merit their adoption
as part of this decision, to wit:
"It is acknowledged that there was an attempt by private respondent
to show Rodriguez' intent to evade the law. This was done by offering
for admission a voluminous copy of an investigation report (Exhibits I
to I-17 and J to J-87 inclusive) on the alleged crimes committed which
led to the filing of the charges against petitioner. It was offered for the
sole purpose of establishing the fact that it was impossible for
petitioner not to have known of said investigation due to its
magnitude. Unfortunately, such conclusion misleads because
investigations of this nature, no matter how extensive or prolonged,
are shrouded with utmost secrecy to afford law enforcers the
advantage of surprise and effect the arrest of those who would be
charged. Otherwise, the indiscreet conduct of the investigation would
be nothing short of a well-publicized announcement to the
perpetrators of the imminent filing of charges against them. And
having been forewarned, every effort to sabotage the investigation
may be resorted to by its intended objects. But if private respondent's
attempt to show Rodriguez' intent to evade the law at the time he left
the United States has any legal consequence at all, it will be nothing
more than proof that even private respondent accepts that intent to
evade the law is a material element in the definition of a fugitive.
"The circumstantial fact that it was seventeen (17) days after
Rodriguez' departure that charges against him were filed cannot
overturn the presumption of good faith in his favor. The same suggests
nothing more than the sequence of events which transpired. A
subjective fact as that of petitioner's purpose cannot be inferred from
the objective data at hand in the absence of further proof to
substantiate such claim. In fact, the evidence of petitioner Rodriguez
sufficiently proves that his compulsion to return to the Philippines was
due to his desire to join and participate vigorously in the political
campaigns against former President Ferdinand E. Marcos. For indeed,
not long after petitioner's arrival in the country, the upheaval wrought
by the political forces and the avalanche of events which occurred
resulted in one of the more colorful events in Philippine history. The
EDSA Revolution led to the ouster of former Pres. Marcos and
precipitated changes in the political climate. And being a figure in
these developments, petitioner Rodriguez began serving his home
province as OIC-Board Member of the Sangguniang Panlalawigan ng
Quezon in 1986. Then, he was elected Governor in 1988 and continues
to be involved in politics in the same capacity as re-elected Governor
in 1992 and the disputed re-election in 1995. Altogether, these
landmark dates hem in for petitioner a period of relentless, intensive
and extensive activity of varied political campaigns first against the
Marcos government, then for the governorship. And serving the
people of Quezon province as such, the position entails absolute
dedication of one's time to the demands of the office.
"Having established petitioner's lack of knowledge of the charges to be
filed against him at the time he left the United States, it becomes
immaterial under such construction to determine the exact time when
he was made aware thereof. While the law, as interpreted by the
Supreme Court, does not countenance flight from justice in the
instance that a person flees the jurisdiction of another state after
charges against him or a warrant for his arrest was issued or even in
view of the imminent filing and issuance of the same, petitioner's
plight is altogether a different situation. When, in good faith, a person
leaves the territory of a state not his own, homeward bound, and
learns subsequently of charges filed against him while in the relative
peace and service of his own country, the fact that he does not subject
himself to the jurisdiction of the former state does not qualify him
outright as a fugitive from justice.
"The severity of the law construed in the manner as to require of a
person that he subject himself to the jurisdiction of another state
while already in his country or else be disqualified from office, is more
apparent when applied in petitioner's case. The criminal process of the
United States extends only within its territorial jurisdiction. That
petitioner has already left said country when the latter sought to
subject him to its criminal process is hardly petitioner's fault. In the
absence of an intent to evade the laws of the United States, petitioner
had every right to depart therefrom at the precise time that he did and
to return to the Philippines. No justifiable reason existed to curtail or
fetter petitioner's exercise of his right to leave the United State and
return home. Hence, sustaining the contrary proposition would be to
unduly burden and punish petitioner for exercising a right as he cannot
be faulted for the circumstances that brought him within Philippine
territory at the time he was sought to be placed under arrest and to
answer for charges filed against him.
"Granting, as the evidence warrants, that petitioner Rodriguez came to
know of the charges only later, and under his circumstances, is there a
law that requires petitioner to travel to the United States and subject
himself to the monetary burden and tedious process of defending
himself before the country's courts?
"It must be noted that moral uprightness is not a standard too far-
reaching as to demand of political candidate the performance of
duties and obligations that are supererogatory in nature. We do not
dispute that an alleged 'fugitive from justice' must perform acts in
order not to be so categorized. Clearly, a person who is aware of the
imminent filing of charges against him or of the same already filed in
connection with acts he committed in the jurisdiction of a particular
state, is under an obligation not to flee said place of commission.
However, as in petitioner's case, his departure from the United States
may not place him under a similar obligation. His subsequent
knowledge while in the Philippines and non-submission to the
jurisdiction of the former country does not operate to label petitioner
automatically a fugitive from justice. As he was a public officer
appointed and elected immediately after his return to the country,
petitioner Rodriguez had every reason to devote utmost priority to the
service of his office. He could not have gone back to the United States
in the middle of his term nor could he have traveled intermittently
thereto without jeopardizing the interest of the public he serves. To
require that of petitioner would be to put him in a paradoxical
quandary where he is compelled to violate the very functions of his
office."
However, Marquez and the COMELEC (in its "COMMISSION'S
EVALUATION" as earlier quoted) seem to urge the Court to re-define
"fugitive from justice." They espouse the broader concept of the term
as culled from foreign authorities (mainly of U.S. vintage) cited in the
MARQUEZ Decision itself, i.e., that one becomes a "fugitive from
justice" by the mere fact that he leaves the jurisdiction where a charge
is pending against him, regardless of whether or not the charge has
already been filed at the time of his flight.
Suffice it to say that the "law of the case" doctrine forbids the Court to
craft an expanded re-definition of "fugitive from justice" (which is at
variance with the MARQUEZ Decision) and proceed therefrom in
resolving the instant petition. The various definitions of that doctrine
have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit:
"'Law of the case' has been defined as the opinion delivered on a
former appeal. More specifically, it means that whatever is once
irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the law of
the case, whether correct on general principles or not, so long as the
facts on which such decision was predicated continue to be the facts
of the case before the court." (21 C.J.S. 330)
"It may be stated as a rule of general application that, where the
evidence on a second or succeeding appeal is substantially the same as
that on the first or preceding appeal, all matters, questions, points, or
issues adjudicated on the prior appeal are the law of the case on all
subsequent appeals and will not be considered or readjudicated
therein." (5 C.J.S. 1267)
"In accordance with the general rule stated in Section 1821, where,
after a definite determination, the court has remanded the cause for
further action below, it will refuse to examine question other than
those arising subsequently to such determination and remand, or
other than the propriety of the compliance with its mandate; and if
the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a
second appeal.
"As a general rule a decision on a prior appeal of the same case is held
to be the law of the case whether that decision is right or wrong, the
remedy of the party deeming himself aggrieved being to seek a
rehearing." (5 C.J.S. 1276-77).

"Questions necessarily involved in the decision on a former appeal will
be regarded as the law of the case on a subsequent appeal, although
the questions are not expressly treated in the opinion of the court, as
the presumption is that all the facts in the case bearing on the point
decided have received due consideration whether all or none of them
are mentioned in the opinion." (5 C.J.S. 1286-87).
To elaborate, the same parties (Rodriguez and Marquez) and issue
(whether or not Rodriguez is a "fugitive from justice") are involved in
the MARQUEZ Decision and the instant petition. The MARQUEZ
Decision was an appeal from EPC No. 92-28 (the Marquez' quo
warranto petition before the COMELEC). The instant petition is also an
appeal from EPC No. 92-28 although the COMELEC resolved the latter
jointly with SPA No. 95-089 (Marquez' petition for the disqualification
of Rodriguez). Therefore, what was irrevocably established as the
controlling legal rule in the MARQUEZ Decision must govern the
instant petition. And we specifically refer to the concept of "fugitive
from justice" as defined in the main opinion in the MARQUEZ Decision
which highlights the significance of an intent to evade but which
Marquez and the COMELEC, with their proposed expanded definition,
seem to trivialize.
Besides, to re-define "fugitive from justice" would only foment
instability in our jurisprudence when hardly has the ink dried in the
MARQUEZ Decision.
To summarize, the term "fugitive from justice" as a ground for the
disqualification or ineligibility of a person seeking to run for any
elective local position under Section 40(e) of the Local Government
Code, should be understood according to the definition given in the
MARQUEZ Decision, to wit:
"A 'fugitive from justice' includes not only those who flee after
conviction to avoid punishment but likewise those who, after being
charged, flee to avoid prosecution." (Italics ours.)"
Intent to evade on the part of a candidate must therefore be
established by proof that there has already been a conviction or at
least, a charge has already been filed, at the time of flight. Not being a
"fugitive from justice" under this definition, Rodriguez cannot be
denied the Quezon Province gubernatorial post.
WHEREFORE, in view of the foregoing, the instant petition is hereby
GRANTED and the assailed Resolutions of the COMELEC dated May 7,
1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending
Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying
Rodriguez' proclamation and ordering the Quezon Province Provincial
Board of Canvassers to explain why they should not be cited in
contempt) are SET ASIDE.
SO ORDERED.
MATEO CAASI, petitioner, vs. THE HON. COURT OF APPEALS and
MERITO C. MIGUEL, respondents.
G.R. No. 84508 November 13, 1990
ANECITO CASCANTE petitioner, vs. THE COMMISSION ON ELECTIONS
and MERITO C. MIGUEL, respondents.
These two cases were consolidated because they have the same
objective; the disqualification under Section 68 of the Omnibus
Election Code of the private respondent, Merito Miguel for the
position of municipal mayor of Bolinao, Pangasinan, to which he was
elected in the local elections of January 18, 1988, on the ground that
he is a green card holder, hence, a permanent resident of the United
States of America, not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of the decision
dated January 13, 1988 of the COMELEC First Division, dismissing the
three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico
Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for
the disqualification of Merito C. Miguel filed prior to the local elections
on January 18, 1988.
G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition
for review of the decision dated June 21, 1989, of the Court of Appeals
in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed
by Mateo Caasi, a rival candidate for the position of municipal mayor
of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of
his being a green card holder.
In his answer to both petitions, Miguel admitted that he holds a green
card issued to him by the US Immigration Service, but he denied that
he is a permanent resident of the United States. He allegedly obtained
the green card for convenience in order that he may freely enter the
United States for his periodic medical examination and to visit his
children there. He alleged that he is a permanent resident of Bolinao,
Pangasinan, that he voted in all previous elections, including the
plebiscite on February 2,1987 for the ratification of the 1987
Constitution, and the congressional elections on May 18,1987.
After hearing the consolidated petitions before it, the COMELEC with
the exception of Commissioner Anacleto Badoy, Jr., dismissed the
petitions on the ground that:
The possession of a green card by the respondent (Miguel) does not
sufficiently establish that he has abandoned his residence in the
Philippines. On the contrary, inspite (sic) of his green card, Respondent
has sufficiently indicated his intention to continuously reside in
Bolinao as shown by his having voted in successive elections in said
municipality. As the respondent meets the basic requirements of
citizenship and residence for candidates to elective local officials (sic)
as provided for in Section 42 of the Local Government Code, there is
no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p.
12, Rollo, G.R. No. 84508).
In his dissenting opinion, Commissioner Badoy, Jr. opined that:
A green card holder being a permanent resident of or an immigrant of
a foreign country and respondent having admitted that he is a green
card holder, it is incumbent upon him, under Section 68 of the
Omnibus Election Code, to prove that he "has waived his status as a
permanent resident or immigrant" to be qualified to run for elected
office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)
In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and
Merito Miguel, respondents," the petitioner prays for a review of the
decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No.
14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc.,
respondents," reversing the decision of the Regional Trial Court which
denied Miguel's motion to dismiss the petition for quo warranto filed
by Caasi. The Court of Appeals ordered the regional trial court to
dismiss and desist from further proceeding in the quo warranto case.
The Court of Appeals held:
... it is pointless for the Regional Trial Court to hear the case
questioning the qualification of the petitioner as resident of the
Philippines, after the COMELEC has ruled that the petitioner meets the
very basic requirements of citizenship and residence for candidates to
elective local officials (sic) and that there is no legal obstacles (sic) for
the candidacy of the petitioner, considering that decisions of the
Regional Trial Courts on quo warranto cases under the Election Code
are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.)

These two cases pose the twin issues of: (1) whether or not a green
card is proof that the holder is a permanent resident of the United
States, and (2) whether respondent Miguel had waived his status as a
permanent resident of or immigrant to the U.S.A. prior to the local
elections on January 18, 1988.
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18. Public officers and employees owe the State and this
Constitution allegiance at all times, and any public officer or employee
who seeks to change his citizenship or acquire the status of an
immigrant of another country during his tenure shall be dealt with by
law.
In the same vein, but not quite, Section 68 of the Omnibus Election
Code of the Philippines (B.P. Blg. 881) provides:
SEC. 68. Disqualifications ... Any person who is a permanent resident
of or an immigrant to a foreign country shall not be qualified to run for
any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the
election laws. (Sec. 25, 1971, EC).
In view of current rumor that a good number of elective and
appointive public officials in the present administration of President
Corazon C. Aquino are holders of green cards in foreign countries,
their effect on the holders' right to hold elective public office in the
Philippines is a question that excites much interest in the outcome of
this case.
In the case of Merito Miguel, the Court deems it significant that in the
"Application for Immigrant Visa and Alien Registration" (Optional Form
No. 230, Department of State) which Miguel filled up in his own
handwriting and submitted to the US Embassy in Manila before his
departure for the United States in 1984, Miguel's answer to Question
No. 21 therein regarding his "Length of intended stay (if permanently,
so state)," Miguel's answer was, "Permanently."
On its face, the green card that was subsequently issued by the United
States Department of Justice and Immigration and Registration Service
to the respondent Merito C. Miguel identifies him in clear bold letters
as a RESIDENT ALIEN. On the back of the card, the upper portion, the
following information is printed:
Alien Registration Receipt Card.
Person identified by this card is entitled to reside permanently and
work in the United States." (Annex A pp. 189-190, Rollo of G.R. No.
84508.)
Despite his vigorous disclaimer, Miguel's immigration to the United
States in 1984 constituted an abandonment of his domicile and
residence in the Philippines. For he did not go to the United States
merely to visit his children or his doctor there; he entered the limited
States with the intention to have there permanently as evidenced by
his application for an immigrant's (not a visitor's or tourist's) visa.
Based on that application of his, he was issued by the U.S.
Government the requisite green card or authority to reside there
permanently.
Immigration is the removing into one place from another; the act of
immigrating the entering into a country with the intention of residing
in it.
An immigrant is a person who removes into a country for the purpose
of permanent residence. As shown infra 84, however, statutes
sometimes give a broader meaning to the term "immigrant." (3 CJS
674.)
As a resident alien in the U.S., Miguel owes temporary and local
allegiance to the U.S., the country in which he resides (3 CJS 527). This
is in return for the protection given to him during the period of his
residence therein.
Aliens reading in the limited States, while they are permitted to
remain, are in general entitled to the protection of the laws with
regard to their rights of person and property and to their civil and
criminal responsibility.
In general, aliens residing in the United States, while they are
permitted to remain are entitled to the safeguards of the constitution
with regard to their rights of person and property and to their civil and
criminal responsibility. Thus resident alien friends are entitled to the
benefit of the provision of the Fourteenth Amendment to the federal
constitution that no state shall deprive "any person" of life liberty, or
property without due process of law, or deny to any person the equal
protection of the law, and the protection of this amendment extends
to the right to earn a livelihood by following the ordinary occupations
of life. So an alien is entitled to the protection of the provision of the
Fifth Amendment to the federal constitution that no person shall be
deprived of life, liberty, or property without due process of law. (3 CJS
529-530.)
Section 18, Article XI of the 1987 Constitution which provides that "any
public officer or employee who seeks to change his citizenship or
acquire the status of an immigrant of another country during his
tenure shall be dealt with by law" is not applicable to Merito Miguel
for he acquired the status of an immigrant of the United States before
he was elected to public office, not "during his tenure" as mayor of
Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election Code
(B.P. Blg. 881), which provides:
xxx xxx xxx
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 such 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.'
Did Miguel, by returning to the Philippines in November 1987 and
presenting himself as a candidate for mayor of Bolinao in the January
18,1988 local elections, waive his status as a permanent resident or
immigrant of the United States?
To be "qualified to run for elective office" in the Philippines, the law
requires that the candidate who is a green card holder must have
"waived his status as a permanent resident or immigrant of a foreign
country." Therefore, his act of filing a certificate of candidacy for
elective office in the Philippines, did not of itself constitute a waiver of
his status as a permanent resident or immigrant of the United States.
The waiver of his green card should be manifested by some act or acts
independent of and done prior to filing his candidacy for elective office
in this country. Without such prior waiver, he was "disqualified to run
for any elective office" (Sec. 68, Omnibus Election Code).
Respondent Merito Miguel admits that he holds a green card, which
proves that he is a permanent resident or immigrant it of the United
States, but the records of this case are starkly bare of proof that he
had waived his status as such before he ran for election as municipal
mayor of Bolinao on January 18, 1988. We, therefore, hold that he was
disqualified to become a candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not hard to
find. Residence in the municipality where he intends to run for elective
office for at least one (1) year at the time of filing his certificate of
candidacy, is one of the qualifications that a candidate for elective
public office must possess (Sec. 42, Chap. 1, Title 2, Local Government
Code). Miguel did not possess that qualification because he was a
permanent resident of the United States and he resided in Bolinao for
a period of only three (3) months (not one year) after his return to the
Philippines in November 1987 and before he ran for mayor of that
municipality on January 18, 1988.
In banning from elective public office Philippine citizens who are
permanent residents or immigrants of a foreign country, the Omnibus
Election Code has laid down a clear policy of excluding from the right
to hold elective public office those Philippine citizens who possess dual
loyalties and allegiance. The law has reserved that privilege for its
citizens who have cast their lot with our country "without mental
reservations or purpose of evasion." The assumption is that those who
are resident aliens of a foreign country are incapable of such entire
devotion to the interest and welfare of their homeland for with one
eye on their public duties here, they must keep another eye on their
duties under the laws of the foreign country of their choice in order to
preserve their status as permanent residents thereof.
Miguel insists that even though he applied for immigration and
permanent residence in the United States, he never really intended to
live there permanently, for all that he wanted was a green card to
enable him to come and go to the U.S. with ease. In other words, he
would have this Court believe that he applied for immigration to the
U.S. under false pretenses; that all this time he only had one foot in
the United States but kept his other foot in the Philippines. Even if that
were true, this Court will not allow itself to be a party to his duplicity
by permitting him to benefit from it, and giving him the best of both
worlds so to speak.
Miguel's application for immigrant status and permanent residence in
the U.S. and his possession of a green card attesting to such status are
conclusive proof that he is a permanent resident of the U.S. despite his
occasional visits to the Philippines. The waiver of such immigrant
status should be as indubitable as his application for it. Absent clear
evidence that he made an irrevocable waiver of that status or that he
surrendered his green card to the appropriate U.S. authorities before
he ran for mayor of Bolinao in the local elections on January 18, 1988,
our conclusion is that he was disqualified to run for said public office,
hence, his election thereto was null and void.
WHEREFORE, the appealed orders of the COMELEC and the Court of
Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No.
14531 respectively, are hereby set aside. The election of respondent
Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby
annulled. Costs against the said respondent.
SO ORDERED.
ATTY. MIGUEL M. LINGATING, petitioner, vs. COMMISSION ON
ELECTIONS and CESAR B. SULONG, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution,[1] dated
April 4, 2002, of the Commission on Elections (COMELEC) en banc,
reversing the resolution,[2] dated August 1, 2001, of its First Division
and dismissing the petition for disqualification filed by petitioner
Miguel M. Lingating against respondent Cesar B. Sulong as candidate
for mayor of Lapuyan, Zamboanga del Sur in the May 14, 2001
elections.
On May 3, 2001, petitioner filed with the Provincial Election Supervisor
in Pagadian City a petition for the disqualification of respondent
Sulong, pursuant to 40(b) of Republic Act No. 7160 (Local Government
Code), which disqualifies from running for any elective local position
those removed from office as a result of an administrative case.[3] It
appears that respondent Sulong had previously won as mayor of
Lapuyan on January 18, 1988. In the May 11, 1992, and again in the
May 8, 1995 elections, he was reelected. In a petition for
disqualification, petitioner alleged that in 1991, during his first term as
mayor of Lapuyan, respondent Sulong, along with a municipal
councilor of Lapuyan and several other individuals,[4] was
administratively charged (AC No. 12-91) with various offenses,[5] and
that, on February 4, 1992, the Sangguniang Panlalawigan of
Zamboanga del Sur found him guilty of the charges and ordered his
removal from office. Petitioner claimed that this decision had become
final and executory, and consequently the then vice-mayor of
Lapuyan, Vicente Imbing, took his oath as mayor vice respondent
Sulong on March 3, 1992.[6]
Respondent Sulong denied that the decision in AC No. 12-91 had
become final and executory. He averred that after receiving a copy of
the decision on February 17, 1992, he filed a motion for
reconsideration and/or notice of appeal thereof on February 18, 1992;
that on February 27, 1992, the Sangguniang Panlalawigan required Jim
Lingating, the complainant in AC No. 12-91, to comment on
respondent Sulongs motion for reconsideration and/or notice of
appeal; that the said complainant had not yet complied therewith and
his (respondent Sulongs) motion had consequently remained pending.
Respondent Sulong denied he had been removed from office by virtue
of the decision in AC No. 12-91.
After the parties had filed their memoranda, the case was submitted
for resolution. Because the COMELEC was unable to render judgment
before the elections of May 14, 2001, respondent Sulong was voted
for in the elections, receiving 4,882 votes as against the 3,611 votes
for petitioner. On May 16, 2001, respondent Sulong was proclaimed by
the Municipal Board of Canvassers of Lapuyan as the duly elected
mayor of that municipality.
In a resolution dated August 1, 2001, the COMELECs First Division
declared respondent Cesar B. Sulong disqualified. It held:
Section 40(b) of the Local Government Code is clear that any person
removed from office by reason of an administrative case is disqualified
from running for any elective local office.
From such point, it is clear that Respondent Sulong was declared guilty
of having violated the Anti-Graft and Corrupt Practices Act by the
Sangguniang Panlalawigan of Zamboanga del Sur. . .which. . .has
become final and executory, thereby depriving him of his right to run
for public office.
....
WHEREFORE, in the light of the foregoing, this Commission hereby
resolves to GRANT this Petition and DISQUALIFY Respondent Cesar B.
Sulong to run for Municipal mayor for Lapuyan, Zamboanga del Sur in
the May 14, 2001 Elections in violation of Section 40[b] of the Local
Government Code.[7]
Respondent Sulong filed a motion for reconsideration citing a
certification, dated August 7, 2001, of Provincial Secretary of
Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC
No. 12-91 has not become final and executory as the final disposition
thereof was overtaken by the local elections of May 1992. He
reiterated his claim that at no time had he been removed by virtue of
the said decision.[8]
Petitioner filed an opposition contending, among other things, that the
fact that Zamboanga del Sur Governor Ariosa had ordered the
enforcement of the decision signified that respondent Sulongs motion
for reconsideration and/or notice of appeal had not been given due
course by the Sangguniang Panlalawigan; and that respondent Sulongs
claim that he had not been removed from office was belied by the fact
that he (respondent Sulong) brought charges against Vicente Imbing
for Usurpation of Official Functions (I.S. No. 92-35), in support of which
respondent Sulong attested under oath that Imbing had succeeded
him as mayor of Lapuyan.[9]
In a separate motion, petitioner prayed that the resolution of August
1, 2001 be executed and that he be installed as mayor of Lapuyan in
view of private respondents disqualification. On August 30, 2001, the
COMELECs First Division denied petitioners motion for execution on
the ground that the disqualification of an elected candidate does not
entitle the candidate who obtained the second highest number of
votes to occupy the office vacated.[10] Petitioner then filed a motion
for reconsideration of this order.[11]
On April 4, 2002, the COMELEC en banc issued its resolution subject of
the petition in this case, reversing the resolution, dated August 1,
2001, of its First Division insofar as it found respondent Sulong
disqualified from running as mayor. It held:
The only issue in this case is whether or not the foregoing decision [in
AC No. 12-91], assuming it has become final and executory, constitutes
a ground for the disqualification of herein respondent-movant as a
candidate in the elections [of May 14, 2001].
The records of the case reveal that the decision of the Sangguniang
Panlalawigan was promulgated on February [4], 1992 finding
respondent Sulong guilty of dishonesty, falsification of public
documents, malversation. . .
In the May 1992 elections, respondent Sulong was re-elected mayor of
Lapuyan, Zamboanga del Sur despite the decision of the Sangguniang
dismissing him from office. In the 1995 May elections, respondent
Sulong ran and won the mayoralty elections of Lapuyan, Zamboanga
del Sur.
While it is true that one of the disqualifications from running in an
elective position is removal from office as a result of an administrative
case, said provision no longer applies if the candidate whose
qualification is questioned got re-elected to another term. In
Aguinaldo vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-
election renders an administrative case moot and academic.
....
Obviously, the re-election of [r]espondent Sulong in the 1992 and
1995 elections would be tantamount to a condonation of the
Sangguniang Panlalawigan decision promulgated 04 February 1992
which found him guilty of dishonesty, malversation of public funds
etc[.], granting said decision has become final and executory.
Moreover, the people of LAPUYAN have already expressed their will
when they cast their votes in the recent elections as evidenced by the
results which found respondent Sulong to have won convincingly.
....
WHEREFORE, premises considered, the Commission En Banc
RESOLVED as it hereby RESOLVES to reverse the First Division
Resolution [dated August 1, 2001] and DISMISS the petition for lack of
merit.[12]
The COMELEC en banc also ruled that, in any event, respondent Sulong
was not entitled to occupy the office thus vacated. Hence, this petition
by Lingating.
Petitioner contends that the COMELEC en banc erred in applying the
ruling in Aguinaldo v. Commission on Elections[13] in holding that the
reelection of respondent Sulong in 1992 and 1995 as mayor of
Lapuyan had the effect of condoning the misconduct for which he was
ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del
Sur. Petitioner cites Reyes v. Commission on Elections[14] in which we
held that an elective local executive officer, who is removed before
the expiration of the term for which he was elected, is disqualified
from being a candidate for a local elective position under 40(b) of the
Local Government Code.
We stated in Reyes:
Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was
held that a public official could not be removed for misconduct
committed during a prior term and that his reelection operated as a
condonation of the officers previous misconduct to the extent of
cutting off the right to remove him therefor. But that was because in
that case, before the petition questioning the validity of the
administrative decision removing petitioner could be decided, the
term of office during which the alleged misconduct was committed
expired. Removal cannot extend beyond the term during which the
alleged misconduct was committed. If a public official is not removed
before his term of office expires, he can no longer be removed if he is
thereafter reelected [for] another term. This is the rationale for the
ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, . . . the
decision in the administrative case, . . . was served on petitioner and it
thereafter became final on April 3, 1995, because petitioner failed to
appeal to the Office of the President. He was thus validly removed
from office and, pursuant to 40(b) of the Local Government Code, he
was disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided
there was no provision similar to 40(b) which disqualifies any person
from running for any elective position on the ground that he has been
removed as a result of an administrative case. The Local Government
Code of 1991 (R.A. No. 7160) could not be given retroactive effect.
However, Reyes cannot be applied to this case because it appears that
the 1992 decision of the Sangguniang Panlalawigan, finding
respondent Sulong guilty of dishonesty, falsification and malversation
of public funds, has not until now become final. The records of this
case show that the Sangguniang Panlalawigan of Zamboanga del Sur
rendered judgment in AC No. 12-91 on February 4, 1992, a copy of
which was received by respondent Sulong on February 17, 1992; that
on February 18, 1992, he filed a motion for reconsideration and/or
notice of appeal; that on February 27, 1992, the Sangguniang
Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91,
to comment; and that the complainant in AC No. 12-91 has not filed a
comment nor has the Sangguniang Panlalawigan resolved respondents
motion. The filing of his motion for reconsideration prevented the
decision of Sangguniang Panlalawigan from becoming final.
While R.A. No. 7160 on disciplinary actions is silent on the filing of a
motion for reconsideration, the same cannot be interpreted as a
prohibition against the filing of a motion for reconsideration. Thus, it
was held[15] that a party in a disbarment proceeding under Rule 139-
B, 12(c) can move for a reconsideration of a resolution of the
Integrated Bar of the Philippines although Rule 139-B does not so
provide:
Although Rule 139-B, 12(c) makes no mention of a motion for
reconsideration, nothing in its text or history suggests that such
motion is prohibited. It may therefore be filed . . . . Indeed, the filing of
such motion should be encouraged before [an appeal is] resort[ed] to .
. . as a matter of exhaustion of administrative remedies, to afford the
agency rendering the judgment [an] opportunity to correct any error it
may have committed through a misapprehension of facts or
misappreciation of evidence.
There is thus no decision finding respondent guilty to speak of. As
Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca
attested, the Sangguniang Panlalawigan simply considered the matter
as having become moot and academic because it was overtaken by the
local elections of May [11,]1992.
Neither can the succession of the then vice-mayor of Lapuyan, Vicente
Imbing, and the highest ranking municipal councilor of Lapuyan,
Romeo Tan, to the offices of mayor and vice-mayor, respectively, be
considered proof that the decision in AC No. 12-91 had become final
because it appears to have been made pursuant to 68[16] of the Local
Government Code, which makes decisions in administrative cases
immediately executory.
Indeed, considering the failure of the Sangguniang Panlalawigan to
resolve respondents motion, it is unfair to the electorate to be told
after they have voted for respondent Sulong that after all he is
disqualified, especially since, at the time of the elections on May 14,
2001, the decision of the Sangguniang Panlalawigan had been
rendered nearly ten years ago.
Having come to the conclusion that respondent Sulong is not
disqualified from holding the position of mayor of Lapuyan, it is
unnecessary to pass upon petitioners contention that, as the
candidate who obtained the second highest number of votes, he is
entitled to be installed as mayor because the votes cast in favor of
respondent Sulong were void.
WHEREFORE, the petition for certiorari is DISMISSED and the
resolution, dated April 4, 2002, of the COMELEC en banc, dismissing
petitioners petition for disqualification, is AFFIRMED.
SO ORDERED.
WILMER GREGO, petitioner, vs. COMMISSION ON ELECTIONS and
HUMBERTO BASCO, respondents.
DECISION
ROMERO, J.:
The instant special civil action for certiorari and prohibition impugns
the resolution of the Commission on Elections (COMELEC) en banc in
SPA No. 95-212 dated July 31, 1996, dismissing petitioners motion for
reconsideration of an earlier resolution rendered by the COMELECs
First Division on October 6, 1995, which also dismissed the petition for
disqualification[1] filed by petitioner Wilmer Grego against private
respondent Humberto Basco.
The essential and undisputed factual antecedents of the case are as
follows:
On October 31, 1981, Basco was removed from his position as Deputy
Sheriff by no less than this Court upon a finding of serious misconduct
in an administrative complaint lodged by a certain Nena Tordesillas.
The Court held:
WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO
BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS
MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY
DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT
BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY
POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS
AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS.
x x x x x x x x x[2]
Subsequently, Basco ran as a candidate for Councilor in the Second
District of the City of Manila during the January 18, 1988, local
elections. He won and, accordingly, assumed office.
After his term, Basco sought re-election in the May 11, 1992
synchronized national elections. Again, he succeeded in his bid and he
was elected as one of the six (6) City Councilors. However, his victory
this time did not remain unchallenged. In the midst of his successful
re-election, he found himself besieged by lawsuits of his opponents in
the polls who wanted to dislodge him from his position.
One such case was a petition for quo warranto[3] filed before the
COMELEC by Cenon Ronquillo, another candidate for councilor in the
same district, who alleged Bascos ineligibility to be elected councilor
on the basis of the Tordesillas ruling. At about the same time, two
more cases were also commenced by Honorio Lopez II in the Office of
the Ombudsman and in the Department of Interior and Local
Government.[4] All these challenges were, however, dismissed, thus,
paving the way for Bascos continued stay in office.
Despite the odds previously encountered, Basco remained undaunted
and ran again for councilor in the May 8, 1995, local elections seeking
a third and final term. Once again, he beat the odds by emerging sixth
in a battle for six councilor seats. As in the past, however, his right to
office was again contested. On May 13, 1995, petitioner Grego,
claiming to be a registered voter of Precinct No. 966, District II, City of
Manila, filed with the COMELEC a petition for disqualification, praying
for Bascos disqualification, for the suspension of his proclamation, and
for the declaration of Romualdo S. Maranan as the sixth duly elected
Councilor of Manilas Second District.
On the same day, the Chairman of the Manila City Board of Canvassers
(BOC) was duly furnished with a copy of the petition. The other
members of the BOC learned about this petition only two days later.
The COMELEC conducted a hearing of the case on May 14, 1995,
where it ordered the parties to submit simultaneously their respective
memoranda.
Before the parties could comply with this directive, however, the
Manila City BOC proclaimed Basco on May 17, 1995, as a duly elected
councilor for the Second District of Manila, placing sixth among several
candidates who vied for the seats.[5] Basco immediately took his oath
of office before the Honorable Ma. Ruby Bithao-Camarista, Presiding
Judge, Metropolitan Trial Court, Branch I, Manila.
In view of such proclamation, petitioner lost no time in filing an Urgent
Motion seeking to annul what he considered to be an illegal and hasty
proclamation made on May 17, 1995, by the Manila City BOC. He
reiterated Bascos disqualification and prayed anew that candidate
Romualdo S. Maranan be declared the winner. As expected, Basco
countered said motion by filing his Urgent Opposition to: Urgent
Motion (with Reservation to Submit Answer and/or Motion to Dismiss
Against Instant Petition for Disqualification with Temporary
Restraining Order).
On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer
pursuant to the reservation he made earlier, summarizing his
contentions and praying as follows:
Respondent thus now submits that the petitioner is not entitled to
relief for the following reasons:
1. The respondent cannot be disqualified on the ground of Section 40
paragraph b of the Local Government Code because the Tordesillas
decision is barred by laches, prescription, res judicata, lis pendens, bar
by prior judgment, law of the case and stare decisis;
2. Section 4[0] par. B of the Local Government Code may not be validly
applied to persons who were dismissed prior to its effectivity. To do so
would make it ex post facto, bill of attainder, and retroactive
legislation which impairs vested rights. It is also a class legislation and
unconstitutional on the account.
3. Respondent had already been proclaimed. And the petition being a
preproclamation contest under the Marquez v. Comelec Ruling, supra,
it should be dismissed by virtue of said pronouncement.
4. Respondents three-time election as candidate for councilor
constitutes implied pardon by the people of previous misconduct
(Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401;
Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd
237, etc.).
5. As petition to nullify certificate of candidacy, the instant case has
prescribed; it was premature as an election protest and it was not
brought by a proper party in interest as such protest.:
PRAYER
WHEREFORE it is respectfully prayed that the instant case be
dismissed on instant motion to dismiss the prayer for restraining order
denied (sic). If this Honorable Office is not minded to dismiss, it is
respectfully prayed that instant motion be considered as respondents
answer. All other reliefs and remedies just and proper in the premises
are likewise hereby prayed for.
After the parties respective memoranda had been filed, the COMELECs
First Division resolved to dismiss the petition for disqualification on
October 6, 1995, ruling that the administrative penalty imposed by the
Supreme Court on respondent Basco on October 31, 1981 was wiped
away and condoned by the electorate which elected him and that on
account of Bascos proclamation on May 17, 1965, as the sixth duly
elected councilor of the Second District of Manila, the petition would
no longer be viable.[6]
Petitioners motion for reconsideration of said resolution was later
denied by the COMELEC en banc in its assailed resolution promulgated
on July 31, 1996.[7] Hence, this petition.
Petitioner argues that Basco should be disqualified from running for
any elective position since he had been removed from office as a
result of an administrative case pursuant to Section 40 (b) of Republic
Act No. 7160, otherwise known as the Local Government Code (the
Code), which took effect on January 1, 1992.[8]
Petitioner wants the Court to likewise resolve the following issues,
namely:
1. Whether or not Section 40 (b) of Republic Act No. 7160 applies
retroactively to those removed from office before it took effect on
January 1, 1992;
2. Whether or not private respondents election in 1988, 1992 and in
1995 as City Councilor of Manila wiped away and condoned the
administrative penalty against him;
3. Whether or not private respondents proclamation as sixth winning
candidate on May 17, 1995, while the disqualification case was still
pending consideration by COMELEC, is void ab initio; and
4. Whether or not Romualdo S. Maranan, who placed seventh among
the candidates for City Councilor of Manila, may be declared a winner
pursuant to Section 6 of Republic Act No. 6646.
While we do not necessarily agree with the conclusions and reasons of
the COMELEC in the assailed resolution, nonetheless, we find no grave
abuse of discretion on its part in dismissing the petition for
disqualification. The instant petition must, therefore, fail.
We shall discuss the issues raised by petitioner in seriatim.
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to
those removed from office before it took effect on January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner
anchors Bascos alleged disqualification to run as City Councilor states:
SEC. 40. Disqualifications. - The following persons are disqualified from
running for any elective local position:
xxxxxxxxx
(b) Those removed from office as a result of an administrative case;
x x x x x x x x x.
In this regard, petitioner submits that although the Code took effect
only on January 1, 1992, Section 40 (b) must nonetheless be given
retroactive effect and applied to Bascos dismissal from office which
took place in 1981. It is stressed that the provision of the law as
worded does not mention or even qualify the date of removal from
office of the candidate in order for disqualification thereunder to
attach. Hence, petitioner impresses upon the Court that as long as a
candidate was once removed from office due to an administrative
case, regardless of whether it took place during or prior to the
effectivity of the Code, the disqualification applies.[9] To him, this
interpretation is made more evident by the manner in which the
provisions of Section 40 are couched. Since the past tense is used in
enumerating the grounds for disqualification, petitioner strongly
contends that the provision must have also referred to removal from
office occurring prior to the effectivity of the Code.[10]
We do not, however, subscribe to petitioners view. Our refusal to give
retroactive application to the provision of Section 40 (b) is already a
settled issue and there exist no compelling reasons for us to depart
therefrom. Thus, in Aguinaldo vs. COMELEC,[11] reiterated in the more
recent cases of Reyes vs. COMELEC[12] and Salalima vs. Guingona,
Jr.,[13] we ruled, thus:
The COMELEC applied Section 40 (b) of the Local Government Code
(Republic Act 7160) which provides:
Sec. 40. The following persons are disqualified from running for any
elective local positions:
xxxxxxxxx
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992.
The rule is:
xxxxxxxxx
x x x Well-settled is the principle that while the Legislature has the
power to pass retroactive laws which do not impair the obligation of
contracts, or affect injuriously vested rights, it is equally true that
statutes are not to be construed as intended to have a retroactive
effect so as to affect pending proceedings, unless such intent is
expressly declared or clearly and necessarily implied from the
language of the enactment. x x x (Jones vs. Summers, 105 Cal. App. 51,
286 Pac. 1093; U.S. vs. Whyel 28 (2d) 30; Espiritu v. Cipriano, 55 SCRA
533 [1974], cited in Nilo vs. Court of Appeals, 128 SCRA 519 [1974].
See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic
Investment Bank of the Philippines v. Civil Service Commission, et al.,
G.R. No. 100599, April 8, 1992).
There is no provision in the statute which would clearly indicate that
the same operates retroactively.
It, therefore, follows that [Section] 40 (b) of the Local Government
Code is not applicable to the present case. (Underscoring supplied).
That the provision of the Code in question does not qualify the date of
a candidates removal from office and that it is couched in the past
tense should not deter us from the applying the law prospectively. The
basic tenet in legal hermeneutics that laws operate only prospectively
and not retroactively provides the qualification sought by petitioner. A
statute, despite the generality in its language, must not be so
construed as to overreach acts, events or matters which transpired
before its passage. Lex prospicit, non respicit. The law looks forward,
not backward.[14]
II. Did private respondents election to office as City Councilor of
Manila in the 1988, 1992 and 1995 elections wipe away and condone
the administrative penalty against him, thus restoring his eligibility for
public office?
Petitioner maintains the negative. He quotes the earlier ruling of the
Court in Frivaldo v. COMELEC[15] to the effect that a candidates
disqualification cannot be erased by the electorate alone through the
instrumentality of the ballot. Thus:
x x x (T)he qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as expressed
through the ballot cannot cure the vice of ineligibility, especially if they
mistakenly believed, as in this case, that the candidate was qualified. x
xx
At first glance, there seems to be a prima facie semblance of merit to
petitioners argument. However, the issue of whether or not Bascos
triple election to office cured his alleged ineligibility is actually beside
the point because the argument proceeds on the assumption that he
was in the first place disqualified when he ran in the three previous
elections. This assumption, of course, is untenable considering that
Basco was NOT subject to any disqualification at all under Section 40
(b) of the Local Government Code which, as we said earlier, applies
only to those removed from office on or after January 1, 1992. In view
of the irrelevance of the issue posed by petitioner, there is no more
reason for the Court to still dwell on the matter at length.
Anent Bascos alleged circumvention of the prohibition in Tordesillas
against reinstatement to any position in the national or local
government, including its agencies and instrumentalities, as well as
government-owned or controlled corporations, we are of the view
that petitioners contention is baseless. Neither does petitioners
argument that the term any position is broad enough to cover without
distinction both appointive and local positions merit any
consideration.
Contrary to petitioners assertion, the Tordesillas decision did not bar
Basco from running for any elective position. As can be gleaned from
the decretal portion of the said decision, the Court couched the
prohibition in this wise:
x x x AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN
THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES
AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS.
In this regard, particular attention is directed to the use of the term
reinstatement. Under the former Civil Service Decree,[16] the law
applicable at the time Basco, a public officer, was administratively
dismissed from office, the term reinstatement had a technical
meaning, referring only to an appointive position. Thus:
ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS.
SEC. 24. Personnel Actions. -
xxxxxxxxx
(d) Reinstatement. - Any person who has been permanently
APPOINTED to a position in the career service and who has, through
no delinquency or misconduct, been separated therefrom, may be
reinstated to a position in the same level for which he is qualified.
x x x x x x x x x.
(Emphasis and underscoring supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service
Commission on November 10, 1975,[17] provides a clearer definition.
It reads:
RULE VI. OTHER PERSONNEL ACTIONS.
SEC. 7. Reinstatement is the REAPPOINMENT of a person who was
previously separated from the service through no delinquency or
misconduct on his part from a position in the career service to which
he was permanently appointed, to a position for which he is qualified.
(Emphasis and underscoring supplied).
In light of these definitions, there is, therefore, no basis for holding
that Basco is likewise barred from running for an elective position
inasmuch as what is contemplated by the prohibition in Tordesillas is
reinstatement to an appointive position.
III. Is private respondents proclamation as sixth winning candidate on
May 17, 1995, while the disqualification case was still pending
consideration by COMELEC, void ab initio?
To support its position, petitioner argues that Basco violated the
provisions of Section 20, paragraph (i) of Republic Act No. 7166,
Section 6 of Republic Act No. 6646, as well as our ruling in the cases of
Duremdes v. COMELEC,[18] Benito v. COMELEC[19] and Aguam v.
COMELEC.[20]
We are not convinced. The provisions and cases cited are all misplaced
and quoted out of context. For the sake of clarity, let us tackle each
one by one.
Section 20, paragraph (i) of Rep. Act 7166 reads:
SEC. 20. Procedure in Disposition of Contested Election Returns.-
xxxxxxxxx
(i) The board of canvassers shall not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the
objections brought to it on appeal by the losing party. Any
proclamation made in violation hereof shall be void ab initio, unless
the contested returns will not adversely affect the results of the
election.
x x x x x x x x x.
The inapplicability of the abovementioned provision to the present
case is very much patent on its face considering that the same refers
only to a void proclamation in relation to contested returns and NOT
to contested qualifications of a candidate.
Next, petitioner cites Section 6 of Rep. Act 6646 which states:
SEC. 6. Effect of Disqualification Case. - Any candidate who has been
declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason, a
candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and, upon motion
of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (Underscoring supplied).
This provision, however, does not support petitioners contention that
the COMELEC, or more properly speaking, the Manila City BOC, should
have suspended the proclamation. The use of the word may indicates
that the suspension of a proclamation is merely directory and
permissive in nature and operates to confer discretion.[21] What is
merely made mandatory, according to the provision itself, is the
continuation of the trial and hearing of the action, inquiry or protest.
Thus, in view of this discretion granted to the COMELEC, the question
of whether or not evidence of guilt is so strong as to warrant
suspension of proclamation must be left for its own determination and
the Court cannot interfere therewith and substitute its own judgment
unless such discretion has been exercised whimsically and
capriciously.[22] The COMELEC, as an administrative agency and a
specialized constitutional body charged with the enforcement and
administration of all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall,[23] has more
than enough expertise in its field that its findings or conclusions are
generally respected and even given finality.[24] The COMELEC has not
found any ground to suspend the proclamation and the records
likewise fail to show any so as to warrant a different conclusion from
this Court. Hence, there is no ample justification to hold that the
COMELEC gravely abused its discretion.
It is to be noted that Section 5, Rule 25 of the COMELEC Rules of
Procedure[25] states that:
SEC. 5. Effect of petition if unresolved before completion of canvass. -
x x x (H)is proclamation shall be suspended notwithstanding the fact
that he received the winning number of votes in such election.
However, being merely an implementing rule, the same must not
override, but instead remain consistent with and in harmony with the
law it seeks to apply and implement. Administrative rules and
regulations are intended to carry out, neither to supplant nor to
modify, the law.[26] Thus, in Miners Association of the Philippines, Inc.
v. Factoran, Jr.,[27] the Court ruled that:
We reiterate the principle that the power of administrative officials to
promulgate rules and regulations in the implementation of a statute is
necessarily limited only to carrying into effect what is provided in the
legislative enactment. The principle was enunciated as early as 1908 in
the case of United States v. Barrias. The scope of the exercise of such
rule-making power was clearly expressed in the case of United States
v. Tupasi Molina, decided in 1914, thus: Of course, the regulations
adopted under legislative authority by a particular department must
be in harmony with the provisions of the law, and for the sole purpose
of carrying into effect its general provisions. By such regulations, of
course, the law itself can not be extended. So long, however, as the
regulations relate solely to carrying into effect the provision of the
law, they are valid.
Recently, the case of People v. Maceren gave a brief delineation of the
scope of said power of administrative officials:
Administrative regulations adopted under legislative authority by a
particular department must be in harmony with the provisions of the
law, and should be for the sole purpose of carrying into effect its
general provisions. By such regulations, of course, the law itself cannot
be extended (U.S. v. Tupasi Molina, supra). An administrative agency
cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419,
422; Teoxon vs. Members of the Board of Administrators, L-25619,
June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-
28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906,
August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating the
mode or proceeding to carry into effect the law as it has been enacted.
The power cannot be extended to amending or expanding the
statutory requirements or to embrace matters not covered by the
statute. Rules that subvert the statute cannot be sanctioned
(University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382,
citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal
Revenue v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676;
Del Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51
SCRA 340, 349).
xxxxxxxxx
x x x The rule or regulations should be within the scope of the
statutory authority granted by the legislature to the administrative
agency (Davis, Administrative Law, p. 194, 197, cited in Victorias
Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or regulation
issued to implement said law, the basic law prevails because said rule
or regulations cannot go beyond the terms and provisions of the basic
law (People v. Lim, 108 Phil. 1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of
the COMELEC Rules of Procedure seeks to implement, employed the
word may, it is, therefore, improper and highly irregular for the
COMELEC to have used instead the word shall in its rules.
Moreover, there is no reason why the Manila City BOC should not
have proclaimed Basco as the sixth winning City Councilor. Absent any
determination of irregularity in the election returns, as well as an
order enjoining the canvassing and proclamation of the winner, it is a
mandatory and ministerial duty of the Board of Canvassers concerned
to count the votes based on such returns and declare the result. This
has been the rule as early as in the case of Dizon v. Provincial Board of
Canvassers of Laguna[28] where we clarified the nature of the
functions of the Board of Canvassers, viz.:
The simple purpose and duty of the canvassing board is to ascertain
and declare the apparent result of the voting. All other questions are
to be tried before the court or other tribunal for contesting elections
or in quo warranto proceedings. (9 R.C.L., p. 1110)
To the same effect is the following quotation:
x x x Where there is no question as to the genuineness of the returns
or that all the returns are before them, the powers and duties of
canvassers are limited to the mechanical or mathematical function of
ascertaining and declaring the apparent result of the election by
adding or compiling the votes cast for each candidate as shown on the
face of the returns before them, and then declaring or certifying the
result so ascertained. (20 C.J., 200-201) [Underscoring supplied]
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by
petitioner are all irrelevant and inapplicable to the factual
circumstances at bar and serve no other purpose than to muddle the
real issue. These three cases do not in any manner refer to void
proclamations resulting from the mere pendency of a disqualification
case.
In Duremdes, the proclamation was deemed void ab initio because the
same was made contrary to the provisions of the Omnibus Election
Code regarding the suspension of proclamation in cases of contested
election returns.
In Benito, the proclamation of petitioner Benito was rendered
ineffective due to the Board of Canvassers violation of its ministerial
duty to proclaim the candidate receiving the highest number of votes
and pave the way to succession in office. In said case, the candidate
receiving the highest number of votes for the mayoralty position died
but the Board of Canvassers, instead of proclaiming the deceased
candidate winner, declared Benito, a mere second-placer, the mayor.
Lastly, in Aguam, the nullification of the proclamation proceeded from
the fact that it was based only on advanced copies of election returns
which, under the law then prevailing, could not have been a proper
and legal basis for proclamation.
With no precedent clearly in point, petitioners arguments must,
therefore, be rejected.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a
winning candidate?
Obviously, he may not be declared a winner. In the first place, Basco
was a duly qualified candidate pursuant to our disquisition above.
Furthermore, he clearly received the winning number of votes which
put him in sixth place. Thus, petitioners emphatic reference to Labo v.
COMELEC,[29] where we laid down a possible exception to the rule
that a second placer may be declared the winning candidate, finds no
application in this case. The exception is predicated on the
concurrence of two assumptions, namely: (1) the one who obtained
the highest number of votes is disqualified; and (2) the electorate is
fully aware in fact and in law of a candidates disqualification so as to
bring such awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible candidate. Both
assumptions, however, are absent in this case. Petitioners allegation
that Basco was well-known to have been disqualified in the small
community where he ran as a candidate is purely speculative and
conjectural, unsupported as it is by any convincing facts of record to
show notoriety of his alleged disqualification.[30]
In sum, we see the dismissal of the petition for disqualification as not
having been attended by grave abuse of discretion. There is then no
more legal impediment for private respondents continuance in office
as City Councilor for the Second District of Manila.
WHEREFORE, the instant petition for certiorari and prohibition is
hereby DISMISSED for lack of merit. The assailed resolution of
respondent Commission on Elections (COMELEC) is SPA 95-212 dated
July 31, 1996 is hereby AFFIRMED. Costs against petitioner.
SO ORDERED
ARLENE LLENA EMPAYNADO CHUA, Petitioner, vs. COMMISSION ON
ELECTIONS, IMELDA E. FRAGATA, and KRYSTLE MARIE C. BACANI,
Respondents.
Dual citizens are disqualified from running for any elective local
position. They cannot successfully run and assume office because their
ineligibility is inherent in them, existing prior to the filing of their
certificates of candidacy. Their certificates of candidacy are void ab
initio, and votes cast for them will be disregarded. Consequently,
whoever garners the next highest number of votes among the eligible
candidates is the person legally entitled to the position.
This resolves a Petition for Certiorari and Prohibition1 assailing the
Commission on Elections Resolutions dated October 17, 20132 and
January 30, 2015.3 The Commission on Elections annulled the
"proclamation of . . . Arlene Llena Empaynado Chua as Councilor for
the Fourth District of Manila[,]"4 and directed the Board of Canvassers
to reconvene and proclaim Krystle Marie C. Bacani (Bacani) as
Councilor for having garnered the next highest number of votes.5
On October 3, 2012, Arlene Llena Empaynado Chua (Chua) filed her
Certificate of Candidacy6 for Councilor for the Fourth District of Manila
during the May 13, 2013 National and Local Elections. The Fourth
District of Manila is entitled to six (6) seats in the Sangguniang
Panlungsod.7
After the conduct of elections, Chua garnered the sixth highest
number of votes.8 She was proclaimed by the Board of Canvassers on
May 15, 2013.9
On the date of Chua’s proclamation, however, Imelda E. Fragata
(Fragata) filed a Petition10 captioned as a "petition to declare [Chua]
as a nuisance candidate"11 and "to deny due course and/or cancel
[Chua’s] Certificate of Candidacy."12 Fragata was allegedly a
registered voter in the Fourth District13 who claimed that Chua was
unqualified to run for Councilor on two grounds: Chua was not a
Filipino citizen, and she was a permanent resident of the United States
of America.14 Fragata specifically alleged the following in her Petition:
3. [Chua] is not a Filipino Citizen.
4. Prior to the filing of her candidacy, [Chua] has been living in the
United States of America (USA) for at least 33 years.
5. [Chua] is an immigrant and was validly issued a Green Card by the
Government of the USA.
6. She resided and continues to reside [in Georgia, USA].
7. [Chua] has been a Registered Professional Nurse in the State of
Georgia, USA since November 17, 1990.
8. . . . [Chua’s] Professional License in the USA is still to expire in 31
January 2014.15
The last paragraph of the Petition prayed that Chua "be disqualified as
a candidate for the position of councilor in the Fourth District of the
City of Manila[.]"16
Answering the Petition, Chua contended that she was a natural-born
Filipino, born to Filipino parents in Cabanatuan City, Nueva Ecija.17
With respect to her residency, Chua alleged that she had been residing
in Sampaloc, Manila since 200818 and had more than complied with
the one-year period required to run for Councilor.19
According to Chua, Fragata’s Petition was belatedly filed,20 whether it
was treated as one for declaration of a nuisance candidate21 or for
denial of due course or cancellation of certificate of candidacy.22
Fragata filed her Petition on May 15, 2013, which was beyond five (5)
days from October 5, 2012, the last day of the filing of certificates of
candidacy.23 The Petition was also filed beyond 25 days from October
3, 2012,24 the date Chua filed her Certificate of Candidacy.25
Chua stressed that she had already been proclaimed on May 15, 2013,
the same date that Fragata filed her Petition; hence, Fragata’s proper
remedy was to file a petition for quo warranto26 under Section 253 of
the Omnibus Election Code. Chua prayed that the Commission dismiss
Fragata’s Petition.27
On June 19, 2013, Bacani filed a Motion to Intervene with
Manifestation and Motion to Annul Proclamation.28 Bacani alleged
that she likewise ran for Councilor in the Fourth District of Manila, and
that after the canvassing of votes, she ranked seventh among all the
candidates, next to Chua.29 Should Chua be disqualified, Bacani
claimed that she should be proclaimed Councilor30 following this
Court’s ruling in Maquiling v. Commission on Elections.31
Bacani argued that Chua, being a dual citizen, was unqualified to run
for Councilor.32 Based on an Order of the Bureau of Immigration,
Chua was allegedly naturalized as an American citizen on December 7,
1977.33 She was issued an American passport34 on July 14, 2006.
Chua took an Oath of Allegiance to the Republic of the Philippines on
September 21, 2011.35 Nonetheless, Chua allegedly continued on
using her American passport, specifically on the following dates:
October 16, 2012 Departure for the United States
December 11, 2012 Arrival in the Philippines
May 30, 2013 Departure for the United States36
Moreover, Chua did not execute an oath of renunciation of her
American citizenship.37
With Chua being a dual citizen at the time she filed her Certificate of
Candidacy, Bacani prayed that the Commission on Elections annul
Chua’s proclamation.38
In her Comment/Opposition (to the Motion to Intervene of Krystle
Marie Bacani),39 Chua argued that the Motion was a belatedly filed
petition to deny due course or cancel a certificate of candidacy, having
been filed after the day of the elections.40 According to Chua, the
Motion should not even be considered since she was already
proclaimed by the Board of Canvassers.41 Thus, Chua prayed that the
Motion to Intervene be denied and expunged from the records of the
case.42
The Commission on Elections then ordered the parties to file their
respective memoranda.43
In her Memorandum,44 Chua maintained that Fragata’s Petition was
filed out of time and should have been outright dismissed.45
Reiterating that she had already been proclaimed, Chua argued that
Fragata’s proper remedy was a petition for quo warranto.46
Countering Chua’s claims, Fragata and Bacani restated in their Joint
Memorandum47 that Chua was a dual citizen disqualified from
running for any elective local position.
The Commission on Elections Second Division resolved Fragata’s
Petition. Ruling that Bacani had a legal interest in the matter in
litigation, it allowed Bacani’s Motion to Intervene.48 The Commission
said that should Fragata’s Petition be granted, the votes for Chua
would not be counted.49 In effect, Bacani would garner the sixth
highest number of votes among the qualified candidates, which would
earn her a seat in the Sangguniang Panlungsod of Manila.50
With respect to the nature of Fragata’s Petition, the Commission on
Elections held that it was one for disqualification, regardless of the
caption stating that it was a petition to declare Chua a nuisance
candidate.51 The Petition alleged a ground for disqualification under
Section 40 of the Local Government Code,52 specifically, that Chua
was a permanent resident in the United States.
Since Fragata filed a petition for disqualification, Rule 25, Section 3 of
the Commission on Elections Rules of Procedure governed the period
for its filing.53 Under the Rules, a petition for disqualification should
be filed "any day after the last day for filing of certificates of
candidacy, but not later than the date of the proclamation." Fragata
filed the Petition within this period, having filed it on the date of
Chua’s proclamation on May 15, 2013.54
The Commission no longer discussed whether Chua was a permanent
resident of the United States. Instead, it found that Chua was a dual
citizen when she filed her Certificate of Candidacy.55 Although she
reacquired her Filipino citizenship in 2011 by taking an Oath of
Allegiance to the Republic of the Philippines, petitioner failed to take a
sworn and personal renunciation of her American citizenship required
under Section 5(2) of the Citizenship Retention and Re-acquisition Act
of 2003.56
Considering that Chua is a dual citizen, the Commission held that Chua
was disqualified to run for Councilor pursuant to Section 40 of the
Local Government Code.57 Consequently, Chua’s Certificate of
Candidacy was void ab initio, and all votes casted for her were stray.58
Chua’s proclamation was likewise voided, and per Maquiling, Bacani
was declared to have garnered the sixth highest number of votes.59
Thus, in the Resolution dated October 17, 2013, the Commission on
Elections Second Division ruled in favor of Fragata and Bacani.60 The
dispositive portion of the October 17, 2013 Resolution reads:
WHEREFORE, premises considered, the Commission (Second Division)
RESOLVES, as it hereby RESOLVED:
1. To ANNUL the proclamation of respondent Arlene Llena Empaynado
Chua as Councilor for the Fourth District of Manila;
2. To DIRECT the Board of Canvassers of the City of Manila to
CONVENE and PROCLAIM Intervenor Krystle Marie C. Bacani as the
duly elected Councilor of the Fourth District of the City of Manila,
having obtained the sixth highest number of votes for said position.

Let the Deputy Executive Director for Operations implement this
Resolution.
SO ORDERED.61
Chua moved for reconsideration,62 but the Commission on Elections
En Banc denied the Motion in the Resolution dated January 30, 2015.
Arguing that the Commission issued its October 17, 2013 and January
30, 2015 Resolutions with grave abuse of discretion, Chua filed before
this Court a Petition for Certiorari and Prohibition with prayer for
issuance of temporary restraining order and/or writ of preliminary
injunction.63 Fragata and Bacani jointly filed their Comment,64 while
the Commission on Elections filed its Comment65 through the Office
of the Solicitor General.
Chua emphasizes that she was already proclaimed as a duly elected
Councilor.66 Assuming that she was ineligible to run for office, this
created a permanent vacancy in the Sangguniang Panlungsod, which
was to be filled according to the rule on succession under Section 45 of
the Local Government Code, and not by proclamation of the candidate
who garnered the next highest number of votes.67
Chua maintains that Fragata belatedly filed her Petition before the
Commission on Elections.68 Since Fragata filed a Petition to deny due
course or cancel certificate of candidacy, it should have been filed
within five (5) days from the last day for filing of certificates of
candidacy, but not later than 25 days from the time of the filing of the
certificate of candidacy assailed.69 Fragata filed the Petition on May
15, 2013, more than 25 days after Chua filed her Certificate of
Candidacy on October 3, 2012.70 The Commission on Elections,
therefore, should have outright dismissed Fragata’s Petition.71
With her already proclaimed, Chua argues that the Commission on
Elections should have respected the voice of the people.72 Chua prays
that the Resolutions annulling her proclamation and subsequently
proclaiming Bacani be set aside.73
As for Fragata and Bacani as well as the Commission on Elections, all
maintain that Fragata’s Petition was a petition for disqualification
assailing Chua’s citizenship and status as a permanent resident in the
United States.74 The Petition, which Fragata filed on the date of
Chua’s proclamation, was filed within the reglementary period.75
The Commission on Elections stresses that Chua was a dual citizen at
the time she filed her Certificate of Candidacy.76 Consequently, she
was ineligible to run for Councilor and was correctly considered a non-
candidate. 77 All the votes casted in Chua’s favor were correctly
disregarded, resulting in Bacani garnering the next highest number of
votes.78 Following Maquiling, the Commission argues that Bacani was
validly proclaimed as Councilor, and, contrary to Chua’s claim, the rule
on succession under Section 45 of the Local Government Code did not
apply, with the disqualifying circumstance existing prior to the filing of
the Certificate of Candidacy.79
Although Chua was already proclaimed, the Commission on Elections
argues that "[t]he will of the people as expressed through the ballot
cannot cure the vice of ineligibility, especially if they mistakenly
believed that the candidate was qualified."80 Fragata, Bacani, and the
Commission on Elections pray that the Petition for Certiorari and
Prohibition be dismissed.81
The issues for this Court’s resolution are the following:
First, whether private respondent Imelda E. Fragata filed a petition for
disqualification or a petition to deny due course or cancel certificate of
candidacy; and
Second, whether the rule on succession under Section 45 of the Local
Government Code applies to this case.
We dismiss the Petition. The allegations of private respondent
Fragata’s Petition before the Commission on Elections show that it was
a timely filed petition for disqualification. Moreover, the Commission
on Elections did not gravely abuse its discretion in disqualifying
petitioner Arlene Llena Empaynado Chua, annulling her proclamation,
and subsequently proclaiming private respondent Krystle Marie C.
Bacani, the candidate who garnered the sixth highest number of votes
among the qualified candidates.
I
As this Court has earlier observed in Fermin v. Commission on
Elections,82 members of the bench and the bar have "indiscriminately
interchanged"83 the remedies of a petition to deny due course or
cancel certificate of candidacy and a petition for disqualification, thus
"adding confusion to the already difficult state of our jurisprudence on
election laws."84
The remedies, however, have different grounds and periods for their
filing. The remedies have different legal consequences.
A person files a certificate of candidacy to announce his or her
candidacy and to declare his or her eligibility for the elective office
indicated in the certificate.85 Section 74 of the Omnibus Election Code
on the contents of a certificate of candidacy states:
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
section 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.
Unless a candidate has officially changed his name through a court
approved proceeding, a candidate shall use in a certificate of
candidacy the name by which he has been baptized, or if has not been
baptized in any church or religion, the name registered in the office of
the local civil registrar or any other name allowed under the provisions
of existing law or, in the case of a Muslim, his Hadji name after
performing the prescribed religious pilgrimage: Provided, That when
there are two or more candidates for an office with the same name
and surname, each candidate, upon being made aware of such fact,
shall state his paternal and maternal surname, except the incumbent
who may continue to use the name and surname stated in his
certificate of candidacy when he was elected. He may also include one
nickname or stage name by which he is generally or popularly known
in the locality.
The person filing a certificate of candidacy shall also affix his latest
photograph, passport size; a statement in duplicate containing his bio-
data and program of government not exceeding one hundred words, if
he so desires.
The Commission on Elections has the ministerial duty to receive and
acknowledge receipt of certificates of candidacy.86 However, under
Section 78 of the Omnibus Election Code,87 the Commission may deny
due course or cancel a certificate of candidacy through a verified
petition filed exclusively on the ground that "any material
representation contained therein as required under Section 74 hereof
is false." The "material representation" referred to in Section 78 is that
which involves the eligibility or qualification for the office sought by
the person who filed the certificate.88 Section 78 must, therefore, be
read "in relation to the constitutional and statutory provisions on
qualifications or eligibility for public office."89 Moreover, the false
representation "must consist of a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render a candidate
ineligible."90
A person intending to run for public office must not only possess the
required qualifications for the position for which he or she intends to
run. The candidate must also possess none of the grounds for
disqualification under the law. As Justice Vicente V. Mendoza said in
his Dissenting Opinion in Romualdez-Marcos v. Commission on
Elections,91 "that an individual possesses the qualifications for a
public office does not imply that he is not disqualified from becoming
a candidate or continuing as a candidate for a public office and vice-
versa."92
Section 68 of the Omnibus Election Code provides for grounds in filing
a petition for disqualification:
Sec. 68 Disqualifications. – Any candidate who, in action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or
other material consideration to influence, induce or corrupt the voters
or public officials performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election campaign
an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified
from continuing as a candidate, or if he has been elected, from holding
the office. Any person who is a permanent resident of or an immigrant
of a foreign country in accordance with the residence requirement
provided for in the election laws.
Apart from the grounds provided in Section 68, any of the grounds in
Section 12 of the Omnibus Election Code as well as in Section 40 of the
Local Government Code may likewise be raised in a petition for
disqualification. Section 12 of the Omnibus Election Code states:
Sec. 12. Disqualifications. – Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion, or for any
offense for which he has been 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.
This 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.
Disqualifications specifically applicable to those running for local
elective positions are found in Section 40 of the Local Government
Code:
SECTION 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 nonpolitical 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.
Private respondent Fragata alleges in her Petition that petitioner is a
permanent resident in the United States, a green card holder who,
prior to the filing of her Certificate of Candidacy for Councilor, has
resided in the State of Georgia for 33 years. She anchors her Petition
on Section 40 of the Local Government Code, which disqualifies
permanent residents of a foreign country from running for any elective
local position.
It is true that under Section 74 of the Omnibus Election Code, persons
who file their certificates of candidacy declare that they are not a
permanent resident or immigrant to a foreign country. Therefore, a
petition to deny due course or cancel a certificate of candidacy may
likewise be filed against a permanent resident of a foreign country
seeking an elective post in the Philippines on the ground of material
misrepresentation in the certificate of candidacy.93
What remedy to avail himself or herself of, however, depends on the
petitioner. If the false material representation in the certificate of
candidacy relates to a ground for disqualification, the petitioner may
choose whether to file a petition to deny due course or cancel a
certificate of candidacy or a petition for disqualification, so long as the
petition filed complies with the requirements under the law.94
Before the Commission on Elections, private respondent Fragata had a
choice of filing either a petition to deny due course or cancel
petitioner’s certificate of candidacy or a petition for disqualification. In
her Petition, private respondent Fragata did not argue that petitioner
made a false material representation in her Certificate of Candidacy;
she asserted that petitioner was a permanent resident disqualified to
run for Councilor under Section 40 of the Local Government Code.
Private respondent Fragata’s Petition, therefore, was a petition for
disqualification.
It follows that private respondent Fragata timely filed her Petition
before the Commission on Elections. Under Rule 25, Section 3 of the
Rules of Procedure of the Commission, a petition for disqualification
"shall be filed any day after the last day for filing of certificates of
candidacy, but not later that the date of proclamation." Private
respondent Fragata filed her Petition on the date of petitioner’s
proclamation on May 15, 2013. The Commission on Elections did not
gravely abuse its discretion in taking cognizance of private respondent
Fragata’s Petition.
In addition, the Commission on Elections correctly admitted private
respondent Bacani’s pleading-in-intervention.
An adverse decision against petitioner would require a
pronouncement as to who should assume the position of Councilor.
Hence, those who believe that they are entitled to the position may
prove their legal interest in the matter in litigation95 and may properly
intervene for a complete disposition of the case.
Private respondent Bacani claims that she is entitled to the position of
Councilor. In her Motion to Intervene, she argues for petitioner’s
disqualification and alleges the circumstances surrounding petitioner’s
dual citizenship. She then cites Maquiling, arguing that she should be
proclaimed in lieu of petitioner because she obtained the sixth highest
number of votes among the qualified candidates. Private respondent
Bacani’s intervention was, therefore, proper.
II
The Commission on Elections did not gravely abuse its discretion in
disqualifying petitioner, annulling her proclamation, and subsequently
proclaiming private respondent Bacani as the duly elected Councilor
for the Fourth District of Manila.
Petitioner was born to Filipino parents in 1967, which makes her a
natural-born Filipino under the 1935 Constitution.96 Ten years later,
on December 7, 1977, petitioner became a naturalized American.
Hence, she lost her Filipino citizenship pursuant to Section 1 of
Commonwealth Act No. 63.97
It was on September 21, 2011 when petitioner took an Oath of
Allegiance to the Republic of the Philippines, thus reacquiring her
Filipino citizenship.98 From September 21, 2011 up to the present,
however, petitioner failed to execute a sworn and personal
renunciation of her foreign citizenship particularly required of those
seeking elective public office. Section 5(2) of the Citizenship Retention
and Re-acquisition Act of 2003
provides:
SECTION 5. Civil and Political Rights and Liabilities. – Those who retain
or re-acquire Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:
....
(2) Those seeking elective public office in the Philippines shall meet
the qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
administer an oath[.]
Petitioner cannot claim that she has renounced her American
citizenship by taking the Oath of Allegiance. The oath of allegiance and
the sworn and personal renunciation of foreign citizenship are
separate requirements, the latter being an additional requirement for
qualification to run for public office. In Jacot v. Dal:99
[T]he oath of allegiance contained in the Certificate of Candidacy,
which is substantially similar to the one contained in Section 3 of
Republic Act No. 9225, does not constitute the personal and sworn
renunciation sought under Section 5(2) of Republic Act No. 9225. It
bears to emphasize that the said oath of allegiance is a general
requirement for all those who wish to run as candidates in Philippine
elections; while the renunciation of foreign citizenship is an additional
requisite only for those who have retained or reacquired Philippine
citizenship under Republic Act No. 9225 and who seek elective public
posts, considering their special circumstance of having more than one
citizenship.100
With petitioner’s failure to execute a personal and sworn renunciation
of her American citizenship, petitioner was a dual citizen at the time
she filed her Certificate of Candidacy on October 3, 2012. Under
Section 40 of the Local Government Code, she was disqualified to run
for Councilor in the Fourth District of Manila during the 2013 National
and Local Elections.
Petitioner, however, argues that the Commission on Elections gravely
abused its discretion in proclaiming private respondent Bacani, the
mere seventh placer among the candidates for Councilor and,
therefore, not the electorate’s choice. Petitioner maintains that the
vacancy left by her disqualification should be filled according to the
rule on succession under Section 45(a)(1) of the Local Government
Code, which provides:
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 panlungsod of highly
urbanized cities and independent component cities[.]
The permanent vacancies referred to in Section 45 are those arising
"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."101 In these situations, the vacancies were
caused by those whose certificates of candidacy were valid at the time
of the filing "but subsequently had to be cancelled because of a
violation of law that took place, or a legal impediment that took effect,
after the filing of the certificate of candidacy."102
The rule on succession under Section 45, however, would not apply if
the permanent vacancy was caused by one whose certificate of
candidacy was void ab initio. Specifically with respect to dual citizens,
their certificates of candidacy are void ab initio because they possess
"a substantive [disqualifying circumstance] . . . [existing] prior to the
filing of their certificate of candidacy."103 Legally, they should not
even be considered candidates. The votes casted for them should be
considered stray and should not be counted.104
In cases of vacancies caused by those with void ab initio certificates of
candidacy, the person legally entitled to the vacant position would be
the candidate who garnered the next highest number of votes among
those eligible.105 In this case, it is private respondent Bacani who is
legally entitled to the position of Councilor, having garnered the sixth
highest number of votes among the eligible candidates. The
Commission on Elections correctly proclaimed private respondent
Bacani in lieu of petitioner.
Petitioner may have garnered more votes than private respondent
Bacani. She may have already been proclaimed. Nevertheless,
elections are more than a numbers game. Hence, in Maquiling:
The ballot cannot override the constitutional and statutory
requirements for qualifications and disqualifications of candidates.
When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve
as elective public officials, those qualifications must be met before one
even becomes a candidate. When a person who is not qualified is
voted for and eventually garners the highest number of votes, even
the will of the electorate expressed through the ballot cannot cure the
defect in the qualifications of the candidate. To rule otherwise is to
trample upon and rent asunder the very law that sets forth the
qualifications and disqualifications of candidates. We might as well
write off our election laws if the voice of the electorate is the sole
determinant of who should be proclaimed worthy to occupy elective
positions in our republic.
....
As in any contest, elections are governed by rules that determine the
qualifications and disqualifications of those who are allowed to
participate as players. When there are participants who turn out to be
ineligible, their victory is voided and the laurel is awarded to the next
in rank who does not possess any of the disqualifications nor lacks any
of the qualifications set in the rules to be eligible as candidates. 106
All told, petitioner Arlene Llena Empaynado Chua is a dual citizen
correctly disqualified from running for the position of Councilor in the
Fourth District of Manila during the 2013 National and Local elections.
With her dual citizenship existing prior to the filing of the certificate of
candidacy, her Certificate of Candidacy was void ab initio. She was
correctly considered a non-candidate. All votes casted for her were
stray, and the person legally entitled to the position is private
respondent Krystle Marie C. Bacani, the candidate with the next
highest number of votes among the eligible candidates. The
Commission on Elections did not gravely abuse its discretion in
annulling Chua's proclamation and subsequently proclaiming private
respondent Bacani.
WHEREFORE, the Petition for Certiorari and Prohibition is DISMISSED.
This Decision is immediately executory.
SO ORDERED.
BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON
ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.
VITUG, J.:
The Court is called upon, in this petition for certiorari, to resolve the
conflicting claims of the parties on the meaning of the term "fugitive
from justice as that phrase is so used under the provisions of Section
40(e) of the Local Government Code (Republic Act No. 7160). That law
states:
Sec. 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
xxx xxx xxx
(e) Fugitive from justice in criminal or non-political cases here or
abroad(.)
Bienvenido Marquez, a defeated candidate for the elective position for
the elective position in the Province of Quezon in the 11th May 1992
elections filed this petition for certiorari praying for the reversal of the
resolution of the Commission on Elections ("COMELEC") which
dismissed his petition for quo warranto against the winning candidate,
herein private respondent Eduardo Rodriguez, for being allegedly a
fugitive from justice.
It is averred that at the time private respondent filed his certificate of
candidacy, a criminal charge against him for ten (10) counts of
insurance fraud or grand theft of personal property was still pending
before the Municipal Court of Los Angeles Judicial District, County of
Los Angeles, State of California, U.S.A. A warrant issued by said court
for his arrest, it is claimed, has yet to be served on private respondent
on account of his alleged "flight" from that country.
Before the 11th May 1992 elections, a petition for cancellation (SPA
92-065) of respondent's certificate of candidacy, on the ground of the
candidate's disqualification under Section 40(e) of the Local
Government Code, was filed by petitioner with the COMELEC. On 08
May 1992, the COMELEC dismissed the petition.
Petitioner's subsequent recourse to this Court (in G.R. No. 105310)
from the 08th May 1992 resolution of COMELEC was dismissed
without prejudice, however, to the filing in due time of a possible
post-election quo warranto proceeding against private respondent.
The Court, in its resolution of 02 June 1992, held:
Evidently, the matter elevated to this Court was a pre-proclamation
controversy. Since the private respondent had already been
proclaimed as the duly elected Governor of the Province of Quezon,
the petition below for disqualification has ceased to be a pre-
proclamation controversy. In Casimiro vs. Commission on Elections,
G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R.
Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this
court held that a pre-proclamation controversy is no longer viable at
this point of time and should be dismissed. The proper remedy of the
petitioner is to pursue the disqualification suit in a separate
proceeding.
ACCORDINGLY, the Court Resolved to DISMISS the petition, without
prejudice to the filing of the appropriate proceedings in the proper
forum, if so desired, within ten (10) days from notice. 1
Private respondent was proclaimed Governor-elect of Quezon on 29
May 1992. Forthwith, petitioner instituted quo warranto proceedings
(EPC 92-28) against private respondent before the COMELEC. In its 02
February 1993 resolution, the COMELEC (Second Division) dismissed
the petition. The COMELEC En Banc, on 02 December 1993, denied a
reconsideration of the resolution.
Hence, this petition for certiorari, the core issue of which, such as to
be expected, focuses on whether private respondent who, at the time
of the filing of his certificate of candidacy (and to date), is said to be
facing a criminal charge before a foreign court and evading a warrant
for his arrest comes within the term "fugitive from justice"
contemplated by Section 40(e) of the Local Government Code and,
therefore, disqualified from being a candidate for, and thereby
ineligible from holding on to, an elective local office.
Petitioner's position is perspicuous and to the point. The law, he
asseverates, needs no further interpretation and construction. Section
40(e) of Republic Act No. 7160, is rather clear, he submits, and it
disqualifies "fugitive from justice" includes not only those who flee
after conviction to avoid punishment but likewise those who, after
being charged flee to avoid prosecution. This definition truly finds
support from jurisprudence (Philippine Law Dictionary, Third Edition,
p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671;
King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138
Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p.
792), and it may be so conceded as expressing the general and
ordinary connotation of the term.
In turn, private respondent would have the Court respect the
conclusions of the Oversight Committee which, conformably with
Section 5332 of R.A. 7160, was convened by the President to
"formulate and issue the appropriate rules and regulations necessary
for the efficient and effective implementation of any and all provisions
of the Code to ensure compliance with the principles of Local
Autonomy.
Here are some excerpts from the committee's deliberations:
CHAIRMAN MERCADO. Session is resumed.
So, we are in agreement to retain Line 12, Page 36, as is. So next, Page
39.
CHAIRMAN DE PEDRO. Kay Benny Marquez.
REP. CUENCO: What does he want?
CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung
kuwestiyunin ang constitutionality nito before the Supreme Court later
on.
REP. CUENCO. Anong nakalagay diyan?
CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.
Any person who is a fugitive from justice in criminal or nonpolitical
cases here or abroad.
Mabigat yung abroad. One who is facing criminal charges with the
warrant of arrest pending, unserved. . .
HONORABLE SAGUISAG. I think that is even a good point, ano — what
is a fugitive? It is not defined. We have loose understanding. . .
CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong
fugitive.
Si Benny umalis na, with the understanding na okay na sa atin ito.
THE CHAIRMAN. Whether we have this rule or not she can run. She is
not a fugitive from justice. Mrs. Marcos can run at this point and I have
held that for a long time ago. So can. . .
MS. DOCTOR. Mr. Chairman. . .
THE CHAIRMAN. Yes.
MS. DOCTOR. Let's move to. . .
THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording,
this is very important. Manny, can you come up?
MR. REYES. Let's use the word conviction by final judgment.
THE CHAIRMAN. Fugitive means somebody who is convicted by final
judgment. Okay,. Fugitive means somebody who is convicted by final
judgment. Insert that on Line 43 after the semi-colon. Is that
approved? No objection, approved (TSN, Oversight Committee, 07
May 1991).
xxx xxx xxx
THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2?
Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44, "fugitive
from justice". What "fugitive"? Sino ba ang gumawa nito, ha?
MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to
clarify the word "fugitive".
THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha?
MR. SANCHEZ. Means a person...
THE CHAIRMAN. Ha?
HON. REYES. A person who has been convicted.
THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice
shall mean or means one who has been convicted by final judgment. It
means one who has been convicted by final judgment.
HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.
THE CHAIRMAN. Ano? Sige, tingnan natin.
HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?
THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been
convicted by final judgment, meaning that if he is simply in jail and
because he put up, post bail, but the case is still being reviewed, that is
not yet conviction by final judgment. 3
The Oversight Committee evidently entertained serious apprehensions
on the possible constitutional infirmity of Section 40(e) of Republic Act
No. 7160 if the disqualification therein meant were to be so taken as
to embrace those who merely were facing criminal charges. A similar
concern was expressed by Senator R. A. V. Saguisag who, during the
bicameral conference committee of the Senate and the House of
Representatives, made this reservation:
. . . de ipa-refine lang natin 'yung language especially 'yung, the scope
of fugitive. Medyo bothered ako doon, a. 4
The Oversight Committee finally came out with Article 73 of the Rules
and Regulations Implementing the Local Government Code of 1991. It
provided:
Art. 73. Disqualifications. — The following persons shall be
disqualified from running for any elective local position:
(a) ...
(e) Fugitives from justice in criminal or non-political cases here
or abroad. Fugitive from justice refers to a person who has been
convicted by final judgment.5 (Emphasis supplied)
Private respondent reminds us that the construction placed upon law
by the officials in charge of its enforcement deserves great and
considerable weight (Atlas Consolidated Mining and Development
Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however,
when there clearly is no obscurity and ambiguity in an enabling law, it
must merely be made to apply as it is so written. An administrative
rule or regulation can neither expand nor constrict the law but must
remain congruent to it. The Court believes and thus holds, albeit with
some personal reservations of the ponente (expressed during the
Court's en banc deliberations), that Article 73 of the Rules and
Regulations Implementing the Local Government Code of 1991, to the
extent that it confines the term "fugitive from justice" to refer only to
a person (the fugitive) "who has been convicted by final judgment." is
an inordinate and undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding on
whether or not, in fact, private respondent is a "fugitive from justice"
as such term must be interpreted and applied in the light of the
Court's opinion. The omission is understandable since the COMELEC
dismissed outrightly the petition for quo warranto on the basis instead
of Rule 73 of the Rules and Regulations promulgated by the Oversight
Committee. The Court itself, not being a trier of facts, is thus
constrained to remand the case to the COMELEC for a determination
of this unresolved factual matter.
WHEREFORE, the questioned resolutions of the Commission on
Elections are REVERSED and SET ASIDE, and the case is hereby
REMANDED to the Commission which is DIRECTED to proceed and
resolve the case with dispatch conformably with the foregoing
opinion. No special pronouncement on costs.
SO ORDERED.
MAYOR ABELARDO ABUNDO, SR., Petitioner, vs. COMMISSION ON
ELECTIONS and ERNESTO R. VEGA, Respondents.
The Case
In this Petition for Certiorari under Rule 65, petitioner Abelardo
Abundo, Sr. (Abundo) assails and seeks to nullify (1) the February 8,
2012 Resolution1 of the Second Division, Commission on Elections
(COMELEC), in EAC (AE) No. A-25-2010 and (2) the May 10, 2012
Resolution2 of the COMELEC en banc affirming that division’s
disposition. The assailed issuances, in turn, affirmed the Decision of
the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated
August 9, 2010, in Election Case No. 55 declaring Abundo as ineligible,
under the three-term limit rule, to run in the 2010 elections for the
position of, and necessarily to sit as, Mayor of Viga, Catanduanes.
The antecedent facts are undisputed.
For four (4) successive regular elections, namely, the 2001, 2004, 2007
and 2010 national and local elections, Abundo vied for the position of
municipal mayor of Viga, Catanduanes. In both the 2001 and 2007
runs, he emerged and was proclaimed as the winning mayoralty
candidate and accordingly served the corresponding terms as mayor.
In the 2004 electoral derby, however, the Viga municipal board of
canvassers initially proclaimed as winner one Jose Torres (Torres),
who, in due time, performed the functions of the office of mayor.
Abundo protested Torres’ election and proclamation. Abundo was
eventually declared the winner of the 2004 mayoralty electoral
contest, paving the way for his assumption of office starting May 9,
2006 until the end of the 2004-2007 term on June 30, 2007, or for a
period of a little over one year and one month.
Then came the May 10, 2010 elections where Abundo and Torres
again opposed each other. When Abundo filed his certificate of
candidacy3 for the mayoralty seat relative to this electoral contest,
Torres lost no time in seeking the former’s disqualification to run, the
corresponding petition,4 docketed as SPA Case No. 10-128 (DC),
predicated on the three-consecutive term limit rule. On June 16, 2010,
the COMELEC First Division issued a Resolution5 finding for Abundo,
who in the meantime bested Torres by 219 votes6 and was
accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve
the adverted disqualification case Torres initiated against Abundo,
herein private respondent Ernesto R. Vega (Vega) commenced a quo
warranto7 action before the RTC-Br. 43 in Virac, Catanduanes,
docketed as Election Case No. 55, to unseat Abundo on essentially the
same grounds Torres raised in his petition to disqualify.
The Ruling of the Regional Trial Court
By Decision8 of August 9, 2010 in Election Case No. 55, the RTC
declared Abundo ineligible to serve as municipal mayor, disposing as
follows:
WHEREFORE, Decision is, hereby, rendered GRANTING the petition
and declaring Abelardo Abundo, Sr. ineligible to serve as municipal
mayor of Viga, Catanduanes.
SO ORDERED.9
In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC,10 found
Abundo to have already served three consecutive mayoralty terms, to
wit, 2001-2004, 2004-2007 and 2007-2010, and, hence, disqualified for
another, i.e., fourth, consecutive term. Abundo, the RTC noted, had
been declared winner in the aforesaid 2004 elections consequent to
his protest and occupied the position of and actually served as Viga
mayor for over a year of the remaining term, i.e., from May 9, 2006 to
June 30, 2007, to be exact. To the RTC, the year and a month service
constitutes a complete and full service of Abundo’s second term as
mayor.
Therefrom, Abundo appealed to the COMELEC, his recourse docketed
as EAC (AE) No. A-25-2010.
The Ruling of the COMELEC
On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELEC’s
Second Division rendered the first assailed Resolution, the dispositive
portion of which reads as follows:
WHEREFORE, in view of the foregoing, the decision of the Regional
Trial Court Branch 73, Virac, Catanduanes is AFFIRMED and the appeal
is DISMISSED for lack of merit.
SO ORDERED.11
Just like the RTC, the COMELEC’s Second Division ruled against Abundo
on the strength of Aldovino, Jr. and held that service of the unexpired
portion of a term by a protestant who is declared winner in an election
protest is considered as service for one full term within the
contemplation of the three-term limit rule.
In time, Abundo sought but was denied reconsideration by the
COMELEC en banc per its equally assailed Resolution of May 10, 2012.
The fallo of the COMELEC en banc’s Resolution reads as follows:
WHEREFORE, premises considered, the motion for reconsideration is
DENIED for lack of merit. The Resolution of the Commission (Second
Division) is hereby AFFIRMED.
SO ORDERED.12
In affirming the Resolution of its Second Division, the COMELEC en
banc held in essence the following: first, there was no involuntary
interruption of Abundo’s 2004-2007 term service which would be an
exception to the three-term limit rule as he is considered never to
have lost title to the disputed office after he won in his election
protest; and second, what the Constitution prohibits is for an elective
official to be in office for the same position for more than three
consecutive terms and not to the service of the term.

Hence, the instant petition with prayer for the issuance of a temporary
restraining order (TRO) and/or preliminary injunction.
Intervening Events
In the meantime, following the issuance by the COMELEC of its May
10, 2012 Resolution denying Abundo’s motion for reconsideration, the
following events transpired:
1. On June 20, 2012, the COMELEC issued an Order13 declaring its May
10, 2012 Resolution final and executory. The following day, June 21,
2012, the COMELEC issued an Entry of Judgment.14
2. On June 25, 2012, Vega filed a Motion for Execution15 with the RTC-
Br. 43 in Virac, Catanduanes.
3. On June 27, 2012, the COMELEC, acting on Vega’s counsel’s
motion16 filed a day earlier, issued an Order17 directing the bailiff of
ECAD (COMELEC) to personally deliver the entire records to said RTC.
On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the
entire records of the instant case to, and were duly received by, the
clerk of court of RTC-Br. 43.
4. On June 29, 2012, or on the same day of its receipt of the case
records, the RTC-Br. 43 in Virac, Catanduanes granted Vega’s Motion
for Execution through an Order18 of even date. And a Writ of
Execution19 was issued on the same day.
5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution
and served the same at the office of Mayor Abundo on the same day
via substituted service.
6. On July 3, 2012, the Court issued a TRO20 enjoining the
enforcement of the assailed COMELEC Resolutions.
7. On July 4, 2012, Vega received the Court’s July 3, 2012 Resolution21
and a copy of the TRO. On the same day, Vice-Mayor Emeterio M.
Tarin and First Councilor Cesar O. Cervantes of Viga, Catanduanes took
their oaths of office22 as mayor and vice-mayor of Viga, Catanduanes,
respectively.
8. On July 5, 2012, Vega received a copy of Abundo’s Seventh (7th)
Most Extremely Urgent Manifestation and Motion23 dated June 28,
2012 praying for the issuance of a TRO and/or status quo ante Order.
On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor
Cesar O. Cervantes––who had taken their oaths of office the day
before—assumed the posts of mayor and vice-mayor of Viga,
Catanduanes.24
9. On July 6, 2012, Vega interposed a Motion (To Admit Attached
Manifestation)25 and Manifestation with Leave to Admit26 dated July
5, 2012 stating that the TRO thus issued by the Court has become
functus officio owing to the execution of the RTC’s Decision in Election
Case No. 55.
10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to
the Petitioner’s Prayer for the Issuance of a Status Quo Ante Order27
reiterating the argument that since Vice-Mayor Emeterio M. Tarin and
First Councilor Cesar O. Cervantes already assumed the posts of Mayor
and Vice-Mayor of Viga, Catanduanes, then a Status Quo Ante Order
would serve no purpose.
11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and
Motion to Convert the July 3, 2012 TRO into a Status Quo Ante Order
(In View of the Unreasonable and Inappropriate Progression of
Events).28
It is upon the foregoing backdrop of events that Abundo was dislodged
from his post as incumbent mayor of Viga, Catanduanes. To be sure,
the speed which characterized Abundo’s ouster despite the
supervening issuance by the Court of a TRO on July 3, 2012 is not lost
on the Court. While it is not clear whether Vice-Mayor Tarin and First
Councilor Cervantes knew of or put on notice about the TRO either
before they took their oaths of office on July 4, 2012 or before
assuming the posts of mayor and vice-mayor on July 5, 2012, the
confluence of events following the issuance of the assailed COMELEC
en banc irresistibly tends to show that the TRO––issued as it were to
maintain the status quo, thus averting the premature ouster of
Abundo pending this Court’s resolution of his appeal––appears to have
been trivialized.
On September 11, 2012, Vega filed his Comment on Abundo’s petition,
followed not long after by public respondent COMELEC’s Consolidated
Comment.29
The Issues
Abundo raises the following grounds for the allowance of the petition:
6.1 The Commission En Banc committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared the
arguments in Abundo’s motion for reconsideration as mere rehash
and reiterations of the claims he raised prior to the promulgation of
the Resolution.
6.2 The Commission En Banc committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared that
Abundo has consecutively served for three terms despite the fact that
he only served the remaining one year and one month of the second
term as a result of an election protest.30
First Issue:
Arguments in Motion for Reconsideration Not Mere Reiteration
The COMELEC en banc denied Abundo’s motion for reconsideration on
the basis that his arguments in said motion are mere reiterations of
what he already brought up in his appeal Brief before the COMELEC
Second Division. In this petition, petitioner claims otherwise.
Petitioner’s assertion is devoid of merit.
A comparison of Abundo’s arguments in the latter’s Brief vis-à-vis
those in his Motion for Reconsideration (MR) reveals that the
arguments in the MR are elucidations and amplications of the same
issues raised in the brief. First, in his Brief, Abundo raised the sole
issue of lack of jurisdiction of the RTC to consider the quo warranto
case since the alleged violation of the three-term limit has already
been rejected by the COMELEC First Division in SPA Case No. 10-128
(DC), while in his MR, Abundo raised the similar ground of the
conclusiveness of the COMELEC’s finding on the issue of his
qualification to run for the current term. Second, in his Brief, Abundo
assailed RTC’s reliance on Aldovino, Jr., while in his MR, he argued that
the Court’s pronouncement in Aldovino, Jr., which dealt with
preventive suspension, is not applicable to the instant case as it
involves only a partial service of the term. Abundo argued in his Brief
that his situation cannot be equated with the case of preventive
suspension as held in Aldovino, Jr., while in his MR, he argued before
that the almost two years which he did not sit as mayor during the
2004-2007 term is an interruption in the continuity of his service for
the full term.
Thus, COMELEC did not err in ruling that the issues in the MR are a
rehash of those in the Brief.
Core Issue:
Whether or not Abundo is deemed to have served three consecutive
terms
The pivotal determinative issue then is whether the service of a term
less than the full three years by an elected official arising from his
being declared as the duly elected official upon an election protest is
considered as full service of the term for purposes of the application of
the three consecutive term limit for elective local officials.
On this core issue, We find the petition meritorious. The
consecutiveness of what otherwise would have been Abundo’s three
successive, continuous mayorship was effectively broken during the
2004-2007 term when he was initially deprived of title to, and was
veritably disallowed to serve and occupy, an office to which he, after
due proceedings, was eventually declared to have been the rightful
choice of the electorate.
The three-term limit rule for elective local officials, a disqualification
rule, is found in Section 8, Article X of the 1987 Constitution, which
provides:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected. (Emphasis supplied.)
and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the
Local Government Code (LGC) of 1991, thusly:
Sec. 43. Term of Office. —
xxxx
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which the elective
official concerned was elected. (Emphasis Ours.)
To constitute a disqualification to run for an elective local office
pursuant to the aforequoted constitutional and statutory provisions,
the following requisites must concur:
(1) that the official concerned has been elected for three consecutive
terms in the same local government post; and
(2) that he has fully served three consecutive terms.31
Judging from extant jurisprudence, the three-term limit rule, as
applied to the different factual milieus, has its complicated side. We
shall revisit and analyze the various holdings and relevant
pronouncements of the Court on the matter.
As is clearly provided in Sec. 8, Art. X of the Constitution as well as in
Sec. 43(b) of the LGC, voluntary renunciation of the office by the
incumbent elective local official for any length of time shall NOT, in
determining service for three consecutive terms, be considered an
interruption in the continuity of service for the full term for which the
elective official concerned was elected. In Aldovino, Jr., however, the
Court stated the observation that the law "does not textually state
that voluntary renunciation is the only actual interruption of service
that does not affect ‘continuity of service for a full term’ for purposes
of the three-term limit rule."32
As stressed in Socrates v. Commission on Elections,33 the principle
behind the three-term limit rule covers only consecutive terms and
that what the Constitution prohibits is a consecutive fourth term. Put a
bit differently, an elective local official cannot, following his third
consecutive term, seek immediate reelection for a fourth term,34
albeit he is allowed to seek a fresh term for the same position after
the election where he could have sought his fourth term but
prevented to do so by reason of the prohibition.
There has, in fine, to be a break or interruption in the successive terms
of the official after his or her third term. An interruption usually occurs
when the official does not seek a fourth term, immediately following
the third. Of course, the basic law is unequivocal that a "voluntary
renunciation of the office for any length of time shall NOT be
considered an interruption in the continuity of service for the full term
for which the elective official concerned was elected." This
qualification was made as a deterrent against an elective local official
intending to skirt the three-term limit rule by merely resigning before
his or her third term ends. This is a voluntary interruption as
distinguished from involuntary interruption which may be brought
about by certain events or causes.
While appearing to be seemingly simple, the three-term limit rule has
engendered a host of disputes resulting from the varying
interpretations applied on local officials who were elected and served
for three terms or more, but whose terms or service was punctuated
by what they view as involuntary interruptions, thus entitling them to
a, but what their opponents perceive as a proscribed, fourth term.
Involuntary interruption is claimed to result from any of these events
or causes: succession or assumption of office by operation of law,
preventive suspension, declaration of the defeated candidate as the
winner in an election contest, declaration of the proclaimed candidate
as the losing party in an election contest, proclamation of a non-
candidate as the winner in a recall election, removal of the official by
operation of law, and other analogous causes.
This brings us to an examination of situations and jurisprudence
wherein such consecutive terms were considered or not considered as
having been "involuntarily interrupted or broken."
(1) Assumption of Office by Operation of Law
In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998)
and Montebon v. Commission on Elections36 (2008), the Court delved
on the effects of "assumption to office by operation of law" on the
three-term limit rule. This contemplates a situation wherein an
elective local official fills by succession a higher local government post
permanently left vacant due to any of the following contingencies, i.e.,
when the supposed incumbent refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns or is otherwise
permanently incapacitated to discharge the functions of his office.37
In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of
Pateros on January 18, 1988 for a term ending June 30, 1992. On
September 2, 1989, Capco became mayor, by operation of law, upon
the death of the incumbent mayor, Cesar Borja. Capco was then
elected and served as mayor for terms 1992-1995 and 1995-1998.
When Capco expressed his intention to run again for the mayoralty
position during the 1998 elections, Benjamin U. Borja, Jr., who was
then also a candidate for mayor, sought Capco’s disqualification for
violation of the three-term limit rule.
Finding for Capco, the Court held that for the disqualification rule to
apply, "it is not enough that an individual has served three consecutive
terms in an elective local office, he must also have been elected to the
same position for the same number of times before the
disqualification can apply."38 There was, the Court ruled, no violation
of the three-term limit, for Capco "was not elected to the office of the
mayor in the first term but simply found himself thrust into it by
operation of law"39 when a permanent vacancy occurred in that
office.
The Court arrived at a parallel conclusion in the case of Montebon.
There, Montebon had been elected for three consecutive terms as
municipal councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and
2004-2007. However, in January 2004, or during his second term,
Montebon succeeded and assumed the position of vice-mayor of
Tuburan when the incumbent vice-mayor retired. When Montebon
filed his certificate of candidacy again as municipal councilor, a
petition for disqualification was filed against him based on the three-
term limit rule. The Court ruled that Montebon’s assumption of office
as vice-mayor in January 2004 was an interruption of his continuity of
service as councilor. The Court emphasized that succession in local
government office is by operation of law and as such, it is an
involuntary severance from office. Since the law no less allowed
Montebon to vacate his post as councilor in order to assume office as
vice-mayor, his occupation of the higher office cannot, without more,
be deemed as a voluntary renunciation of his position as councilor.
(2) Recall Election
With reference to the effects of recall election on the continuity of
service, Adormeo v. Commission on Elections40 (2002) and the
aforementioned case of Socrates (2002) provide guidance.
In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as
mayor of Lucena City during terms 1992-1995 and 1995-1998. During
the 1998 elections, Talaga lost to Bernard G. Tagarao. However, before
Tagarao’s 1998-2001 term ended, a recall election was conducted in
May 2000 wherein Talaga won and served the unexpired term of
Tagarao until June 2001. When Talaga ran for mayor in 2001, his
candidacy was challenged on the ground he had already served as
mayor for three consecutive terms for violation of the three term-limit
rule. The Court held therein that the remainder of Tagarao’s term after
the recall election during which Talaga served as mayor should not be
considered for purposes of applying the three-term limit rule. The
Court emphasized that the continuity of Talaga’s mayorship was
disrupted by his defeat during the 1998 elections.
A similar conclusion was reached by the Court in Socrates. The
petitioners in that case assailed the COMELEC Resolution which
declared Edward Hagedorn qualified to run for mayor in a recall
election. It appeared that Hagedorn had been elected and served as
mayor of Puerto Princesa City for three consecutive terms: in 1992-
1995, 1995-1998 and 1998-2001. Obviously aware of the three-term
limit principle, Hagedorn opted not to vie for the same mayoralty
position in the 2001 elections, in which Socrates ran and eventually
won. However, midway into his term, Socrates faced recall
proceedings and in the recall election held, Hagedorn run for the
former’s unexpired term as mayor. Socrates sought Hagedorn’s
disqualification under the three-term limit rule.
In upholding Hagedorn’s candidacy to run in the recall election, the
Court ruled:
x x x After Hagedorn ceased to be mayor on June 30, 2001, he became
a private citizen until the recall election of September 24, 2002 when
he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002,
the mayor of Puerto Princesa was Socrates. During the same period,
Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorn’s service as mayor, not
because of his voluntary renunciation, but because of a legal
prohibition.41
The Court likewise emphasized in Socrates that "an elective local
official cannot seek immediate reelection for a fourth term. The
prohibited election refers to the next regular election for the same
office following the end of the third consecutive term and, hence, any
subsequent election, like recall election, is no longer covered x x x."42
(3) Conversion of a Municipality into a City
On the other hand, the conversion of a municipality into a city does
not constitute an interruption of the incumbent official’s continuity of
service. The Court said so in Latasa v. Commission on Elections43
(2003).
Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was
elected and served as mayor of the Municipality of Digos, Davao del
Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third
term, Digos was converted into a component city, with the
corresponding cityhood law providing the holdover of elective officials.
When Latasa filed his certificate of candidacy as mayor for the 2001
elections, the Court declared Latasa as disqualified to run as mayor of
Digos City for violation of the three-term limit rule on the basis of the
following ratiocination:
This Court believes that (Latasa) did involuntarily relinquish his office
as municipal mayor since the said office has been deemed abolished
due to the conversion. However, the very instant he vacated his office
as municipal mayor, he also assumed office as city mayor. Unlike in
Lonzanida, where petitioner therein, for even just a short period of
time, stepped down from office, petitioner Latasa never ceased from
acting as chief executive of the local government unit. He never
ceased from discharging his duties and responsibilities as chief
executive of Digos.
(Emphasis supplied.)
(4) Period of Preventive Suspension
In 2009, in the case Aldovino Jr., the Court espoused the doctrine that
the period during which a local elected official is under preventive
suspension cannot be considered as an interruption of the continuity
of his service. The Court explained why so:
Strict adherence to the intent of the three-term limit rule demands
that preventive suspension should not be considered an interruption
that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because
the suspended official continues to stay in office although he is barred
from exercising the functions and prerogatives of the office within the
suspension period. The best indicator of the suspended official’s
continuity in office is the absence of a permanent replacement and the
lack of the authority to appoint one since no vacancy exists.44
(Emphasis supplied.)
(5) Election Protest

With regard to the effects of an election protest vis-à-vis the three-
term limit rule, jurisprudence presents a more differing picture. The
Court’s pronouncements in Lonzanida v. Commission on Elections45
(1999), Ong v. Alegre46 (2006), Rivera III v. Commission on Elections47
(2007) and Dizon v. Commission on Elections48 (2009), all protest
cases, are illuminating.
In Lonzanida, Romeo Lonzanida was elected and had served as
municipal mayor of San Antonio, Zambales in terms 1989-1992, 1992-
1995 and 1995-1998. However, his proclamation relative to the 1995
election was protested and was eventually declared by the RTC and
then by COMELEC null and void on the ground of failure of elections.
On February 27, 1998, or about three months before the May 1998
elections, Lonzanida vacated the mayoralty post in light of a COMELEC
order and writ of execution it issued. Lonzanida’s opponent assumed
office for the remainder of the term. In the May 1998 elections,
Lonzanida again filed his certificate of candidacy. His opponent, Efren
Muli, filed a petition for disqualification on the ground that Lonzanida
had already served three consecutive terms in the same post. The
Court, citing Borja Jr., reiterated the two (2) conditions which must
concur for the three-term limit to apply: "1) that the official concerned
has been elected for three consecutive terms in the same local
government post and 2) that he has fully served three consecutive
terms."49
In view of Borja, Jr., the Court ruled that the foregoing requisites were
absent in the case of Lonzanida. The Court held that Lonzanida cannot
be considered as having been duly elected to the post in the May 1995
elections since his assumption of office as mayor "cannot be deemed
to have been by reason of a valid election but by reason of a void
proclamation." And as a corollary point, the Court stated that
Lonzanida did not fully serve the 1995-1998 mayoral term having been
ordered to vacate his post before the expiration of the term, a
situation which amounts to an involuntary relinquishment of
office.This Court deviated from the ruling in Lonzanida in Ong v.
Alegre50 owing to a variance in the factual situations attendant.
In that case, Francis Ong (Ong) was elected and served as mayor of San
Vicente, Camarines Norte for terms 1995-1998, 1998-2001, and 2001-
2004. During the 1998 mayoralty elections, or during his supposed
second term, the COMELEC nullified Ong’s proclamation on the
postulate that Ong lost during the 1998 elections. However, the
COMELEC’s decision became final and executory on July 4, 2001, when
Ong had fully served the 1998-2001 mayoralty term and was in fact
already starting to serve the 2001-2004 term as mayor-elect of the
municipality of San Vicente. In 2004, Ong filed his certificate of
candidacy for the same position as mayor, which his opponent
opposed for violation of the three-term limit rule.
Ong invoked the ruling in Lonzanida and argued that he could not be
considered as having served as mayor from 1998-2001 because he was
not duly elected to the post and merely assumed office as a
"presumptive winner." Dismissing Ong’s argument, the Court held that
his assumption of office as mayor for the term 1998-2001 constitutes
"service for the full term" and hence, should be counted for purposes
of the three-term limit rule. The Court modified the conditions stated
in Lonzanida in the sense that Ong’s service was deemed and counted
as service for a full term because Ong’s proclamation was voided only
after the expiry of the term. The Court noted that the COMELEC
decision which declared Ong as not having won the 1998 elections was
"without practical and legal use and value" promulgated as it was after
the contested term has expired. The Court further reasoned:
Petitioner Francis Ong’s contention that he was only a presumptive
winner in the 1998 mayoralty derby as his proclamation was under
protest did not make him less than a duly elected mayor. His
proclamation as the duly elected mayor in the 1998 mayoralty election
coupled by his assumption of office and his continuous exercise of the
functions thereof from start to finish of the term, should legally be
taken as service for a full term in contemplation of the three-term
rule.
The absurdity and the deleterious effect of a contrary view is not hard
to discern. Such contrary view would mean that Alegre would – under
the three-term rule - be considered as having served a term by virtue
of a veritably meaningless electoral protest ruling, when another
actually served such term pursuant to a proclamation made in due
course after an election.51 (Emphasis supplied.)
The Court did not apply the ruling in Lonzanida and ruled that the case
of Ong was different, to wit:
The difference between the case at bench and Lonzanida is at once
apparent. For one, in Lonzanida, the result of the mayoralty election
was declared a nullity for the stated reason of "failure of election",
and, as a consequence thereof, the proclamation of Lonzanida as
mayor-elect was nullified, followed by an order for him to vacate the
office of mayor. For another, Lonzanida did not fully serve the 1995-
1998 mayoral term, there being an involuntary severance from office
as a result of legal processes. In fine, there was an effective
interruption of the continuity of service.52 (Emphasis supplied.)
Ong’s slight departure from Lonzanida would later find reinforcement
in the consolidated cases of Rivera III v. Commission on Elections53
and Dee v. Morales.54 Therein, Morales was elected mayor of
Mabalacat, Pampanga for the following consecutive terms: 1995-1998,
1998-2001 and 2001-2004. In relation to the 2004 elections, Morales
again ran as mayor of the same town, emerged as garnering the
majority votes and was proclaimed elective mayor for term
commencing July 1, 2004 to June 30, 2007. A petition for quo warranto
was later filed against Morales predicated on the ground that he is
ineligible to run for a "fourth" term, having served as mayor for three
consecutive terms. In his answer, Morales averred that his supposed
1998-2001 term cannot be considered against him, for, although he
was proclaimed by the Mabalacat board of canvassers as elected
mayor vis-à-vis the 1998 elections and discharged the duties of mayor
until June 30, 2001, his proclamation was later nullified by the RTC of
Angeles City and his closest rival, Anthony Dee, proclaimed the duly
elected mayor. Pursuing his point, Morales parlayed the idea that he
only served as a mere caretaker.
The Court found Morales’ posture untenable and held that the case of
Morales presents a factual milieu similar with Ong, not with Lonzanida.
For ease of reference, the proclamation of Francis Ong, in Ong, was
nullified, but after he, like Morales, had served the three-year term
from the start to the end of the term. Hence, the Court concluded that
Morales exceeded the three-term limit rule, to wit:
Here, respondent Morales was elected for the term July 1, 1998 to
June 30, 2001. He assumed the position. He served as mayor until June
30, 2001. He was mayor for the entire period notwithstanding the
Decision of the RTC in the electoral protest case filed by petitioner Dee
ousting him (respondent) as mayor. To reiterate, as held in Ong v.
Alegre, such circumstance does not constitute an interruption in
serving the full term.
xxxx
Respondent Morales is now serving his fourth term. He has been
mayor of Mabalacat continuously without any break since July 1, 1995.
In just over a month, by June 30, 2007, he will have been mayor of
Mabalacat for twelve (12) continuous years.55 (Emphasis supplied.)
The Court ruled in Rivera that the fact of being belatedly ousted, i.e.,
after the expiry of the term, cannot constitute an interruption in
Morales’ service of the full term; neither can Morales, as he argued, be
considered merely a "caretaker of the office" or a mere "de facto
officer" for purposes of applying the three-term limit rule.
In a related 2009 case of Dizon v. Commission on Elections,56 the
Court would again find the same Mayor Morales as respondent in a
disqualification proceeding when he ran again as a mayoralty
candidate during the 2007 elections for a term ending June 30, 2010.
Having been unseated from his post by virtue of this Court’s ruling in
Rivera, Morales would argue this time around that the three-term limit
rule was no longer applicable as to his 2007 mayoralty bid. This time,
the Court ruled in his favor, holding that for purposes of the 2007
elections, the three-term limit rule was no longer a disqualifying factor
as against Morales. The Court wrote:
Our ruling in the Rivera case served as Morales’ involuntary severance
from office with respect to the 2004-2007 term. Involuntary severance
from office for any length of time short of the full term provided by
law amounts to an interruption of continuity of service. Our decision in
the Rivera case was promulgated on 9 May 2007 and was effective
immediately. The next day, Morales notified the vice mayor’s office of
our decision. The vice mayor assumed the office of the mayor from 17
May 2007 up to 30 June 2007. The assumption by the vice mayor of
the office of the mayor, no matter how short it may seem to Dizon,
interrupted Morales’ continuity of service. Thus, Morales did not hold
office for the full term of 1 July 2004 to 30 June 2007.57 (Emphasis
supplied)
To summarize, hereunder are the prevailing jurisprudence on issues
affecting consecutiveness of terms and/or involuntary interruption,
viz:
1. When a permanent vacancy occurs in an elective position and the
official merely assumed the position pursuant to the rules on
succession under the LGC, then his service for the unexpired portion of
the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision
that service cannot be counted in the application of any term limit
(Borja, Jr.). If the official runs again for the same position he held prior
to his assumption of the higher office, then his succession to said
position is by operation of law and is considered an involuntary
severance or interruption (Montebon).
2. An elective official, who has served for three consecutive terms and
who did not seek the elective position for what could be his fourth
term, but later won in a recall election, had an interruption in the
continuity of the official’s service. For, he had become in the interim,
i.e., from the end of the 3rd term up to the recall election, a private
citizen (Adormeo and Socrates).
3. The abolition of an elective local office due to the conversion of a
municipality to a city does not, by itself, work to interrupt the
incumbent official’s continuity of service (Latasa).
4. Preventive suspension is not a term-interrupting event as the
elective officer’s continued stay and entitlement to the office remain
unaffected during the period of suspension, although he is barred
from exercising the functions of his office during this period (Aldovino,
Jr.).
5. When a candidate is proclaimed as winner for an elective position
and assumes office, his term is interrupted when he loses in an
election protest and is ousted from office, thus disenabling him from
serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The
break or interruption need not be for a full term of three years or for
the major part of the 3-year term; an interruption for any length of
time, provided the cause is involuntary, is sufficient to break the
continuity of service (Socrates, citing Lonzanida).
6. When an official is defeated in an election protest and said decision
becomes final after said official had served the full term for said office,
then his loss in the election contest does not constitute an
interruption since he has managed to serve the term from start to
finish. His full service, despite the defeat, should be counted in the
application of term limits because the nullification of his proclamation
came after the expiration of the term (Ong and Rivera).
The Case of Abundo
Abundo argues that the RTC and the COMELEC erred in uniformly
ruling that he had already served three consecutive terms and is, thus,
barred by the constitutional three-term limit rule to run for the
current 2010-2013 term. In gist, Abundo arguments run thusly:
1. Aldovino, Jr. is not on all fours with the present case as the former
dealt with preventive suspension which does not interrupt the
continuity of service of a term;
2. Aldovino, Jr. recognizes that the term of an elected official can be
interrupted so as to remove him from the reach of the constitutional
three-term limitation;
3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr.
by its reliance on a mere portion of the Decision and not on the unified
logic in the disquisition;
4. Of appropriate governance in this case is the holding in Lonzanida58
and Rivera III v. Commission on Elections.59
5. The COMELEC missed the point when it ruled that there was no
interruption in the service of Abundo since what he considered as an
"interruption" of his 2004-2007 term occurred before his term started;
and
6. To rule that the term of the protestee (Torres) whose proclamation
was adjudged invalid was interrupted while that of the protestant
(Abundo) who was eventually proclaimed winner was not so
interrupted is at once absurd as it is illogical.
Both respondents Vega and the COMELEC counter that the ratio
decidendi of Aldovino, Jr. finds application in the instant case. The
COMELEC ruled that Abundo did not lose title to the office as his
victory in the protest case confirmed his entitlement to said office and
he was only unable to temporarily discharge the functions of the office
during the pendency of the election protest.
We note that this present case of Abundo deals with the effects of an
election protest, for which the rulings in Lonzanida, Ong, Rivera and
Dizon appear to be more attuned than the case of Aldovino Jr., the
interrupting effects of the imposition of a preventive suspension being
the very lis mota in the Aldovino, Jr. case. But just the same, We find
that Abundo’s case presents a different factual backdrop.
Unlike in the abovementioned election protest cases wherein the
individuals subject of disqualification were candidates who lost in the
election protest and each declared loser during the elections, Abundo
was the winner during the election protest and was declared the
rightful holder of the mayoralty post. Unlike Mayor Lonzanida and
Mayor Morales, who were both unseated toward the end of their
respective terms, Abundo was the protestant who ousted his
opponent and had assumed the remainder of the term.
Notwithstanding, We still find this Court’s pronouncements in the past
as instructive, and consider several doctrines established from the
1998 case of Borja, Jr. up to the most recent case of Aldovino Jr. in
2009, as potent aids in arriving at this Court’s conclusion.
The intention behind the three-term limit rule was not only to
abrogate the "monopolization of political power" and prevent elected
officials from breeding "proprietary interest in their position"60 but
also to "enhance the people’s freedom of choice."61 In the words of
Justice Vicente V. Mendoza, "while people should be protected from
the evils that a monopoly of power may bring about, care should be
taken that their freedom of choice is not unduly curtailed."62
In the present case, the Court finds Abundo’s case meritorious and
declares that the two-year period during which his opponent, Torres,
was serving as mayor should be considered as an interruption, which
effectively removed Abundo’s case from the ambit of the three-term
limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for
the term starting July 1, 2004 to June 30, 2007, was the duly elected
mayor. Otherwise how explain his victory in his election protest
against Torres and his consequent proclamation as duly elected
mayor. Accordingly, the first requisite for the application of the
disqualification rule based on the three-term limit that the official has
been elected is satisfied.
This thus brings us to the second requisite of whether or not Abundo
had served for "three consecutive terms," as the phrase is juridically
understood, as mayor of Viga, Catanduanes immediately before the
2010 national and local elections. Subsumed to this issue is of course
the question of whether or not there was an effective involuntary
interruption during the three three-year periods, resulting in the
disruption of the continuity of Abundo’s mayoralty.
The facts of the case clearly point to an involuntary interruption during
the July 2004-June 2007 term.
There can be no quibbling that, during the term 2004-2007, and with
the enforcement of the decision of the election protest in his favor,
Abundo assumed the mayoralty post only on May 9, 2006 and served
the term until June 30, 2007 or for a period of a little over one year
and one month. Consequently, unlike Mayor Ong in Ong and Mayor
Morales in Rivera, it cannot be said that Mayor Abundo was able to
serve fully the entire 2004-2007 term to which he was otherwise
entitled.
A "term," as defined in Appari v. Court of Appeals,63 means, in a legal
sense, "a fixed and definite period of time which the law describes
that an officer may hold an office."64 It also means the "time during
which the officer may claim to hold office as a matter of right, and
fixes the interval after which the several incumbents shall succeed one
another."65 It is the period of time during which a duly elected official
has title to and can serve the functions of an elective office. From
paragraph (a) of Sec. 43, RA 7160,66 the term for local elected officials
is three (3) years starting from noon of June 30 of the first year of said
term.
In the present case, during the period of one year and ten months, or
from June 30, 2004 until May 8, 2006, Abundo cannot plausibly claim,
even if he wanted to, that he could hold office of the mayor as a
matter of right. Neither can he assert title to the same nor serve the
functions of the said elective office. The reason is simple: during that
period, title to hold such office and the corresponding right to assume
the functions thereof still belonged to his opponent, as proclaimed
election winner. Accordingly, Abundo actually held the office and
exercised the functions as mayor only upon his declaration, following
the resolution of the protest, as duly elected candidate in the May
2004 elections or for only a little over one year and one month.
Consequently, since the legally contemplated full term for local
elected officials is three (3) years, it cannot be said that Abundo fully
served the term 2004-2007. The reality on the ground is that Abundo
actually served less.
Needless to stress, the almost two-year period during which Abundo’s
opponent actually served as Mayor is and ought to be considered an
involuntary interruption of Abundo’s continuity of service. An
involuntary interrupted term, cannot, in the context of the
disqualification rule, be considered as one term for purposes of
counting the three-term threshold.67
The notion of full service of three consecutive terms is related to the
concepts of interruption of service and voluntary renunciation of
service. The word interruption means temporary cessation,
intermission or suspension.68 To interrupt is to obstruct, thwart or
prevent.69 When the Constitution and the LGC of 1991 speak of
interruption, the reference is to the obstruction to the continuance of
the service by the concerned elected official by effectively cutting
short the service of a term or giving a hiatus in the occupation of the
elective office. On the other hand, the word "renunciation" connotes
the idea of waiver or abandonment of a known right. To renounce is to
give up, abandon, decline or resign.70 Voluntary renunciation of the
office by an elective local official would thus mean to give up or
abandon the title to the office and to cut short the service of the term
the concerned elected official is entitled to.
In its assailed Resolution, the COMELEC en banc, applying Aldovino,
Jr.,71 held:
It must be stressed that involuntary interruption of service which
jurisprudence deems an exception to the three-term limit rule, implies
that the service of the term has begun before it was interrupted. Here,
the respondent did not lose title to the office. As the assailed
Resolution states:
In the case at bar, respondent cannot be said to have lost his title to
the office. On the contrary, he actively sought entitlement to the office
when he lodged the election protest case. And respondent-appellant’s
victory in the said case is a final confirmation that he was validly
elected for the mayoralty post of Viga, Catanduanes in 2004-2007. At
most, respondent-appellant was only unable to temporarily discharge
the functions of the office to which he was validly elected during the
pendency of the election protest, but he never lost title to the said
office.72 (Emphasis added.)
The COMELEC’s Second Division, on the other hand, pronounced that
the actual length of service by the public official in a given term is
immaterial by reckoning said service for the term in the application of
the three-term limit rule, thus:
As emphasized in the case of Aldovino, "this formulation—no more
than three consecutive terms—is a clear command suggesting the
existence of an inflexible rule." Therefore we cannot subscribe to the
argument that since respondent Abundo served only a portion of the
term, his 2004-2007 "term" should not be considered for purposes of
the application of the three term limit rule. When the framers of the
Constitution drafted and incorporated the three term limit rule, it is
clear that reference is to the term, not the actual length of the service
the public official may render. Therefore, one’s actual service of term
no matter how long or how short is immaterial.73
In fine, the COMELEC ruled against Abundo on the theory that the
length of the actual service of the term is immaterial in his case as he
was only temporarily unable to discharge his functions as mayor.
The COMELEC’s case disposition and its heavy reliance on Aldovino, Jr.
do not commend themselves for concurrence. The Court cannot
simply find its way clear to understand the poll body’s determination
that Abundo was only temporarily unable to discharge his functions as
mayor during the pendency of the election protest.
As previously stated, the declaration of being the winner in an election
protest grants the local elected official the right to serve the unexpired
portion of the term. Verily, while he was declared winner in the
protest for the mayoralty seat for the 2004-2007 term, Abundo’s full
term has been substantially reduced by the actual service rendered by
his opponent (Torres). Hence, there was actual involuntary
interruption in the term of Abundo and he cannot be considered to
have served the full 2004-2007 term.
This is what happened in the instant case. It cannot be
overemphasized that pending the favorable resolution of his election
protest, Abundo was relegated to being an ordinary constituent since
his opponent, as presumptive victor in the 2004 elections, was
occupying the mayoralty seat. In other words, for almost two years or
from July 1, 2004—the start of the term—until May 9, 2006 or during
which his opponent actually assumed the mayoralty office, Abundo
was a private citizen warming his heels while awaiting the outcome of
his protest. Hence, even if declared later as having the right to serve
the elective position from July 1, 2004, such declaration would not
erase the fact that prior to the finality of the election protest, Abundo
did not serve in the mayor’s office and, in fact, had no legal right to
said position.
Aldovino Jr. cannot possibly lend support to respondent’s cause of
action, or to COMELEC’s resolution against Abundo. In Aldovino Jr., the
Court succinctly defines what temporary inability or disqualification to
exercise the functions of an elective office means, thus:
On the other hand, temporary inability or disqualification to exercise
the functions of an elective post, even if involuntary, should not be
considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from
holding office; the office holder, while retaining title, is simply barred
from exercising the functions of his office for a reason provided by
law.74
We rule that the above pronouncement on preventive suspension
does not apply to the instant case. Verily, it is erroneous to say that
Abundo merely was temporarily unable or disqualified to exercise the
functions of an elective post. For one, during the intervening period of
almost two years, reckoned from the start of the 2004-2007 term,
Abundo cannot be said to have retained title to the mayoralty office as
he was at that time not the duly proclaimed winner who would have
the legal right to assume and serve such elective office. For another,
not having been declared winner yet, Abundo cannot be said to have
lost title to the office since one cannot plausibly lose a title which, in
the first place, he did not have. Thus, for all intents and purposes, even
if the belated declaration in the election protest accords him title to
the elective office from the start of the term, Abundo was not entitled
to the elective office until the election protest was finally resolved in
his favor.1âwphi1
Consequently, there was a hiatus of almost two years, consisting of a
break and effective interruption of his service, until he assumed the
office and served barely over a year of the remaining term. At this
juncture, We observe the apparent similarities of Mayor Abundo’s
case with the cases of Mayor Talaga in Adormeo and Mayor Hagedorn
in Socrates as Mayors Talaga and Hagedorn were not proclaimed
winners since they were non-candidates in the regularelections. They
were proclaimed winners during the recall elections and clearly were
not able to fully serve the terms of the deposed incumbent officials.
Similar to their cases where the Court deemed their terms as
involuntarily interrupted, Abundo also became or was a private citizen
during the period over which his opponent was serving as mayor. If in
Lonzanida, the Court ruled that there was interruption in Lonzanida’s
service because of his subsequent defeat in the election protest, then
with more reason, Abundo’s term for 2004-2007 should be declared
interrupted since he was not proclaimed winner after the 2004
elections and was able to assume the office and serve only for a little
more than a year after winning the protest.
As aptly stated in Latasa, to be considered as interruption of service,
the "law contemplates a rest period during which the local elective
official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a
particular local government unit."75 Applying the said principle in the
present case, there is no question that during the pendency of the
election protest, Abundo ceased from exercising power or authority
over the good people of Viga, Catanduanes.
Consequently, the period during which Abundo was not serving as
mayor should be considered as a rest period or break in his service
because, as earlier stated, prior to the judgment in the election
protest, it was Abundo’s opponent, Torres, who was exercising such
powers by virtue of the still then valid proclamation.
As a final note, We reiterate that Abundo’s case differs from other
cases involving the effects of an election protest because while
Abundo was, in the final reckoning, the winning candidate, he was the
one deprived of his right and opportunity to serve his constituents. To
a certain extent, Abundo was a victim of an imperfect election system.
While admittedly the Court does not possess the mandate to remedy
such imperfections, the Constitution has clothed it with enough
authority to establish a fortress against the injustices it may bring.
In this regard, We find that a contrary ruling would work damage and
cause grave injustice to Abundo––an elected official who was
belatedly declared as the winner and assumed office for only a short
period of the term. If in the cases of Lonzanida and Dizon, this Court
ruled in favor of a losing candidate––or the person who was adjudged
not legally entitled to hold the contested public office but held it
anyway––We find more reason to rule in favor of a winning candidate-
protestant who, by popular vote, deserves title to the public office but
whose opportunity to hold the same was halted by an invalid
proclamation.
Also, more than the injustice that may be committed against Abundo
is the injustice that may likewise be committed against the people of
Viga, Catanduanes by depriving them of their right to choose their
leaders. Like the framers of the Constitution, We bear in mind that We
"cannot arrogate unto ourselves the right to decide what the people
want"76 and hence, should, as much as possible, "allow the people to
exercise their own sense of proportion and rely on their own strength
to curtail the power when it overreaches itself."77 For democracy
draws strength from the choice the people make which is the same
choice We are likewise bound to protect.
WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly,
the assailed February 8, 2012 Resolution of the Commission on
Elections Second Division and May 10, 2012 Resolution of the
Commission on Elections en banc in EAC (AE) No. A-25-2010 and the
Decision of the Regional Trial Court (RTC) of Virac, Catanduanes,
Branch 43, dated August 9, 2010, in Election Case No. 55, are hereby
REVERSED and SET ASIDE.
Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position
of Mayor of Viga, Catanduanes to which he was duly elected in the
May 2010 elections and is accordingly ordered IMMEDIATELY
REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar O.
Cervantes are ordered to immediately vacate the positions of Mayor
and Vice-Mayor of Viga, Catanduanes, respectively, and shall revert to
their original positions of Vice-Mayor and First Councilor, respectively,
upon receipt of this Decision.
The TRO issued by the Court on July 3, 2012 is hereby LIFTED.
This Decision is immediately executory.
SO ORDERED.
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS
and JOSE T. CAPCO, JR., respondents.
DECISION
MENDOZA, J.:
This case presents for determination the scope of the constitutional
provision barring elective officials, with the exception of barangay
officials, from serving more than three consecutive terms. In
particular, the question is whether a vice-mayor who succeeds to the
office of mayor by operation of law and serves the remainder of the
term is considered to have served a term in that office for the purpose
of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of
Pateros on January 18, 1988 for a term ending June 30, 1992. On
September 2, 1989, he became mayor, by operation of law, upon the
death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was
elected mayor for a term of three years which ended on June 30, 1995.
On May 8, 1995, he was reelected mayor for another term of three
years ending June 30, 1998.[1]
On March 27, 1998, private respondent Capco filed a certificate of
candidacy for mayor of Pateros relative to the May 11, 1998 elections.
Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor,
sought Capcos disqualification on the theory that the latter would
have already served as mayor for three consecutive terms by June 30,
1998 and would therefore be ineligible to serve for another term after
that.
On April 30, 1998, the Second Division of the Commission on Elections
ruled in favor of petitioner and declared private respondent Capco
disqualified from running for reelection as mayor of Pateros.[2]
However, on motion of private respondent, the COMELEC en banc,
voting 5-2, reversed the decision and declared Capco eligible to run for
mayor in the May 11, 1998 elections.[3] The majority stated in its
decision:
In both the Constitution and the Local Government Code, the three-
term limitation refers to the term of office for which the local official
was elected. It made no reference to succession to an office to which
he was not elected. In the case before the Commission, respondent
Capco was not elected to the position of mayor in the January 18,
1988 local elections. He succeeded to such office by operation of law
and served for the unexpired term of his predecessor. Consequently,
such succession into office is not counted as one (1) term for purposes
of the computation of the three-term limitation under the
Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He
received 16,558 votes against petitioners 7,773 votes and was
proclaimed elected by the Municipal Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution,
dated May 7, 1998, of he COMELEC and to seed a declaration that
private respondent is disqualified to serve another term as Mayor of
Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor
from September 2, 1989 to June 30, 992 should be considered as
service for full one term, and since he thereafter served from 1992 to
1998 two more terms as mayor, he should be considered to have
served three consecutive terms within the contemplation of Art. X, 8
of the Constitution and 43(b) of the Local Government Code.
Petitioner stresses the fact that, upon the death of Mayor Cesar Borja
on September 2, 1989, private respondent became the mayor and
thereafter served the remainder of the term. Petitioner argues that it
is irrelevant that private respondent became mayor by succession
because the purpose of the constitutional provision in limiting the
number of terms elective local officials may serve is to prevent a
monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution
provides:
SEC. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A.
No. 7160):
Sec. 43. Term of Office - . . .
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which the elective
official concerned was elected.
First, to prevent the establishment of political dynasties is not the only
policy embodied in the constitutional provision in question. The other
policy is that of enhancing the freedom of choice of the people. To
consider, therefore, only stay in office regardless of how the official
concerned came to that office whether by election or by succession by
operation of law would be to disregard one of the purposes of the
constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the
Constitution reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization
of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive
terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred
from running for the same position in the succeeding election
following the expiration of the third consecutive term.[4] Monsod
warned against prescreening candidates [from] whom the people will
choose as a result of the proposed absolute disqualification,
considering that the draft constitution provision recognizing peoples
power.[5]
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a
temporary or a perpetual disqualification on those who have served
their terms in accordance with the limits on consecutive service as
decided by the Constitutional Commission. I would be very wary about
this Commission exercising a sort of omnipotent power in order to
disqualify those who will already have served their terms from
perpetuating themselves in office. I think the Commission achieves its
purpose in establishing safeguards against the excessive accumulation
of power as a result of consecutive terms. We do put a cap on
consecutive service in the case of the President, six years; in the case
of the Vice-President, unlimited; and in the case of the Senators, one
reelection. In the case of the Members of Congress, both from the
legislative districts and from the party list and sectoral representation,
this is now under discussion and later on the policy concerning local
officials will be taken up by the Committee on Local Governments. The
principle remains the same. I think we want to prevent future
situations where, as a result of continuous service and frequent
reelections, officials from the President down to the municipal mayor
tend to develop a proprietary interest in their position and to
accumulate those powers and perquisites that permit them to stay on
indefinitely or to transfer these posts to members of their families in a
subsequent election. I think that is taken care of because we put a gap
on the continuity or the unbroken service of all of these officials. But
where we now decide to put these prospective servants of the people
or politicians, if we want to use the coarser term, under a perpetual
disqualification, I have a feeling that we are taking away too much
from the people, whereas we should be giving as much to the people
as we can in terms of their own freedom of choice.[6]
Other commissioners went on record against perpetually disqualifying
elective officials who have served a certain number of terms as this
would deny the right of the people to choose. As Commissioner Yusup
R. Abubakar asked, why should we arrogate unto ourselves the right to
decide what the people want?[7]
Commisioner Felicitas S. Aquino spoke in the same vein when she
called on her colleagues to "allow the people to exercise their own
sense of proportion and [rely] on their own strength to curtail power
when it overreaches itself.[8]
Commissioner Teodoro C. Bacani stressed: Why should we not leave
[perpetual disqualification after serving a number of terms] to the
premise accepted by practically everybody here that our people are
politically mature? Should we use this assumption only when it is
convenient for us, and not when it may also lead to a freedom of
choice for the people and for politicians who may aspire to serve them
longer?[9]
Two ideas thus emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term,
derived from the concern about the accumulation of power as a result
of a prolonged stay in office. The second is the idea of election,
derived from the concern that the right of the people to choose those
whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of
the Constitution did so on the assumption that the officials concerned
were serving by reason of reelection. This is clear from the following
exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI 4 and 7 of the Constitution, for members of
Congress:
MR. GASCON. I would like to ask a question with regard to the issue
after the second term. We will allow the Senator to rest for a period of
time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the
Gentlemen will remember- was: How long will that period of rest be?
Will it be one election which is three years or one term which is six
years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo
expressed the view that during the election following the expiration of
the first 12 years, whether such election will be on the third year or on
the sixth year thereafter, this particular member of the Senate can
run. So it is not really a period of hibernation for six years. That was
the Committees stand.[10]
Indeed, a fundamental tenet of representative democracy is that the
people should be allowed to choose whom they please to govern
them.[11] To bar the election of a local official because he has already
served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate
this principle.
Second, not only historical examination but textual analysis as well
supports the ruling of the COMELEC that Art. X, 8 contemplates service
by local officials for three consecutive terms as a result of election. The
first sentence speaks of the term of office of elective local officials and
bars such official[s] from serving for more than three consecutive
terms. The second sentence, in explaining when an elective local
official may be deemed to have served his full term of office, states
that voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for
the full term for which he was elected. The term served must
therefore be one for which [the official concerned] was elected. The
purpose of this provision is to prevent a circumvention of the
limitation on the number of terms an elective official may serve.
Conversely, if he is not serving a term for which he was elected
because he is simply continuing the service of the official he succeeds,
such official cannot be considered to have fully served the term now
withstanding his voluntary renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7,
which similarly bars members of the House of Representatives from
serving for more than three terms. Commissioner Bernas states that if
one is elected Representative to serve the unexpired term of another,
that unexpired term, no matter how short, will be considered one
term for the purpose of computing the number of successive terms
allowed.[12]
This is actually based on the opinion expressed by Commissioner
Davide in answer to a query of Commissioner Suarez: For example, a
special election is called for a Senator, and the Senator newly elected
would have to serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is already
considered one term? So, half a term, which is actually the correct
statement, plus one term would disqualify the Senator concerned
from running? Is that the meaning of this provision on disqualification,
Madam President? Commissioner Davide said: Yes, because we speak
of term and if there is a special election, he will serve only for the
unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower
House.[13]
There is a difference, however, between the case of a vice-mayor and
that of a member of the House of Representatives who succeeds
another who dies, resigns, becomes incapacitated, or is removed from
office. The vice-mayor succeeds to the mayorship by operation of
law.[14] On the other hand, the Representative is elected to fill the
vacancy.[15] In a real sense, therefore, such Representative serves a
term for which he was elected. As the purpose of the constitutional
provision is to limit the right ot be elected and to serve in Congress, his
service of the unexpired term is rightly counted as his first term.
Rather than refute what we believe to be the intendment of Art. X, 8
with regard to elective local officials, the case of a Representative who
succeeds another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for
succession of the Vice-President to the Presidency in case of vacancy
in that office. After stating that The President shall not be eligible for
any reelection, this provision says that No person who has succeeded
as President and has served as such for more than four years shall be
qualified for election to the same office at any time. Petitioner
contends that, by analogy, the vice-mayor should likewise be
considered to have served a full term as mayor if he succeeds to the
latters office and serves for the remainder of the term.
The framers of the Constitution included such a provision because,
without it, the Vice-President, who simply steps into the Presidency by
succession would be qualified to run for President even if he has
occupied that office for more than four years. The absence of a similar
provision in Art. X, 8 on elective local officials throws in bold relief the
difference between the two cases. It underscores the constitutional
intent to cover only the terms of office to which one may have been
elected for purpose of the three-term limit on local elective officials,
disregarding for this purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the
Presidency and serves in that office for more than four years is
ineligible for election as President. The Vice-President is elected
primarily to succeed the President in the event of the latters death,
permanent disability, removal or resignation. While he may be
appointed to the cabinet, his becoming so is entirely dependent on the
good graces of the President. In running for Vice-President, he may
thus be said to also seek the Presidency. For their part, the electors
likewise choose as Vice-President the candidate who they think can fill
the Presidency in the event it becomes vacant. Hence, service in the
presidency for more than four years may rightly be considered as
service for a full term.
This is not so in the case of the vice-mayor. Under the local
Government Code, he is the presiding officer of the sanggunian and he
appoints all officials and employees of such local assembly. He has
distinct powers and functions, succession to mayorship in the event of
vacancy therein being only one of them.[16] It cannot be said of him,
as much as of the Vice-President in the event of a vacancy in the
Presidency, that in running for vice-mayor, he also seeks the
mayorship. His assumption of the mayorship in the event of vacancy is
more a matter of chance than of design. Hence, his service in that
office should not be counted in the application of any term limit.
To recapitulate, the term limit for elective local officials must be taken
to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an
individual has served three consecutive terms in an elective local
office, he must also have been elected to the same position for the
same number of times before the disqualification can apply. This point
can be made clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason
of the death of the incumbent. Six months before the next election, he
resigns and is twice elected thereafter. Can he run again for mayor in
the next election.
Yes, because although he has already first served as mayor by
succession and subsequently resigned from office before the full term
expired, he has not actually served three full terms in all for the
purpose of applying the term limit. Under Art. X, 8, voluntary
renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one for
which he was elected. Since A is only completing the service of the
term for which the deceased and not he was elected. A cannot be
considered to have completed one term. His resignation constitutes an
interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his first term, he is
twice suspended for misconduct for a total of 1 year. If he is twice
reelected after that, can he run for one more term in the next
election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the
two conditions for the application of the disqualification provisions
have not concurred, namely, that the local official concerned has been
elected three consecutive times and that he has fully served three
consecutive terms. In the first case, even if the local official is
considered to have served three full terms notwithstanding his
resignation before the end of the first term, the fact remains that he
has not been elected three times. In the second case, the local official
has been elected three consecutive times, but he has not fully served
three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor by
succession involves a total failure of the two conditions to concur for
the purpose of applying Art. X 8. Suppose he is twice elected after that
term, is he qualified to run again in the next election?
Yes, because he was not elected to the office of the mayor in the first
term but simply found himself thrust into it by operation of law.
Neither had he served the full term because he only continued the
service, interrupted by the death , of the deceased mayor.
To consider C in the third case to have served the first term in full and
therefore ineligible to run a third time for reelection would be not only
to falsify reality but also to unduly restrict the right of the people to
choose whom they wish to govern them. If the vice-mayor turns out to
be a bad mayor, the people can remedy the situation by simply not
reelecting him for another term. But if, on the other hand, he proves
to be a good mayor, there will be no way the people can return him to
office (even if it is just the third time he is standing for reelection) if his
service of the first term is counted as one of the purpose of applying
the term limit.
To consider C as eligible for reelection would be in accord with the
understanding of the Constitutional Commission that while the people
should be protected from the evils that a monopoly of political power
may bring about, care should be taken that their freedom of choice is
not unduly curtailed.

WHEREFORE, the petition is DISMISSED.
SO ORDERED.
RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON
ELECTIONS and RAMON Y. TALAGA, JR., respondents.
DECISION
QUISUMBING, J.:
Before us is a petition for certiorari, with a prayer for a writ of
preliminary injunction and/or temporary restraining order, to nullify
and set aside the resolution dated May 9, 2001 of public respondent
Commission on Elections in Comelec SPA No. 01-055, which granted
the motion for reconsideration and declared private respondent
Ramon Y. Talaga, Jr., qualified to run for Mayor in Lucena City for the
May 14, 2001 election. Petitioner prays that votes cast in private
respondents favor should not be counted; and should it happen that
private respondent had been already proclaimed the winner, his
proclamation should be declared null and void.
The uncontroverted facts are as follows:
Petitioner and private respondent were the only candidates who filed
their certificates of candidacy for mayor of Lucena City in the May 14,
2001 elections. Private respondent was then the incumbent mayor.
Private respondent Talaga, Jr. was elected mayor in May 1992. He
served the full term. Again, he was re-elected in 1995-1998. In the
election of 1998, he lost to Bernard G. Tagarao. In the recall election of
May 12, 2000, he again won and served the unexpired term of Tagarao
until June 30, 2001.
On March 2, 2001, petitioner filed with the Office of the Provincial
Election Supervisor, Lucena City a Petition to Deny Due Course to or
Cancel Certificate of Candidacy and/or Disqualification of Ramon Y.
Talaga, Jr., on the ground that the latter was elected and had served as
city mayor for three (3) consecutive terms as follows: (1) in the
election of May 1992, where he served the full term; (2) in the election
of May 1995, where he again served the full term; and, (3) in the recall
election of May 12, 2000, where he served only the unexpired term of
Tagarao after having lost to Tagarao in the 1998 election. Petitioner
contended that Talagas candidacy as Mayor constituted a violation of
Section 8, Article X of the 1987 Constitution which provides:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected.
On March 9, 2001, private respondent responded that he was not
elected City Mayor for three (3) consecutive terms but only for two (2)
consecutive terms. He pointed to his defeat in the 1998 election by
Tagarao. Because of his defeat the consecutiveness of his years as
mayor was interrupted, and thus his mayorship was not for three
consecutive terms of three years each. Respondent added that his
service from May 12, 2001 until June 30, 2001 for 13 months and
eighteen (18) days was not a full term, in the contemplation of the law
and the Constitution. He cites Lonzanida vs. COMELEC, G.R. No.
135150, 311 SCRA 602, 611 (1999), as authority to the effect that to
apply disqualification under Section 8, Article X of the Constitution,
two (2) conditions must concur, to wit: (a) that the official concerned
has been elected for three consecutive terms in the same local
government post, and (b) that he has fully served three (3) consecutive
terms.
On April 20, 2001, the COMELEC, through the First Division, found
private respondent Ramon Y. Talaga, Jr. disqualified for the position of
city mayor on the ground that he had already served three (3)
consecutive terms, and his Certificate of Candidacy was ordered
withdrawn and/or cancelled.
On April 27, 2001, private respondent filed a motion for
reconsideration reiterating that three (3) consecutive terms means
continuous service for nine (9) years and that the two (2) years service
from 1998 to 2000 by Tagarao who defeated him in the election of
1998 prevented him from having three consecutive years of service.
He added that Tagaraos tenure from 1998 to 2000 could not be
considered as a continuation of his mayorship. He further alleged that
the recall election was not a regular election, but a separate special
election specifically to remove incompetent local officials.
On May 3, 2001, petitioner filed his Opposition to private respondents
Motion for Reconsideration stating therein that serving the unexpired
term of office is considered as one (1) term.[1] Petitioner further
contended that Article 8 of the Constitution speaks of term and does
not mention tenure. The fact that private respondent was not elected
in the May 1998 election to start a term that began on June 30, 1998
was of no moment, according to petitioner, and what matters is that
respondent was elected to an unexpired term in the recall election
which should be considered one full term from June 30, 1998 to June
30, 2001.
On May 9, 2001, the COMELEC en banc ruled in favor of private
respondent Ramon Y. Talaga, Jr.. It reversed the First Divisions ruling
and held that 1) respondent was not elected for three (3) consecutive
terms because he did not win in the May 11, 1998 elections; 2) that he
was installed only as mayor by reason of his victory in the recall
elections; 3) that his victory in the recall elections was not considered
a term of office and is not included in the 3-term disqualification rule,
and 4) that he did not fully serve the three (3) consecutive terms, and
his loss in the May 11, 1998 elections is considered an interruption in
the continuity of his service as Mayor of Lucena City.
On May 19, 2001, after canvassing, private respondent was
proclaimed as the duly elected Mayor of Lucena City.
Petitioner is now before this Court, raising the sole issue:
WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001,
DECLARING PRIVATE RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED
TO RUN FOR MAYOR IN LUCENA CITY FOR THE MAY 14, 2001
ELECTIONS.[2]
Stated differently, was private respondent disqualified to run for
mayor of Lucena City in the May 14, 2001 elections?[3] This issue
hinges on whether, as provided by the Constitution, he had already
served three consecutive terms in that office.
Petitioner contends that private respondent was disqualified to run for
city mayor by reason of the three-term rule because the unexpired
portion of the term of office he served after winning a recall election,
covering the period May 12, 2000 to June 30, 2001 is considered a full
term. He posits that to interpret otherwise, private respondent would
be serving four (4) consecutive terms of 10 years, in violation of
Section 8, Article X of 1987 Constitution[4] and Section 43 (b) of R.A.
7160, known as the Local Government Code.

Section 43. Term of Office.
xxx
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which the elective
official concerned was elected.
Private respondent, in turn, maintains that his service as city mayor of
Lucena is not consecutive. He lost his bid for a second re-election in
1998 and between June 30, 1998 to May 12, 2000, during Tagaraos
incumbency, he was a private citizen, thus he had not been mayor for
3 consecutive terms.
In its comment, the COMELEC restated its position that private
respondent was not elected for three (3) consecutive terms having lost
his third bid in the May 11, 1998 elections, said defeat is an
interruption in the continuity of service as city mayor of Lucena.
The issue before us was already addressed in Borja, Jr. vs. COMELEC,
295 SCRA 157, 169 (1998), where we held,
To recapitulate, the term limit for elective local officials must be taken
to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an
individual has served three consecutive terms in an elective local
office, he must also have been elected to the same position for the
same number of times before the disqualification can apply. This point
can be made clearer by considering the following case or situation:
xxx
Case No. 2. Suppose B is elected mayor and, during his first term, he is
twice suspended for misconduct for a total of 1 year. If he is twice
reelected after that, can he run for one more term in the next
election?
Yes, because he has served only two full terms successively.
xxx
To consider C as eligible for reelection would be in accord with the
understanding of the Constitutional Commission that while the people
should be protected from the evils that a monopoly of political power
may bring about, care should be taken that their freedom of choice is
not unduly curtailed.
Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611
(1999), we said,
This Court held that the two conditions for the application of the
disqualification must concur: a) that the official concerned has been
elected for three consecutive terms in the same local government post
and 2) that he has fully served three consecutive terms.
Accordingly, COMELECs ruling that private respondent was not elected
for three (3) consecutive terms should be upheld. For nearly two years
he was a private citizen. The continuity of his mayorship was disrupted
by his defeat in the 1998 elections.
Patently untenable is petitioners contention that COMELEC in allowing
respondent Talaga, Jr. to run in the May 1998 election violates Article
X, Section 8 of 1987 Constitution.[5] To bolster his case, respondent
adverts to the comment of Fr. Joaquin Bernas, a Constitutional
Commission member, stating that in interpreting said provision that if
one is elected representative to serve the unexpired term of another,
that unexpired, no matter how short, will be considered one term for
the purpose of computing the number of successive terms allowed.[6]
As pointed out by the COMELEC en banc, Fr. Bernas comment is
pertinent only to members of the House of Representatives. Unlike
local government officials, there is no recall election provided for
members of Congress.[7]
Neither can respondents victory in the recall election be deemed a
violation of Section 8, Article X of the Constitution as voluntary
renunciation for clearly it is not. In Lonzanida vs. COMELEC, we said:
The second sentence of the constitutional provision under scrutiny
states, Voluntary renunciation of office for any length of time shall not
be considered as an interruption in the continuity of service for the full
term for which he was elected. The clear intent of the framers of the
constitution to bar any attempt to circumvent the three-term limit by
a voluntary renunciation of office and at the same time respect the
peoples choice and grant their elected official full service of a term is
evident in this provision. Voluntary renunciation of a term does not
cancel the renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of time
short of the full term provided by law amounts to an interruption of
continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but
in compliance with the legal process of writ of execution issued by the
COMELEC to that effect. Such involuntary severance from office is an
interruption of continuity of service and thus, the petitioner did not
fully serve the 1995-1998 mayoral term.[8]
WHEREFORE, the instant petition is hereby DISMISSED. The resolution
of public respondent Commission on Elections dated May 9, 2001, in
Comelec SPA No. 01-055 is AFFIRMED. Costs against petitioner.
SO ORDERED.
VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City,
petitioner, vs. THE COMMISSION ON ELECTIONS, THE PREPARATORY
RECALL ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim
Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA Interim
Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman and
Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary
Punong Bgy. CARLOS ABALLA, JR. respondents.
[G.R. No. 154683. November 12, 2002]
VICENTE S. SANDOVAL, JR., petitioner, vs. THE COMMISSION ON
ELECTIONS, respondent.
[G.R. Nos. 155083-84. November 12, 2002]
MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE,
SR., petitioners, vs. THE COMMISSION ON ELECTIONS, and EDWARD
S. HAGEDORN, respondents.
DECISION
CARPIO, J.:
The Case
Before us are consolidated petitions for certiorari[1] seeking the
reversal of the resolutions issued by the Commission on Elections
(COMELEC for brevity) in relation to the recall election for mayor of
Puerto Princesa City, Palawan.
The Antecedents

On July 2, 2002, 312 out of 528 members of the then incumbent
barangay officials of the Puerto Princesa convened themselves into a
Preparatory Recall Assembly (PRA for brevity) at the Gymnasium of
Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was
convened to initiate the recall[2] of Victorino Dennis M. Socrates
(Socrates for brevity) who assumed office as Puerto Princesas mayor
on June 30, 2001. The members of the PRA designated Mark David M.
Hagedorn, president of the Association of Barangay Captains, as
interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 (Recall
Resolution for brevity) which declared its loss of confidence in
Socrates and called for his recall. The PRA requested the COMELEC to
schedule the recall election for mayor within 30 days from receipt of
the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition,
docketed as E.M. No. 02-010 (RC), to nullify and deny due course to
the Recall Resolution.
On August 14, 2002, the COMELEC en banc[3] promulgated a
resolution dismissing for lack of merit Socrates petition. The COMELEC
gave due course to the Recall Resolution and scheduled the recall
election on September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution
No. 5673 prescribing the calendar of activities and periods of certain
prohibited acts in connection with the recall election. The COMELEC
fixed the campaign period from August 27, 2002 to September 5, 2002
or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn (Hagedorn for brevity) filed
his certificate of candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo (Adovo for brevity) and Merly
E. Gilo (Gilo for brevity) filed a petition before the COMELEC, docketed
as SPA No. 02-492, to disqualify Hagedorn from running in the recall
election and to cancel his certificate of candidacy. On August 30, 2002,
a certain Bienvenido Ollave, Sr. (Ollave for brevity) filed a petition-in-
intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On
the same date, a certain Genaro V. Manaay filed another petition,
docketed as SPA No. 02-539, against Hagedorn alleging substantially
the same facts and involving the same issues. The petitions were all
anchored on the ground that Hagedorn is disqualified from running for
a fourth consecutive term, having been elected and having served as
mayor of the city for three (3) consecutive full terms immediately prior
to the instant recall election for the same post. Subsequently, SPA Nos.
02-492 and 02-539 were consolidated.
In a resolution promulgated on September 20, 2002, the COMELECs
First Division[4] dismissed for lack of merit SPA Nos. 02-492 and 02-
539. The COMELEC declared Hagedorn qualified to run in the recall
election. The COMELEC also reset the recall election from September
7, 2002 to September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a
resolution denying the motion for reconsideration of Adovo and Gilo.
The COMELEC affirmed the resolution declaring Hagedorn qualified to
run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution
dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course
to the Recall Resolution and scheduled the recall election on
September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in
upholding the Recall Resolution. Socrates cites the following
circumstances as legal infirmities attending the convening of the PRA
and its issuance of the Recall Resolution: (1) not all members of the
PRA were notified of the meeting to adopt the resolution; (2) the
proof of service of notice was palpably and legally deficient; (3) the
members of the PRA were themselves seeking a new electoral
mandate from their respective constituents; (4) the adoption of the
resolution was exercised with grave abuse of authority; and (5) the
PRA proceedings were conducted in a manner that violated his and the
publics constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution
No. 5673 dated August 21, 2002 insofar as it fixed the recall election
on September 7, 2002, giving the candidates only a ten-day campaign
period. He prayed that the COMELEC be enjoined from holding the
recall election on September 7, 2002 and that a new date be fixed
giving the candidates at least an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined
the COMELEC from implementing Resolution No. 5673 insofar as it
fixed the date of the recall election on September 7, 2002. The Court
directed the COMELEC to give the candidates an additional fifteen 15
days from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued
Resolution No. 5708 giving the candidates an additional 15 days from
September 7, 2002 within which to campaign. Thus, the COMELEC
reset the recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELECs resolutions
dated September 20, 2002 and September 23, 2002 in SPA Nos. 02-
492 and 02-539 declaring Hagedorn qualified to run for mayor in the
recall election. They likewise prayed for the issuance of a temporary
restraining order to enjoin the proclamation of the winning candidate
in the recall election.
Petitioners argue that the COMELEC gravely abused its discretion in
upholding Hagedorns qualification to run for mayor in the recall
election despite the constitutional and statutory prohibitions against a
fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court ordered the
COMELEC to desist from proclaiming any winning candidate in the
recall election until further orders from the Court. Petitioners were
required to post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an
attached petition for intervention seeking the same reliefs as those
sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in
the recall election with 20,238 votes. Rival candidates Socrates and
Sandoval obtained 17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from
proclaiming the winning candidate and to allow him to assume office
to give effect to the will of the electorate.
On October 1, 2002, the Court granted Socrates motion for leave to
file a petition for intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave abuse
of discretion in giving due course to the Recall Resolution and
scheduling the recall election for mayor of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for
mayor in the recall election of Puerto Princesa on September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC committed
grave abuse of discretion in fixing a campaign period of only 10 days
has become moot. Our Resolution of September 3, 2002 and COMELEC
Resolution No. 5708 granted an additional 15 days for the campaign
period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse
of discretion in upholding the Recall Resolution despite the absence of
notice to 130 PRA members and the defective service of notice to
other PRA members. The COMELEC, however, found that
On various dates, in the month of June 2002, the proponents for the
Recall of incumbent City Mayor Victorino Dennis M. Socrates sent
notices of the convening of the PRA to the members thereof pursuant
to Section 70 of the Local Government Code. Copies of the said notice
are in Volumes I and II entitled Notices to PRA. Likewise, Proof of
Service for each of the said notices were attached to the Petition and
marked as Annex G of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at the
Barangay Hall. Photos establishing the same were attached to the
Petition and marked as Annex H. The proponents likewise utilized the
broadcast mass media in the dissemination of the convening of the
PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to
the following: [a list of 25 names of provincial elective officials, print
and broadcast media practitioners, PNP officials, COMELEC city,
regional and national officials, and DILG officials].
xxx
The City Election Officer of Puerto Princesa City in her Certification
dated 10 July 2002 certified that upon a thorough and careful
verification of the signatures appearing in PRA Resolution 01-02, x x x
the majority of all members of the PRA concerned approved said
resolution. She likewise certified that not a single member/signatory
of the PRA complained or objected as to the veracity and authenticity
of their signatures.
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in
his Indorsement dated 10 July 2002, stated, upon proper review, all
documents submitted are found in order.
The Acting Director IV, Region IV, in his study dated 30 July 2002
submitted the following recommendations:
This Office, after evaluating the documents filed, finds the instant
Petition sufficient in form and substance. That the PRA was validly
constituted and that the majority of all members thereof approved
Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis
M. Socrates.
xxx.
This Court is bound by the findings of fact of the COMELEC on matters
within the competence and expertise of the COMELEC, unless the
findings are patently erroneous. In Malonzo v. COMELEC,[5] which also
dealt with alleged defective service of notice to PRA members, we
ruled that
Needless to state, the issue of propriety of the notices sent to the PRA
members is factual in nature, and the determination of the same is
therefore a function of the COMELEC. In the absence of patent error,
or serious inconsistencies in the findings, the Court should not disturb
the same. The factual findings of the COMELEC, based on its own
assessments and duly supported by gathered evidence, are conclusive
upon the court, more so, in the absence of a substantiated attack on
the validity of the same.
In the instant case, we do not find any valid reason to hold that the
COMELECs findings of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt
the Recall Resolution on July 2, 2002 because a majority of PRA
members were seeking a new electoral mandate in the barangay
elections scheduled on July 15, 2002. This argument deserves scant
consideration considering that when the PRA members adopted the
Recall Resolution their terms of office had not yet expired. They were
all de jure sangguniang barangay members with no legal
disqualification to participate in the recall assembly under Section 70
of the Local Government Code.
Socrates bewails that the manner private respondents conducted the
PRA proceedings violated his constitutional right to information on
matters of public concern. Socrates, however, admits receiving notice
of the PRA meeting and of even sending his representative and
counsel who were present during the entire PRA proceedings.
Proponents of the recall election submitted to the COMELEC the Recall
Resolution, minutes of the PRA proceedings, the journal of the PRA
assembly, attendance sheets, notices sent to PRA members, and
authenticated master list of barangay officials in Puerto Princesa.
Socrates had the right to examine and copy all these public records in
the official custody of the COMELEC. Socrates, however, does not
claim that the COMELEC denied him this right. There is no legal basis in
Socrates claim that respondents violated his constitutional right to
information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of
discretion in upholding the validity of the Recall Resolution and in
scheduling the recall election on September 24, 2002.
Second Issue: Hagedorns qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section
8, Article X of the Constitution, which states:
Section 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected.
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160,
otherwise known as the Local Government Code, which provides:
Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which the elective
official was elected.
These constitutional and statutory provisions have two parts. The first
part provides that an elective local official cannot serve for more than
three consecutive terms. The clear intent is that only consecutive
terms count in determining the three-term limit rule. The second part
states that voluntary renunciation of office for any length of time does
not interrupt the continuity of service. The clear intent is that
involuntary severance from office for any length of time interrupts
continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service
or consecutive terms.
After three consecutive terms, an elective local official cannot seek
immediate reelection for a fourth term. The prohibited election refers
to the next regular election for the same office following the end of
the third consecutive term. Any subsequent election, like a recall
election, is no longer covered by the prohibition for two reasons. First,
a subsequent election like a recall election is no longer an immediate
reelection after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the continuity of
service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would be
no further election after three terms, or whether there would be no
immediate reelection after three terms. This is clear from the
following deliberations of the Constitutional Commission:
THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:[6] We are now ready to discuss the two issues, as
indicated on the blackboard, and these are Alternative No. I where
there is no further election after a total of three terms and Alternative
No. 2 where there is no immediate reelection after three successive
terms.[7]
The Journal of the Constitutional Commission reports the following
manifestation on the term of elective local officials:
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body
would proceed to the consideration of two issues on the term of
Representatives and local officials, namely: 1) Alternative No. 1 (no
further reelection after a total of three terms), and 2) Alternative No. 2
(no immediate reelection after three successive terms).[8]
The framers of the Constitution used the same no immediate
reelection question in voting for the term limits of Senators[9] and
Representatives of the House.[10]
Clearly, what the Constitution prohibits is an immediate reelection for
a fourth term following three consecutive terms. The Constitution,
however, does not prohibit a subsequent reelection for a fourth term
as long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the
third consecutive term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from seeking
immediate reelection to run in any other subsequent election
involving the same term of office. What the Constitution prohibits is a
consecutive fourth term. The debates in the Constitutional
Commission evidently show that the prohibited election referred to by
the framers of the Constitution is the immediate reelection after the
third term, not any other subsequent election.
If the prohibition on elective local officials is applied to any election
within the three-year full term following the three-term limit, then
Senators should also be prohibited from running in any election within
the six-year full term following their two-term limit. The constitutional
provision on the term limit of Senators is worded exactly like the term
limit of elective local officials, thus:
No Senator shall serve for more than two consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected.[11]
In the debates on the term limit of Senators, the following exchange in
the Constitutional Convention is instructive:
GASCON:[12] I would like to ask a question with regard to the issue
after the second term. We will allow the Senator to rest for a period of
time before he can run again?
DAVIDE:[13] That is correct.
GASCON: And the question that we left behind before - if the
Gentleman will remember - was: How long will that period of rest be?
Will it be one election which is three years or one term which is six
years?
DAVIDE: If the Gentleman will remember, Commissioner Rodrigo
expressed the view that during the election following the expiration of
the first 12 years, whether such election will be on the third or on the
sixth year thereafter, this particular member of the Senate can run. So,
it is not really a period of hibernation for six years. That was the
Committees stand.
GASCON: So, effectively, the period of rest would be three years at the
least.[14] (Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run
after only three years[15] following his completion of two terms. The
framers expressly acknowledged that the prohibited election refers
only to the immediate reelection, and not to any subsequent election,
during the six-year period following the two term limit. The framers of
the Constitution did not intend the period of rest of an elective official
who has reached his term limit to be the full extent of the succeeding
term.
In the case of Hagedorn, his candidacy in the recall election on
September 24, 2002 is not an immediate reelection after his third
consecutive term which ended on June 30, 2001. The immediate
reelection that the Constitution barred Hagedorn from seeking
referred to the regular elections in 2001. Hagedorn did not seek
reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995
and 1998 elections and served in full his three consecutive terms as
mayor of Puerto Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for mayor in the
2001 elections. The Constitution and the Local Government Code
disqualified Hagedorn, who had reached the maximum three-term
limit, from running for a fourth consecutive term as mayor. Thus,
Hagedorn did not run for mayor in the 2001 elections.[16] Socrates ran
and won as mayor of Puerto Princesa in the 2001 elections. After
Hagedorn ceased to be mayor on June 30, 2001, he became a private
citizen until the recall election of September 24, 2002 when he won by
3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002,
the mayor of Puerto Princesa was Socrates. During the same period,
Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorns service as mayor, not
because of his voluntary renunciation, but because of a legal
prohibition. Hagedorns three consecutive terms ended on June 30,
2001. Hagedorns new recall term from September 24, 2002 to June 30,
2004 is not a seamless continuation of his previous three consecutive
terms as mayor. One cannot stitch together Hagedorns previous three-
terms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary
interruption occurred from June 30, 2001 to September 24, 2002
which broke the continuity or consecutive character of Hagedorns
service as mayor.
In Lonzanida v. Comelec,[17] the Court had occasion to explain
interruption of continuity of service in this manner:
x x x The second sentence of the constitutional provision under
scrutiny states, Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the continuity of service
for the full term for which he was elected. The clear intent of the
framers of the constitution to bar any attempt to circumvent the
three-term limit by a voluntary renunciation of office and at the same
time respect the peoples choice and grant their elected official full
service of a term is evident in this provision. Voluntary renunciation of
a term does not cancel the renounced term in the computation of the
three-term limit; conversely, involuntary severance from office for any
length of time short of the full term provided by law amounts to an
interruption of continuity of service. x x x. (Emphasis supplied)
In Hagedorns case, the nearly 15-month period he was out of office,
although short of a full term of three years, constituted an
interruption in the continuity of his service as mayor. The Constitution
does not require the interruption or hiatus to be a full term of three
years. The clear intent is that interruption for any length of time, as
long as the cause is involuntary, is sufficient to break an elective local
officials continuity of service.
In the recent case of Adormeo v. Comelec and Talaga,[18] a
unanimous Court reiterated the rule that an interruption consisting of
a portion of a term of office breaks the continuity of service of an
elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two
consecutive full terms as mayor of Lucena City. In his third bid for
election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However,
in the recall election of May 12, 2000, Talaga won and served the
unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When
Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo,
the other candidate for mayor, petitioned for Talagas disqualification
on the ground that Talaga had already served three consecutive terms
as mayor.
Thus, the issue in Adormeo was whether Talagas recall term was a
continuation of his previous two terms so that he was deemed to have
already served three consecutive terms as mayor. The Court ruled that
Talaga was qualified to run in the 2001 elections, stating that the
period from June 30, 1998 to May 12, 2000 when Talaga was out of
office interrupted the continuity of his service as mayor. Talagas recall
term as mayor was not consecutive to his previous two terms because
of this interruption, there having been a break of almost two years
during which time Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of
office interrupts the continuity of his service and prevents his recall
term from being stitched together as a seamless continuation of his
previous two consecutive terms. In the instant case, we likewise hold
that the nearly 15 months Hagedorn was out of office interrupted his
continuity of service and prevents his recall term from being stitched
together as a seamless continuation of his previous three consecutive
terms. The only difference between Adormeo and the instant case is
the time of the interruption. In Adormeo, the interruption occurred
after the first two consecutive terms. In the instant case, the
interruption happened after the first three consecutive terms. In both
cases, the respondents were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he
assumed office after winning the recall election. Talagas recall term
did not retroact to include the tenure in office of his predecessor. If
Talagas recall term was made to so retroact, then he would have been
disqualified to run in the 2001 elections because he would already
have served three consecutive terms prior to the 2001 elections. One
who wins and serves a recall term does not serve the full term of his
predecessor but only the unexpired term. The period of time prior to
the recall term, when another elective official holds office, constitutes
an interruption in continuity of service. Clearly, Adormeo established
the rule that the winner in the recall election cannot be charged or
credited with the full term of three years for purposes of counting the
consecutiveness of an elective officials terms in office.
In the same manner, Hagedorns recall term does not retroact to
include the tenure in office of Socrates. Hagedorn can only be
disqualified to run in the September 24, 2002 recall election if the
recall term is made to retroact to June 30, 2001, for only then can the
recall term constitute a fourth consecutive term. But to consider
Hagedorns recall term as a full term of three years, retroacting to June
30, 2001, despite the fact that he won his recall term only last
September 24, 2002, is to ignore reality. This Court cannot declare as
consecutive or successive terms of office which historically and
factually are not.
Worse, to make Hagedorns recall term retroact to June 30, 2001
creates a legal fiction that unduly curtails the freedom of the people to
choose their leaders through popular elections. The concept of term
limits is in derogation of the sovereign will of the people to elect the
leaders of their own choosing. Term limits must be construed strictly
to give the fullest possible effect to the sovereign will of the people. As
this Court aptly stated in Borja, Jr. v. Comelec:
Thus, a consideration of the historical background of Art. X, 8 of the
Constitution reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization
of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive
terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred
from running for the same position in the succeeding election
following the expiration of the third consecutive term. Monsod
warned against prescreening candidates [from] whom the people will
choose as a result of the proposed absolute disqualification,
considering that the draft constitution contained provisions
recognizing people's power.[19] (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is
the start of a new term following the interruption. An official elected
in recall election serves the unexpired term of the recalled official. This
unexpired term is in itself one term for purposes of counting the
three-term limit. This is clear from the following discussion in the
Constitutional Commission:
SUAREZ:[20] For example, a special election is called for a Senator, and
the Senator newly elected would have to serve the unexpired portion
of the term. Would that mean that serving the unexpired portion of
the term is already considered one term? So, half a term, which is
actually the correct statement, plus one term would disqualify the
Senator concerned from running? Is that the meaning of this provision
on disqualification, Madam President?
DAVIDE: Yes, because we speak of term, and if there is a special
election, he will serve only for the unexpired portion of that particular
term plus one more term for the Senator and two more terms for the
Members of the Lower House.[21]
Although the discussion referred to special elections for Senators and
Representatives of the House, the same principle applies to a recall
election of local officials. Otherwise, an elective local official who
serves a recall term can serve for more than nine consecutive years
comprising of the recall term plus the regular three full terms. A local
official who serves a recall term should know that the recall term is in
itself one term although less than three years. This is the inherent
limitation he takes by running and winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the
September 24, 2002 recall election for mayor of Puerto Princesa
because:
1. Hagedorn is not running for immediate reelection following his
three consecutive terms as mayor which ended on June 30, 2001;
2. Hagedorns continuity of service as mayor was involuntarily
interrupted from June 30, 2001 to September 24, 2002 during which
time he was a private citizen;
3. Hagedorns recall term from September 24, 2002 to June 30, 2004
cannot be made to retroact to June 30, 2001 to make a fourth
consecutive term because factually the recall term is not a fourth
consecutive term; and
4. Term limits should be construed strictly to give the fullest possible
effect to the right of the electorate to choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-
84 are DISMISSED. The temporary restraining order issued by this
Court on September 24, 2002 enjoining the proclamation of the
winning candidate for mayor of Puerto Princesa in the recall election
of September 24, 2002 is lifted. No costs.
SO ORDERED.
FRANCIS G. ONG versus JOSEPH STANLEY ALEGRE and COMMISSION
ON ELECTIONS,
Respondents
x---------------------x
ROMMEL G. ONG, Petitioner versus JOSEPH STANLEY ALEGRE and
COMMISSION ON ELECTIONS,
x----------------------------------------x
DECISION
GARCIA, J.:
Before the Court are these two separate petitions under Rule 65 of the
Rules of Court to nullify and set aside certain issuances of the
Commission on Elections (COMELEC) en banc.
The first, docketed as G.R. No. 163295, is a petition for certiorari with
petitioner Francis G. Ong impugning the COMELEC en banc
resolution[1] dated May 7, 2004 in SPA Case No. 04-048, granting
private respondent Joseph Stanley Alegre's motion for reconsideration
of the resolution dated March 31, 2004[2] of the COMELECs First
Division.
The second, G.R. No. 163354, is for certiorari, prohibition and
mandamus, with application for injunctive relief, filed by petitioner
Rommel Ong, brother of Francis, seeking, among other things, to stop
the COMELEC from enforcing and implementing its aforesaid May 7,
2004 en banc resolution in SPA Case No. 04-048 pending the outcome
of the petition in G.R. No. 163295.
Per its en banc Resolution of June 1, 2004, the Court ordered the
consolidation of these petitions.
The recourse stemmed from the following essential and undisputed
factual backdrop:
Private respondent Joseph Stanley Alegre (Alegre) and petitioner
Francis Ong (Francis) were candidates who filed certificates of
candidacy for mayor of San Vicente, Camarines Norte in the May 10,
2004 elections. Francis was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a
Petition to Disqualify, Deny Due Course and Cancel Certificate of
Candidacy[3] of Francis. Docketed as SPA Case No. 04-048, the petition
to disqualify was predicated on the three-consecutive term rule,
Francis having, according to Alegre, ran in the May 1995, May 1998,
and May 2001 mayoralty elections and have assumed office as mayor
and discharged the duties thereof for three (3) consecutive full terms
corresponding to those elections.
To digress a bit, the May 1998 elections saw both Alegre and Francis
opposing each other for the office of mayor of San Vicente, Camarines
Norte, with the latter being subsequently proclaimed by COMELEC
winner in that contest. Alegre subsequently filed an election protest,
docketed as Election Case No. 6850 before the Regional Trial Court
(RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the
duly elected mayor in that 1998 mayoralty contest,[4] albeit the
decision came out only on July 4, 2001, when Francis had fully served
the 1998-2001 mayoralty term and was in fact already starting to
serve the 2001-2004 term as mayor-elect of the municipality of San
Vicente.
Acting on Alegres petition to disqualify and to cancel Francis certificate
of candidacy for the May 10, 2004 elections, the First Division of the
COMELEC rendered on March 31, 2004 a resolution[5] dismissing the
said petition of Alegre, rationalizing as follows:
We see the circumstances in the case now before us analogous to
those obtaining in the sample situations addressed by the Highest
Court in the Borja case. Herein, one of the requisites for the
application of the three term rule is not present. Francis Ong might
have indeed fully served the mayoral terms of 1995 to 1998; 1998 to
2001 and 2001 to 2004. The mayoral term however, from 1998 to
2001 cannot be considered his because he was not duly elected
thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his
election for the 1998 term when it held, in its decision that Stanley
Alegre was the legally elected mayor in the 1998 mayoralty election in
San Vicente, Camarines Norte. This disposition had become final after
the [COMELEC] dismissed the appeal filed by Ong, the case having
become moot and academic.
xxx xxx xxx
On the basis of the words of the Highest Court pronounced in the
Lonzanida case and applicable in the case at bench, Ong could not be
considered as having served as mayor from 1998 to 2001 because he
was not duly elected to the post; he merely assumed office as a
presumptive winner; which presumption was later overturned when
[the RTC] decided with finality that [he] lost in the May 1998 elections.
(Words in bracket and emphasis in the original).
Undaunted, Alegre filed a timely motion for reconsideration,
contending, in the main, that there was a misapplication of the three-
term rule, as applied in the cited cases of Borja vs. Comelec and
Lonzanida vs. Comelec, infra.
On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a
resolution[6] reversing the March 31, 2004 resolution of the
COMELECs First Division and thereby (a) declaring Francis as
disqualified to run for mayor of San Vicente, Camarines Norte in the
May 10, 2004; (b) ordering the deletion of Francis name from the
official list of candidates; and (c) directing the concerned board of
election inspectors not to count the votes cast in his favor.
The following day, May 8, Francis received a fax machine copy of the
aforecited May 7, 2004 resolution, sending him posthaste to seek the
assistance of his political party, the Nationalist Peoples Coalition,
which immediately nominated his older brother, Rommel Ong
(Rommel), as substitute candidate. At about 5:05 p.m. of the very
same day - which is past the deadline for filing a certificate of
candidacy, Rommel filed his own certificate of candidacy for the
position of mayor, as substitute candidate for his brother Francis.
The following undisputed events then transpired:
1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a
Petition to Deny Due Course to or Cancel Certificate of Rommel Ong.
2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a
letter[7] to Provincial Election Supervisor (PES) of Camarines Norte Liza
Z. Cario and Acting Election Officer Emily G. Basilonia in which he
appealed that, owing to the COMELECs inaction on Alegre's petition to
cancel Rommels certificate of candidacy, the name Rommel Ong be
included in the official certified list of candidates for mayor of San
Vicente, Camarines Norte. The desired listing was granted by the PES
Carino.
3. On May 10, 2004, Alegre wrote[8] to then COMELEC Commissioner
Virgilio Garcillano, Commissioner-in-Charge for Regions IV and V,
seeking clarification on the legality of the action thus taken by the PES
Cario. Responding, Commissioner Garcillano issued a Memorandum
under date May 10, 2004[9] addressed to PES Liza D. Zabala-Cario,
ordering her to implement the resolution of the COMELEC en banc in
SPA No. 04-048 promulgated on May 7, 2004.[10] Said Memorandum
partly stated:
The undersigned ADOPTS the recommendation of Atty. Alioden D.
Dalaig [Director IV, Law Department], which he quote your stand,
"that substitution is not proper if the certificate of the substituted
candidacy is denied due course. In the Resolution of the Commission
En banc, the Certificate of candidacy of Francis Ong was denied due
course," and elaborated further that:
"x x x there is an existing policy of the Commission not to include the
name of a substitute candidate in the certified list of candidates unless
the substitution is approved by the Commission.
In view, thereof, it is recommended that 1) the substitute certificate of
candidacy of Rommel Ong Gan Ong, should be denied due course; and
2) the election officer be directed to delete his name from the list of
candidates."
The above position of the Commission was in line with the
pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA
617) which states:
"There can no valid substitution where a candidate is excluded not
only by disqualification but also by denial and cancellation of his
certificate of candidacy."
In view thereof, you are hereby directed to faithfully implement the
said Resolution of the Commission En Banc in SPA No. 04-048
promulgated on May 7, 2004. (Emphasis in the original; words in
bracket added].
4. Owing to the aforementioned Garcillano Memorandum, it would
seem that the Chairman of the Municipal Board of Canvasser of San
Vicente issued an order enjoining all concerned not to canvass the
votes cast for Rommel, prompting the latter to file a protest with that
Board.[11]
5. On May 11, 2004, the Municipal Board of Canvassers proclaimed
Alegre as the winning candidate for the mayoralty post in San Vicente,
Camarines Norte.[12]
On May 12, 2004, Francis filed before the Court a petition for
certiorari, presently docketed as G.R. No. 163295. His brother
Rommels petition in G.R. No. 163354 followed barely a week after.
In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R.
No. 163354 were consolidated.[13]
Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing
private respondent Alegres Petition to Deny Due Course to or Cancel
Certificate of Candidacy of Rommel Ong, for being moot and
academic.[14]
The issues for resolution of the Court are:
In G.R. No. 163295, whether the COMELEC acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing its en
banc resolution dated May 7, 2004 declaring petitioner Francis as
disqualified to run for Mayor of San Vicente, Camarines Norte in the
May 10, 2004 elections and consequently ordering the deletion of his
name from the official list of candidates so that any vote cast in his
favor shall be considered stray.
In G.R. No. 163354, whether the COMELEC committed grave abuse of
discretion when it denied due course to Rommels certificate of
candidacy in the same mayoralty election as substitute for his brother
Francis.
A resolution of the issues thus formulated hinges on the question of
whether or not petitioner Franciss assumption of office as Mayor of
San Vicente, Camarines Norte for the mayoralty term 1998 to 2001
should be considered as full service for the purpose of the three-term
limit rule.
Respondent COMELEC resolved the question in the affirmative.
Petitioner Francis, on the other hand, disagrees. He argues that, while
he indeed assumed office and discharged the duties as Mayor of San
Vicente for three consecutive terms, his proclamation as mayor-elect
in the May 1998 election was contested and eventually nullified per
the decision of the RTC of Daet, Camarines Norte dated July 4, 2001.
Pressing the point, petitioner argues, citing Lonzanida vs. Comelec[15],
that a proclamation subsequently declared void is no proclamation at
all and one assuming office on the strength of a protested
proclamation does so as a presumptive winner and subject to the final
outcome of the election protest.
The three-term limit rule for elective local officials is found in Section
8, Article X of the 1987 Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected.
Section 43 (b) of the Local Government Code restates the same rule as
follows:
Sec. 43. Term of Office.
xxx xxx xxx
(b) No local elective official shall serve for more than three
consecutive years in the same position. Voluntary renunciation of the
office for any length of time shall not be considered an interruption in
the continuity of service for the full term for which the elective official
concerned was elected.
For the three-term limit for elective local government officials to
apply, two conditions or requisites must concur, to wit: (1) that the
official concerned has been elected for three (3) consecutive terms in
the same local government post, and (2) that he has fully served three
(3) consecutive terms.[16]
With the view we take of the case, the disqualifying requisites are
present herein, thus effectively barring petitioner Francis from running
for mayor of San Vicente, Camarines Norte in the May 10, 2004
elections. There can be no dispute about petitioner Francis Ong having
been duly elected mayor of that municipality in the May 1995 and
again in the May 2001 elections and serving the July 1, 1995- June 30,
1998 and the July 1, 2001-June 30, 2004 terms in full. The herein
controversy revolves around the 1998-2001 mayoral term, albeit there
can also be no quibbling that Francis ran for mayor of the same
municipality in the May 1998 elections and actually served the 1998-
2001 mayoral term by virtue of a proclamation initially declaring him
mayor-elect of the municipality of San Vicente. The question that begs
to be addressed, therefore, is whether or not Franciss assumption of
office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to
June 30, 2001, may be considered as one full term service in the
context of the consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, service
for the full term, and should be counted as a full term served in
contemplation of the three-term limit prescribed by the constitutional
and statutory provisions, supra, barring local elective officials from
being elected and serving for more than three consecutive term for
the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest
Case No. 6850,[17] that it was Francis opponent (Alegre) who won in
the 1998 mayoralty race and, therefore, was the legally elected mayor
of San Vicente. However, that disposition, it must be stressed, was
without practical and legal use and value, having been promulgated
after the term of the contested office has expired. Petitioner Francis
contention that he was only a presumptive winner in the 1998
mayoralty derby as his proclamation was under protest did not make
him less than a duly elected mayor. His proclamation by the Municipal
Board of Canvassers of San Vicente as the duly elected mayor in the
1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the
term, should legally be taken as service for a full term in
contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard
to discern. Such contrary view would mean that Alegre would under
the three-term rule - be considered as having served a term by virtue
of a veritably meaningless electoral protest ruling, when another
actually served such term pursuant to a proclamation made in due
course after an election.
Petitioner cites, but, to our mind, cannot seek refuge from the Courts
ruling in, Lonzanida vs. Comelec,[18] citing Borja vs. Comelec[19]. In
Lonzanida, petitioner Lonzanida was elected and served for two
consecutive terms as mayor of San Antonio, Zambales prior to the May
8, 1995 elections. He then ran again for the same position in the May
1995 elections, won and discharged his duties as Mayor. However, his
opponent contested his proclamation and filed an election protest
before the RTC of Zambales, which, in a decision dated January 9,
1997, ruled that there was a failure of elections and declared the
position vacant. The COMELEC affirmed this ruling and petitioner
Lonzanida acceded to the order to vacate the post. Lonzanida assumed
the office and performed his duties up to March 1998 only. Now,
during the May 1998 elections, Lonzanida again ran for mayor of the
same town. A petition to disqualify, under the three-term rule, was
filed and was eventually granted. There, the Court held that Lonzanida
cannot be considered as having been duly elected to the post in the
May 1995 election, and that he did not fully serve the 1995-1998
mayoralty term by reason of involuntary relinquishment of office. As
the Court pointedly observed, Lonzanida cannot be deemed to have
served the May 1995 to 1998 term because he was ordered to vacate
[and in fact vacated] his post before the expiration of the term.
The difference between the case at bench and Lonzanida is at once
apparent. For one, in Lonzanida, the result of the mayoralty election
was declared a nullity for the stated reason of failure of election, and,
as a consequence thereof, the proclamation of Lonzanida as mayor-
elect was nullified, followed by an order for him to vacate the office of
mayor. For another, Lonzanida did not fully serve the 1995-1998
mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of
the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the
present case. But more importantly, here, there was actually no
interruption or break in the continuity of Francis service respecting the
1998-2001 term. Unlike Lonzanida, Francis was never unseated during
the term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the
entire period covering the 1998-2001 term.
The ascription, therefore, of grave abuse of discretion on the part of
the COMELEC en banc when it disqualified Francis from running in the
May 10, 2004 elections for the mayoralty post of San Vicente and
denying due course to his certificate of candidacy by force of the
constitutional and statutory provisions regarding the three-term limit
rule for any local elective official cannot be sustained. What the
COMELEC en banc said in its May 7, 2004 assailed Resolution
commends itself for concurrence:
As correctly pointed out by Petitioner-Movant [Alegre]in applying the
ruling in the Borja and Lonzanida cases in the instant petition will be
erroneous because the factual milieu in those cases is different from
the one obtaining here. Explicitly, the three-term limit was not made
applicable in the cases of Borja and Lonzanida because there was an
interruption in the continuity of service of the three consecutive
terms. Here, Respondent Ong would have served continuously for
three consecutive terms, from 1995 to 2004. His full term from 1998
to 2001 could not be simply discounted on the basis that he was not
duly elected thereto on account of void proclamation because it would
have iniquitous effects producing outright injustice and inequality as it
rewards a legally disqualified and repudiated loser with a crown of
victory. (Word in bracket added; emphasis in the original)
Given the foregoing consideration, the question of whether or not
then Commissioner Virgilio Garcillano overstepped his discretion when
he issued the May 10, 2004 Memorandum, ordering the
implementation of aforesaid May 7, 2004 COMELEC en banc resolution
even before its finality[20] is now of little moment and need not
detain us any longer.
Just as unmeritorious as Francis petition in G.R. No. 163295 is
Rommels petition in G.R. No. 163354 in which he (Rommel) challenges
the COMELEC's act of not including his name as a substitute candidate
in the official list of candidates for the May 10, 2004 elections. As it
were, existing COMELEC policy[21] provides for the non-inclusion of
the name of substitute candidates in the certified list of candidates
pending approval of the substitution.
Not to be overlooked is the Courts holding in Miranda vs. Abaya,[22]
that a candidate whose certificate of candidacy has been cancelled or
not given due course cannot be substituted by another belonging to
the same political party as that of the former, thus:
While there is no dispute as to whether or not a nominee of a
registered or accredited political party may substitute for a candidate
of the same party who had been disqualified for any cause, this does
not include those cases where the certificate of candidacy of the
person to be substituted had been denied due course and cancelled
under Section 78 of the Code.
Expressio unius est exclusio alterius. While the law enumerated the
occasions where a candidate may be validly substituted, there is no
mention of the case where a candidate is excluded not only by
disqualification but also by denial and cancellation of his certificate of
candidacy. Under the foregoing rule, there can be no valid substitution
for the latter case, much in the same way that a nuisance candidate
whose certificate of candidacy is denied due course and/or cancelled
may not be substituted. If the intent of the lawmakers were otherwise,
they could have so easily and conveniently included those persons
whose certificates of candidacy have been denied due course and/or
cancelled under the provisions of Section 78 of the Code.
xxx xxx xxx
A person without a valid certificate of candidacy cannot be considered
a candidate in much the same way as any person who has not filed any
certificate of candidacy at all can not, by any stretch of the
imagination, be a candidate at all.
xxx xxx xxx
After having considered the importance of a certificate of candidacy, it
can be readily understood why in Bautista [Bautista vs. Comelec, G.R.
No. 133840, November 13, 1998] we ruled that a person with a
cancelled certificate is no candidate at all. Applying this principle to
the case at bar and considering that Section 77 of the Code is clear and
unequivocal that only an official candidate of a registered or
accredited party may be substituted, there demonstrably cannot be
any possible substitution of a person whose certificate of candidacy
has been cancelled and denied due course.
In any event, with the hard reality that the May 10, 2004 elections
were already pass, Rommel Ongs petition in G.R. No. 163354 is already
moot and academic.
WHEREFORE, the instant petitions are DISMISSED and the assailed en
banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-
048 AFFIRMED.
Costs against petitioners.
SO ORDERED.
ROBERTO L. DIZON versus COMMISSION ON ELECTIONS and
MARINO P. MORALES,
The Case
This is a petition for certiorari and prohibition, with prayer for the
issuance of a temporary restraining order and writ of preliminary
injunction under Rule 65 of the 1997 Rules of Civil Procedure. The
present petition seeks the reversal of the Resolution dated 27 July
2007 of the Commission on Elections (COMELEC) Second Division
which dismissed the petition to disqualify and/or to cancel Marino P.
Morales (Morales) certificate of candidacy, as well as the Resolution
dated 14 February 2008 of the COMELEC En Banc which denied
Roberto L. Dizons (Dizon) motion for reconsideration.
The Facts
The COMELEC Second Division stated the facts as follows:
Roberto L. Dizon, hereinafter referred to as petitioner, is a resident
and taxpayer of the Municipality of Mabalacat, Pampanga. Marino P.
Morales, hereinafter referred to as respondent, is the incumbent
Mayor of the Municipality of Mabalacat, Pampanga.
Petitioner alleges respondent was proclaimed as the municipal mayor
of Mabalacat, Pampanga during the 1995, 1998, 2001 and 2004
elections and has fully served the same. Respondent filed his
Certificate of Candidacy on March 28, 2007 again for the same
position and same municipality.
Petitioner argues that respondent is no longer eligible and qualified to
run for the same position for the May 14, 2007 elections under Section
43 of the Local Government Code of 1991. Under the said provision,
no local elective official is allowed to serve for more than three (3)
consecutive terms for the same position.
Respondent, on the other hand, asserts that he is still eligible and
qualified to run as Mayor of the Municipality of Mabalacat, Pampanga
because he was not elected for the said position in the 1998 elections.
He avers that the Commission en banc in SPA Case No. A-04-058,
entitled Atty. Venancio Q. Rivera III and Normandick P. De Guzman vs.
Mayor Marino P. Morales, affirmed the decision of the Regional Trial
Court of Angeles City declaring Anthony D. Dee as the duly elected
Mayor of Mabalacat, Pampanga in the 1998 elections.
Respondent alleges that his term should be reckoned from 2001 or
when he was proclaimed as Mayor of Mabalacat, Pampanga.
Respondent further asserts that his election in 2004 is only for his
second term. Hence, the three term rule provided under the Local
Government Code is not applicable to him.
Respondent further argues that the grounds stated in the instant
petition are not covered under Section 78 of the Omnibus Election
Code. Respondent further contend [sic] that even if it is covered under
the aforementioned provision, the instant petition failed to allege any
material misrepresentation in the respondents Certificate of
Candidacy.[1]
The Ruling of the COMELEC Second Division
In its Resolution dated 27 July 2007, the COMELEC Second Division
took judicial notice of this Courts ruling in the consolidated cases of
Atty. Venancio Q. Rivera III v. COMELEC and Marino Boking Morales in
G.R. No. 167591 and Anthony Dee v. COMELEC and Marino Boking
Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007.
The pertinent portions of the COMELEC Second Divisions ruling read as
follows:
Respondent was elected as mayor of Mabalacat from July 1, 1995 to
June 30, 1998. There was no interruption of his second term from
1998 to 2001. He was able to exercise the powers and enjoy the
position of a mayor as caretaker of the office or a de facto officer until
June 30, 2001 notwithstanding the Decision of the RTC in an electoral
protest case. He was again elected as mayor from July 1, 2001 to June
30, 2003 [sic].
It is worthy to emphasize that the Supreme Court ruled that
respondent has violated the three-term limit under Section 43 of the
Local Government Code. Respondent was considered not a candidate
in the 2004 Synchronized National and Local Elections. Hence, his
failure to qualify for the 2004 elections is a gap and allows him to run
again for the same position in the May 14, 2007 National and Local
Elections.
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES to DENY the instant Petition to Cancel the Certificate
of Candidacy and/or Petition for the Disqualification of Marino P.
Morales for lack of merit.[2]
Dizon filed a motion for reconsideration before the COMELEC En Banc.
The Ruling of the COMELEC En Banc
The COMELEC En Banc affirmed the resolution of the COMELEC Second
Division.
The pertinent portions of the COMELEC En Bancs Resolution read as
follows:
Respondents certificate of candidacy for the May 2004 Synchronized
National and Local Elections was cancelled pursuant to the above-
mentioned Supreme Court decision which was promulgated on May 9,
2007. As a result, respondent was not only disqualified but was also
not considered a candidate in the May 2004 elections.
Another factor which is worth mentioning is the fact that respondent
has relinquished the disputed position on May 16, 2007. The vice-
mayor elect then took his oath and has assumed office as mayor of
Mabalacat on May 17, 2007 until the term ended on June 30, 2007.
For failure to serve for the full term, such involuntary interruption in
his term of office should be considered a gap which renders the three-
term limit inapplicable.
The three-term limit does not apply whenever there is an involuntary
break. The Constitution does not require that the interruption or
hiatus to be a full term of three years. What the law requires is for an
interruption, break or a rest period from a candidates term of office
for any length of time. The Supreme Court in the case of Latasa v.
Comelec ruled:
Indeed, the law contemplates a rest period during which the local
elective official steps down from office and ceases to exercise power
or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit.
In sum, the three-term limit is not applicable in the instant case for
lack of the two conditions: 1) respondent was not the duly-elected
mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term
primordially because he was not even considered a candidate thereat;
and 2) respondent has failed to serve the entire duration of the term
of office because he has already relinquished the disputed office on
May 16, 2007 which is more than a month prior to the end of his
supposed term.
xxx
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the instant Motion for Reconsideration for
LACK OF MERIT. The Resolution of the Commission Second Division is
hereby AFFIRMED.
SO ORDERED.[3]
The Issues
Dizon submits that the factual findings made in the Rivera case should
still be applied in the present case because Morales had, except for
one month and 14 days, served the full term of 2004-2007. Morales
assumption of the mayoralty position on 1 July 2007 makes the 2007-
2010 term Morales fifth term in office. Dizon raises the following
grounds before this Court:
1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING
TO LACK OR EXCESS OF ITS JURISDICTION WHEN IT RULED THAT
RESPONDENT MORALES DID NOT VIOLATE THE THREE-YEAR TERM
LIMIT WHEN HE RAN AND WON AS MAYOR OF MABALACAT,
PAMPANGA DURING THE MAY 14, 2007 ELECTION.
2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT DUE TO
THIS HONORABLE COURTS RULING IN THE AFORESAID CONSOLIDATED
CASES, RESPONDENT MORALES FOURTH TERM IS CONSIDERED A GAP
IN THE LATTERS SERVICE WHEN HE FILED HIS CERTIFICATE OF
CANDIDACY FOR THE 2007 ELECTIONS.
3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED
THAT THE FOURTH TERM OF MORALES WAS INTERRUPTED WHEN HE
RELINQUISHED HIS POSITION FOR ONE MONTH AND 14 DAYS PRIOR
TO THE MAY 14, 2007 ELECTION.[4]
The Ruling of the Court

The petition has no merit.
The present case covers a situation wherein we have previously ruled
that Morales had been elected to the same office and had served
three consecutive terms, and wherein we disqualified and removed
Morales during his fourth term. Dizon claims that Morales is currently
serving his fifth term as mayor. Is the 2007-2010 term really Morales
fifth term?
The Effect of our Ruling in the Rivera Case
In our decision promulgated on 9 May 2007, this Court unseated
Morales during his fourth term. We cancelled his Certificate of
Candidacy dated 30 December 2003. This cancellation disqualified
Morales from being a candidate in the May 2004 elections. The votes
cast for Morales were considered stray votes. The dispositive portion
in the Rivera case reads:
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent
Morales Certificate of Candidacy dated December 30, 2003 is
cancelled. In view of the vacancy in the Office of the Mayor of
Mabalacat, Pampanga, the vice-mayor elect of the said municipality in
the May 10, 2004 Synchronized National and Local Elections is hereby
declared mayor and shall serve as such for the remaining duration of
the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577
is DISMISSED for being moot.
This Decision is immediately executory.
SO ORDERED.[5]
Article X, Section 8 of the 1987 Constitution reads:
The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such
official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected.
Section 43(b) of the Local Government Code restated Article X, Section
8 of the 1987 Constitution as follows:
No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official
concerned was elected.
For purposes of determining the resulting disqualification brought
about by the three-term limit, it is not enough that an individual has
served three consecutive terms in an elective local office, he must also
have been elected to the same position for the same number of
times.[6] There should be a concurrence of two conditions for the
application of the disqualification: (1) that the official concerned has
been elected for three consecutive terms in the same local
government post and (2) that he has fully served three consecutive
terms.[7]
In the Rivera case, we found that Morales was elected as mayor of
Mabalacat for four consecutive terms: 1 July 1995 to 30 June 1998, 1
July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July
2004 to 30 June 2007. We disqualified Morales from his candidacy in
the May 2004 elections because of the three-term limit. Although the
trial court previously ruled that Morales proclamation for the 1998-
2001 term was void, there was no interruption of the continuity of
Morales service with respect to the 1998-2001 term because the trial
courts ruling was promulgated only on 4 July 2001, or after the expiry
of the 1998-2001 term.
Our ruling in the Rivera case served as Morales involuntary severance
from office with respect to the 2004-2007 term. Involuntary severance
from office for any length of time short of the full term provided by
law amounts to an interruption of continuity of service.[8] Our
decision in the Rivera case was promulgated on 9 May 2007 and was
effective immediately. The next day, Morales notified the vice mayors
office of our decision. The vice mayor assumed the office of the mayor
from 17 May 2007 up to 30 June 2007. The assumption by the vice
mayor of the office of the mayor, no matter how short it may seem to
Dizon, interrupted Morales continuity of service. Thus, Morales did not
hold office for the full term of 1 July 2004 to 30 June 2007.
2007-2010: Morales Fifth Term?
Dizon claims that the 2007-2010 term is Morales fifth term in office.
Dizon asserts that even after receipt of our decision on 10 May 2007,
Morales waited for the election to be held on 14 May 2007 to ensure
his victory for a fifth term.[9]
We concede that Morales occupied the position of mayor of
Mabalacat for the following periods: 1 July 1995 to 30 June 1998, 1
July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July
2004 to 16 May 2007. However, because of his disqualification,
Morales was not the duly elected mayor for the 2004-2007 term.
Neither did Morales hold the position of mayor of Mabalacat for the
full term. Morales cannot be deemed to have served the full term of
2004-2007 because he was ordered to vacate his post before the
expiration of the term. Morales occupancy of the position of mayor of
Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a
term for purposes of computing the three-term limit. Indeed, the
period from 17 May 2007 to 30 June 2007 served as a gap for purposes
of the three-term limit rule. Thus, the present 1 July 2007 to 30 June
2010 term is effectively Morales first term for purposes of the three-
term limit rule.
Dizon alleges that Morales was able to serve his fourth term as mayor
through lengthy litigations. x x x In other words, he was violating the
rule on three-term limit with impunity by the sheer length of litigation
and profit from it even more by raising the technicalities arising
therefrom.[10] To this, we quote our ruling in Lonzanida v. COMELEC:
The respondents harp on the delay in resolving the election protest
between petitioner and his then opponent Alvez which took roughly
about three years and resultantly extended the petitioners
incumbency in an office to which he was not lawfully elected. We note
that such delay cannot be imputed to the petitioner. There is no
specific allegation nor proof that the delay was due to any political
maneuvering on his part to prolong his stay in office. Moreover,
protestant Alvez, was not without legal recourse to move for the early
resolution of the election protest while it was pending before the
regional trial court or to file a motion for the execution of the regional
trial courts decision declaring the position of mayor vacant and
ordering the vice-mayor to assume office while the appeal was
pending with the COMELEC. Such delay which is not here shown to
have been intentionally sought by the petitioner to prolong his stay in
office cannot serve as basis to bar his right to be elected and to serve
his chosen local government post in the succeeding mayoral
election.[11]
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of
the Commission on Elections En Banc dated 14 February 2008 as well
as the Resolution of the Commission on Elections Second Division
dated 27 July 2007.
SO ORDERED.
ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION
ON ELECTION and EUFEMIO MULI, repondents.
DECISION
GONZAGA-REYES, J.:
This petition for certiorari under Rule 65 of the Rules of Court seeks to
set aside the resolutions issued by the COMELEC First Division dated
May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in
SPA 98-190 entitled, In the matter of the Petition to Disqualify
Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales.
Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The
assailed resolutions declared herein petitioner Romeo Lonzanida
disqualified to run for Mayor in the municipality of San Antonio,
Zambales in the May 1998 elections and that all votes cast in his favor
shall not be counted and if he has been proclaimed winner the said
proclamation is declared null and void.
Petitioner Romeo Lonzanida was duly elected and served two
consecutive terms as municipal mayor of San Antonio, Zambales prior
to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran
for mayor of San Antonio, Zambales and was again proclaimed winner.
He assumed office and discharged the duties thereof. His proclamation
in 1995 was however contested by his then opponent Juan Alvez who
filed an election protest before the Regional Trial Court of Zambales,
which in a decision dated January 9, 1997 declared a failure of
elections. The court ruled:
PREMISES CONSIDERED, this court hereby renders judgment declaring
the results of the election for the office of the mayor in San Antonio,
Zambales last May 8, 1995 as null and void on the ground that there
was a failure of election.
Accordingly, the office of the mayor of the Municipality of San
Antonio, Zambales is hereby declared vacant.
Both parties appealed to the COMELEC. On November 13, 1997 the
COMELEC resolved the election protest filed by Alvez and after a
revision and re-appreciation of the contested ballots declared Alvez
the duly elected mayor of San Antonio, Zambales by plurality of votes
cast in his favor totaling 1,720 votes as against 1,488 votes for
Lonzanida. On February 27, 1998 the COMELEC issued a writ of
execution ordering Lonzanida to vacate the post, which obeyed, and
Alvez assumed office for the remainder of the term.
In the May 11, 1998 elections Lonzanida again filed his certificate of
candidacy for mayor of San Antonio. On April 21, 1998 his opponent
Eufemio Muli timely filed a petition to disqualify Lonzanida from
running for mayor of San Antonio in the 1998 elections on the ground
that he had served three consecutive terms in the same post. On May
13, 1998, petitioner Lonzanida was proclaimed winner. On May 21,
1998 the First Division of the COMELEC issued the questioned
resolution granting the petition for disqualification upon a finding that
Lonzanida had served three consecutive terms as mayor of San
Antonio, Zambales and he is therefore disqualified to run for the same
post for the fourth time. The COMELEC found that Lonzanidas
assumption of office by virtue of his proclamation in May 1995,
although he was later unseated before the expiration of the term,
should be counted as service for one full term in computing the three
term limit under the Constitution and the Local Government Code. The
finding of the COMELEC First Division was affirmed by the COMELEC En
Banc in a resolution dated August 11, 1998.
Petitioner Lonzanida challenges the validity of the COMELEC
resolutions finding him disqualified to run for mayor of San Antonio
Zambales in the 1998 elections. He maintains that he was duly elected
mayor for only two consecutive terms and that his assumption of
office in 1995 cannot be counted as service of a term for the purpose
of applying the three term limit for local government officials, because
he was not the duly elected mayor of San Antonio in the May 1995
elections as evidenced by the COMELEC decision dated November 13,
1997 in EAC no. 6-97 entitled Juan Alvez, Protestant-Appellee vs.
Romeo Lonzanida, Protestee-Appellant, wherein the COMELEC
declared Juan Alvez as the duly elected mayor of San Antonio,
Zambales. Petitioner also argues that the COMELEC ceased to have
jurisdiction over the petition for disqualification after he was
proclaimed winner in the 1998 mayoral elections; as the proper
remedy is a petition for quo warranto with the appropriate regional
trial court under Rule 36 of the COMELEC Rules of Procedure.
Private respondent Eufemio Muli filed comment to the petition asking
this court to sustain the questioned resolutions of the COMELEC and
to uphold its jurisdiction over the petition for disqualification. The
private respondent states that the petition for disqualification was
filed on April 21, 1998 or before the May 1998 mayoral elections.
Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of
Procedure petitions for disqualification filed with the COMELEC before
the elections and/or proclamation of the party sought to be
disqualified may still be herd and decided by the COMELEC after the
election and proclamation of the said party without distinction as to
the alleged ground for disqualification, whether for acts constituting
an election offense or for ineligibility. Accordingly, it is argued that the
resolutions of the COMELEC on the merits of the petition for
disqualification were issued within the commissions jurisdiction. As
regards the merits of the case, the private respondent maintains that
the petitioners assumption of office in 1995 should be considered as
service of one full term because he discharged the duties of mayor for
almost three years until March 1, 1998 or barely a few months before
the next mayoral elections.
The Solicitor-General filed comment to the petition for the respondent
COMELEC praying for the dismissal of the petition. The Solicitor-
General stressed that section 8, Art. X of the Constitution and section
43 (b), Chapter I of the Local Government Code which bar a local
government official from serving more than three consecutive terms in
the same position speaks of service of a term and so the rule should be
examined in this light. The public respondent contends that petitioner
Lonzanida discharged the rights and duties of mayor from 1995 to
1998 which should be counted as service of one full term, albeit he
was later unseated, because he served as mayor for the greater part of
the term. The issue of whether or not Lonzanida served as a de jure or
de facto mayor for the 1995-1998 term is inconsequential in the
application of the three term limit because the prohibition speaks of
service of a term which was intended by the framers of the
Constitution to foil any attempt to monopolize political power. It is
likewise argued by the respondent that a petition for quo warranto
with the regional trial court is proper when the petition for
disqualification is filed after the elections and so the instant petition
for disqualification which was filed before the elections may be
resolved by the COMELEC thereafter regardless of the imputed basis
of disqualification.
The petitioner filed Reply to the comment. It is maintained that the
petitioner could not have served a valid term from 1995 to 1998
although he assumed office as mayor for that period because he was
no t lawfully elected to the said office. Moreover, the petitioner was
unseated before the expiration of the term and so his service for the
period cannot be considered as one full term. As regards the issue of
jurisdiction, the petitioner reiterated in his Reply that the COMELEC
ceased to have jurisdiction to hear the election protest after the
petitioners proclamation.
The petition has merit.
Section 8, Art. X of the Constitution provides:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law shall be three years and no
such officials shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected.
Section 43 of the Local Government Code (R.A. No. 7160) restates the
same rule:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption
in the continuity of service for the full term for which the elective
official concerned was elected.
The issue before us is whether petitioner Lonzanidas assumption of
office as mayor of San Antonio Zambales from May 1995 to March
1998 may be considered as service of one full term for the purpose of
applying the three-term limit for elective local government officials.
The records of the 1986 Constitutional Commission show that the
three-term limit which is now embodied in section 8, Art. X of the
Constitution was initially proposed to be an absolute bar to any
elective local government official from running for the same position
after serving three consecutive terms. The said disqualification was
primarily intended to forestall the accumulation of massive political
power by an elective local government official in a given locality in
order to perpetuate his tenure in office. The delegates also considered
the need to broaden the choices of the electorate of the candidates
who will run for office, and to infuse new blood in the political arena
by disqualifying officials from running for the same office after a term
of nine years. The mayor was compared by some delegates to the
President of the Republic as he is a powerful chief executive of his
political territory and is most likely to form a political dynasty.[1] The
drafters however, recognized and took note of the fact that some local
government officials run for office before they reach forty years of
age; thus to perpetually bar them from running for the same office
after serving nine consecutive years may deprive the people of
qualified candidates to choose from. As finally voted upon, it was
agreed that an elective local government official should be barred
from running for the same post after three consecutive terms. After a
hiatus of at least one term, he may again run for the same office.[2]
The scope of the constitutional provision barring elective officials with
the exception of barangay officials from serving more than three
consecutive terms was discussed at length in the case of Benjamin
Borja, Jr., vs. COMELEC and Jose Capco, Jr.[3] where the issue raised
was whether a vice-mayor who succeeds to the office of the mayor by
operation of law upon the death of the incumbent mayor and served
the remainder of the term should be considered to have served a term
in that office for the purpose of computing the three term limit. This
court pointed out that from the discussions of the Constitutional
Convention it is evident that the delegates proceeded from the
premise that the officials assumption of office is by reason of election.
This Court stated:[4]
Two ideas emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term,
derived from the concern about the accumulation of power as a result
of a prolonged stay in office. The second is the idea of election,
derived from the concern that the right of the people to choose those
whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of
the Constitution did so on the assumption that the officials concerned
were serving by reason of election. This is clear from the following
exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI sections 4 and 7 of the Constitution, for
members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue
after the second term. We will allow the Senator to rest for a period of
time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before-if the
Gentlemen will remember-was: How long will that period of rest be?
Will it be one election which is three years or one term which is six
years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo
expressed the view that during the election following the expiration of
the first 12 years, whether such election will be on the third year or on
the sixth year thereafter, his particular member of the Senate can run.
So it is not really a period of hibernation for six years. That was the
Committees stand.
xxxx xxxx xxxx
Second, not only historical examination but textual analysis as well
supports the ruling of the COMELEC that Art X, section 8 contemplates
service by local officials for three consecutive terms as a result of
election. The first sentence speaks of the term of office of elective
local officials and bars such officials from serving for more than three
consecutive terms. The second sentence, in explaining when an
elective official may be deemed to have served his full term of office,
states that voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected. The term served
must therefore be one for which the the official concerned was
elected. The purpose of the provision is to prevent a circumvention of
the limitation on the number of terms an elective official may serve.
This Court held that two conditions for the application of the
disqualification must concur: 1) that the official concerned has been
elected for three consecutive terms in the same local government post
and 2) that he has fully served three consecutive terms. It stated:
To recapitulate, the term limit for elective local officials must be taken
to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an
individual has served three consecutive terms in an elective local
office, he must also have been elected to the same position for the
same number of times before the disqualification can apply.
It is not disputed that the petitioner was previously elected and served
two consecutive terms as mayor of San Antonio Zambales prior to the
May 1995 mayoral elections. In the May 1995 elections he again ran
for mayor of San Antonio, Zambales and was proclaimed winner. He
assumed office and discharged the rights and duties of mayor until
March 1998 when he was ordered to vacate the post by reason of the
COMELEC decision dated November 13, 1997 on the election protest
against the petitioner which declared his opponent Juan Alvez, the
duly elected mayor of San Antonio. Alvez served the remaining portion
of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are
absent. First, the petitioner cannot be considered as having been duly
elected to the post in the May 1995 elections, and second, the
petitioner did not fully serve the 1995-1998 mayoral term by reason of
involuntary relinquishment of office. After a re-appreciation and
revision of the contested ballots the COMELEC itself declared by final
judgment that petitioner Lonzanida lost in the May 1995 mayoral
elections and his previous proclamation as winner was declared null
and void. His assumption of office as mayor cannot be deemed to have
been by reason of a valid election but by reason of a void
proclamation. It has been repeatedly held by this court that a
proclamation subsequently declared void is no proclamation at all[5]
and while a proclaimed candidate may assume office on the strength
of the proclamation of the Board of Canvassers he is only a
presumptive winner who assumes office subject to the final outcome
of the election protest.[6] Petitioner Lonzanida did not serve a term as
mayor of San Antonio, Zambales from May 1995 to March 1998
because he was not duly elected to the post; he merely assumed office
as presumptive winner, which presumption was later overturned by
the COMELEC when it decided with finality that Lonzanida lost in the
May 1995 mayoral elections.
Second, the petitioner cannot be deemed to have served the May
1995 to 1998 term because he was ordered to vacate his post before
the expiration of the term. The respondents contention that the
petitioner should be deemed to have served one full term from May
1995-1998 because he served the greater portion of that term has no
legal basis to support it; it disregards the second requisite for the
application of the disqualification, i.e., that he has fully served three
consecutive terms. The second sentence of the constitutional
provision under scrutiny states, Voluntary renunciation of office for
any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected. The
clear intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office
and at the same time respect the peoples choice and grant their
elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term
in the computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term
porvided by law amounts to an interruption of continuity of service.
The petitioner vacated his post a few months before the next mayoral
elections, not by voluntary renunciation but in compliance with the
legal process of writ of execution issued by the COMELEC to that
effect. Such involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the
1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he did
not hold office for the full term; hence, his assumption of office from
May 1995 to March 1998 cannot be counted as a term for purposes of
computing the three term limit. The Resolution of the COMELEC
finding him disqualified on this ground to run in the May 1998 mayoral
elections should therefore be set aside.
The respondents harp on the delay in resolving the election protest
between petitioner and his then opponent Alvez which took roughly
about three years and resultantly extended the petitioners
incumbency in an office to which he was not lawfully elected. We note
that such delay cannot be imputed to the petitioner. There is no
specific allegation nor proof that the delay was due to any political
maneuvering on his part to prolong his stay in office. Moreover,
protestant Alvez, was not without legal recourse to move for the early
resolution of the election protest while it was pending before the
regional trial court or to file a motion for the execution of the regional
trial courts decision declaring the position of mayor vacant and
ordering the vice-mayor to assume office while the appeal was
pending with the COMELEC. Such delay which is not here shown to
have been intentionally sought by the petitioner to prolong his stay in
office cannot serve as basis to bar his right to be elected and to serve
his chosen local government post in the succeeding mayoral election.
The petitioners contention that the COMELEC ceased to have
jurisdiction over the petition for disqualification after he was
proclaimed winner is without merit. The instant petition for
disqualification was filed on April 21, 1998 or before the May 1998
elections and was resolved on May 21, 1998 or after the petitioners
proclamation. It was held in the case of Sunga vs. COMELEC and
Trinidad[7] that the proclamation nor the assumption of office of a
candidate against whom a petition for disqualification is pending
before the COMELEC does not divest the COMELEC of jurisdiction to
continue hearing the case and to resolve it on the merits.
Section 6 of RA 6646 specifically mandates that:
Sec. 6. Effects of disqualification Case.- any candidate who has been
declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of
votes in such election, the court or commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of
the complainant or any intervenor, may during the pendency thereof
order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong.
This court held that the clear legislative intent is that the COMELEC
should continue the trial and hearing of the disqualification case to its
conclusion i.e., until judgment is rendered. The outright dismissal of
the petition for disqualification filed before the election but which
remained unresolved after the proclamation of the candidate sought
to be disqualified will unduly reward the said candidate and may
encourage him to employ delaying tactics to impede the resolution of
the petition until after he has been proclaimed.
The court stated:
Clearly, the legislative intent is that the COMELEC should continue the
trial and hearing of the disqualification case to its conclusion, i.e., until
judgment is rendered thereon. The word shall signified that this
requirement of the law is mandatory, operating to impose a positive
duty which must be enforced. Theimplication is that the COMELEC is
left with no discretion but to proceed with the disqualification case
even after the election. Thus, in providing for the outright dismissal of
the disqualification case which remains unresolved after the election,
Silvestre vs. Duavit in effect disallows what R. A. No. 6646 imperatively
requires. This amounts to a quasi-judicial legislation by the COMELEC
which cannot be countenanced and is invalid for having been issued
beyond the scope of its authority. Interpretative rulings of quasi-
judicial bodies or administrative agencies must always be in perfect
harmony with statutes and should be for the sole purpose of carrying
their general provisions into effect. By such interpretative or
administrative rulings, of course, the scope of the law itself cannot be
limited. Indeed, a quasi-judicial body or an administrative agency for
that matter cannot amend an act of Congress. Hence, in case of a
discrepancy between the basic law and an interpretative or
administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to
forsee. A candidate guilty of election offenses would be undeservedly
rewarded, instead of punished, by the dismissal of thedisqualification
case against him simply because the investigating body was unable, for
any reason caused upon it, to determine before the election if the
offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to employ
delaying tactics so that the disqualification case based on the
commission of election offenses would not be decided before the
election. This scenario is productive of more fraud which certainly is
not the main intent and purpose of the law.
The fact that Trinidad was already proclaimed and had assumed the
position of mayor did not divest the COMELEC of authority and
jurisdiction to continue the hearing and eventually decide the
disqualification case. In Aguam v. COMELEC this Court held-
Time and again this Court has given its imprimatur on the principle
that COMELEC is with authority to annul any canvass and proclamation
which was illegally made. The fact that a candidate proclaimed has
assumed office, we have said, is no bar to the exercise of such power.
It of course may not be availed of where there has been a valid
proclamation. Since private respondents petition before the COMELEC
is precisely directed at the annulment of the canvass and
proclamation, we perceive that inquiry into this issue is within the area
allocated by the Constitution and law to COMELEC xxx Really, were a
victim of a proclamation to be precluded from challenging the validity
thereof after that proclamation and the assumption of office
thereunder, baneful effects may easily supervene.
It must be emphasized that the purpose of a disqualification
proceeding is to prevent the candidate from running or, if elected.
From serving, or to prosecute him for violation of the election laws.
Obviously, the fact that a candidate has been proclaimed elected does
not signify that his disqualification is deemed condoned and may no
longer be the subject of a separate investigation.
ACCORDINGLY, the petition is granted. The assailed resolutions of the
COMELEC declaring petitioner Lonzanida disqualified to run for mayor
in the 1998 mayoral elections are hereby set aside.
SO ORDERED.
ATTY. LUCKY M. DAMASEN, Petitioner, - versus - OSCAR G.
TUMAMAO, Respondent.
Before this Court is a Petition for Review on Certiorari,[1] under Rule
45 of the 1997 Rules of Civil Procedure, assailing the June 14, 2006
Decision[2] of the Court of Appeals (CA) in CA-G.R. SP No. 90882.
The facts of the case are as follows:
On December 2, 2004, Nelia Tumamao, the Vice-Mayor of San Isidro,
Isabela, died.[3] As a result, a permanent vacancy was created in the
Office of the Vice-Mayor.
Pursuant to Sec. 44 of Republic Act (RA) No. 7160,[4] Ligaya C. Alonzo
(Alonzo) was elevated to the position of Vice-Mayor, she being the
highest-ranking member of the Sangguniang Bayan, that is, the one
who garnered the highest number of votes for that office.[5] As a
result, a permanent vacancy was created in the Sangguniang Bayan.
To fill up the ensuing vacancy in the Sangguniang Bayan, San Isidro
Mayor Abraham T. Lim (Mayor Lim) recommended to Governor Maria
Gracia Cielo M. Padaca (Governor Padaca), the appointment of
respondent Oscar G. Tumamao (Tumamao), a member of the Laban ng
Demokratikong Pilipino (LDP), the same political party to which Alonzo
belonged.[6]
On April 15, 2005, Tumamao took his oath as a member of the
Sangguninang Bayan before Mayor Lim.[7]
On April 26, 2005 and May 3, 2006, Tumamao attended the regular
sessions of the Sangguniang Bayan.[8]
On May 5, 2005, petitioner Atty. Lucky Damasen (Damasen) became a
member of the LDP after taking his oath of affiliation before the LDP
Provincial Chairman, Ms. Ana Benita Balauag (Provincial Chairman
Balauag).[9] On even date, Damasen was able to secure from LDP
Provincial Chairman Balauag a letter of nomination addressed to
Governor Padaca for his appointment to the Sangguniang Bayan.[10]
On May 12, 2005, Damasen was appointed as Sangguniang Bayan
member by Governor Padaca.[11]
On May 16, 2005, Damasen took his oath as member of the
Sangguniang Bayan before Governor Padaca.[12]
On May 17, 2005, Damasen attended the Sangguniang Bayan session,
but with Tumamao present thereat, the former was not duly
recognized.[13] Hence, in the afternoon of the same day, Damasen
filed with the Regional Trial Court of Santiago City (RTC) a Petition for
Quo Warranto with Prayer for the Issuance of a Writ of Preliminary
Injunction,[14] seeking to be declared the rightful member of the
Sangguniang Bayan, claiming that he had been nominated by LDP
Provincial Chairman Balauag and had been appointed thereto by
Governor Padaca.[15] The case was docketed as Special Civil Action
Case No. 0234.
The RTC issued a Temporary Restraining Order effective for 72 hours.
Thereafter, the RTC issued an order extending the Temporary
Restraining order to 17 days.
Later, in the hearing to determine the propriety of issuing a Writ of
Preliminary Injunction, Damasen testified that he is a member of the
LDP and was nominated to the position in question by LDP Provincial
Chairman Balauag; that pursuant thereto, he was appointed by
Governor Padaca as a member of the Sangguniang Bayan, and that he
later took his oath before her; but that during session of the
Sangguniang Bayan on May 12, 2005, he was not recognized by a
majority of its members.[16]
For his part, Tumamao called to the witness stand his counsel Atty.
Ernest Soberano (Soberano), who identified a letter dated June 14,
2005, signed by LDP Provincial Chairman Balauag, which states that
the latter was revoking her nomination of Damasen, and that she was
confirming Tumamaos nomination made by Mayor Lim.[17] Later,
Tumamao presented Provincial Chairman Balauag who affirmed the
contents of her letter revoking the nomination of Damasen.[18]
On August 4, 2005, the RTC rendered a Decision[19] ruling in favor of
Damasen, the dispositive portion of which reads:
WHEREFORE, after careful evaluation of the evidence presented, the
Court resolves the petition declaring petitioner, Atty. Lucky M.
Damasen as the rightful person to have the right to occupy and
exercise the functions of Sangguniang Bayan member of San Isidro,
Isabela, enjoining, excluding respondent Oscar G. Tumamao from
occupying and exercising the function of Sangguniang Bayan member
of San Isidro, Isabela, from usurping and unlawfully holding or
exercising said office. After determining that herein petitioner is the
rightful person to occupy and exercise the functions of Sangguniang
Bayan member of San Isidro, Isabela, it follows that he is entitled to
the salaries, benefits and other emoluments appurtenant to the
position. He is also entitled to recover his costs.
SO ORDERED.[20]
The RTC based its decision on Sec. 45 (b) of RA 7160,[21] which
provides for the rule on succession in cases of permanent vacancies in
the Sangguninan. The RTC ruled that the evidence submitted by
Damasen proved that the requirements to be able to qualify for the
position was fully complied with.[22] Moreover, the RTC held that the
revocation of the political nomination issued by LDP Provincial
Chairman Balauag was done after Governor Padaca had acted on it
and had issued the appointment of Damasen.[23] Hence, the RTC
declared that it could no longer undo what Governor Padaca had
done, absent any showing of grave abuse of discretion.[24]
Tumamao appealed the RTC Decision to the CA. On June 14, 2006, the
CA rendered a Decision reversing the appealed Decision, the
dispositive portion of which reads:
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment
appealed from must be, as it hereby is, VACATED and SET ASIDE. The
Quo Warranto case is hereby DISMISSED for lack of merit. Without
special pronouncement as to costs.
SO ORDERED.[25]
The CA held that Damasen was not entitled to assume the vacant
position in the Sangguniang Bayan, thus:
While Atty. Damasen might have been appointed by Governor Padaca,
this appointment must fly in the face of the categorical and unbending
sine qua non requirements of the statute.
Indeed, Atty. Damasen was nominated simply by Ms. Balauag, the
Provincial Chairman of the LDP, who obviously is not the highest
official of this political party. It cannot escape notice that the quoted
provision particularizes: highest official of the political party concerned
without any additional qualifying or restrictive words.
According credence to the June 16, 2005 letter of the LDP Deputy
Secretary Counsel Demaree Raval, (and we have no reason not to), it
should be easy enough to see that Atty. Damasen also was not a
member of the LDP, as his application for membership therein was not
endorsed to the LDPs National Council for approval.
More importantly, Atty. Damasens aforesaid nomination was
eventually withdrawn, cancelled or revoked by Ms. Balauag, who
declared that she was misled into accepting him as member of the LDP
(owing to the fact that Atty. Damasen was affiliated with the Lakas
CMD-Party and under the banner of this party indeed ran for Mayor of
San Isidro against the LDP candidate for Mayor), and in nominating
him. That much is clear from Ms. Balauags letter of June 14, 2005 to
Governor Padaca, the contents whereof she affirmed in her testimony,
as follows: x x x
Oddly enough, Atty. Damasen helped accentuate Ms. Balauags thesis
by admitting that he was previously a member of the Lakas-CMD, and
that he did not resign therefrom when he joined the LDP, and
moreover, his joining the LDP was not based on party ideals but
because he just wanted to.[26]
Damasen did not file a motion for reconsideration of the CA Decision
and instead sought direct relief from this Court via the present petition
for review. In his petition, Damasen raised the following issues for this
Courts resolution, to wit:
A.
THE COURT OF APPEALS ERRED IN DISMISSING THE QUO WARRANTO
ON THE BASIS THAT THE NOMINATION OF THE PETITIONER DID NOT
COMPLY WITH THE REQUIREMENTS OF SECTION 45 OF REPUBLIC ACT
7160.
B.
THE COURT OF APPEALS ERRED IN ITS DECISION WHEN IT DID NOT
RULE ON THE VALIDITY OF THE ASSUMPTION TO OFFICE OF PRIVATE
RESPONDENT AS SANGGUNIANG BAYAN.
C.
THE COURT OF APPEALS ERRED IN NOT DISMISSING THE APPEAL
FAILED BY THE PRIVATE RESPONDENT THE LATTER HAVING NO
AUTHORITY TO QUESTION THE VALIDITY OF THE APPOINTMENT OF
PETITIONER.[27]
The petition is not meritorious.
At the outset, this Court shall address a procedural matter raised by
Damasen. Damasen argues that Tumamao was not appointed as
Sangguniang Bayan and, therefore, the latter has no right to question
his appointment by way of appeal.[28] More specifically, Damasen
argues in the wise:
By reason of the appeal, the situation of the parties had been changed
since it is now the private respondent who is assailing petitioners
exercise of a public office. Else wise stated, the private respondent is
now alleging that the petitioner is a person who usurps, intrudes into,
or unlawfully holding the position of Sangguniang Bayan. This being
the case, the proper legal remedy should be a separate case of Quo
Warranto to be filed against petitioner.[29]
Damasens contention that Tumamao should have filed a separate case
of quo warranto and not an appeal to the CA does not hold water. The
determination of who, between Damasen and Tumamao, is entitled to
the contested position is the crux of the controversy in the case at bar.
Hence, a separate action would only be tantamount to a multiplicity of
suits, which is abhorred by law.
It is undisputed that the law applicable to herein petition is Sec. 45(b)
of RA 7160, which provides for the rule on succession in cases of
permanent vacancies in the Sanggunian, to wit:
Section 45. Permanent Vacancies in the Sanggunian.
(a) Permanent vacancies in the sanggunian where automatic
succession 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 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 therefore.[30]
As can be gleaned from the above provision, the law provides for
conditions for the rule of succession to apply: First, the appointee shall
come from the same political party as that of the Sanggunian member
who caused the vacancy. Second, the appointee must have a
nomination and a Certificate of Membership from the highest official
of the political party concerned.
It is the contention of Damasen that he has complied with the
requirements of Sec. 45 (b) of RA 7160. Specifically, Damasens position
is predicated on his submission of the following documents:
1. Oath of Affiliation with the LDP[31] dated May 5, 2005;
2. Certificate of Membership with the LDP[32] dated May 5,
2005;
3. Letter of Nomination made by LDP Provincial Chairman Ana
Benita G. Balauag[33] dated May 5, 2005;
4. Letter of Appointment from Governor Padaca[34] dated
May 12, 2005;
5. Panunumpa sa Katungkulan as Sangguniang Bayan
member[35] dated May 16, 2005.
For his part, Tumamao argued that Damasen has not complied with
the requirements of the law. Tumamao argued in the main that
Damasen is not a bona-fide member of the LDP and that Provincial
Chairman Balauag is not the highest official of the LDP as
contemplated under Sec. 45 (b) of RA 7160.
In order to resolve the brewing dispute on Damasens membership in
the LDP, this Court shall hereunder discuss and scrutinize two
documents which are vital for a just resolution of the petition at bar,
the first being the June 14, 2005 letter[36] of LDP Provincial Chairman
Balauag to Governor Padaca, and the second being the June 16, 2005
letter[37] of Demaree J.B. Raval, the Deputy Secretary Counsel of the
LDP also to Governor Padaca.
Revocation of the nomination given by the LDP Provincial Chairman
On June 14 2005, LDP Provincial Chairman Balauag sent a letter to
Governor Padaca revoking the nomination she issued in favor of
Damasen, the text of which in hereunder reproduced in its entirety, to
wit:
This refers to the nomination which I issued in favor of Atty. Lucky M.
Damasen to fill in the vacancy in the Sangguniang Bayan of San Isidro,
Isabela dated May 5, 2005.
When Judge Jose O. Ramos (Ret.) together with Atty. Damasen came
to see me at my residence in Quezon City sometime in the month of
May, 2005, to request the nomination of Atty. Damasen, he did not
inform me that Atty. Damasen was a candidate for Mayor in the May
2004 elections affiliated with the Lakas Party and who ran against our
Partys candidate for Mayor in San Isidro. I was given the impression
that Atty. Damasen was not affiliated with any political party that is
why I signed the documents presented to me and endorsed his
nomination. However, I later learned that Atty. Damasen was actually
a candidate for Mayor and a member of Lakas so that his joining our
Party and his nomination as such to the vacant position of Sanggunian
member is not accordance with our Partys principles pursuant to Sec.
2, Art. IV of our By-Laws.
In view of the foregoing, as the Provincial Chairman of LDP-LABAN, I
am constrained to withdraw, cancel, and/or revoke the nomination
issued to Atty. Lucky M. Damasen dated May 5, 2005 for all legal
intents and purposes.[38]
In his defense, Damasen maintains that he did not commit any
misrepresentation when he secured his Certificate of Nomination and
Membership from LDP Provincial Chairman Balauag. Damasen thus
argued in this wise:
According to ANA BENITA BALAUAG when she testified, she claimed
that she did not know that petitioner was a candidate for Mayor
during the last Local and National Election. This is absurd because
Echague, Isabela where ANA BENITA BALAUAG also ran for Mayor is
just an adjoining town of San Isidro, Isabela. xxx[39]
In addition, Damasen asservates that in the Philippines, politicians
change their political affiliation more often than not.[40] More
importantly, Damasen is of the belief that the subsequent revocation
of the nomination after he was already appointed by the Governor has
no legal effect, to wit:
Respondent is of the view that since the nomination of the petitioner
dated May 5, 2005 has been cancelled and/or revoked by LDP Isabela
Provincial Chairman ANA BENITA BALAUAG on June 14, 2005,
petitioner no longer has a right to be a member of the Sangguniang
Bayan. This is wrong. The respondent should open its eyes and must
come to realize that the revocation and/or cancellation CAME AFTER
the petitioner has been APPOINTED. x x x x[41]
It is not the province of this Court to decide if in fact LDP Provincial
Chairman Balauag knew or should have known that Damasen was a
member of the Lakas-CMD party. However, as can be gleaned from
the Transcript of Stenographic Notes dated July 12, 2005, LDP
Provincial Chairman Balauag repeatedly denied knowing that Damasen
ran for Mayor in San Isidro, Isabela.[42] The same notwithstanding,
this Court must take into consideration the fact that Damasen was
previously a member of the Lakas-CMD party. Likewise, while the
revocation of Damasens nomination came after the fact of his
appointment by Governor Padaca, the same should not serve to bar
any contest on said appointment as the primordial issue to be
determined is whether or not Damasen has complied with the
requirements of Sec. 45 (b) of RA 7160.
Letter from the LDP that Damasen is not a bona fide member
What is damning to the cause of Damasen, is the letter of Demaree
J.B. Raval, the Deputy Secretary Counsel of the LDP, addressed to
Governor Padaca wherein it is categorically stated that Damasen is not
a bona fide member of the LDP, to wit:
xxxx
As regards the claim of Mr. Lucky Magala Damasen, please be
informed that pursuant to the LDP Constitution, Mr. Damasen does
not appear in our records as a bona fide member of the LDP. While it is
true that Mr. Damasen may have been issued a Certificate of
Membership dated May 5, 2005 by our Provincial Chairman for
Isabela, Mrs. Ana Benita G. Balauag, his membership has not been
endorsed (even to date) to the LDP National Council for approval.
Besides, the Certificate of Candidacy of Mr. Damasen for the May 10,
2004 elections shows that he was nominated by the Lakas-CMD
Party.[43]
Like the CA, this Court has no reason to doubt the veracity of the letter
coming from the LDP leadership. Quite clearly, from the tenor of the
letter, it appears that the membership of Damasen still had to be
approved by the LDP National Council. Thus, notwithstanding WHEREFORE, premises considered, the petition is DENIED. The June
Damasens procurement of a Certificate of Membership from LDP 14, 2006 Decision of the Court of Appeals in CA-G.R. SP No. 90882, is
Provincial Chairman Balauag, to this Courts mind, the same merely AFFIRMED.
started the process of his membership in the LDP, and it did not mean
automatic membership thereto. While it may be argued that Damasen SO ORDERED.
was already a member upon receipt of a Certificate of Membership
from LDP Provincial Chairman Balauag, this Court cannot impose such
view on the LDP. If the LDP leadership says that the membership of
Damasen still had to be endorsed to the National Council for approval,
then this Court cannot question such requirement in the absence of
evidence to the contrary. It is well settled that the discretion of
accepting members to a political party is a right and a privilege, a
purely internal matter, which this Court cannot meddle in.

In resolving the petition at bar, this Court is guided by Navarro v. Court

of Appeals[44](Navarro), where this Court explained the reason
behind the rule of succession under Sec. 45 (b) of RA 7160, to wit:

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.

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 belonging to the
political party of petitioner Tamayo. Otherwise, REFORMA-LMs
representation in the Sanggunian would be diminished. Xxx. As earlier
pointed out, the reason behind Par. (b), Sec. 45 of the Local
Government Code is the maintenance of party representation in the
Sanggunian in accordance with the will of the electorate.[45]

Since the permanent vacancy in the Sanggunian occurred because of

the elevation of LDP member Alonzo to vice-mayor, it follows that the
person to succeed her should also belong to the LDP so as to preserve
party representation. Thus, this Court cannot countenance Damasens
insistence in clinging to an appointment when he is in fact not a bona
fide member of the LDP. While the revocation of the nomination given
to Damasen came after the fact of his appointment, this Court cannot
rule in his favor, because the very first requirement of Sec. 45 (b) is
that the appointee must come from the political party as that of the
Sanggunian member who caused the vacancy. To stress, Damasen is
not a bona fide member of the LDP.

In addition, appointing Damasen would not serve the will of the

electorate. He himself admitts that he was previously a member of the
Lakas-CMD, and that he ran for the position of Mayor under the said
party on the May 2004 Elections. Likewise, he did not resign from the
said party when he joined the LDP, and even admitted that his joining
the LDP was not because of party ideals, but because he just wanted
to.[46] How can the will of the electorate be best served, given the
foregoing admissions of Damasen? If this Court were to grant herein
petition, it would effectively diminish the party representation of the
LDP in the Sanggunian, as Damasen would still be considered a
member of the Lakas-CMD, not having resigned therefrom, a scenario
that defeats the purpose of the law, and that ultimately runs contrary
the ratio of Navarro.

Lastly, the records of the case reveal that Tumamao has the
nomination[47] of Senator Edgardo J. Angara, the Party Chairman and,
therefore, the highest official of the LDP. In addition, he is a member
in good standing of the LDP.[48] Thus, given the foregoing, it is this
Courts view that Tumamao has complied with the requirements of
law.