MORENO vs COMELEC
Comelec, the Office of the Solicitor General argues that this
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
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.
MERCADO vs MANZANO
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.
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.

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
RODRUIGES vs COMELEC
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.
SOBEJANA-CONDON vs COMELEC
Failure to renounce foreign citizenship in accordance with
the exact tenor of Section 5(2) of Republic Act (R.A.) No.
9225 renders a dual citizen ineligible to run for and thus
hold any elective public office.
The Case
At bar is a special civil action for certiorari1 under Rule 64 of
the Rules of Court seeking to nullify Resolution2 dated
September 6, 2011 of the Commission on Elections
(COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed
resolution (a) reversed the Order3 dated November 30, 2010
of COMELEC Second Division dismissing petitioner’s appeal;
and (b) affirmed the consolidated Decision4 dated October
22, 2010 of the Regional Trial Court (RTC), Bauang, La Union,
Branch 33, declaring petitioner Teodora Sobejana-Condon
(petitioner) disqualified and ineligible to her position as
Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been
born of Filipino parents on August 8, 1944. On December 13,
1984, she became a naturalized Australian citizen owing to
her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire
Philippine citizenship before the Philippine Embassy in
Canberra, Australia pursuant to Section 3 of R.A. No. 9225
otherwise known as the "Citizenship Retention and Re-
Acquisition Act of 2003."5 The application was approved and
the petitioner took her oath of allegiance to the Republic of
the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn
Declaration of Renunciation of Australian Citizenship before
the Department of Immigration and Indigenous Affairs,
Canberra, Australia, which in turn issued the Order dated
September 27, 2006 certifying that she has ceased to be an
Australian citizen.6
The petitioner ran for Mayor in her hometown of Caba, La
Union in the 2007 elections. She lost in her bid. She again
sought elective office during the May 10, 2010 elections this
time for the position of Vice-Mayor. She obtained the highest
numbers of votes and was proclaimed as the winning
candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar,
Wilma P. Pagaduan7 and Luis M. Bautista,8 (private
respondents) all registered voters of Caba, La Union, filed
separate petitions for quo warranto questioning the
petitioner’s eligibility before the RTC. The petitions similarly
sought the petitioner’s disqualification from holding her
elective post on the ground that she is a dual citizen and that
she failed to execute a "personal and sworn renunciation of
any and all foreign citizenship before any public officer
authorized to administer an oath" as imposed by Section
5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that
since September 27, 2006, she ceased to be an Australian
citizen. She claimed that the Declaration of Renunciation of
Australian Citizenship she executed in Australia sufficiently
complied with Section 5(2), R.A. No. 9225 and that her act of
running for public office is a clear abandonment of her
Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial
court held that the petitioner’s failure to comply with Section
5(2) of R.A. No. 9225 rendered her ineligible to run and hold
public office. As admitted by the petitioner herself during
trial, the personal declaration of renunciation she filed in
Australia was not under oath. The law clearly mandates that
the document containing the renunciation of foreign
citizenship must be sworn before any public officer
authorized to administer oath. Consequently, the RTC’s
decision disposed as follows:
WHEREFORE, premises considered, the Court renders
judgment in FAVOR of [private respondents] and AGAINST
(petitioner):
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON,
disqualified and ineligible to hold the office of Vice-Mayor of
Caba, La Union;
2) NULLIFYING her proclamation as the winning candidate
for Vice-Mayor of said municipality; and
3) DECLARING the position of Vice-Mayor in said
municipality vacant.
SO ORDERED.9
Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was
dismissed by the Second Division in its Order10 dated
November 30, 2010 for failure to pay the docket fees within
the prescribed period. On motion for reconsideration, the
appeal was reinstated by the COMELEC en banc in its
Resolution11 dated September 6, 2011. In the same issuance,
the substantive merits of the appeal were given due course.
The COMELEC en banc concurred with the findings and
conclusions of the RTC; it also granted the Motion for
Execution Pending Appeal filed by the private respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission
RESOLVED as it hereby RESOLVES as follows:
1. To DISMISS the instant appeal for lack of merit;
2. To AFFIRM the DECISION dated 22 October 2010 of the
court a quo; and
3. To GRANT the Motion for Execution filed on November 12,
2010.
SO ORDERED.12 (Emphasis supplied)
Hence, the present petition ascribing grave abuse of
discretion to the COMELEC en banc.
The Petitioner’s Arguments
The petitioner contends that since she ceased to be an
Australian citizen on September 27, 2006, she no longer held
dual citizenship and was only a Filipino citizen when she
filed her certificate of candidacy as early as the 2007
elections. Hence, the "personal and sworn renunciation of
foreign citizenship" imposed by Section 5(2) of R.A. No. 9225
to dual citizens seeking elective office does not apply to her.
She further argues that a sworn renunciation is a mere
formal and not a mandatory requirement. In support thereof,
she cites portions of the Journal of the House of
Representatives dated June 2 to 5, 2003 containing the
sponsorship speech for House Bill (H.B.) No. 4720, the
precursor of R.A. No. 9225.
She claims that the private respondents are estopped from
questioning her eligibility since they failed to do so when she
filed certificates of candidacy for the 2007 and 2010
elections.
Lastly, she disputes the power of the COMELEC en banc to:
(a) take cognizance of the substantive merits of her appeal
instead of remanding the same to the COMELEC Second
Division for the continuation of the appeal proceedings; and
(b) allow the execution pending appeal of the RTC’s
judgment.
The Issues
Posed for resolution are the following issues: I) Whether the
COMELEC en banc may resolve the merits of an appeal after
ruling on its reinstatement; II) Whether the COMELEC en
banc may order the execution of a judgment rendered by a
trial court in an election case; III) Whether the private
respondents are barred from questioning the qualifications
of the petitioner; and IV) For purposes of determining the
petitioner’s eligibility to run for public office, whether the
"sworn renunciation of foreign citizenship" in Section 5(2) of
R.A. No. 9225 is a mere pro-forma requirement.
The Court’s Ruling
I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election
cases is arrogated unto the COMELEC en banc by Section 3,
Article IX-C of the Constitution, viz:
Sec. 3. The Commission on Elections may sit en banc or in
two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commission en banc.
A complementary provision is present in Section 5(c), Rule 3
of the COMELEC Rules of Procedure, to wit:
Any motion to reconsider a decision, resolution, order or
ruling of a Division shall be resolved by the Commission en
banc except motions on interlocutory orders of the division
which shall be resolved by the division which issued the
order.
Considering that the above cited provisos do not set any
limits to the COMELEC en banc’s prerogative in resolving a
motion for reconsideration, there is nothing to prevent the
body from directly adjudicating the substantive merits of an
appeal after ruling for its reinstatement instead of
remanding the same to the division that initially dismissed it.
We thus see no impropriety much more grave abuse of
discretion on the part of the COMELEC en banc when it
proceeded to decide the substantive merits of the
petitioner’s appeal after ruling for its reinstatement.
Further, records show that, in her motion for
reconsideration before the COMELEC en banc, the petitioner
not only proffered arguments on the issue on docket fees but
also on the issue of her eligibility. She even filed a
supplemental motion for reconsideration attaching
therewith supporting documents13 to her contention that
she is no longer an Australian citizen. The petitioner, after
obtaining an unfavorable decision, cannot be permitted to
disavow the en banc’s exercise of discretion on the
substantial merits of her appeal when she herself invoked
the same in the first place.
The fact that the COMELEC en banc had remanded similar
appeals to the Division that initially dismissed them cannot
serve as a precedent to the disposition of the petitioner’s
appeal. A decision or resolution of any adjudicating body can
be disposed in several ways. To sustain petitioner’s
argument would be virtually putting a straightjacket on the
COMELEC en banc’s adjudicatory powers.
More significantly, the remand of the appeal to the COMELEC
Second Division would be unnecessarily circuitous and
repugnant to the rule on preferential disposition of quo
warranto cases espoused in Rule 36, Section 15 of the
COMELEC Rules of Procedure.14
II. The COMELEC en banc has the
power to order discretionary
execution of judgment.
We cannot subscribe to petitioner’s submission that the
COMELEC en banc has no power to order the issuance of a
writ of execution and that such function belongs only to the
court of origin.
There is no reason to dispute the COMELEC’s authority to
order discretionary execution of judgment in view of the fact
that the suppletory application of the Rules of Court is
expressly sanctioned by Section 1, Rule 41 of the COMELEC
Rules of Procedure.15
Under Section 2, Rule 39 of the Rules of Court, execution
pending appeal may be issued by an appellate court after the
trial court has lost jurisdiction. In Batul v. Bayron,16 we
stressed the import of the provision vis-à-vis election cases
when we held that judgments in election cases which may be
executed pending appeal includes those decided by trial
courts and those rendered by the COMELEC whether in the
exercise of its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioner’s eligibility to hold public
office.
The fact that the petitioner’s qualifications were not
questioned when she filed certificates of candidacy for 2007
and 2010 elections cannot operate as an estoppel to the
petition for quo warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election
Code), there are two instances where a petition questioning
the qualifications of a registered candidate to run for the
office for which his certificate of candidacy was filed can be
raised, to wit:
(1) Before election, pursuant to Section 78 thereof which
provides that:
Sec. 78. Petition to deny due course or to 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;
and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. – Any voter contesting
the election of any Member of the Batasang Pambansa,
regional, provincial, or city officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines
shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the
results of the election. (Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a
certain candidate fails to file the petition within the twenty-
five (25)-day period prescribed by Section 78 of the Omnibus
Election Code for whatever reasons, the elections laws do
not leave him completely helpless as he has another chance
to raise the disqualification of the candidate by filing a
petition for quo warranto within ten (10) days from the
proclamation of the results of the election, as provided under
Section 253 of the Omnibus Election Code.17
The above remedies were both available to the private
respondents and their failure to utilize Section 78 of the
Omnibus Election Code cannot serve to bar them should they
opt to file, as they did so file, a quo warranto petition under
Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of
Filipino citizenship for natural-born citizens who have lost
their Philippine citizenship18 by taking an oath of allegiance
to the Republic, thus:
Section 3. Retention of Philippine Citizenship. – Any
provision of law to the contrary notwithstanding, natural-
born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-
acquired Philippine citizenship upon taking the following
oath of allegiance to the Republic:
"I, _____________________, solemnly swear (or affirm) that I will
support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated
by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme
authority of the Philippines and will maintain true faith and
allegiance thereto; and that I imposed this obligation upon
myself voluntarily without mental reservation or purpose of
evasion."
Natural-born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the
aforesaid oath.
The oath is an abbreviated repatriation process that restores
one’s Filipino citizenship and all civil and political rights and
obligations concomitant therewith, subject to certain
conditions imposed in Section 5, viz:
Sec. 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:
(1) Those intending to exercise their right of suffrage must
meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as
"The Overseas Absentee Voting Act of 2003" and other
existing laws;
(2) Those seeking elective public office in the Philippines
shall meet the qualification 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;
(3) Those appointed to any public office shall subscribe and
swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their
oath of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by, or
extended to, those who:
(a) are candidates for or are occupying any public office in
the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country
which they are naturalized citizens. (Emphasis ours)
Under the provisions of the aforementioned law, the
petitioner has validly re-acquired her Filipino citizenship
when she took an Oath of Allegiance to the Republic of the
Philippines on December 5, 2005. At that point, she held dual
citizenship, i.e., Australian and Philippine.
On September 18, 2006, or a year before she initially sought
elective public office, she filed a renunciation of Australian
citizenship in Canberra, Australia. Admittedly, however, the
same was not under oath contrary to the exact mandate of
Section 5(2) that the renunciation of foreign citizenship must
be sworn before an officer authorized to administer oath.
To obviate the fatal consequence of her inutile renunciation,
the petitioner pleads the Court to interpret the "sworn
renunciation of any and all foreign citizenship" in Section
5(2) to be a mere pro forma requirement in conformity with
the intent of the Legislature. She anchors her submission on
the statement made by Representative Javier during the floor
deliberations on H.B. No. 4720, the precursor of R.A. No.
9225.
At the outset, it bears stressing that the Court’s duty to
interpret the law according to its true intent is exercised only
when the law is ambiguous or of doubtful meaning. The first
and fundamental duty of the Court is to apply the law. As
such, when the law is clear and free from any doubt, there is
no occasion for construction or interpretation; there is only
room for application.19 Section 5(2) of R.A. No. 9225 is one
such instance.
Ambiguity is a condition of admitting two or more meanings,
of being understood in more than one way, or of referring to
two or more things at the same time. For a statute to be
considered ambiguous, it must admit of two or more
possible meanings.20
The language of Section 5(2) is free from any ambiguity. In
Lopez v. COMELEC,21 we declared its categorical and single
meaning: a Filipino American or any dual citizen cannot run
for any elective public position in the Philippines unless he
or she personally swears to a renunciation of all foreign
citizenship at the time of filing the certificate of candidacy.
We also expounded on the form of the renunciation and held
that to be valid, the renunciation must be contained in an
affidavit duly executed before an officer of the law who is
authorized to administer an oath stating in clear and
unequivocal terms that affiant is renouncing all foreign
citizenship.
The same meaning was emphasized in Jacot v. Dal,22 when
we held that Filipinos re-acquiring or retaining their
Philippine citizenship under R.A. No. 9225 must explicitly
renounce their foreign citizenship if they wish to run for
elective posts in the Philippines, thus:
The law categorically requires persons seeking elective
public office, who either retained their Philippine citizenship
or those who reacquired it, to make a personal and sworn
renunciation of any and all foreign citizenship before a
public officer authorized to administer an oath simultaneous
with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels
natural-born Filipinos, who have been naturalized as citizens
of a foreign country, but who reacquired or retained their
Philippine citizenship (1) to take the oath of allegiance under
Section 3 of Republic Act No. 9225, and (2) for those seeking
elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all
foreign citizenship before an authorized public officer prior
or simultaneous to the filing of their certificates of candidacy,
to qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making
of a personal and sworn renunciation of any and all foreign
citizenship) requires of the Filipinos availing themselves of
the benefits under the said Act to accomplish an undertaking
other than that which they have presumably complied with
under Section 3 thereof (oath of allegiance to the Republic of
the Philippines). This is made clear in the discussion of the
Bicameral Conference Committee on Disagreeing Provisions
of House Bill No. 4720 and Senate Bill No. 2130 held on 18
August 2003 (precursors of Republic Act No. 9225), where
the Hon. Chairman Franklin Drilon and Hon. Representative
Arthur Defensor explained to Hon. Representative Exequiel
Javier that the oath of allegiance is different from the
renunciation of foreign citizenship;
xxxx
The intent of the legislators was not only for Filipinos
reacquiring or retaining their Philippine citizenship under
Republic Act No. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly renounce
their foreign citizenship if they wish to run for elective posts
in the Philippines. To qualify as a candidate in Philippine
elections, Filipinos must only have one citizenship, namely,
Philippine citizenship.23 (Citation omitted and italics and
underlining ours)
Hence, in De Guzman v. COMELEC,24 we declared petitioner
therein to be disqualified from running for the position of
vice-mayor for his failure to make a personal and sworn
renunciation of his American citizenship.
We find no reason to depart from the mandatory nature
infused by the above rulings to the phrase "sworn
renunciation". The language of the provision is plain and
unambiguous. It expresses a single, definite, and sensible
meaning and must thus be read literally.25 The foreign
citizenship must be formally rejected through an affidavit
duly sworn before an officer authorized to administer oath.
It is conclusively presumed to be the meaning that the
Legislature has intended to convey.26 Even a resort to the
Journal of the House of Representatives invoked by the
petitioner leads to the same inference, viz:
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual
citizenship is only limited to natural-born Filipinos and not
to naturalized Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill
which provides that natural-born Filipinos who have dual
citizenship shall continue to enjoy full civil and political
rights. This being the case, he sought clarification as to
whether they can indeed run for public office provided that
they renounce their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these
citizens will only have to make a personal and sworn
renunciation of foreign citizenship before any authorized
public officer.
Rep. Javier sought further clarification on this matter, citing
that while the Bill provides them with full civil and political
rights as Filipino citizens, the measure also discriminates
against them since they are required to make a sworn
renunciation of their other foreign citizenship if and when
they run for public office. He thereafter proposed to delete
this particular provision.
In his rejoinder, Rep. Libanan explained that this serves to
erase all doubts regarding any issues that might be raised
pertaining to the citizenship of any candidate. He
subsequently cited the case of Afroyim vs. Rusk, wherein the
United States considered a naturalized American still as an
American citizen even when he cast his vote in Israel during
one of its elections.
Rep. Javier however pointed out that the matter of voting is
different because in voting, one is not required to renounce
his foreign citizenship. He pointed out that under the Bill,
Filipinos who run for public office must renounce their
foreign citizenship. He pointed out further that this is a
contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens
who had acquired foreign citizenship and are now entitled to
reacquire their Filipino citizenship will be considered as
natural-born citizens. As such, he likewise inquired whether
they will also be considered qualified to run for the highest
elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only
requirement is that they make a sworn renunciation of their
foreign citizenship and that they comply with the residency
and registration requirements as provided for in the
Constitution.
Whereupon, Rep. Javier noted that under the Constitution,
natural-born citizens are those who are citizens at the time
of birth without having to perform an act to complete or
perfect his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason
why the Bill seeks the repeal of CA No. 63. The repeal, he
said, would help Filipino citizens who acquired foreign
citizenship to retain their citizenship. With regard then to
Section 5 of the Bill, he explained that the Committee had
decided to include this provision because Section 18, Article
XI of the Constitution provides for the accountability of
public officers.
In his rejoinder, Rep. Javier maintained that in this case, the
sworn renunciation of a foreign citizenship will only become
a pro forma requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that
natural-born Filipino citizens who became foreign citizens
and who have reacquired their Filipino citizenship under the
Bill will be considered as natural-born citizens, and therefore
qualified to run for the presidency, the vice-presidency or for
a seat in Congress. He also agreed with the observation of
Rep. Javier that a natural-born citizen is one who is a citizen
of the country at the time of birth. He also explained that the
Bill will, in effect, return to a Filipino citizen who has
acquired foreign citizenship, the status of being a natural-
born citizen effective at the time he lost his Filipino
citizenship.
As a rejoinder, Rep. Javier opined that doing so would be
discriminating against naturalized Filipino citizens and
Filipino citizens by election who are all disqualified to run
for certain public offices. He then suggested that the Bill be
amended by not considering as natural-born citizens those
Filipinos who had renounced their Filipino citizenship and
acquired foreign citizenship. He said that they should be
considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the
Committee will take note of the latter’s comments on the
matter. He however stressed that after a lengthy deliberation
on the subject, the Committees on Justice, and Foreign Affairs
had decided to revert back to the status of being natural-
born citizens those natural-born Filipino citizens who had
acquired foreign citizenship but now wished to reacquire
their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her
Filipino citizenship by virtue of her marriage to a foreigner
can regain her repatriated Filipino citizenship, upon the
death of her husband, by simply taking her oath before the
Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only
wants to be fair to other Filipino citizens who are not
considered natural-born. He reiterated that natural-born
Filipino citizens who had renounced their citizenship by
pledging allegiance to another sovereignty should not be
allowed to revert back to their status of being natural-born
citizens once they decide to regain their Filipino citizenship.
He underscored that this will in a way allow such Filipinos to
enjoy dual citizenship.
On whether the Sponsors will agree to an amendment
incorporating the position of Rep. Javier, Rep. Libanan stated
that this will defeat the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born
Filipino citizens who acquired foreign citizenships and later
decided to regain their Filipino citizenship, will be
considered as repatriated citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the
Supreme Court had ruled that only naturalized Filipino
citizens are not considered as natural-born citizens.
In reaction, Rep. Javier clarified that only citizens by election
or those whose mothers are Filipino citizens under the 1935
Constitution and who elected Filipino citizenship upon
reaching the age of maturity, are not deemed as natural-born
citizens.
In response, Rep. Libanan maintained that in the Bengzon
case, repatriation results in the recovery of one’s original
nationality and only naturalized citizens are not considered
as natural-born citizens.
On whether the Sponsors would agree to not giving back the
status of being natural-born citizens to natural-born Filipino
citizens who acquired foreign citizenship, Rep. Libanan
remarked that the Body in plenary session will decide on the
matter.27
The petitioner obviously espouses an isolated reading of
Representative Javier’s statement; she conveniently
disregards the preceding and succeeding discussions in the
records.
The above-quoted excerpts of the legislative record show
that Representative Javier’s statement ought to be
understood within the context of the issue then being
discussed, that is – whether former natural-born citizens
who re-acquire their Filipino citizenship under the proposed
law will revert to their original status as natural-born
citizens and thus be qualified to run for government
positions reserved only to natural-born Filipinos, i.e.
President, Vice-President and Members of the Congress.
It was Representative Javier’s position that they should be
considered as repatriated Filipinos and not as natural-born
citizens since they will have to execute a personal and sworn
renunciation of foreign citizenship. Natural-born citizens are
those who need not perform an act to perfect their
citizenship. Representative Libanan, however, maintained
that they will revert to their original status as natural-born
citizens. To reconcile the renunciation imposed by Section
5(2) with the principle that natural-born citizens are those
who need not perform any act to perfect their citizenship,
Representative Javier suggested that the sworn renunciation
of foreign citizenship be considered as a mere pro forma
requirement.
Petitioner’s argument, therefore, loses its point. The "sworn
renunciation of foreign citizenship" must be deemed a
formal requirement only with respect to the re-acquisition of
one’s status as a natural-born Filipino so as to override the
effect of the principle that natural-born citizens need not
perform any act to perfect their citizenship. Never was it
mentioned or even alluded to that, as the petitioner wants
this Court to believe, those who re-acquire their Filipino
citizenship and thereafter run for public office has the option
of executing an unsworn affidavit of renunciation.
It is also palpable in the above records that Section 5 was
intended to complement Section 18, Article XI of the
Constitution on public officers’ primary accountability of
allegiance and loyalty, which 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.
An oath is a solemn declaration, accompanied by a swearing
to God or a revered person or thing, that one’s statement is
true or that one will be bound to a promise. The person
making the oath implicitly invites punishment if the
statement is untrue or the promise is broken. The legal effect
of an oath is to subject the person to penalties for perjury if
the testimony is false.28
Indeed, the solemn promise, and the risk of punishment
attached to an oath ensures truthfulness to the prospective
public officer’s abandonment of his adopted state and
promise of absolute allegiance and loyalty to the Republic of
the Philippines.
To hold the oath to be a mere pro forma requirement is to
say that it is only for ceremonial purposes; it would also
accommodate a mere qualified or temporary allegiance from
government officers when the Constitution and the
legislature clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of
1948, under which she is already deemed to have lost her
citizenship, is entitled to judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any
other fact, they must be alleged and proven.29 To prove a
foreign law, the party invoking it must present a copy thereof
and comply with Sections 24 and 25 of Rule 132 of the
Revised Rules of Court which reads:

Sec. 24. Proof of official record. – The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with
a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice- consul, or consular
agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
(Emphasis ours)
Sec. 25. What attestation of copy must state. – Whenever a
copy of a document or record is attested for the purpose of
the evidence, the attestation must state, in substance, that
the copy is a correct copy of the original, or a specific part
thereof, as the case may be. The attestation must be under
the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such
court.
The Court has admitted certain exceptions to the above rules
and held that the existence of a foreign law may also be
established through: (1) a testimony under oath of an expert
witness such as an attorney-at-law in the country where the
foreign law operates wherein he quotes verbatim a section of
the law and states that the same was in force at the time
material to the facts at hand; and (2) likewise, in several
naturalization cases, it was held by the Court that evidence of
the law of a foreign country on reciprocity regarding the
acquisition of citizenship, although not meeting the
prescribed rule of practice, may be allowed and used as basis
for favorable action, if, in the light of all the circumstances,
the Court is "satisfied of the authenticity of the written proof
offered." Thus, in a number of decisions, mere authentication
of the Chinese Naturalization Law by the Chinese Consulate
General of Manila was held to be a competent proof of that
law.30
The petitioner failed to prove the Australian Citizenship Act
of 1948 through any of the above methods. As uniformly
observed by the RTC and COMELEC, the petitioner failed to
show proof of the existence of the law during trial. Also, the
letter issued by the Australian government showing that
petitioner already renounced her Australian citizenship was
unauthenticated hence, the courts a quo acted judiciously in
disregarding the same.
We are bound to arrive at a similar conclusion even if we
were to admit as competent evidence the said letter in view
of the photocopy of a Certificate of Authentication issued by
Consular Section of the Philippine Embassy in Canberra,
Australia attached to the petitioner’s motion for
reconsideration.
We have stressed in Advocates and Adherents of Social
Justice for School Teachers and Allied Workers (AASJS)
Member v. Datumanong31 that the framers of R.A. No. 9225
did not intend the law to concern itself with the actual status
of the other citizenship.
This Court as the government branch tasked to apply the
enactments of the legislature must do so conformably with
the wisdom of the latter sans the interference of any foreign
law. If we were to read the Australian Citizen Act of 1948
into the application and operation of R.A. No. 9225, we
would be applying not what our legislative department has
deemed wise to require. To do so would be a brazen
encroachment upon the sovereign will and power of the
people of this Republic.32
The petitioner’s act of running for public office does not
suffice to serve as an effective renunciation of her Australian
citizenship. While this Court has previously declared that the
filing by a person with dual citizenship of a certificate of
candidacy is already considered a renunciation of foreign
citizenship,33 such ruling was already adjudged superseded
by the enactment of R.A. No. 9225 on August 29, 2003 which
provides for the additional condition of a personal and
sworn renunciation of foreign citizenship.34
The fact that petitioner won the elections can not cure the
defect of her candidacy. Garnering the most number of votes
does not validate the election of a disqualified candidate
because the application of the constitutional and statutory
provisions on disqualification is not a matter of
popularity.35
In fine, R.A. No. 9225 categorically demands natural-born
Filipinos who re-acquire their citizenship and seek elective
office, to execute a personal and sworn renunciation of any
and all foreign citizenships before an authorized public
officer prior to or simultaneous to the filing of their
certificates of candidacy, to qualify as candidates in
Philippine elections.36 The rule applies to all those who have
re-acquired their Filipino citizenship, like petitioner, without
regard as to whether they are still dual citizens or not. It is a
pre-requisite imposed for the exercise of the right to run for
public office.
Stated differently, it is an additional qualification for elective
office specific only to Filipino citizens who re-acquire their
citizenship under Section 3 of R.A. No. 9225. It is the
operative act that restores their right to run for public office.
The petitioner's failure to comply therewith in accordance
with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she
executed on September 18, 2006. As such, she is yet to regain
her political right to seek elective office. Unless she executes
a sworn renunciation of her Australian citizenship, she is
ineligible to run for and hold any elective office in the
Philippines.
WHEREFORE, in view of all the foregoing, the petition is
hereby DISMISSED. The Resolution dated September 6, 2011
of the Commission on Elections en bane in EAC (AE) No. A-
44-2010 is AFFIRMED in toto.
SO ORDERED.
JALOSJOS vs COMELEC
These are two special civil actions for certiorari1 questioning
the resolutions of the Commission on Elections (COMELEC)
in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G.
Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010
Resolution2 of the COMELEC First Division and the 11
August 2010 Resolution3 of the COMELEC En Banc, which
both ordered the cancellation of his certificate of candidacy
on the ground of false material representation. In G.R. No.
193536, Agapito J. Cardino (Cardino) challenges the 11
August 2010 Resolution of the COMELEC En Banc, which
applied the rule on succession under the Local Government
Code in filling the vacancy in the Office of the Mayor of
Dapitan City, Zamboanga del Norte created by the
cancellation of Jalosjos’ certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor of
Dapitan City, Zamboanga del Norte in the May 2010
elections. Jalosjos was running for his third term. Cardino
filed on 6 December 2009 a petition under Section 78 of the
Omnibus Election Code to deny due course and to cancel the
certificate of candidacy of Jalosjos. Cardino asserted that
Jalosjos made a false material representation in his
certificate of candidacy when he declared under oath that he
was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate
of candidacy, Jalosjos had already been convicted by final
judgment for robbery and sentenced to prisión mayor by the
Regional Trial Court, Branch 18 (RTC) of Cebu City, in
Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that
Jalosjos has not yet served his sentence. Jalosjos admitted his
conviction but stated that he had already been granted
probation. Cardino countered that the RTC revoked Jalosjos’
probation in an Order dated 19 March 1987. Jalosjos refuted
Cardino and stated that the RTC issued an Order dated 5
February 2004 declaring that Jalosjos had duly complied
with the order of probation. Jalosjos further stated that
during the 2004 elections the COMELEC denied a petition for
disqualification filed against him on the same grounds.4
The COMELEC En Banc narrated the circumstances of
Jalosjos’ criminal record as follows:
As backgrounder, Jalosjos and three (3) others were accused
of the crime of robbery on January 22, 1969 in Cebu City. On
April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit
Criminal Court of Cebu City found him and his co-accused
guilty of robbery and sentenced them to suffer the penalty of
prision correccional minimum to prision mayor maximum.
Jalosjos appealed this decision to the Court of Appeals but his
appeal was dismissed on August 9, 1973. It was only after a
lapse of several years or more specifically on June 17, 1985
that Jalosjos filed a Petition for Probation before the RTC
Branch 18 of Cebu City which was granted by the court. But
then, on motion filed by his Probation Officer, Jalosjos’
probation was revoked by the RTC Cebu City on March 19,
1987 and the corresponding warrant for his arrest was
issued. Surprisingly, on December 19, 2003, Parole and
Probation Administrator Gregorio F. Bacolod issued a
Certification attesting that respondent Jalosjos, Jr., had
already fulfilled the terms and conditions of his probation.
This Certification was the one used by respondent Jalosjos to
secure the dismissal of the disqualification case filed against
him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the
Commission on the decision of the Sandiganbayan dated
September 29, 2008 finding Gregorio F. Bacolod, former
Administrator of the Parole and Probation Administration,
guilty of violating Section 3(e) of R.A. 3019 for issuing a
falsified Certification on December 19, 2003 attesting to the
fact that respondent Jalosjos had fully complied with the
terms and conditions of his probation. A portion of the
decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave
probationer Dominador Jalosjos, Jr., unwarranted benefits
and advantage because the subject certification, which was
issued by the accused without adequate or official support,
was subsequently utilized by the said probationer as basis of
the Urgent Motion for Reconsideration and to Lift Warrant of
Arrest that he filed with the Regional Trial Court of Cebu
City, which prompted the said court to issue the Order dated
February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU,
declaring that said probationer has complied with the order
of probation and setting aside its Order of January 16, 2004
recalling the warrant or [sic] arrest; and that said
Certification was also used by the said probationer and
became the basis for the Commission on Elections to deny in
its Resolution of August 2, 2004 the petition or [sic] private
complainant James Adasa for the disqualification of the
probationer from running for re-election as Mayor of
Dapitan City in the National and Local Elections of 2004.5
The COMELEC’s Rulings
On 10 May 2010, the COMELEC First Division granted
Cardino’s petition and cancelled Jalosjos’ certificate of
candidacy. The COMELEC First Division concluded that
"Jalosjos has indeed committed material misrepresentation
in his certificate of candidacy when he declared, under oath,
that he is eligible for the office he seeks to be elected to when
in fact he is not by reason of a final judgment in a criminal
case, the sentence of which he has not yet served."6 The
COMELEC First Division found that Jalosjos’ certificate of
compliance of probation was fraudulently issued; thus,
Jalosjos has not yet served his sentence. The penalty imposed
on Jalosjos was the indeterminate sentence of one year, eight
months and twenty days of prisión correccional as minimum,
to four years, two months and one day of prisión mayor as
maximum. The COMELEC First Division ruled that Jalosjos "is
not eligible by reason of his disqualification as provided for
in Section 40(a) of Republic Act No. 7160."7
On 11 August 2010, the COMELEC En Banc denied Jalosjos’
motion for reconsideration. The pertinent portions of the 11
August 2010 Resolution read:
With the proper revocation of Jalosjos’ earlier probation and
a clear showing that he has not yet served the terms of his
sentence, there is simply no basis for Jalosjos to claim that
his civil as well as political rights have been violated. Having
been convicted by final judgment,
Jalosjos is disqualified to run for an elective position or to
hold public office. His proclamation as the elected mayor in
the May 10, 2010 election does not deprive the Commission
of its authority to resolve the present petition to its finality,
and to oust him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration is denied for utter lack of merit. Jalosjos is
hereby OUSTED from office and ordered to CEASE and
DESIST from occupying and discharging the functions of the
Office of the Mayor of Dapitan City, Zamboanga. Let the
provisions of the Local Government Code on succession
apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R.
No. 193237, while Cardino filed his petition on 17 September
2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution
dismissing G.R. No. 193237.

WHEREFORE, the foregoing premises considered, the
Petition for Certiorari is DISMISSED. The assailed Resolution
dated May 10, 2010 and Resolution dated August 11, 2010 of
the Commission on Elections in SPA Case No. 09-076 (DC)
are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that
this Court take judicial notice of its resolution in G.R. No.
193237. Jalosjos filed a Motion for Reconsideration10 on 22
March 2011. On 29 March 2011, this Court resolved11 to
consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos
then filed a Manifestation on 1 June 2012 which stated that
"he has resigned from the position of Mayor of the City of
Dapitan effective 30 April 2012, which resignation was
accepted by the Provincial Governor of Zamboanga del
Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation was
made "in deference with the provision of the Omnibus
Election Code in relation to his candidacy as Provincial
Governor of Zamboanga del Sur in May 2013."13
These cases are not rendered moot by Jalosjos’ resignation.
In resolving Jalosjos’ Motion for Reconsideration in G.R. No.
193237 and Cardino’s Petition in G.R. No. 193536, we
address not only Jalosjos’ eligibility to run for public office
and the consequences of the cancellation of his certificate of
candidacy, but also COMELEC’s constitutional duty to
enforce and administer all laws relating to the conduct of
elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it (1) ruled that Jalosjos’
probation was revoked; (2) ruled that Jalosjos was
disqualified to run as candidate for Mayor of Dapitan City,
Zamboanga del Norte; and (3) cancelled Jalosjos’ certificate
of candidacy without making a finding that Jalosjos
committed a deliberate misrepresentation as to his
qualifications, as Jalosjos relied in good faith upon a previous
COMELEC decision declaring him eligible for the same
position from which he is now being ousted. Finally, the
Resolutions dated 10 May 2010 and 11 August 2010 were
issued in violation of the COMELEC Rules of Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC acted
with grave abuse of discretion amounting to lack or excess of
jurisdiction when it added to the dispositive portion of its 11
August 2010 Resolution that the provisions of the Local
Government Code on succession should apply.
This Court’s Ruling
The perpetual special disqualification against Jalosjos arising
from his criminal conviction by final judgment is a material
fact involving eligibility which is a proper ground for a
petition under Section 78 of the Omnibus Election Code.
Jalosjos’ certificate of candidacy was void from the start
since he was not eligible to run for any public office at the
time he filed his certificate of candidacy. Jalosjos was never a
candidate at any time, and all votes for Jalosjos were stray
votes. As a result of Jalosjos’ certificate of candidacy being
void ab initio, Cardino, as the only qualified candidate,
actually garnered the highest number of votes for the
position of Mayor.
The dissenting opinions affirm with modification the 10 May
2010 Resolution of the COMELEC First Division and the 11
August 2010 Resolution of the COMELEC En Banc. The
dissenting opinions erroneously limit the remedy against
Jalosjos to disqualification under Section 68 of the Omnibus
Election Code and apply the rule on succession under the
Local Government Code.
A false statement in a certificate of candidacy that a
candidate is eligible to run for public office is a false material
representation which is a ground for a petition under Section
78 of the same Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. – The certificate
of candidacy shall state that the person filing it is announcing
his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities,
highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil
status; his date of birth; residence; his post office address for
all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines
and will maintain true faith and allegiance thereto; that he
will obey the laws, legal orders, and decrees promulgated by
the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the
obligation imposed by his oath is assumed voluntarily,
without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the
best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate
of candidacy. – A verified petition seeking to deny due course
or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material
representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election.
(Emphasis supplied)
Section 74 requires the candidate to state under oath in his
certificate of candidacy "that he is eligible for said office." A
candidate is eligible if he has a right to run for the public
office.14 If a candidate is not actually eligible because he is
barred by final judgment in a criminal case from running for
public office, and he still states under oath in his certificate of
candidacy that he is eligible to run for public office, then the
candidate clearly makes a false material representation that
is a ground for a petition under Section 78.
A sentence of prisión mayor by final judgment is a ground for
disqualification under Section 40 of the Local Government
Code and under Section 12 of the Omnibus Election Code. It
is also a material fact involving the eligibility of a candidate
under Sections 74 and 78 of the Omnibus Election Code.
Thus, a person can file a petition under Section 40 of the
Local Government Code or under either Section 12 or Section
78 of the Omnibus Election Code. The pertinent provisions
read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years
after serving sentence;
(b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for violating the oath
of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases
here or abroad;

(f) Permanent residents in a foreign country or those who
have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. — Any person who has been
declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall
be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from
his service of sentence, unless within the same period he
again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action
or protest in which he is a party is declared by final decision
by a competent court guilty of, or found by the Commission
of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code;
(d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office.
Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any
elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence
requirement provided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The
duration of the penalties of prisión mayor and temporary
disqualification shall be from six years and one day to twelve
years, except when the penalty of disqualification is imposed
as an accessory penalty, in which case, it shall be that of the
principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary
absolute disqualification. — The penalties of perpetual or
temporary absolute disqualification for public office shall
produce the following effects:
1. The deprivation of the public offices and employments
which the offender may have held, even if conferred by
popular election.
2. The deprivation of the right to vote in any election for any
popular elective office or to be elected to such office.
3. The disqualification for the offices or public employments
and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as
is comprised in paragraphs 2 and 3 of this article shall last
during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for
any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary
special disqualification. — The penalties of perpetual or
temporary special disqualification for public office,
profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or
calling affected.
2. The disqualification for holding similar offices or
employments either perpetually or during the term of the
sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary
special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special
disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the
sentence, according to the nature of said penalty, of the right
to vote in any popular election for any public office or to be
elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of his
disqualification.
Art. 42. Prisión mayor — its accessory penalties. — The
penalty of prisión mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special
disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the
pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by
operation of law,15 the accessory penalties of temporary
absolute disqualification and perpetual special
disqualification. Under Article 30 of the Revised Penal Code,
temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any
popular elective office or to be elected to such office." The
duration of the temporary absolute disqualification is the
same as that of the principal penalty. On the other hand,
under Article 32 of the Revised Penal Code perpetual special
disqualification means that "the offender shall not be
permitted to hold any public office during the period of his
disqualification," which is perpetually. Both temporary
absolute disqualification and perpetual special
disqualification constitute ineligibilities to hold elective
public office. A person suffering from these ineligibilities is
ineligible to run for elective public office, and commits a false
material representation if he states in his certificate of
candidacy that he is eligible to so run.
In Lacuna v. Abes,16 the Court, speaking through Justice
J.B.L. Reyes, explained the import of the accessory penalty of
perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be
remembered that appellee’s conviction of a crime penalized
with prisión mayor which carried the accessory penalties of
temporary absolute disqualification and perpetual special
disqualification from the right of suffrage (Article 42,
Revised Penal Code); and Section 99 of the Revised Election
Code disqualifies a person from voting if he had been
sentenced by final judgment to suffer one year or more of
imprisonment.
The accessory penalty of temporary absolute disqualification
disqualifies the convict for public office and for the right to
vote, such disqualification to last only during the term of the
sentence (Article 27, paragraph 3, & Article 30, Revised
Penal Code) that, in the case of Abes, would have expired on
13 October 1961.
But this does not hold true with respect to the other
accessory penalty of perpetual special disqualification for the
exercise of the right of suffrage. This accessory penalty
deprives the convict of the right to vote or to be elected to or
hold public office perpetually, as distinguished from
temporary special disqualification, which lasts during the
term of the sentence. Article 32, Revised Penal Code,
provides:
Art. 32. Effects of the penalties of perpetual or temporary
special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special
disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the
sentence, according to the nature of said penalty, of the right
to vote in any popular election for any public office or to be
elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of
disqualification.
The word "perpetually" and the phrase "during the term of
the sentence" should be applied distributively to their
respective antecedents; thus, the word "perpetually" refers
to the perpetual kind of special disqualification, while the
phrase "during the term of the sentence" refers to the
temporary special disqualification. The duration between the
perpetual and the temporary (both special) are necessarily
different because the provision, instead of merging their
durations into one period, states that such duration is
"according to the nature of said penalty" — which means
according to whether the penalty is the perpetual or the
temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of
perpetual special disqualification "deprives the convict of the
right to vote or to be elected to or hold public office
perpetually."
The accessory penalty of perpetual special disqualification
takes effect immediately once the judgment of conviction
becomes final. The effectivity of this accessory penalty does
not depend on the duration of the principal penalty, or on
whether the convict serves his jail sentence or not. The last
sentence of Article 32 states that "the offender shall not be
permitted to hold any public office during the period of his
perpetual special disqualification." Once the judgment of
conviction becomes final, it is immediately executory. Any
public office that the convict may be holding at the time of
his conviction becomes vacant upon finality of the judgment,
and the convict becomes ineligible to run for any elective
public office perpetually. In the case of Jalosjos, he became
ineligible perpetually to hold, or to run for, any elective
public office from the time his judgment of conviction
became final.
Perpetual special disqualification is a ground for a petition
under Section 78 of the Omnibus Election Code because this
accessory penalty is an ineligibility, which means that the
convict is not eligible to run for public office, contrary to the
statement that Section 74 requires him to state under oath.
As used in Section 74, the word "eligible" means having the
right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for public
office. As this Court held in Fermin v. Commission on
Elections,17 the false material representation may refer to
"qualifications or eligibility." One who suffers from perpetual
special disqualification is ineligible to run for public office. If
a person suffering from perpetual special disqualification
files a certificate of candidacy stating under oath that "he is
eligible to run for (public) office," as expressly required
under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section
78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the
cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a
material representation that is false, which may relate to the
qualifications required of the public office he/she is running
for. It is noted that the candidate states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of
the OEC, therefore, is to be read in relation to the
constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently
states a material representation in the CoC that is false, the
COMELEC, following the law, is empowered to deny due
course to or cancel such certificate. Indeed, the Court has
already likened a proceeding under Section 78 to a quo
warranto proceeding under Section 253 of the OEC since
they both deal with the eligibility or qualification of a
candidate, with the distinction mainly in the fact that a
"Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the
winning candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of
prisión mayor, to which perpetual special disqualification
attaches by operation of law, is not a ground for a petition
under Section 68 because robbery is not one of the offenses
enumerated in Section 68. Insofar as crimes are concerned,
Section 68 refers only to election offenses under the
Omnibus Election Code and not to crimes under the Revised
Penal Code. For ready reference, we quote again Section 68
of the Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action
or protest in which he is a party is declared by final decision
by a competent court guilty of, or found by the Commission
of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials
performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and
104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance
with the residence requirement provided for in the election
laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that
will justify including the crime of robbery as one of the
offenses enumerated in this Section. All the offenses
enumerated in Section 68 refer to offenses under the
Omnibus Election Code. The dissenting opinion of Justice
Reyes gravely errs when it holds that Jalosjos’ conviction for
the crime of robbery under the Revised Penal Code is a
ground for "a petition for disqualification under Section 68 of
the OEC and not for cancellation of COC under Section 78
thereof." This Court has already ruled that offenses punished
in laws other than in the Omnibus Election Code cannot be a
ground for a petition under Section 68. In Codilla, Sr. v. de
Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is
limited to those enumerated in Section 68 of the Omnibus
Election Code. All other election offenses are beyond the
ambit of COMELEC jurisdiction.They are criminal and not
administrative in nature. (Emphasis supplied)

A candidate for mayor during the 2010 local elections
certifies under oath four statements: (1) a statement that the
candidate is a natural born or naturalized Filipino citizen; (2)
a statement that the candidate is not a permanent resident
of, or immigrant to, a foreign country; (3) a statement that
the candidate is eligible for the office he seeks election; and
(4) a statement of the candidate’s allegiance to the
Constitution of the Republic of the Philippines.20
We now ask: Did Jalosjos make a false statement of a
material fact in his certificate of candidacy when he stated
under oath that he was eligible to run for mayor? The
COMELEC and the dissenting opinions all found that Jalosjos
was not eligible to run for public office. The COMELEC
concluded that Jalosjos made a false material representation
that is a ground for a petition under Section 78. The
dissenting opinion of Justice Reyes, however, concluded that
the ineligibility of Jalosjos is a disqualification which is a
ground for a petition under Section 68 and not under Section
78. The dissenting opinion of Justice Brion concluded that
the ineligibility of Jalosjos is a disqualification that is not a
ground under Section 78 without, however, saying under
what specific provision of law a petition against Jalosjos can
be filed to cancel his certificate of candidacy.
What is indisputably clear is that the false material
representation of Jalosjos is a ground for a petition under
Section 78. However, since the false material representation
arises from a crime penalized by prisión mayor, a petition
under Section 12 of the Omnibus Election Code or Section 40
of the Local Government Code can also be properly filed. The
petitioner has a choice whether to anchor his petition on
Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly
provides multiple remedies and the choice of which remedy
to adopt belongs to the petitioner.
The COMELEC properly cancelled Jalosjos’ certificate of
candidacy. A void certificate of candidacy on the ground of
ineligibility that existed at the time of the filing of the
certificate of candidacy can never give rise to a valid
candidacy, and much less to valid votes.21 Jalosjos’
certificate of candidacy was cancelled because he was
ineligible from the start to run for Mayor. Whether his
certificate of candidacy is cancelled before or after the
elections is immaterial because the cancellation on such
ground means he was never a valid candidate from the very
beginning, his certificate of candidacy being void ab initio.
Jalosjos’ ineligibility existed on the day he filed his certificate
of candidacy, and the cancellation of his certificate of
candidacy retroacted to the day he filed it. Thus, Cardino ran
unopposed. There was only one qualified candidate for
Mayor in the May 2010 elections – Cardino – who received
the highest number of votes.
Decisions of this Court holding that the second-placer cannot
be proclaimed winner if the first-placer is disqualified or
declared ineligible22 should be limited to situations where
the certificate of candidacy of the first-placer was valid at the
time of filing but subsequently had to be cancelled because of
a violation of law that took place, or a legal impediment that
took effect, after the filing of the certificate of candidacy. If
the certificate of candidacy is void ab initio, then legally the
person who filed such void certificate of candidacy was
never a candidate in the elections at any time. All votes for
such non-candidate are stray votes and should not be
counted. Thus, such non-candidate can never be a first-
placer in the elections. If a certificate of candidacy void ab
initio is cancelled on the day, or before the day, of the
election, prevailing jurisprudence holds that all votes for that
candidate are stray votes.23 If a certificate of candidacy void
ab initio is cancelled one day or more after the elections, all
votes for such candidate should also be stray votes because
the certificate of candidacy is void from the very beginning.
This is the more equitable and logical approach on the effect
of the cancellation of a certificate of candidacy that is void ab
initio. Otherwise, a certificate of candidacy void ab initio can
operate to defeat one or more valid certificates of candidacy
for the same position.
Even without a petition under either Section 12 or Section 78
of the Omnibus Election Code, or under Section 40 of the
Local Government Code, the COMELEC is under a legal duty
to cancel the certificate of candidacy of anyone suffering
from the accessory penalty of perpetual special
disqualification to run for public office by virtue of a final
judgment of conviction. The final judgment of conviction is
notice to the COMELEC of the disqualification of the convict
from running for public office. The law itself bars the convict
from running for public office, and the disqualification is part
of the final judgment of conviction. The final judgment of the
court is addressed not only to the Executive branch, but also
to other government agencies tasked to implement the final
judgment under the law.
Whether or not the COMELEC is expressly mentioned in the
judgment to implement the disqualification, it is assumed
that the portion of the final judgment on disqualification to
run for elective public office is addressed to the COMELEC
because under the Constitution the COMELEC is duty bound
to "enforce and administer all laws and regulations relative
to the conduct of an election."24 The disqualification of a
convict to run for public office under the Revised Penal Code,
as affirmed by final judgment of a competent court, is part of
the enforcement and administration of "all laws" relating to
the conduct of elections.
To allow the COMELEC to wait for a person to file a petition
to cancel the certificate of candidacy of one suffering from
perpetual special disqualification will result in the anomaly
that these cases so grotesquely exemplify. Despite a prior
perpetual special disqualification, Jalosjos was elected and
served twice as mayor. The COMELEC will be grossly remiss
in its constitutional duty to "enforce and administer all laws"
relating to the conduct of elections if it does not motu
proprio bar from running for public office those suffering
from perpetual special disqualification by virtue of a final
judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No.
193237 is DENIED, and the Petition in G.R. No. 193536 is
GRANTED. The Resolutions dated 10 May 2010 and 11
August 2010 of the COMELEC First Division and the
COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are
AFFIRMED with the MODIFICATION that Agapito J. Cardino
ran unopposed in the May 2010 elections and thus received
the highest number of votes for Mayor. The COMELEC En
Bane is DIRECTED to constitute a Special City Board of
Canvassers to proclaim Agapito J. Cardino as the duly elected
Mayor of Dapitan City, Zamboanga del Norte.
Let copies of this Decision be furnished the Secretaries of the
Department of Justice and the Department of Interior and
Local Government so they can cause the arrest of, and
enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to
his conviction for the crime of robbery in a final judgment
issued by the Regional Trial Court (Branch 18) of Cebu City
in Criminal Case No. CCC-XIV-140-CEBU.
SO ORDERED.
CIVIL LIBERTIES UNION vs EXECUTIVE SECRETARY
These two (2) petitions were consolidated per resolution
dated August 9, 19881 and are being resolved jointly as both
seek a declaration of the unconstitutionality of Executive
Order No. 284 issued by President Corazon C. Aquino on
July 25, 1987. The pertinent provisions of the assailed
Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary
functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive
officials of the Executive Department may, in addition to
his primary position, hold not more than two positions in
the government and government corporations and receive
the corresponding compensation therefor; Provided, that
this limitation shall not apply to ad hoc bodies or
committees, or to boards, councils or bodies of which the
President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or
assistant secretary or other appointive official of the
Executive Department holds more positions than what is
allowed in Section 1 hereof, they (sic) must relinquish the
excess position in favor of the subordinate official who is
next in rank, but in no case shall any official hold more than
two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the
government in government-owned or controlled
corporations, at least one-third (1/3) of the members of
the boards of such corporation should either be a
secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in
effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to
Section 13, Article VII of the 1987 Constitution,2 which
provides as follows:
Sec. 13. The President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall
not, during said tenure, directly or indirectly practice any
other profession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or
any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest
in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII
prohibits public respondents, as members of the Cabinet,
along with the other public officials enumerated in the list
attached to the petitions as Annex "C" in G.R. No. 838153 and
as Annex "B" in G.R. No. 838964 from holding any other
office or employment during their tenure.
In addition to seeking a declaration of the unconstitutionality
of Executive Order No. 284, petitioner Anti-Graft League of
the Philippines further seeks in G.R. No. 83815 the issuance
of the extraordinary writs of prohibition and mandamus,
as well as a temporary restraining order directing public
respondents therein to cease and desist from holding, in
addition to their primary positions, dual or multiple
positions other than those authorized by the 1987
Constitution and from receiving any salaries, allowances, per
diems and other forms of privileges and the like appurtenant
to their questioned positions, and compelling public
respondents to return, reimburse or refund any and all
amounts or benefits that they may have received from such
positions.
Specifically, petitioner Anti-Graft League of the Philippines
charges that notwithstanding the aforequoted "absolute and
self-executing" provision of the 1987 Constitution, then
Secretary of Justice Sedfrey Ordoñez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B,
rendered on July 23, 1987 Opinion No. 73, series of 1987,5
declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of
government corporations: (a) when directly provided for
in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar
Council under Section 8, paragraph 1, Article VIII; or (b) if
allowed by law; or (c) if allowed by the primary functions
of their respective positions; and that on the basis of this
Opinion, the President of the Philippines, on July 25, 1987 or
two (2) days before Congress convened on July 27, 1987:
promulgated Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to
both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2),
Article I-XB. This "strained linkage" between the two
provisions, each addressed to a distinct and separate group
of public officers –– one, the President and her official family,
and the other, public servants in general –– allegedly
"abolished the clearly separate, higher, exclusive, and
mandatory constitutional rank assigned to the prohibition
against multiple jobs for the President, the Vice-President,
the members of the Cabinet, and their deputies and
subalterns, who are the leaders of government expected to
lead by example."7 Article IX-B, Section 7, par. (2)8
provides:
Sec. 7. .....
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
The Solicitor General counters that Department of Justice
DOJ Opinion No. 73, series of 1987, as further elucidated and
clarified by DOJ Opinion No. 129, series of 19879 and DOJ
Opinion No. 155, series of 1988,10 being the first official
construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB of
the Constitution, involving the same subject of appointments
or designations of an appointive executive official to
positions other than his primary position, is "reasonably
valid and constitutionally firm," and that Executive Order No.
284, promulgated pursuant to DOJ Opinion No. 73, series of
1987 is consequently constitutional. It is worth noting that
DOJ Opinion No. 129, series of 1987 and DOJ Opinion No.
155, series of 1988 construed the limitation imposed by E.O.
No. 284 as not applying to ex-officio positions or to positions
which, although not so designated as ex-officio are allowed
by the primary functions of the public official, but only to the
holding of multiple positions which are not related to or
necessarily included in the position of the public official
concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284
is being challenged by petitioners on the principal
submission that it adds exceptions to Section 13, Article
VII other than those provided in the Constitution.
According to petitioners, by virtue of the phrase "unless
otherwise provided in this Constitution," the only exceptions
against holding any other office or employment in
Government are those provided in the Constitution, namely:
(1) The Vice-President may be appointed as a Member of the
Cabinet under Section 3, par. (2), Article VII thereof; and (2)
the Secretary of Justice is an ex-officio member of the Judicial
and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the
prohibition in Section 7, par. (2), Article I-XB on the Civil
Service Commission applies to officers and employees of the
Civil Service in general and that said exceptions do not apply
and cannot be extended to Section 13, Article VII which
applies specifically to the President, Vice-President,
Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the
President, Vice-President, the members of the Cabinet and
their deputies or assistants from holding dual or multiple
positions in the Government admits of certain exceptions.
The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception.
Petitioners insist that because of the phrase "unless
otherwise provided in this Constitution" used in Section 13
of Article VII, the exception must be expressly provided in
the Constitution, as in the case of the Vice-President being
allowed to become a Member of the Cabinet under the
second paragraph of Section 3, Article VII or the Secretary of
Justice being designated an ex-officio member of the Judicial
and Bar Council under Article VIII, Sec. 8 (1). Public
respondents, on the other hand, maintain that the phrase
"unless otherwise provided in the Constitution" in Section
13, Article VII makes reference to Section 7, par. (2), Article
I-XB insofar as the appointive officials mentioned therein are
concerned.
The threshold question therefore is: does the prohibition in
Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are
concerned admit of the broad exceptions made for
appointive officials in general under Section 7, par. (2),
Article I-XB which, for easy reference is quoted anew, thus:
"Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any
other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their
subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration.
Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to
be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the
condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to
effect that purpose.11
The practice of designating members of the Cabinet, their
deputies and assistants as members of the governing bodies
or boards of various government agencies and
instrumentalities, including government-owned and
controlled corporations, became prevalent during the time
legislative powers in this country were exercised by former
President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created
agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and
other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to
head or sit as members of the board with the corresponding
salaries, emoluments, per diems, allowances and other
perquisites of office. Most of these instrumentalities have
remained up to the present time.
This practice of holding multiple offices or positions in the
government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of
self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the
Batasang Pambansa.12 This condemnation came in reaction
to the published report of the Commission on Audit, entitled
"1983 Summary Annual Audit Report on: Government-
Owned and Controlled Corporations, Self-Governing Boards
and Commissions" which carried as its Figure No. 4 a
"Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of
December 31, 1983."
Particularly odious and revolting to the people's sense of
propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of
the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two
(22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and
Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea
of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve
(12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo
Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the
serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions
under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly
observed by Mr. Justice Isagani A. Cruz during the
deliberations in these cases, one of the strongest selling
points of the 1987 Constitution during the campaign for its
ratification was the assurance given by its proponents that
the scandalous practice of Cabinet members holding multiple
positions in the government and collecting unconscionably
excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although
Section 7, Article I-XB already contains a blanket prohibition
against the holding of multiple offices or employment in the
government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the different
phraseologies of the constitutional provisions in question,
the intent of the framers of the Constitution was to impose a
stricter prohibition on the President and his official family in
so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of
Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public
officials or employees from holding other offices or
employment. Under Section 13, Article VI, "(N)o Senator or
Member of the House of Representatives may hold any other
office or employment in the Government . . .". Under Section
5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity
to a civilian position in the Government, including
government-owned or controlled corporations or any of
their subsidiaries." Even Section 7 (2), Article IX-B, relied
upon by respondents provides "(U)nless otherwise allowed
by law or by the primary functions of his position, no
appointive official shall hold any other office or employment
in the Government."
It is quite notable that in all these provisions on
disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the
government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is
the wording of Section 13, Article VII which states that
"(T)he President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other
office or employment during their tenure." In the latter
provision, the disqualification is absolute, not being
qualified by the phrase "in the Government." The
prohibition imposed on the President and his official
family is therefore all-embracing and covers both public
and private office or employment.
Going further into Section 13, Article VII, the second
sentence provides: "They shall not, during said tenure,
directly or indirectly, practice any other profession,
participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the
President and his official family, which prohibitions are
not similarly imposed on other public officials or
employees such as the Members of Congress, members
of the civil service in general and members of the armed
forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by
itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be
stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in
the General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, "We
actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers
and, therefore, more cheeks and restraints on them are
called for because there is more possibility of abuse in their
case."14
Thus, while all other appointive officials in the civil
service are allowed to hold other office or employment
in the government during their tenure when such is
allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article
I-XB is meant to lay down the general rule applicable to
all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be
the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and
assistants.
This being the case, the qualifying phrase "unless otherwise
provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided
under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless the
manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the
President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other
offices or employment in the government during their
tenure. Respondents' interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7, par.
(2) of Article IX-B would obliterate the distinction so
carefully set by the framers of the Constitution as to when
the high-ranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately below
Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their
tenure.
Moreover, respondents' reading of the provisions in
question would render certain parts of the Constitution
inoperative. This observation applies particularly to the
Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so
authorized by the Constitution, but who as an elective
public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in
any capacity to any public office or position during his
tenure." Surely, to say that the phrase "unless otherwise
provided in this Constitution" found in Section 13, Article VII
has reference to Section 7, par. (1) of Article I-XB would
render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a
member of the Cabinet,15 and to act as President without
relinquishing the Vice-Presidency where the President shall
not nave been chosen or fails to qualify.16 Such absurd
consequence can be avoided only by interpreting the two
provisions under consideration as one, i.e., Section 7, par. (1)
of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto.
In the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction
that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate
the great purposes of the instrument.17 Sections bearing on
a particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution18 and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together.19
In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction which
will render every word operative, rather than one which may
make the words idle and nugatory.20
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple
offices or employment in the government during their
tenure, the exception to this prohibition must be read with
equal severity. On its face, the language of Section 13, Article
VII is prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the privilege of
holding multiple government offices or employment. Verily,
wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a
positive and unequivocal negation.21 The phrase "unless
otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of
the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts
occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided
by law and as required22 by the primary functions of said
officials' office. The reason is that these posts do no comprise
"any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of
additional duties and functions on said officials.23 To
characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the
Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115 (December 24,
1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense, Justice,
Labor and Employment and Local Government sit in this
Council, which would then have no reason to exist for lack of
a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the
Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment
Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither
can his Undersecretaries and Assistant Secretaries chair
these agencies.
The Secretaries of Finance and Budget cannot sit in the
Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank
Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of
money, banking and credit.25
Indeed, the framers of our Constitution could not have
intended such absurd consequences. A Constitution, viewed
as a continuously operative charter of government, is not to
be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if
possible, should be avoided.26
To reiterate, the prohibition under Section 13, Article VII is
not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided
by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from
office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an
official character, or as a consequence of office, and without
any other appointment or authority than that conferred by
the office."27 An ex-officio member of a board is one who is a
member by virtue of his title to a certain office, and without
further warrant or appointment.28 To illustrate, by express
provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of
the Philippine Ports Authority,29 and the Light Rail Transit
Authority.30
The Court had occasion to explain the meaning of an ex-
officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: "An examination of section 2
of the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need
only be designated by the respective department heads. With
the exception of the representative from the private sector,
they sit ex-officio. In order to be designated they must
already be holding positions in the offices mentioned in the
law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act,
be designated a representative from that office. The same is
true with respect to the representatives from the other
offices. No new appointments are necessary. This is as it
should be, because the representatives so designated merely
perform duties in the Board in addition to those already
performed under their original appointments."32
The term "primary" used to describe "functions" refers to the
order of importance and thus means chief or principal
function. The term is not restricted to the singular but may
refer to the plural.33 The additional duties must not only be
closely related to, but must be required by the official's
primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of
Finance and Budget sitting as members of the Monetary
Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime
Industry Authority34 and the Civil Aeronautics Board.
If the functions required to be performed are merely
incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official,
such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An example
would be the Press Undersecretary sitting as a member of
the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which
confer on the cabinet official management functions and/or
monetary compensation, such as but not limited to
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President,
Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective
executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination
among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general
welfare and delivering basic services to the people. It is
consistent with the power vested on the President and his
alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure
that the laws are faithfully executed.35 Without these
additional duties and functions being assigned to the
President and his official family to sit in the governing bodies
or boards of governmental agencies or instrumentalities in
an ex-officio capacity as provided by law and as required by
their primary functions, they would be supervision, thereby
deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional
duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the
primary functions of the official concerned, who is to
perform the same in an ex-officio capacity as provided by
law, without receiving any additional compensation therefor.
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and covered
by the compensation attached to his principal office. It
should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officio
member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in
defining policy in monetary and banking matters, which
come under the jurisdiction of his department. For such
attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per them or an
honorarium or an allowance, or some other such
euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on
the proposal of Commissioner Christian Monsod to add to
Section 7, par. (2), Article IX-B, originally found as Section 3
of the General Provisions, the exception "unless required by
the functions of his position,"36 express reference to certain
high-ranking appointive public officials like members of the
Cabinet were made.37 Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed out
that there are instances when although not required by
current law, membership of certain high-ranking executive
officials in other offices and corporations is necessary by
reason of said officials' primary functions. The example given
by Commissioner Monsod was the Minister of Trade and
Industry.38
While this exchange between Commissioners Monsod and
Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of
the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot,
however, be taken as authority for saying that this exception
is by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then
was Section 3 of Committee Resolution No. 531 which was
the proposed article on General Provisions.39 At that time,
the article on the Civil Service Commission had been
approved on third reading on July 22, 1986,40 while the
article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier
approved on third reading on August 26, 1986.41 It was only
after the draft Constitution had undergone reformatting and
"styling" by the Committee on Style that said Section 3 of the
General Provisions became Section 7, par. (2) of Article IX-B
and reworded "Unless otherwise allowed by law or by the
primary functions of his position. . . ."
What was clearly being discussed then were general
principles which would serve as constitutional guidelines in
the absence of specific constitutional provisions on the
matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited
phrase "primary functions" as the basis of an exception to
the general rule covering all appointive public officials. Had
the Constitutional Commission intended to dilute the specific
prohibition in said Section 13 of Article VII, it could have re-
worded said Section 13 to conform to the wider exceptions
provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B
on the Civil Service Commission.
That this exception would in the final analysis apply also to
the President and his official family is by reason of the legal
principles governing additional functions and duties of
public officials rather than by virtue of Section 7, par. 2,
Article IX-B At any rate, we have made it clear that only the
additional functions and duties "required," as opposed to
"allowed," by the primary functions may be considered as
not constituting "any other office."
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail42 as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear.1âwphi1
Debates in the constitutional convention "are of value as
showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk,
much less of the mass of our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law.
We think it safer to construe the constitution from what
appears upon its face."43 The proper interpretation
therefore depends more on how it was understood by the
people adopting it than in the framers's understanding
thereof.44
It being clear, as it was in fact one of its best selling points,
that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices
or employment in the government, except in those cases
specified in the Constitution itself and as above clarified with
respect to posts held without additional compensation in an
ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet
members (then called Ministers) as examples during the
debate and deliberation on the general rule laid down for all
appointive officials should be considered as mere personal
opinions which cannot override the constitution's manifest
intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII
in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their primary
position to not more than two (2) positions in the
government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate
of Section 13, Article VII of the 1987 Constitution prohibiting
them from doing so, unless otherwise provided in the 1987
Constitution itself.
The Court is alerted by respondents to the impractical
consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by
virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without
additional compensation as provided by law and as required
by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of
the constitutional prohibition. With respect to other offices
or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to
say that the feared impractical consequences are more
apparent than real. Being head of an executive department is
no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department
head's ability and expertise, he should be allowed to attend
to his duties and responsibilities without the distraction of
other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may
result in haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage
of our national and economic development, far outweigh the
benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he
can handle.

Finding Executive Order No. 284 to be constitutionally

infirm, the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran,
Jr., Secretary of Local Government45 Luis Santos,
Secretary of National Defense Fidel V. Ramos, Secretary
of Health Alfredo R.A. Bengzon and Secretary of the
Budget Guillermo Carague to immediately relinquish
their other offices or employment, as herein defined, in
the government, including government-owned or
controlled corporations and their subsidiaries. With
respect to the other named respondents, the petitions
have become moot and academic as they are no longer
occupying the positions complained of.

During their tenure in the questioned positions,

respondents may be considered de facto officers and as
such entitled to emoluments for actual services
rendered.46 It has been held that "in cases where there
is no de jure, officer, a de facto officer, who, in good faith
has had possession of the office and has discharged the
duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate
action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly,
supported on equitable grounds since it seems unjust
that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay
any one for such services.47 Any per diem, allowances or
other emoluments received by the respondents by virtue
of actual services rendered in the questioned positions
may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the

petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.

SO ORDERED.
GAMINDE vs COA
The Case
The case is a special civil action of certiorari seeking to annul
and set aside two decisions of the Commission on Audit
ruling that petitioners term of office as Commissioner, Civil
Service Commission, to which she was appointed on June 11,
1993, expired on February 02, 1999, as set forth in her
appointment paper.
The Facts
On June 11, 1993, the President of the Philippines
appointed petitioner Thelma P. Gaminde, ad interim,
Commissioner, Civil Service Commission. She assumed office
on June 22, 1993, after taking an oath of office. On
September 07, 1993, the Commission on Appointment,
Congress of the Philippines confirmed the appointment. We
quote verbatim her appointment paper:
11 June 1993
Madam:
Pursuant to the provisions of existing laws, you are hereby
appointed, ad interim, COMMISSIONER, CIVIL SERVICE
COMMISSION, for a term expiring February 2, 1999.
By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this Office
and the Civil Service Commission with copies of your oath of
office.[1]
However, on February 24, 1998, petitioner sought
clarification from the Office of the President as to the expiry
date of her term of office. In reply to her request, the Chief
Presidential Legal Counsel, in a letter dated April 07, 1998[2]
opined that petitioners term of office would expire on
February 02, 2000, not on February 02, 1999.
Relying on said advisory opinion, petitioner remained in
office after February 02, 1999. On February 04, 1999,
Chairman Corazon Alma G. de Leon, wrote the Commission
on Audit requesting opinion on whether or not
Commissioner Thelma P. Gaminde and her co-terminous
staff may be paid their salaries notwithstanding the
expiration of their appointments on February 02, 1999.
On February 18, 1999, the General Counsel, Commission on
Audit, issued an opinion that the term of Commissioner
Gaminde has expired on February 02, 1999 as stated in her
appointment conformably with the constitutional intent.[3]
Consequently, on March 24, 1999, CSC Resident Auditor
Flovitas U. Felipe issued notice of disallowance No. 99-002-
101 (99), disallowing in audit the salaries and emoluments
pertaining to petitioner and her co-terminous staff, effective
February 02, 1999.[4]
On April 5, 1999, petitioner appealed the disallowance to the
Commission on Audit en banc. On June 15, 1999, the
Commission on Audit issued Decision No. 99-090 dismissing
petitioners appeal. The Commission on Audit affirmed the
propriety of the disallowance, holding that the issue of
petitioners term of office may be properly addressed by
mere reference to her appointment paper which set the
expiration date on February 02, 1999, and that the
Commission is bereft of power to recognize an extension
of her term, not even with the implied acquiescence of
the Office of the President.[5]
In time, petitioner moved for reconsideration; however, on
August 17, 1999, the Commission on Audit denied the
motion in Decision No. 99-129.[6]
Hence, this petition.[7]
The Issue
The basic issue raised is whether the term of office of Atty.
Thelma P. Gaminde, as Commissioner, Civil Service
Commission, to which she was appointed on June 11,
1993, expired on February 02, 1999, as stated in the
appointment paper, or on February 02, 2000, as claimed
by her.
The Courts Ruling
The term of office of the Chairman and members of the Civil
Service Commission is prescribed in the 1987 Constitution,
as follows:
Section 1 (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, the
Chairman shall hold office for seven years, a Commissioner
for five years, and another Commissioner for three years,
without reappointment. 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.[8]
The 1973 Constitution introduced the first system of a
regular rotation or cycle in the membership of the Civil
Service Commission. The provision on the 1973 Constitution
reads:
x x x The Chairman and the Commissioners shall be
appointed by the Prime Minister for a term of seven years
without reappointment. Of the Commissioners first
appointed, one shall hold office for seven years, another for
five years, and the third for three years. Appointment to any
vacancy shall be only for the unexpired portion of the term of
the predecessor.[9]
Actually, this was a copy of the Constitutional prescription in
the amended 1935 Constitution of a rotational system for the
appointment of the Chairman and members of the
Commission on Elections. The Constitutional amendment
creating an independent Commission on Elections provides
as follows:
Section 1. There shall be an independent Commission on
Elections composed of a Chairman and two other Members
to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold
office for nine years, another for six years, and the third for
three years. The Chairman and the other Members of the
Commission on Elections may be removed from office only
by impeachment in the manner provided in this
Constitution."[10]
In Republic vs. Imperial,[11] we said that the operation of
the rotational plan requires two conditions, both
indispensable to its workability: (1) that the terms of the
first three (3) Commissioners should start on a common
date, and, (2) that any vacancy due to death, resignation
or disability before the expiration of the term should only
be filled only for the unexpired balance of the term.[12]
Consequently, the terms of the first Chairmen and
Commissioners of the Constitutional Commissions under the
1987 Constitution must start on a common date,
irrespective of the variations in the dates of
appointments and qualifications of the appointees, in
order that the expiration of the first terms of seven, five
and three years should lead to the regular recurrence of
the two-year interval between the expiration of the
terms.[13]
Applying the foregoing conditions to the case at bar, we rule
that the appropriate starting point of the terms of office
of the first appointees to the Constitutional Commissions
under the 1987 Constitution must be on February 02,
1987, the date of the adoption of the 1987 Constitution.
In case of a belated appointment or qualification, the interval
between the start of the term and the actual qualification of
the appointee must be counted against the latter.[14]
In the law of public officers, there is a settled distinction
between term and tenure. The term of an office must be
distinguished from the tenure of the incumbent. The term
means the time during which the officer may claim to
hold office as of right, and fixes the interval after which
the several incumbents shall succeed one another. The
tenure represents the term during which the incumbent
actually holds the office. The term of office is not affected
by the hold-over. The tenure may be shorter than the term
for reasons within or beyond the power of the
incumbent.[15]
In concluding that February 02, 1987 is the proper starting
point of the terms of office of the first appointees to the
Constitutional Commissions of a staggered 7-5-3 year terms,
we considered the plain language of Article IX (B), Section 1
(2), Article IX (C), Section 1 (2) and Article IX (D), Section 1
(2) of the 1987 Constitution that uniformly prescribed a
seven-year term of office for Members of the Constitutional
Commissions, without re-appointment, and for the first
appointees terms of seven, five and three years, without re-
appointment. In no case shall any Member be appointed
or designated in a temporary or acting capacity. There is
no need to expressly state the beginning of the term of
office as this is understood to coincide with the
effectivity of the Constitution upon its ratification (on
February 02, 1987).
On the other hand, Article XVIII, Transitory Provisions, 1987
Constitution provides:
SEC. 15. 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.[16]
What the above quoted Transitory Provisions contemplate is
tenure not term of the incumbent Chairmen and Members of
the Civil Service Commission, the Commission on Elections
and the Commission on Audit, who 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. The term unless imports an exception to
the general rule.[17] Clearly, the transitory provisions
mean that the incumbent members of the Constitutional
Commissions shall continue in office for one year after
the ratification of this Constitution under their existing
appointments at the discretion of the appointing power,
who may cut short their tenure by: (1) their removal
from office for cause; (2) their becoming incapacitated
to discharge the duties of their office, or (3) their
appointment to a new term thereunder, all of which
events may occur before the end of the one year period
after the effectivity of the Constitution.
However, the transitory provisions do not affect the term of
office fixed in Article IX, providing for a seven-five-three year
rotational interval for the first appointees under this
Constitution.
At the time of the adoption of the 1987 Constitution, the
incumbent Chairman and members of the Civil Service
Commission were the following: (1) Chairperson Celerina G.
Gotladera. She was initially appointed as OIC Chairman on
March 19, 1986, and appointed chairman on December 24,
1986, which she assumed on March 13, 1987. (2) Atty. Cirilo
G. Montejo. On June 25, 1986, President Corazon C. Aquino
appointed him Commissioner, without any term. He assumed
office on July 9, 1986, and served until March 31, 1987, when
he filed a certificate of candidacy for the position of
Congressman, 2nd District, Leyte, thereby vacating his
position as Commissioner. His tenure was automatically cut-
off by the filing of his certificate of candidacy. (3) Atty. Mario
D. Yango. On January 22, 1985, President Ferdinand E.
Marcos appointed him Commissioner for a term expiring
January 25, 1990. He served until February 2, 1988, when his
term ended in virtue of the transitory provisions referred to.
On May 30, 1988, President Aquino re-appointed him to a
new three-year term and served until May 31, 1991,
exceeding his lawful term, but not exceeding the maximum of
seven years, including service before the ratification of the
1987 Constitution. Under this factual milieu, it was only
Commissioner Yango who was extended a new term under
the 1987 Constitution. The period consumed between the
start of the term on February 02, 1987, and his actual
assumption on May 30, 1988, due to his belated
appointment, must be counted against him.
Given the foregoing common starting point, we compute the
terms of the first appointees and their successors to the Civil
Service Commission under the 1987 Constitution by their
respective lines, as follows:
First line : Chairman seven-year term. February 02, 1987 to
February 01, 1994. On January 30, 1988, the President
nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service
Commission. On March 02, 1988, the Commission on
Appointments confirmed the nomination. She assumed office
on March 04, 1988. Her term ended on February 02, 1994.
She served as de facto Chairman until March 04, 1995. On
March 05, 1995, the President appointed then Social Welfare
Secretary Corazon Alma G. de Leon, Chairman, Civil Service
Commission, to a regular seven-year term. This term must be
deemed to start on February 02, 1994, immediately
succeeding her predecessor, whose term started on the
common date of the terms of office of the first appointees
under the 1987 Constitution. She assumed office on March
22, 1995, for a term expiring February 02, 2001.
This is shown in her appointment paper, quoted verbatim as
follows:
March 5, 1995
Madam:
Pursuant to the provisions of Article VII, Section 16,
paragraph 2, of the Constitution, you are hereby appointed,
ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a
term expiring February 2, 2001.
By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this Office
and the Civil Service Commission with copies of your oath of
office.
(Sgd.) FIDEL V. RAMOS
Second line : Commissioner Five-year term. February 02,
1987 to February 02, 1992. On January 30, 1988, the
President nominated Atty. Samilo N. Barlongay
Commissioner, Civil Service Commission. On February 17,
1988, the Commission on Appointments, Congress of the
Philippines, confirmed the nomination. He assumed office on
March 04, 1988. His term ended on February 02, 1992. He
served as de facto Commissioner until March 04, 1993.
On June 11, 1993, the President appointed Atty. Thelma
P. Gaminde Commissioner, Civil Service Commission, for
a term expiring February 02, 1999.[18] This terminal
date is specified in her appointment paper. On
September 07, 1993, the Commission on Appointments
confirmed the appointment. She accepted the
appointment and assumed office on June 22, 1993. She is
bound by the term of the appointment she accepted,
expiring February 02, 1999. In this connection, the letter
dated April 07, 1998, of Deputy Executive Secretary
Renato C. Corona[19] clarifying that her term would
expire on February 02, 2000, was in error. What was
submitted to the Commission on Appointments was a
nomination for a term expiring on February 02, 1999. Thus,
the term of her successor[20] must be deemed to start on
February 02, 1999, and expire on February 02, 2006.
Third line : Commissioner Three-year term. February 02,
1987 to February 02, 1990. Atty. Mario D. Yango was
incumbent commissioner at the time of the adoption of the
1987 Constitution. His extended tenure ended on February
02, 1988. In May, 1988, President Corazon C. Aquino
appointed him Commissioner, Civil Service Commission to a
new three-year term thereunder. He assumed office on May
30, 1988. His term ended on February 02, 1990, but served
as de facto Commissioner until May 31, 1991. On November
26, 1991, the President nominated Atty. Ramon P. Ereeta as
Commissioner, Civil Service Commission. On December 04,
1991, the Commission on Appointments confirmed the
nomination. He assumed office on December 12, 1991, for a
term expiring February 02, 1997.[21]
Feb. 02, 2008
2nd Member Term Tenure
(5-year original)
Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988 to
Feb. 02, 1992 March 04, 1993
Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to
Feb. 02, 1999 Feb. 02, 2000
Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to
(incumbent) Feb. 02, 2006 Feb. 02, 2006
3rd Member Term Tenure
(3-year original)
Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to
Feb. 02, 1990 May 31, 1991
Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to
Feb. 02, 1997 Feb. 02, 1997
Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to
(incumbent) Feb. 02, 2004 Feb. 02, 2004
The Fallo
WHEREFORE, we adjudge that the term of office of Ms.
Thelma P. Gaminde as Commissioner, Civil Service
Commission, under an appointment extended to her by
President Fidel V. Ramos on June 11, 1993, expired on
February 02, 1999. However, she served as de facto
officer in good faith until February 02, 2000, and thus
entitled to receive her salary and other emoluments for
actual service rendered. Consequently, the Commission
on Audit erred in disallowing in audit such salary and
other emoluments, including that of her co-terminous
staff.
ACCORDINGLY, we REVERSE the decisions of the
Commission on Audit insofar as they disallow the salaries
and emoluments of Commissioner Thelma P. Gaminde and
her coterminous staff during her tenure as de facto officer
from February 02, 1999, until February 02, 2000.

Commendably, he voluntarily retired on February 02, 1997. This decision shall be effective immediately.
On February 03, 1997, President Fidel V. Ramos appointed
Atty. Jose F. Erestain, Jr. Commissioner, Civil Service No costs.
Commission, for a term expiring February 02, 2004. He
assumed office on February 11, 1997. SO ORDERED.

Thus, we see the regular interval of vacancy every two (2)

years, namely, February 02, 1994, for the first Chairman,[22]
February 02, 1992, for the first five-year term
Commissioner,[23] and February 02, 1990, for the first
three-year term Commissioner.[24] Their successors must
also maintain the two year interval, namely: February 02,
2001, for Chairman;[25] February 02, 1999, for
Commissioner Thelma P. Gaminde, and February 02, 1997,
for Commissioner Ramon P. Ereeta, Jr.

The third batch of appointees would then be having terms of

office as follows:

First line : Chairman, February 02, 2001 to February 02,

2008; Second line: Commissioner, February 02, 1999 to
February 02, 2006;[26] and, Third line: Commissioner,
February 02, 1997 to February 02, 2004,[27] thereby
consistently maintaining the two-year interval.

The line of succession, terms of office and tenure of the

Chairman and members of the Civil Service Commission may
be outlined as follows:[28]

Chairman Term Tenure

(7-year original)
Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to
Feb. 02, 1994 March 08, 1995
De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995 to
(incumbent) Feb. 02, 2001 Feb. 02, 2001
_______ - 3rd appointee Feb. 02, 2001 to
NATIONAL AMNESTY COMMISSION vs COA
This petition for review[1] seeks to annul the two decisions
of respondent Commission on Audit (COA)[2] dated July 26,
2001[3] and January 30, 2003,[4] affirming the September
21, 1998 ruling[5] of the National Government Audit Office
(NGAO). The latter in turn upheld Auditor Ernesto C. Eulalias
order disallowing the payment of honoraria to the
representatives of petitioners ex officio members, per COA
Memorandum No. 97-038.
Petitioner National Amnesty Commission (NAC) is a
government agency created on March 25, 1994 by then
President Fidel V. Ramos through Proclamation No. 347. The
NAC is tasked to receive, process and review amnesty
applications. It is composed of seven members: a
Chairperson, three regular members appointed by the
President, and the Secretaries of Justice, National Defense
and Interior and Local Government as ex officio members.[6]
It appears that after personally attending the initial NAC
meetings, the three ex officio members turned over said
responsibility to their representatives who were paid
honoraria beginning December 12, 1994. However, on
October 15, 1997, NAC resident auditor Eulalia disallowed
on audit the payment of honoraria to these representatives
amounting to P255,750 for the period December 12, 1994 to
June 27, 1997, pursuant to COA Memorandum No. 97-038.
On September 1, 1998, the NGAO upheld the auditors order
and notices of disallowance were subsequently issued to the
following:[7]
REPRESENTATIVES AMOUNT
1. Cesar Averilla
Department of National Defense P 2,500.00
2. Ramon Martinez
Department of National Defense 73,750.00
3. Cielito Mindaro,
Department of Justice 18,750.00
4. Purita Deynata
Department of Justice 62,000.00
5. Alberto Bernardo
Department of the Interior
And Local Government 71,250.00
6. Stephen Villaflor
Department of the Interior and
Local Government 26,250.00
7. Artemio Aspiras
Department of Justice 1,250.00
P255,750.00
Meanwhile, on April 28, 1999, the NAC passed
Administrative Order No. 2 (the new Implementing Rules
and Regulations of Proclamation No. 347), which was
approved by then President Joseph Estrada on October 19,
1999. Section 1, Rule II thereof provides:
Section 1, Composition The NAC shall be composed of seven
(7) members:
a) A Chairperson who shall be appointed by the President;
b) Three (3) Commissioners who shall be appointed by the
President;
c) Three (3) Ex-officio Members
1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local Government
The ex officio members may designate their representatives
to the Commission. Said Representatives shall be entitled to
per diems, allowances, bonuses and other benefits as may be
authorized by law. (Emphasis supplied)
Petitioner invoked Administrative Order No. 2 in assailing
before the COA the rulings of the resident auditor and the
NGAO disallowing payment of honoraria to the ex officio
members representatives, to no avail.
Hence, on March 14, 2003, the NAC filed the present petition,
contending that the COA committed grave abuse of
discretion in: (1) implementing COA Memorandum No. 97-
038 without the required notice and publication under
Article 2 of the Civil Code; (2) invoking paragraph 2, Section
7, Article IX-B of the 1987 Constitution to sustain the
disallowance of honoraria under said Memorandum; (3)
applying the Memorandum to the NAC ex officio members
representatives who were all appointive officials with ranks
below that of an Assistant Secretary; (4) interpreting laws
and rules outside of its mandate and declaring Section 1,
Rule II of Administrative Order No. 2 null and void, and (5)
disallowing the payment of honoraria on the ground of lack
of authority of representatives to attend the NAC meetings in
behalf of the ex officio members.[8]
We hold that the position of petitioner NAC is against the law
and jurisprudence. The COA is correct that there is no legal
basis to grant per diem, honoraria or any allowance
whatsoever to the NAC ex officio members official
representatives.
The Constitution mandates the Commission on Audit to
ensure that the funds and properties of the government are
validly, efficiently and conscientiously used. Thus, Article IX-
D of the Constitution ordains the COA to exercise exclusive
and broad auditing powers over all government entities or
trustees, without any exception:
Section 2. (1) The Commission on Audit shall have the
power, authority and duty to examine, audit, and settle all
accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held in
trust by, or pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities, including
government-owned and controlled corporations with
original charters, and on a post-audit basis: (a) constitutional
bodies, commissions and offices that have been granted
fiscal autonomy under this Constitution; (b) autonomous
state colleges and universities; (c) other government-owned
or controlled corporations and their subsidiaries; and (d)
such non-governmental entities receiving subsidy or equity,
directly or indirectly, from or through the government,
which are required by law of the granting institution to
submit to such audit as a condition of subsidy or equity.
However, where the internal control system of the audited
agencies is inadequate, the Commission may adopt such
measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall
keep the general accounts of the Government and, for such
period as may be provided by law, preserve the vouchers
and other supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to
the limitations in this Article, to define the scope of its audit
and examination, establish the techniques and methods
required therefor, and promulgate accounting and auditing
rules and regulations, including those for the prevention and
disallowance of irregular, unnecessary, inexpensive,
extravagant, or unconscionable expenditures, or uses of
government funds and properties.
Section 3. No law shall be passed exempting any entity of the
Government or its subsidiary in any guise whatever, or any
investment of public funds, from the jurisdiction of the
Commission on Audit. (Emphasis supplied).
It is in accordance with this constitutional mandate that the
COA issued Memorandum No. 97-038 on September 19,
1997:

COMMISSION ON AUDIT MEMORANDUM NO. 97-038
SUBJECT: Implementation of Senate Committee Report No.
509, Committee on Accountability of Public Officers and
Investigations and Committee on Civil Service and
Government Reorganization.
The Commission received a copy of Senate Committee
Report No. 509 urging the Commission on Audit to
immediately cause the disallowance of any payment of any
form of additional compensation or remuneration to cabinet
secretaries, their deputies and assistants, or their
representatives, in violation of the rule on multiple positions,
and to effect the refund of any and all such additional
compensation given to and received by the officials
concerned, or their representatives, from the time of the
finality of the Supreme Court ruling in Civil Liberties Union v.
Executive Secretary to the present. In the Civil Liberties
Union case, the Supreme Court ruled that Cabinet
Secretaries, their deputies and assistants may not hold any
other office or employment. It declared Executive Order 284
unconstitutional insofar as it allows Cabinet members, their
deputies and assistants to hold other offices in addition to
their primary office and to receive compensation therefor.
The said decision became final and executory on August 19,
1991.
In view thereof, all unit heads/auditors/team leaders of the
national government agencies and government owned or
controlled corporations which have effected payment of
subject allowances, are directed to implement the
recommendation contained in the subject Senate Committee
Report by undertaking the following audit action:
1. On accounts that have not been audited and settled under
certificate of settlements and balances on record from
August 19, 1991 to present to immediately issue the Notices
of disallowance and corresponding certificate of settlements
and balances.
2. On accounts that have been audited and settled under
certificate of settlements and balances on record to review
and re-open said accounts, issue the corresponding notices
of disallowance, and certify a new balance thereon. It is
understood that the re-opening of accounts shall be limited
to those that were settled within the prescriptive period of
three (3) years prescribed in Section 52 of P.D. 1445.
3. On disallowances previously made on these accounts to
submit a report on the status of the disallowances indicating
whether those have been refunded/settled or have become
final and executory and the latest action taken by the Auditor
thereon.
All auditors concerned shall ensure that all documents
evidencing the disallowed payments are kept intact on file in
their respective offices.
Any problem/issue arising from the implementation of this
Memorandum shall be brought promptly to the attention of
the Committee created under COA Officer Order No. 97-698
thru the Director concerned, for immediate resolution.
An initial report on the implementation of this Memorandum
shall be submitted to the Directors concerned not later than
October 31, 1997. Thereafter, a quarterly progress report on
the status of disallowances made shall be submitted, until all
the disallowances shall have been enforced.
The Committee created under COA Office Order No. 97-698,
dated September 10, 1997, shall supervise the
implementation of this Memorandum which shall take effect
immediately and shall submit a consolidated report thereon
in response to the recommendation of the Senate Committee
on Accountability of Public Officers and Investigation and
Committee on Civil Service and Government
Reorganization.[9] (Emphasis supplied)
Contrary to petitioners claim, COA Memorandum No. 97-038
does not need, for validity and effectivity, the publication
required by Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless
it is otherwise provided. This Code shall take effect one year
after such publication.
We clarified this publication requirement in Taada vs.
Tuvera:[10]
[A]ll statutes, including those of local application and private
laws, shall be published as a condition for their effectivity,
which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive
orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated
by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also
be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties. (Emphasis
supplied.)
COA Memorandum No. 97-038 is merely an internal and
interpretative regulation or letter of instruction which does
not need publication to be effective and valid. It is not an
implementing rule or regulation of a statute but a directive
issued by the COA to its auditors to enforce the self-
executing prohibition imposed by Section 13, Article VII of
the Constitution on the President and his official family, their
deputies and assistants, or their representatives from
holding multiple offices and receiving double compensation.
Six years prior to the issuance of COA Memorandum No. 97-
038, the Court had the occasion to categorically explain this
constitutional prohibition in Civil Liberties Union vs. The
Executive Secretary:[11]
Petitioners maintain that this Executive Order which, in
effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to
Section 13, Article VII of the 1987 Constitution, which
provides as follows:
Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office
or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other
profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their
office.
xxxxxxxxx

[D]oes the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or
assistants are concerned admit of the broad exceptions made
for appointive officials in general under Section 7, par. (2),
Article IX-B which, for easy reference is quoted anew, thus:
"Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any
other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their
subsidiaries."
We rule in the negative.
xxxxxxxxx
But what is indeed significant is the fact that although
Section 7, Article IX-B already contains a blanket prohibition
against the holding of multiple offices or employment in the
government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise
provided in the Constitution itself.
xxxxxxxxx
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is allowed by law
or by the primary functions of their positions, members of
the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and
assistants.
This being the case, the qualifying phrase "unless otherwise
provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided
under Section 7, Article IX-B of the 1987 Constitution. . . .
xxxxxxxxx
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts
occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided
by law and as required by the primary functions of said
officials' office. The reason is that these posts do no comprise
"any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of
additional duties and functions on said officials.
xxxxxxxxx
[T]he prohibition under Section 13, Article VII is not to be
interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and
as required by the primary functions of the concerned
official's office. The term ex-officio means "from office; by
virtue of office." It refers to an "authority derived from
official character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an
official character, or as a consequence of office, and without
any other appointment or authority than that conferred by
the office." An ex-officio member of a board is one who is a
member by virtue of his title to a certain office, and without
further warrant or appointment. To illustrate, by express
provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of
the Philippine Ports Authority, and the Light Rail Transit
Authority.
xxxxxxxxx
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and covered
by the compensation attached to his principal office. x x x
xxxxxxxxx
[E]x-officio posts held by the executive official concerned
without additional compensation as provided by law and as
required by the primary functions of his office do not fall
under the definition of "any other office" within the
contemplation of the constitutional prohibition... (Emphasis
supplied).
Judicial decisions applying or interpreting the laws or the
Constitution, such as the Civil Liberties Union doctrine, form
part of our legal system.[12] Supreme Court decisions
assume the same authority as valid statutes.[13] The Courts
interpretation of the law is part of that law as of the date of
enactment because its interpretation merely establishes the
contemporary legislative intent that the construed law
purports to carry into effect.[14]
COA Memorandum No. 97-038 does not, in any manner or on
its own, rule against or affect the right of any individual,
except those provided for under the Constitution. Hence,
publication of said Memorandum is not required for it to be
valid, effective and enforceable.
In Civil Liberties Union, we elucidated on the two
constitutional prohibitions against holding multiple
positions in the government and receiving double
compensation: (1) the blanket prohibition of paragraph 2,
Section 7, Article IX-B on all government employees against
holding multiple government offices, unless otherwise
allowed by law or the primary functions of their positions,
and (2) the stricter prohibition under Section 13, Article VII
on the President and his official family from holding any
other office, profession, business or financial interest,
whether government or private, unless allowed by the
Constitution.
The NAC ex officio members representatives who were all
appointive officials with ranks below Assistant Secretary are
covered by the two constitutional prohibitions.
First, the NAC ex officio members representatives are not
exempt from the general prohibition because there is no law
or administrative order creating a new office or position and
authorizing additional compensation therefor.
Sections 54 and 56 of the Administrative Code of 1987
reiterate the constitutional prohibition against multiple
positions in the government and receiving additional or
double compensation:
SEC. 54. Limitation on Appointment. (1) No elective official
shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure.
xxxxxxxxx
(3) Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any
other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
xxxxxxxxx
SEC. 56. Additional or Double Compensation. -- No elective or
appointive public officer or employee shall receive additional
or double compensation unless specifically authorized by
law nor accept without the consent of the President, any
present, emolument, office, or title of any kind form any
foreign state.
Pensions and gratuities shall not be considered as additional,
double or indirect compensation.
RA 6758, the Salary Standardization Law, also bars the
receipt of such additional emolument.
The representatives in fact assumed their responsibilities
not by virtue of a new appointment but by mere designation
from the ex officio members who were themselves also
designated as such.
There is a considerable difference between an appointment
and designation. An appointment is the selection by the
proper authority of an individual who is to exercise the
powers and functions of a given office; a designation merely
connotes an imposition of additional duties, usually by law,
upon a person already in the public service by virtue of an
earlier appointment.[15]
Designation does not entail payment of additional benefits or
grant upon the person so designated the right to claim the
salary attached to the position. Without an appointment, a
designation does not entitle the officer to receive the salary
of the position. The legal basis of an employees right to claim
the salary attached thereto is a duly issued and approved
appointment to the position,[16] and not a mere designation.
Second, the ex officio members representatives are also
covered by the strict constitutional prohibition imposed on
the President and his official family.
Again, in Civil Liberties Union, we held that cabinet
secretaries, including their deputies and assistants, who hold
positions in ex officio capacities, are proscribed from
receiving additional compensation because their services are
already paid for and covered by the compensation attached
to their principal offices. Thus, in the attendance of the NAC
meetings, the ex officio members were not entitled to, and
were in fact prohibited from, collecting extra compensation,
whether it was called per diem, honorarium, allowance or
some other euphemism. Such additional compensation is
prohibited by the Constitution.
Furthermore, in de la Cruz vs. COA[17] and Bitonio vs.
COA,[18] we upheld COAs disallowance of the payment of
honoraria and per diems to the officers concerned who sat as
ex officio members or alternates. The agent, alternate or
representative cannot have a better right than his principal,
the ex officio member. The laws, rules, prohibitions or
restrictions that cover the ex officio member apply with
equal force to his representative. In short, since the ex officio
member is prohibited from receiving additional
compensation for a position held in an ex officio capacity, so
is his representative likewise restricted.
The Court also finds that the re-opening of the NAC accounts
within three years after its settlement is within COAs
jurisdiction under Section 52 of Presidential Decree No.
1445, promulgated on June 11, 1978:
SECTION 52. Opening and revision of settled accounts. (1) At
any time before the expiration of three years after the
settlement of any account by an auditor, the Commission
may motu propio review and revise the account or
settlement and certify a new balance.
More importantly, the Government is never estopped by the
mistake or error on the part of its agents.[19] Erroneous
application and enforcement of the law by public officers do
not preclude subsequent corrective application of the
statute.
In declaring Section 1, Rule II of Administrative Order No. 2
s. 1999 null and void, the COA ruled that:
Petitioner further contends that with the new IRR issued by
the NAC authorizing the ex-officio members to designate
representatives to attend commission meetings and entitling
them to receive per diems, honoraria and other allowances,
there is now no legal impediment since it was approved by
the President. This Commission begs to disagree. Said
provision in the new IRR is null and void for having been
promulgated in excess of its rule-making authority.
Proclamation No. 347, the presidential issuance creating the
NAC, makes no mention that representatives of ex-officio
members can take the place of said ex-officio members
during its meetings and can receive per diems and
allowances. This being the case, the NAC, in the exercise of its
quasi-legislative powers, cannot add, expand or enlarge the
provisions of the issuance it seeks to implement without
committing an ultra vires act.[20]
We find that, on its face, Section 1, Rule II of Administrative
Order No. 2 is valid, as it merely provides that:
The ex officio members may designate their representatives
to the Commission. Said Representatives shall be entitled to
per diems, allowances, bonuses and other benefits as may be
authorized by law. (Emphasis supplied).
The problem lies not in the administrative order but how the
NAC and the COA interpreted it.
First, the administrative order itself acknowledges that
payment of allowances to the representatives must be
authorized by the law, that is, the Constitution, statutes and
judicial decisions. However, as already discussed, the
payment of such allowances is not allowed, prohibited even.
Second, the administrative order merely allows the ex officio
members to designate their representatives to NAC meetings
but not to decide for them while attending such meetings.
Section 4 of the administrative order categorically states:
Decisions of the NAC shall be arrived at by a majority vote in
a meeting where there is a quorum consisting of at least four
members.
Thus, although the administrative order does not preclude
the representatives from attending the NAC meetings, they
may do so only as guests or witnesses to the proceedings.
They cannot substitute for the ex officio members for
purposes of determining quorum, participating in
deliberations and making decisions.
Lastly, we disagree with NACs position that the
representatives are de facto officers and as such are entitled
to allowances, pursuant to our pronouncement in Civil
Liberties Union:
where there is no de jure officer, a de facto officer, who in
good faith has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in appropriate action
recover the salary, fees and other compensation attached to
the office.

A de facto officer derives his appointment from one having

colorable authority to appoint, if the office is an appointive
office, and whose appointment is valid on its face. (He is) one
who is in possession of an office and is discharging its duties
under color of authority, by which is meant authority
derived from an appointment, however irregular or informal,
so that the incumbent be not a mere volunteer.[21]

The representatives cannot be considered de facto officers

because they were not appointed but were merely
designated to act as such. Furthermore, they are not entitled
to something their own principals are prohibited from
receiving. Neither can they claim good faith, given the
express prohibition of the Constitution and the finality of our
decision in Civil Liberties Union prior to their receipt of such
allowances.

WHEREFORE the petition is hereby DISMISSED for lack of

merit.

SO ORDERED.
TETANGCO vs COA
In this Petition for Certiorari under Rule 64 in relation to
Rule 65, 1 petitioners assail the Commission on Audit's
(COA) Resolution 2 dated August 12, 2014, denying the
petitioners' Motion for Reconsideration 3 and Supplemental
4 Motion for Reconsideration, affirming COA's Decision No.
2013-227 dated December 23, 20135 and sustaining the
Notices of Disallowance (ND) Nos. 10-004 GF (2007-2008) 6
and 10-004 GF (2007- 2009) 7 both dated August 13, 2010.
The Facts
This case stemmed from the COA's act of disallowing
theExtraordinary and Miscellaneous Expenses (EMEs) of the
ex officio members of the Monetary Board (MBM), allegedly
in violation of their respective constitutional rights.
Petitioner Amanda M. Tetangco, Jr., (Tetangco Jr.) is the
Governor of the Banko Sentral ng Pilipinas (BSP). Petitioners
Peter B. Favila (Favila), Juanita D. Amatong (Amatong), Nelly
A. Favis-Villafuerte (Favis-Villafuerte ), Alfredo C. Antonio
(Antonio) and Ignacio R. Bunye (Bunye). Were the MBM at
the time that the allowance· for EMEs was approved.
Petitioners Marie Michelle N. Ong (Ong), Bella M. Prudencio
(Prudencio), Esmegardo S. Reyes (Reyes) and Ma. Corazon G.
Catarroja (Catarroja) were employees of the BSP who
participated in the processing and approval of the EME.
COA's March 23, 2010 Decision No. 2010-048, 8 on the
Performance Audit Report on the allocation and utilization of
EME of the MBM, stated, among others, that " x x x the ex-
officio member of the Monetary Board x x x shall not be
entitled to additional EMEs, other than that appropriated for
him or her under the GAA as a cabinet member x x x."9
Pursuant to this Decision, COA conducted an actual audit of
the specific accounts that allegedly exceeded the prescribed
limitations and/or were not properly documented/justified.
As a consequence, the EMEs of MBM Neri and Favila were
disallowed and became the subject of ND dated August 13,
2010. Eventually, the MBM and BSP personnel, which include
the petitioners, were held personally liable under ND Nos.
10-004 GF (2007-2008) and 10- 004 GF (2007-2009).
Petitioners filed a Motion for Reconsideration and/or Appeal
with the COA Director on May 26, 2011, but the same was
denied. They filed a Petition for Review 10 with the COA, but
the same was likewise denied in the COA's December 23,
2013 Decision No. 2013-227. 11
With their Motion for Reconsideration and Supplemental
Motion for Reconsideration having been denied in the COA's
Resolution dated August 12, 2014, they filed the instant
petition.
The petitioners alleged that the COA acted without or in
excess of its jurisdiction, and/or with grave abuse of
discretion amounting to lack or excess of jurisdiction: (A) in
disallowing the EMEs of the ex officio MB Ms: (1) because the
March 23, 2010 COA Decision No. 2010-048, should not be
applied since the disallowed EMEs were incurred by the ex
officio MBMs in the years 2007, 2008 and 2009, which years
are prior to the date of finality (May 5, 2010) of the ·said
decision; (2) since as MBMs, they incur extraordinary and
miscellaneous expenses in the discharge of their functions,
separate and distinct from the expenses they incur in
relation to their · principal office; (3) since it cannot be said
that the MB Ms failed to exercise the highest degree of
responsibility in approving the grant of EMEs; (4) since it
violates the equal protection clause under Article III, Section
1 of the 1987 Constitution; and (B) in including Petitioner
Favila as one of the persons solidarily liable under ND No.
10-004 GF (2007-2008), despite the fact that he had no
participation in the approval of the EMEs covered by the ND.
For its part, the COA countered that: Petitioners failed to
show grave abuse of discretion on the part of COA in
rendering its assailed Decision and subsequent Resolution;
COA did not gravely abuse its discretion in disallowing the
EMEs of the ex officio MBM, because the allowances were
based on the applicable laws, jurisprudence, rules and
regulations; the defense of good faith in approving the grant
of EMEs to the ex officio MBM with reliance on BSP's
independence and autonomy is unavailing; there was no
violation of the equal protection clause in the subject
disallowances; and petitioner Favila is solidarily liable with
other officials of the BSP under ND No. 10-004 GF (2007-
2009) because he was a member of the Monetary Board and
also the recipient of the irregular EMEs.
The Issue
Simply, the core issue boils down to whether or not the COA
gravely abused its discretion when it disallowed the EMEs of
the ex officio MBM.
The nature of EME, however, was not the foremost reason
for the disallowance, but the limitations imposed by law in
availing such allowance. x x x the ex officio members of the
Monetary Board are entitled to EMEs to the extent of that
appropriated in the General Appropriations Act (GAA). Since
the ex officio members already received their EMEs from
their respective Departments (as appropriated in the GAA),
the additional EMEs from BSP are no longer necessary. It
must be stressed that the ex officio position is actually and,
in legal contemplation, part of the principal office; hence, the
ex officio member is no longer entitled to receive any form of
compensation, allowance or other euphemism from the
extended agency. x x x we quote the pertinent discussion of
the subject COA Decision: [Emphasis .Supplied.]
x x x In fact, the ex officio membership of the cabinet
member in the Monetary Board does not comprise 'another
office' but rather annexed to or is required by the primary
functions of his or her official position as cabinet member. Of
equal significance, too, is that the ex officio member of the
Monetary Board already receives separate appropriations
under the GAA for EMEs, he or she being a member of the
cabinet. Being such, it is highly irregular that the said ex
officio member of the Monetary Board, who performs only
additional duties by virtue of his or her primary functions,
will be provided with additional EMEs, which in this case,
appear much higher than his or her appropriations for the
same expenses under the GAA as a cabinet member. x x x 12
x x x the irregularity of giving additional compensation or
allowances to ex officio members was no longer a hovel issue
during the time that the subject allowances were authorized
by BSP. As early as 1991, the issue was already ruled on by
the Supreme Court in the case of Civil Liberties Union vs.
Executive Secretary, 13 followed by several jurisprudence in
the cases of Dela Cruz, et. al. vs. COA, 14 and
NationalAmnesty Commission vs. COA, 15 to name a few. 16
(Emphasis supplied)
Absent any showing that COA capriciously, arbitrarily or
whimsically exercised its discretion that would be
tantamount to evasion of a positive duty or a virtual refusal
to perform the duty or to act at all in contemplation of law
resulting to the prejudice of the rights of the claimants, the
Court finds no reason to set aside its decision.
In the absence of grave abuse of discretion; the factual
findings of the COA, which are undoubtedly supported by the
evidence on record, must be accorded great respect and
finality. COA, as the duly authorized agency to adjudicate
money claims against government agencies and
instrumentalities has acquired special knowledge and
expertise in handling matters falling under its specialized
jurisdiction. 17
Verily, the Court has sustained the decisions of
administrative authorities like the COA as a matter of general
policy, not only on the basis of the doctrine of separation of
powers but also upon the recognition that such
administrative authorities held the expertise as to the laws
they are entrusted to enforce. 18 The Court has accorded not
only respect but also finality to their findings especially
when their decisions are not tainted with unfairness or
arbitrariness that would amount to grave abuse of
discretion. 19 Only when the COA acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, may this Court entertain and
grant a petition for certiorari brought to assail its actions. 20
However, we find no grave abuse of discretion on the part of
the COA in issuing the assailed decision.
Anent petitioners' defense of good faith in approving the
grant of EMEs to the ex officio. members of the Monetary
Board, this Court opines that said defense is unavailing.
As correctly pointed out by the COA: This Commission finds
that the Petitioners MBM, in approving the irregular
allowance, were remiss in their duty to protect the interest
of the Bank. x x x they ought to know that the ex officio
members of theMonetary Board were already receiving the
same allowance from their respective Departments, hence,
they were no longer entitled to the additional EMEs.
It must be emphasized that the degree of diligence required
from bank employees and officials is not ordinary but
requires the highest standards of integrity and performance.
Section 2 of R.A. No. 8791, also known as the General
Banking Law of 2000, provides for the degree of diligence
expected from the industry, to wit:
Section 2. Declaration of Policy. - The State recognizes the
vital role of banks providing an environment conducive to
the sustained development of the national economy and the
fiduciary nature of banking that requires high standards of
integrity and performance. xxx
In support of the above privision of the law, the Supreme
Court, in the case of Philippine National Bank v. Rodriguez,
et.al. (G.R. No. 170325, September 26, 2008), ruled, viz:
Banks handle daily transactions involving millions of pesos.
By the very nature of their work the degree of responsibility,
care and trustworthiness expected of their employees and
officials is far greater than those of ordinary clerks and
employees. For obvious reasons, the banks are expected to
exercise the highest degree of diligence in the selection and
supervision of their employees. x x x
xx x for failure of the Petitioners MBM to exercise the highest
degree of responsibility required by law, their defense of
good faith fails. 21 [Emphasis Supplied.]
By jurisprudence, the patent disregard of several case laws
and COA directives, as in this case. amounts to gross
negligence; hence, petitionerk ' cannot be presumed in good
faith. In TESDA vs. The Commission on Audit) et.al.,22 this
Court ruled that:
In. Casal v. COA, 23 x x x we held the approving officials liable
for the refund of the incentive award due to their patent
disregard of the issuances of the President and the directives
of COA. In Casal, we ruled that the officials' failure to observe
the issuances amounted to gross negligence, which is
inconsistent with the presumption of good faith. We applied
the Casal ruling in Velasco v. COA, 24 to wit:
x x x the blatant failure of the petitioners-approving officers
to abide with the provisions of AO 103 and AO 161 overcame
the presumption of good faith. The deliberate disregard of
these issuances is equivalent to gross negligence amounting
to bad faith. Therefore, the petitioners-approving officers are
accountable for the refund of the subject incentives which
they received. [Emphasis Supplied]
Applying by analogy the above rulings, we hold the
petitioners approving officers of the Monetary Board are
liable for the excess EMEs which they received.
As the records bear out, the petitioners who approve the
EMEs failed to observe the following: first, there is already a
law, the GAA, that limits the grant of EMEs; second; COA
Memorandum No. 97-038 dated September 19, 1997 is a
directive issued by the COA to its auditors to enforce the self-
executing prohibition imposed by Section 13, Article VII of
the Constitution 25 on the President and his official family,
their deputies and assistants, or their representatives from
holding multiple offices and receiving double. compensation;
and third, the irregularity of giving additional compensation
or allowances to ex officio members was already settled by
jurisprudence, 26 during the time that the subject
allowances were authorized by the BSP.
Indeed, the petitioners-approving officers' disregard of the
aforementioned case laws, COA issuances, and the
Constitution, cannot be deemed as a mere lapse consistent
with the presumption of good faith.
In line with this, we cannot subscribe to petitioner Favila's
insistence that he should not be liable in the approving,
processing and receiving of EMEs on the basis that he did not
participate in the adoption of the resolutions authorizing the
payment of the EMEs.
As pointed out during the deliberation by Our learned
colleague, Hon. Justice Lucas P. Bersamin, the doctrine on the
non-liability of recipients of disallowed benefits based on
good faith did not extend to petitioner Favila for the
following reasons: first, there was precisely a law (the
relevant GAAs) that expressly limited the amounts of the
EMEs to be received by the ex officio members; and second,
in so far as ND No. 10-004GF (2007- 2008) 27 is concerned,
his liability arose from his receipt of the subject allowances
in 2008, when he was an ex officio member of the Board.
Hence, · good faith did not favor him not only because he had
failed to exercise the highest degree of responsibility, but
also because as a cabinet member he was aware of the extent
of the benefits he was entitled to.
Verily, petitioners Tetangco, Jr., Favila, Amatong, Pavis-
Villafuerte, Antonio, and Bunye, who were members of the
Monetary Board were expected to keep abreast of the laws
that may affect the performance of their functions. The law,
jurisprudence and COA issuances subject of this case are of
such clearness that the concerned officials could not have
mistaken their meaning. It was incumbent upon them to
instruct Petitioners On &, Prudencio, Reyes and Catarroja
who participated in the processing of the EMEs, to comply
with these laws. Unfortunately, they did not. Thus, they
cannot find shelter in the defense of good faith.
WHEREFORE, the Petition is DISMISSED. The Commission oμ
Audit's Resolution dated August 12, 2014, denying the
petitioners' Motion for Reconsideration 28 and
Supplemental Motion for Reconsideration, · affirming its
Decision No. 2013-227 dated December 23, 2013 and
sustaining the Notices of Disallowance Nos. 10-004 GF
(2007-2008) and 10-004 GF (2007-2009) both dated August
13, 2010, are hereby AFFIRMED in toto.
SO ORDERED.
IN RE: ATTY. LYDIA CHAGUILE
This is yet another controversy involving the leadership of
the Integrated Bar of the Philippines (IBP) that could have
been resolved at the Integrated Bar of the Philippines’ level
but was instead referred to this aking away precious
resources that could have been better applied to resolve
other conflicts for the public interest.
The consolidated cases involve two Administrative Matters.
The first Administrative Matter (A.M. No. 13-04-03-SC) arose
from a Motion filed by Atty. Marlou B. Ubano, IBP Governor
for Western Visayas. Atty. Ubano sought to invalidate or have
this Court declare as ultra vires the portion of the March 21,
2013 Resolution of the IBP Board of Governors which
approved the nomination of Atty. Lynda Chaguile as
replacement of IBP Governor for Northern Luzon, Denis B.
Habawel. The second Administrative Matter arose from
another Motion filed by Atty. Ubano who sought to nullify the
May 22, 2013 election for IBP Executive Vice President (EVP)
and restrain Atty. Vicente M. Joyas from discharging the
duties of IBP EVP/Acting President. In a Resolution dated
June 18, 2013, this Court consolidated the second
Administrative Matter with the first.
A.M. No. 13-04-03-SC
The first Administrative Matter is an incident arising from:
(1) A.M. No. 09-5-2-SC (In the Matter of the Brewing
Controversies in the Election in the· Integrated Bar of the
Philippines, Atty. Marven B. Daquilanea, Movant-Intervenor;
Presidents of IBP Chapter in Western Visayas Region,
Intervenors; IBP Capiz Chapter, Intervenor); and (2) A.C. No.
8292 (Attys. Marcial M Magsino, Manuel M Maramba, and
Nasser Marohomsalic v. Attys. Rogelio A. Vinluan, Abelardo
C. Estrada, Bonifacio T. Barandon, Jr., Evergisto S. Escalon,
and Raymund Jorge A. Mercado).
On March 27, 2013, Atty. Marlou B. Ubano, IBP Governor for
Western Visayas, filed a Motion (Original Motion) in relation
to A.M. No. 09-5-2-SC. Atty. Ubano sought to invalidate or
have this Court declare as ultra vires the portion of the
March 21, 2013 Resolution of the IBP Board of Governors
which approved the nomination of Atty. Lynda Chaguile as
the replacement of IBP Governor for Northern Luzon, Denis
B. Habawel. In this Original Motion, Atty. Ubano noted that
on December 4, 2012, this Court approved an amendment to
Article I, Section 4 of the IBP By-Laws which considers as
ipso facto resigned from his or her post any official of the
Integrated Bar of the Philippines who files a Certificate of
Candidacy for any elective public office. Under the amended
By-Laws, the resignation takes effect on the starting date of
the official campaign period.1 Atty. Ubano alleged that the
IBP Governor for Northern Luzon, Denis B. Habawel, filed a
Certificate of Candidacy to run for the position of Provincial
Governor of the Province of Ifugao on or before October 5,
2012, and that on or before December 21, 2012, IBP
President, Roan Libarios, filed a Certificate of Substitution to
run as a substitute congressional candidate for the First
District of Agusan del Norte.2
Atty. Ubano further alleged that "[i]n light of the impending
ipso facto resignation of Pres. Libarios on 30 March 2013,"3
the IBP Board of Governors agreed to constitute a five (5)-
member Executive Committee (Ex Com) to "prevent hiatus in
the leadership of the IBP."4 The Executive Committee was
"tasked to temporarily administer the affairs of the IBP
without prejudice to the outcome of the Honorable Court’s
resolution of the pending incident."5 Atty. Ubano also alleged
that Atty. Habawel nominated Atty. Lynda Chaguile, IBP
Ifugao Chapter President, as his successor to the position of
IBP Governor for Northern Luzon.6 Atty. Ubano claimed that
Atty. Libarios began "dictating the tenor of the IBP [Board of
Governors] Resolution about the creation of Ex Com"7 and,
without prior deliberation and voting, declared that the
Board of Governors approved the succession of Atty.
Chaguile as IBP Governor for Northern Luzon. Atty. Ubano,
together with two (2) other IBP Governors, allegedly
objected. However, when the matter was put to a vote, the
other governors, Atty. Habawel included, approved Atty.
Chaguile’s replacement of Atty. Habawel as IBP Governor for
Northern Luzon.8
In this Original Motion, Atty. Ubano challenged the IBP Board
of Governor’s approval of Atty. Chaguile’s succession as IBP
Governor for Northern Luzon on two grounds: First, there
was, as yet, no vacancy. Atty. Habawel was himself present at
the meeting where his replacement was named. There was,
therefore, no need to name a replacement.9 Second, the right
to elect the successor of a resigned IBP Governor is vested,
not in the IBP Board of Governors, but in the delegates of the
concerned region; thus, the IBP Board of Governors’
approval of the nominee to succeed Atty. Habawel is ultra
vires.10In support of this second ground, Atty. Ubano cited
the third paragraph of Section 44 of the IBP By-Laws: Sec. 44.
Removal of members. x x x x x x[x] In case of any vacancy in
the office of Governor for whatever cause, the delegates from
the region shall by majority vote, elect a successor from
among the members of the Chapter to which the resigned
governor is a member to serve as governor for the unexpired
portion of the term.11 In a Resolution dated April 2, 2013,
this Court resolved to treat this Original Motion as an
Administrative Matter separate from A.M. No. 09-5-2-SC and
A.C. No. 8292. It was re-docketed as A.M. No. 13-04-03-SC.
This Court required the IBP Board of Governors to file its
Comment. In its Comment, the IBP Board of Governors
assailed the first ground raised by Atty. Ubano by saying that
it was not necessary for a position to be absolutely vacant
before a successor may be appointed or elected.12 As for the
second ground, the IBP Board of Governors argued that it has
been the "tradition"13 of the Integrated Bar of the
Philippines that "where the unexpired term is only for a very
short period of time, it is usually the Board of Governors
which appoint [sic]a replacement or an officer in charge to
serve the unexpired term."14 The IBP Board of Governors
cited seven (7) precedents attesting to this "tradition":
1. On January 24, 1979, the IBP Board of Governors
"unanimously resolved to designate Jose F. Lim, Vice
President of the IBP Samar Chapter, [as]acting Governor and
ex-oficio Vice President for Eastern Visayas in view of the
absence of Gov. Juan G. Figueroa."15
2.On June 1, 1984, the IBP Board of Governors approved the
replacements of two (2) governors who resigned to run in
the Batasang Pambansa elections:
a. The President of the IBP Baguio-Benguet Chapter,
Reynaldo A. Cortes, was elected by the IBP Board of
Governors to replace Gov. Honorato Aquino who himself
nominated Cortes;
b."The President of the IBP Southern Leyte Chapter, Porfirio
P. Siaynco, was elected by the Board to replace Gov. Cirilo
Montejo."16
3. On January 27, 1989, the IBP Board of Governors "elected
Nancy Sison Roxas, Treasurer of the House of Delegates, as
Governor for Central Luzon" in lieu of Cesar L. Paras, who
passed away.17
4. On October 7, 1991, Governor for Eastern Mindanao,
Teodoro Palma Gil, who was previously appointed as a
Regional Trial Court (RTC) judge, recommended that
Teodoro Nano, Jr., President of the IBP Davao Oriental
Chapter, be his replacement.18 On November 8, 1991, Nano
was eventually elected by the IBP Board of Governors as
Governor for Eastern Mindanao.19
5. On September 26, 1998, the IBP "Board of Governors
confirmed the designation of Teofilo S. Pilando, Jr. as
Governor for Northern Luzon, to serve the unexpired portion
of the term of Gov. Roy S. Pilando, who ran for public
office."20
6. On September 12, 2002, the IBP Board of Governors
"resolved to appoint acting Governor Rogelio Velarde as
regular Governor of Southern Luzon Region after learning of
the death of the regular Governor, Josefina S. Angara."21
7. On August 17, 2006, the IBP Board of Governors
"appointed Abelardo C. Estrada as OIC for IBP Northern
Luzon [in lieu of] Silvestre H. Bello who was facing a
disqualification case as Governor of IBP Northern Luzon."22
In his Reply, Atty. Ubano questioned the IBP Board of
Governors’ claim that it is not necessary for a position to be
absolutely vacant before a successor may be appointed or
elected. Citing the third paragraph of Section 44of the IBP
By-Laws’ use of the word "vacancy" (i.e., "any vacancy in the
office of Governor") and "resignation" (i.e., "resigned
governor"), Atty. Ubano claimed that the text of the By-Laws
is "abundantly clear and unequivocal that there must be first
a "vacancy" or a prior resignation before the delegates of the
Region can lawfully elect a successor x x x."23
Atty. Ubano likewise challenged the precedents cited by the
IBP Board of Governors and claimed that no such tradition of
appointing the successor of a resigned governor existed.24
He pointed out that prior to its amendment in March 2, 1993,
the IBP By-Laws had allowed the IBP Board of Governors to
elect, and not appoint, "a successor ofa resigned
Governor."25 However, the amended By-Laws now require
that a successor be elected by the delegates of the concerned
region.26 Even if it were true that the IBP Board of
Governors had a tradition of appointing the successor of a
resigned governor, the tradition cannot be validated in view
of the first paragraph of Article 7 of the Civil Code which
reads:
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.27
Meanwhile, on April 23, 2013, Atty. Ubano filed another
Motion (Urgent Motion to Defer/Restrain Performance of
Duties as Successor Governor of IBP Northern Luzon Region)
seeking to prevent Atty. Chaguile from exercising the
functions of IBP Governor for Northern Luzon.
This Court also received on May 16, 2013 an undated
Resolution purportedly signed by delegates of the IBP
Northern Luzon Region. The signatories called for an
election on May 18, 2013 to name Atty. Habawel’s successor.
On May 20, 2013, these same signatories filed before this
Court their Opposition to Atty. Chaguile’s nomination. As
with the second ground cited by Atty. Ubano in his Original
Motion, this Opposition was anchored on the third paragraph
of Section 44 of the IBP By-Laws.
Also on May 20, 2013, Atty. Ubano filed a "Motion for Leave
to File Reply with Very Urgent Motion to Restrain Atty.
Chaguile from Voting in the EVP Election on 22 May
2013."28 Attached to the Motion was his "Reply with Very
Urgent Motion to Restrain Atty. Chaguile from Voting in the
EVP Election on 22 May 2013."29 Atty. Ubano also sent a
letter to Associate Justice Mariano C. del Castillo "pray[ing]
and beg[ging] the indulgence of the Honorable Court to
immediately restrain Atty. Lynda Chaguile from voting in the
IBP [Executive Vice President]Election to be held on 22
May2013."30
In a Resolution dated June 4, 2013, this Court required the
IBP Board of Governors to file its Comment on Atty. Ubano’s
(1) Urgent Motion to Defer/Restrain Performance of Duties
as Successor Governor of IBP Northern Luzon Region; (2)
Motion for Leave to File Reply; and (3) Reply. It also required
the IBP Board of Governors to comment on the Opposition
filed by the signatories purporting to be the delegates of the
IBP Northern Luzon Region.
On July 8, 2013, the IBP Board of Governors filed a
Compliance (i.e., Comment in Compliance) with this Court’s
June 4, 2013 Resolution.
With respect to Atty. Ubano’s Urgent Motion to
Defer/Restrain Performance of Duties as Successor Governor
of IBP Northern Luzon Region, the IBP Board of Governors
pointed out that Atty. Chaguile’s term expired on June 30,
2013.31
As to the Opposition filed by signatories purporting to be the
delegates of the IBP Northern Luzon Region, the IBP Board of
Governors alleged that the term of the House of Delegates of
Northern Luzon for 2011 to 2013 expired on March 31,
2013. As such, the Opposition signed by the purported
delegates was ultra vires, and therefore, null and void.32 The
IBP Board of Governors pointed out that "[t]he issue about
the eligibility of Atty. Lynda Chaguile as replacement
Governor for Atty. Denis B. Habawel was traversed over in
the Comment x x x dated April 24, 2013."33
A.M. No. 13-05-08-SC
The second Administrative Matter assails the conduct of the
May 22, 2013 election of the IBP Executive Vice President
(EVP). In this election, Atty. Vicente M. Joy as was elected IBP
Governor for Southern Luzon.
On May 31, 2013,Atty. Ubano filed an Urgent Omnibus
Motion to (1) nullify the May 22, 2013 IBP Executive Vice
President election and (2) restrain Atty. Vicente M. Joyas
from discharging the duties of EVP/Acting President. This
Motion was docketed as A.M. No. 13-05-08-SC. In this Court’s
Resolution dated June 18, 2013, this Administrative Matter
was consolidated with A.M. No. 13-04-03-SC(the first
Administrative Matter).
Atty. Ubano sought to nullify the May 22, 2013 election on
two (2) grounds:
First, he claimed that the IBP election of the EVP was marred
by inordinate haste, grave irregularities, patent hostility,
manifest bias and prejudice, as well as the presiding officer’s
absolute lack of independence.34
Second, he claimed that the election violated Section 47 of
the IBP By-Laws which requires that the EVP be elected by a
vote of at least five (5) Governors. Atty. Ubano emphasized
that Atty. Chaguile’s vote in favor of Atty. Joyas was invalid,
as Atty. Chaguile’s appointment as governor was itself ultra
vires, and therefore,void ab initio.
Section 47 of the IBP By-Laws, as amended pursuant to this
Court’s Resolution dated April 11, 2013 in A.M. No. 09-5-2-SC
and A.C. No. 8292, now reads:
Sec. 47. Election of National President Executive Vice
President. –The Integrated Bar of the Philippines shall have a
President, an Executive Vice President, and nine (9) regional
Governors. The Governors shall be ex-officio Vice President
for their respective regions.
The Board of Governors shall elect the President and
Executive Vice President from among themselves each by a
vote of at least five (5) Governors. Upon expiration of the
term of the President, the Executive Vice-President shall
automatically succeed as President.
In the Compliance that the IBP Board of Governors filed in
A.M. No. 13-04-03-SC, it addressed Atty. Ubano’s allegations
as follows:
1. On the conduct of the election
a. The Report on the Conduct of Election filed by the Regional
Trial Court - Pasig Executive Judge (and Supreme Court
Designated Observer)35 indicates that Atty. Ubano’s
objection to the appointment of the presiding officer was
thoroughly discussed and properly put to a vote.36 Further,
there is no factual basis for claiming that the presiding
officer was not independent. Atty. Ubano was also noted to
have been allowed the most number of interventions and the
longest time spent for deliberations.37
b. Atty. Ubano was properly ruled out of order when he
moved that the elections be moved to a later date and when
he objected to the participation of Atty. Chaguile.38
2. On the supposed invalidity of Atty. Chaguile’s vote, the IBP
Board of Governors pointed out that, as of the time of the
election, there was no basis for invalidating the vote.39
Stripped of technical maneuverings and legal histrionics, we
are called to rule upon the validity of Atty. Lynda Chaguile’s
appointment as IBP Governor for Northern Luzon in lieu of
Atty. Denis B. Habawel. The resolution of this matter is
decisive of the validity of her acts as IBP Governor for
Northern Luzon — including her participation in the election
of the IBP EVP.
Likewise, we are asked to review the conduct of the election
for the IBP EVP. We must determine whether the election
was attended by irregularities, biases, and prejudice that
would invalidate its results.
We note that certain issues raised in several Motions filed as
part of the first Administrative Matter have been rendered
moot and academic.
In the first Administrative Matter, Atty. Ubano sought to (1)
declare as ultra vires or as invalid the portion of the IBP
Board of Governors Omnibus Resolution dated March 21,
2013 which approved the nomination of Atty. Chaguile as
IBP Governor for Northern Luzon in lieu of Atty. Denis
Habawel and (2) restrain Atty. Chaguile from exercising the
functions of IBP Governor for Northern Luzon, among which
was voting in the May 22, 2013 election for IBP EVP.Also in
the first Administrative Matter, several signatories
purporting to be the delegates of the IBP Northern Luzon
Region opposed Atty. Chaguile’s nomination on substantially
the same grounds as Atty. Ubano.
As pointed out by the IBP Board of Governorsin its
Compliance, "the term of Atty. Lynda Chaguile as Governor
for Northern Luzon expired on June 30, 2013."40 A new
Governor for Northern Luzon, Atty. Oliver Cachapero, was
elected.41 As Atty. Chaguile is no longer serving as IBP
Governor for Northern Luzon, the matter of ousting or
restraining Atty. Chaguile from exercising the functions of
such office is no longer an available relief.
As we have explained in Pormento v. Estrada:42
As a rule, this Court may only adjudicate actual, ongoing
controversies. The Court is not empowered to decide moot
questions or abstract propositions, or to declare principles
or rules of law which cannot affect the result as to the thing
in issue in the case before it. In other words, when a case is
moot, it becomes non-justiciable.
An action is considered "moot" when it no longer presents a
justiciable controversy because the issues involved have
become academic or dead or when the matter in dispute has
already been resolved and hence, one is not entitled to
judicial intervention unless the issue is likely to be raised
again between the parties. There is nothing for the court to
resolve as the determination thereof has been overtaken by
subsequent events.43
However, we recognize that the validity of Atty. Chaguile’s
appointment as Governor for Northern Luzon affects the
validity of her actions as the occupant of thisoffice, especially
her participation in the IBP Board of Governors’ election of
the IBP EVP, which is the subject of the second
Administrative Matter.
Atty. Ubano cited two grounds as bases for claiming that the
IBP Board of Governors improperly approved Atty.
Chaguile’s succession as Governor for Northern Luzon. First,
there was no vacancy at the time of Atty. Chaguile’s
designation. Atty. Habawel was then still Governor for
Northern Luzon, and there was no need to name a
replacement yet. Second, the IBP Board of Governors acted
ultra vires or beyond its competence considering that the
third paragraph of Section 44 of the IBP By-Laws vests the
right to elect the successor of a resigned IBP governor inthe
delegates of the concerned region and not in the IBP Board of
Governors.
On the first ground, we sustain the position of the IBP Board
of Governors.
Indeed, it is not only erroneous but also absurd to insist that
a vacancy must actually and literally exist at the precise
moment that a successor to an office is identified. Where a
vacancy is anticipated with reasonable certainty—as when a
term is ending or the effectivity of a resignation or a
retirement is forthcoming—it is but reasonable that those
who are in a position to designate a replacement act
promptly. New officials are elected before the end of an
incumbent’s term; replacements are recruited (and even
trained) ahead of an anticipated resignation or retirement.
This is necessary to ensure the smooth and effective
functioning of an office. Between prompt and lackadaisical
action, the former is preferable. It is immaterial that there is
an identified successor-in-waiting so long as there are no
simultaneous occupants of an office. On the second ground,
the third paragraph of Section 44 of the IBP By-Laws clearly
provides that "the delegates from the region shall by
majority, elect a successor from among the members of the
Chapter to which the resigned governor is a member." There
is no ambiguity in this text. We are surprised that the IBP—
an institution expected to uphold the rule of law—has
chosen to rely on "tradition" to validate its action. The IBP
Board of Governors arrogated unto itself a power which is
vested in the delegates of the concerned IBP region. This
arrogation is a manifest violation of the clear and
unmistakable terms of the IBP’s By-Laws. We cannot
countenance this. No amount of previous practice or
"tradition" can validate such a patently erroneous action. It
is, therefore, lear that Atty. Chaguile’s designation as IBP
Governor for Northern Luzon is tainted with irregularity, and
therefore, invalid.
Nevertheless, following the adoption of the IBP Board of
Governors Omnibus Resolution dated March 21, 2013at the
time Atty. Ubano filed the Original Motion and up until June
30, 2013 when her "term x x x expired,"44 Atty. Chaguile
acted as and performed the functions of the IBP Governor for
Northern Luzon. This is an accomplished fact which no
amount of legal abstraction can undo. It is in this context,
with the backdrop of this consummated truth,that we rule on
the Administrative Matters before us. Given these
circumstances, we hold that Atty. Chaguile took on the role of
IBP Governor for Northern Luzon in a de facto capacity.
De facto means "in point of fact."45 To speak of something as
being de factois,thus,to say that it is "[a]ctual [or] existing in
fact"46 as opposed to "[e]xisting by right or according to
law,"47 that is, de jure. Being factual though not being
founded on right or law, de facto is,therefore, "illegitimate
but in effect."48
The concept of a de facto officer was explained in Civil
Service Commission v. Joson, Jr.:49
The broad definition of what constitutes an officer de facto
was formulated by Lord Holt in Parker v. Kent, and
reiterated by Lord Ellenborough and full King’s Bench in
1865 in Rex v. Bedford Level, "One who has the reputation of
being the officer he assumes and yet is not a good officer in
point of law." A de facto officer is one who is in possession of
the office and discharging its duties under color of authority.
By color of authority is meant that derived from an election
or appointment, however irregular or informal, so that the
incumbent is not a mere volunteer.50 (Emphasis and
underscoring supplied)
A de facto officer is distinguished form a de jure officer, as
follows:
The difference between the basis of the authority of a de jure
officer and that of a de facto officer is that one rests on right,
the other on reputation. It may be likened to the difference
between character and reputation. One is the truth of a man,
the other is what is thought of him.51
Moreover, as against a mere usurper, "[i]t is the color of
authority, not the color of title that distinguishes an officer
de facto from a usurper."52 Thus, a mere usurper is one
"who takes possession of [an] office and undertakes to act
officially without any color of right or authority, either actual
or apparent."53 A usurper is no officer at all.54
The expanse of the de facto doctrine was established early in
the development of our jurisprudence. In Luna v.
Rodriguez,55 the doctrine was established to contemplate
situations where the duties of the office were exercised: (a)
Without a known appointment or election, but under such
circumstances of reputation or acquiescence as were
calculated to induce people, without inquiry, to submit to or
invoke his action, supposing him to be the officer he assumes
to be; (b) under color of a known or valid appointment or
election, where the officer has failed to conform to some
precedent requirement or condition, for example, a failure to
take the oath or give a bond, or similar defect; (c) under
color of a known election or appointment, void because the
officer was not eligible, or because there was a want of
power in the electing or appointing body, or by reason of
some defect or irregularity in its exercise, such ineligibility,
want of power or defect being unknown to the public; and
(d) under color of an election, or appointment, by or
pursuant to a public unconstitutional law, before the same is
adjudged to be such.56 (Emphases and underscoring
supplied)
This coverage, affirmed and reiterated in subsequent
jurisprudence,57 unequivocally includes officers whose
election is void because the body that elected (or otherwise
designated) them lacked the capacity to do so. This is
precisely the situation in this case: The power to elect an IBP
Governor is lodged in the delegates of the concerned region,
not in the IBP Board of Governors; yet the IBP Board of
Governors approved Atty. Chaguile’s nomination as IBP
Governor for Northern Luzon.
To be a de facto officer, all of the following elements must be
present:
1) There must be a de jure office;
2) There must be color of right orgeneral acquiescence by
the public; and
3) There must be actual physical possession of the office in
good faith.58 (Underscoring supplied)
In the present case, there is no dispute that a de jure office—
that of IBP Governor for Northern Luzon—exists.
Neither is there any dispute that Atty. Chaguile took
possession of and performed the functions of such office. In
fact, the Motions submitted as part of the first Administrative
Matter were precisely intended to put a stop to her
performance of these functions. Likewise, Atty. Chaguile took
possession of and performed the functions of the IBP
Governor for Northern Luzon through a process, albeit
"irregular or informal, so that [she] is not a mere
volunteer,"59 that is, not through her own actions but
through those of the IBP Board of Governors. Thus, she did
so under "color of authority," as defined in settled
jurisprudence (e.g., Civil Service Commission v. Joson, Jr.,60
Dimaandal v. Commission on Audit,61 and Dennis A.B. Funa
v. Acting Secretary of Justice Alberto C. Agra 62).
The IBP Board of Governors’ approval was secured through a
process that it characterized as a "tradition," allowing it to
appoint a replacement for an officer who vacates his or her
office shortly before his or her term expires. It cited seven
(7) cases, spanning a period of more than twenty-six (26)
years, in which this tradition was exercised. Of these, three
(3) occurred after the March 2, 1993 amendment of the IBP
By-Laws which requires that a successor governor be elected
by the delegates of the concerned region. Thus, the
"tradition" persisted even after the amended By-Laws had
vested the power to elect a replacement in the delegates of
the concerned region.
Being in violation of the IBP By-Laws (as amended on March
2, 1993), this supposed tradition cannot earn our
imprimatur. Be that as it may, in all of the occasions cited by
the IBP Board of Governors, the authority of replacement
governors was derived from a process, which, though
irregular, enabled them to act as and be accepted as
governors. It was with this backdrop that Atty. Chaguile
herself was designated as IBP Governor for Northern Luzon.
Illumined by this context, thecolor of authority or right
under which Atty. Chaguile became IBP Governor for
Northern Luzon is all the more stark.
This same color of authority or right negates any insinuation
that Atty. Chaguile assumed office out of her own design or
contrivance; that is, that she did so in bad faith. She precisely
relied on established practice, now established as invalid but
nevertheless historically accepted. Atty. Ubano alleged that
then IBP President Roan Libarios imposed upon the IBP
Board of Governors the approval of Atty. Chaguile’s
nomination; that Atty. Habawel wrongly participated in the
vote to approve Atty. Chaguile’s nomination; and that the IBP
Board of Governors itself violated the IBP By-Laws. Yet, he
failed to allege that Atty. Chaguile was her self a party to any
scheme or artifice that might have been designed so that she
would be able to secure the IBP Governorship for Northern
Luzon. Furthermore, no evidence was presented to show
that there was coercion imposed on the other governors of
the Integrated Bar of the Philippines.
We note that on May 16, 2013,signatories claiming to be
delegates of the IBP Northern Luzon Region submitted to
this Court a copy of an undated Resolution calling for an
election to name Atty. Denis B. Habawel’s successor as IBP
Governor for Northern Luzon. We also note that on May 20,
2013, the same individuals submitted their Opposition to
Atty. Chaguile’s nomination as Atty. Habawel’s replacement.
On the basis of this, there appears to be a ground for arguing
that there was no "general acquiescence by the public"63 to
Atty. Chaguile’s having replaced Atty. Habawel.
The second requisite for being a de facto officer, as spelled
out in Tuandav. Sandiganbayan,64 reads: "There must be
color of right or general acquiescence by the public."65
Clearly, the requisite is stated in the alternative. Color of
right also suffices. We have already discussed how Atty.
Chaguile took on the role of IBP Governor for Northern
Luzon with color of right (or authority).
We fail to see how the action of six(6) individuals66sustains
the assertion that the public never acquiesced to Atty.
Chaguile’s having replaced Atty. Habawel. The requisite
speaks of "general acquiescence." To be "general" is not to be
"absolute." It is to speak of a commonality that exists for the
most partbut not necessarily entirely. It admits of
exceptions. That there are those who count themselves as
objectors merely attests to their existence. It does not, in and
of itself, repudiate that which may generally exist. Thus,to
equate the action of a handful ofactive objectors with the
utter lack of "general acquiescence" would be non sequitur.
Granting that these six(6) individuals are in fact the
legitimate delegates of the IBP Northern Luzon Region and
even if we disregard their sheer number, they still fail to
represent or embody the "public." They are direct
participants, having been the individuals whose right to elect
the IBP Governor for Northern Luzon was supposedly
undermined. Precisely, their being direct participants –
meaning, persons whose supposed rights were violated –
makes them actual parties to the controversy. That they
themselves chose to file an Opposition and submit
themselves to this Court’s adjudication of this case evidences
their own acknowledgement of this.
The de facto doctrine was devised to benefit the public. On
the validity of actions made by de facto officers, it is settled
that "the acts of the de facto officer are just as valid for all
purposes as those of a de jure officer, in so far as the public
or third persons who are interested therein are
concerned."67 This is premised on the reality that "[t]hird
persons x x x cannot always investigate the right of one
assuming to hold an important office. They have aright to
assume that officials apparently qualified and in office are
legally such."68
The third party affected by the nature of the assumption into
office by Atty. Chaguile is the mass of lawyers belonging to
the Integrated Bar of the Philippines. Again, the whole legal
profession becomes witness to how the selection of its
leaders has practically become annual intramurals of both
political and legal controversy. In our April 11, 2013
Resolution in A.M. No. 09-5-2-SC and A.C. No. 8292, we
observed that this has brought about disenchantment within
the ranks of the Integrated Bar of the Philippines. In truth,
many suspect that these elections are contests between
exclusive groups that maneuver to find allies year in and
year out to control the helm of this mandatory lawyers’
organization.
The disposition we give to this case is also partly to quiet
these conflicts and to deny any reward to further legal
controversy. After all, in our April 11, 2013 Resolution in
A.M. No. 09-5-2-SC and A.C. No. 8292, we created a
permanent Committee for IBP Affairs "to primarily attend to
the problems and needs of a very important professional
body and to make recommendation for its improvement and
strengthening."69
Should that initiative still fail, this Court should seriously
review the present modality of the Integrated Bar. Instead of
individual membership, a more functional alternative might
be organizational membership. This means that voluntary
organizations such as the Free Legal Assistance Group
(FLAG), the Alternative Law Groups (ALG), the Philippine
Bar Association (PBA), the U.P. Women Lawyers’ Circle
(WILOCI), and other organizations can coalesce and
nominate leaders to comprise a council. Thus, every lawyer
will have a mature choice to determine which of these
organizations best represents his or her interests. This
harmonizes better with their right to free association.
All considered, the circumstances under which Atty.
Chaguile’s nomination was approved and under which Atty.
Chaguile subsequently assumed the role of IBP Governor for
Northern Luzon are sufficient to induce a general belief that
she was properly the IBP Governor for Northern Luzon and
that her actions in this office were properly invoked.
Having said these, we agree with a point raised by Atty.
Ubano. As with statutes, the IBP By-Laws’ "violation or non-
observance [ought] not be excused by disuse, or custom, or
practice to the contrary."70 We do not validate the IBP Board
of Governors’ erroneous practice. To reiterate our earlier
words: "We cannot countenance this. No amount of previous
practice or "tradition" can validate such a patently erroneous
action."
Nonetheless, even as we decry the IBP Board of Governor’s
reliance on "tradition," we do not lose sight of the fact,
palpable and immutable, that Atty. Chaguile has so acted as
IBP Governor for Northern Luzon. Thankfully, our legal
system has an established means through which we are able
to avert the "chaos that would result from multiple and
repetitious [challenges to] every action taken by [an] official
whose claim to office could be open to question."71 It is
strictly in view of this that we make a determination that
Atty. Chaguile was the de facto IBP Governor for Northern
Luzon.We are not validating a wrong; we are merely
addressing an exigency.
Having established that Atty. Chaguile was the IBP Governor
for Northern Luzon in a de facto capacity, we turn to the
validity of her actions as a de facto officer.
To reiterate, one that is de facto is "illegitimate but in
effect."72 Thus, it is settled that "the acts of the de facto
officer are just as valid for all purposes as those of a de jure
officer, in so far as the public or third persons who are
interested therein are concerned."73 This is necessary so as
to protect the sanctity of their dealings with those relying on
their ostensible authority:"[t]hird persons x x x cannot
always investigate the right of one assuming to hold an
important office. They have a right to assume that officials
apparently qualified and in office are legally such."74
Accordingly, we hold that all official actions of Atty. Chaguile
as de facto IBP Governor for Northern Luzon must be
deemed valid, binding, and effective, as though she were the
officer validly appointed and qualified for the office. It
follows that her participation and vote in the election for IBP
EVP held on May 22, 2013 are in order.
We now proceed to the points raised by Atty. Ubano assailing
the conduct of the May 22, 2013 election for the IBP EVP.
The Report on the Conduct of Election prepared by this
Court’s designated observer, Executive Judge Danilo S. Cruz,
reveals that Atty. Ubano’s objections were properly and
thoroughly discussed. He was given a considerable length of
time to air and argue his points. It was only after thorough
discussions that Atty. Ubano’s Motion to postpone the
elections—which he insisted on raising even when the body
was in the process of nominating candidates for the position
of EVP—was declared out of order.75 Atty. Ubano himself
was then nominated for IBP EVP.76 He accepted his
nomination subject to the resolution of his Motion for
Reconsideration in A.M. No. 09-5-2-SC and A.C. No. 8292, as
well as the resolution of the first Administrative Matter.77
Before the members of the IBP Board of Governors placed
their votes, Atty. Ubano had sought to have Atty. Chaguile’s
ballot segregated and sealed pending the resolution of his
Motion for Reconsideration in A.M. No. 09-5-2-SC and A.C.
No. 8292, as well as the resolution of the first Administrative
Matter. His Motion was denied.78 Votes were then cast,
followed by tally and canvassing. After the votes had been
tallied, Atty. Vicente M. Joyas received five (5) votes while
Atty. Ubano received four(4) votes. The Certificate of
Election was then prepared, certified by the presiding officer
and noted by this Court’s observer.79
Atty. Ubano was accorded more than an ample opportunity
to arguehis position. More importantly, his position was
amply considered by the body. Another IBP governor, IBP
Greater Manila Governor Dominic C.M. Solis, even initially
supported Atty. Ubano’s insistence that the election be
postponed, but Atty. Solis subsequently withdrew
hissupport.80
In his Urgent Omnibus Motion which gave rise to the second
Administrative Matter, Atty. Ubano made an issue out of
Atty. Vicente M. Joyas’ having designated IBP National
Secretary Nasser A. Marohomsalic as Chairman of the
Commission on Elections considering that Atty.Joyas
supposedly lacked the authority to do so. Atty. Ubano made
much of Atty. Joyas’ status as IBP Governor for Southern
Luzon. Atty. Ubano, however, lost sight of the fact that Atty.
Joyas was likewise the Chairman of the IBP Executive
Committee.
The Report on the Conduct of Election prepared by Executive
Judge Danilo S. Cruz recalls the pertinent events as follows:
The election was scheduled at 11 A.M. Chairman Joyas called
the meeting to order at11:05 A.M. National Secretary
Marohomsalic certified that all members of the Board were
notified of the election schedule and that with the presence
of five (5) members of the Board,81 there was a quorum. The
Chairman placed on record that the undersigned Court
Observer was in attendance.
Chairman Joyas said the meeting was for the purpose of
electing the EVP for 2011-2013 and designated the
COMELEC for the election, thus: Secretary Marohomsalic as
Chairman, Atty. Rosario T. Setlas-Reyes, as second member,
and IBP Head Executive Assistant Aurora G. Geronimo as
third member and recorder of the proceedings. Chairman
Joyas then relinquished the Chair to COMELEC Chairman
Nasser A. Marohomsalic.82
Atty. Ubano’s own description of the circumstances leading
to the creation of the Executive Committee states:
In light of the impending ipso facto resignation of Pres.
Libarios on 30 March 2013 which is the start of the official
campaign period, the IBP [Board of Governors]discussed a
mechanism to prevent hiatus [sic]in the leadership of the
IBP. After debate and deliberation, it was agreed to
constitute a five (5)[-] member Executive Committee ("Ex
Com") tasked to temporarily administer the affairs of the IBP
x x x.83
From Atty. Ubano’s description of the Executive Committee’s
function, it is evident that its principal purpose is to ensure
that the functions of the IBP National President shall
continue to be performed despite IBP National President
Roan Libarios’ resignation. Conformably with the Omnibus
Resolution creating the Executive Committee, Atty. Vicente
M. Joyas was designated as the Executive Committee
Chairman. It is pursuant to this designation and the
Executive Committee’s general function that Atty. Joyas
designated the Commission on Elections for the election of
the IBP EVP.
Further, Section 50 (d) of the IBP By-Laws provides:
(d) Secretary: The Secretary shall attend all meetings of the
Board of Governors, and keep a record of all the proceedings
thereof; prepare and maintain a register of all members of
the Integrated Bar; notify national officers as well as
members of national committees of their election or
appointment; cause to be prepared the necessary official
ballots for the election of Governors; and perform such other
duties as are assigned to him by these By-Laws, by the
President and by the Board of Governors.(Underscoring
supplied)
As IBP National Secretary, Atty. Marohomsalic may,
therefore, properly perform such other duties assigned to
him by the IBP National President. Thus, Atty. Vicente M.
Joyas, acting for the IBP Executive Committee(in his capacity
as its Chairman) and pursuant to the Executive Committee’s
purpose of ensuring that the functions of the IBP National
President shall continue to be performed, was in a position
to designate the IBP National Secretary to perform a duty
other than those explicitly articulated in the IBP By-Laws. As
regards this case, that duty was to be the duty of the
Chairman of the Commission on Elections. In turn, it was in
his capacity as Commission on Elections Chairman that Atty.
Marohomsalic presided over the conduct of the election.
In sum, we fail to see how the election could have been
tainted with the presiding officer’s absolute lack of
independence, manifest bias and prejudice, patent hostility,
and inordinate haste.84 We find no reason to invalidate the
election.
The Integrated Bar of the Philippines has long been beset by
leadership crises.1âwphi1 Our April 11, 2013 Resolution in
A.M. No. 09-5-2-SC and A.C. No. 8292—the same cases from
which the subject matter of this Resolution arose—
chronicled the long, acrimonious history of the leadership of
the Integrated Bar of the Philippines. It is, at the very least,
strange that the Integrated Bar has suffered these episodes
while other lawyers’ organizations have not. Again, it is
worth while to consider if there are other means of
integrating the members of the Bar— alternative ways that
might enable the Integrated Bar to satisfy its objectives more
effectively, democratize its leadership, and minimize its need
to seek the intervention of this Court.
The leadership of our Integrated Bar must find a better way
of resolving its conflicts other than elevating these matters to
this Court. It cannot fail to show maturity in resolving its
own conflicts. It behooves the members of the legal
profession to avoid being solitigious that they lose sightof
the primordial public interests that must be upheld in every
case and conflict that is raised to the level of this Court.
Otherwise, the Integrated Bar of the Philippines will
continue to alienate its mass membership through political
contestations that may be viewed as parochial intramurals
from which only a few lawyers benefit. It will be generations
of leaders who model needless litigation and wasted time
and energy. This is not what an integrated bar of a noble
profession should be.1âwphi1
WHEREFORE, the Motion to Declare dated March 27, 2013 as
Ultra Vires or Invalid the Urgent Motion to Defer/Restrain
Performance of Duties as Successor Governor of IBP
Northern Luzon Regiondated April 22, 2013and the Very
Urgent Motion to Restrain Atty. Chaguile from Voting in the
EVP Election on May22, 2013 dated May 20, 2013filed by
Atty. Marlou B. Ubano are DENIED for being moot and
academic.
We DECLARE that Atty. Lynda Chaguilewas indeed a de
factoofficer during her tenure as IBP Governor for Northern
Luzon and that her acts as de factoofficer—includingher
having voted in the May 22, 2013 electionfor the Executive
Vice President of the Integrated Bar of the Philippines—are
valid, binding,and effective. The Urgent Omnibus Motion to
(1) Nullify the EVP Election on May 22, 2013 and (2)
Restrain Gov. Vicente M. Joyas of Southern Luzon Region
from Discharging the Duties of EVP/Acting President until
the Final Resolution of the Issues is DENIED.

Let a copy of this Resolution be given to the Supreme Court

Oversight Committee on the Integrated Bar of the Philippines
reorganized by virtue of Memorandum Order No. 20-2013
on June 13, 2013 for its proper advice.

SO ORDERED.
FUNA vs AGRA
Section 13, Article VII of the 1987 Constitution expressly
prohibits the President, Vice-President, the Members of the
Cabinet, and their deputies or assistants from holding any
other office or employment during their tenure unless
otherwise provided in the Constitution. Complementing the
prohibition is Section 7, paragraph (2), Article IX-B of the
1987 Constitution, which bans any appointive official from
holding any other office or employment in the Government
or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries, unless otherwise allowed by law or the
primary functions of his position.
These prohibitions under the Constitution are at the core of
this special civil action for certiorari and prohibition
commenced on April 7, 2010 to assail the designation of
respondent Hon. Alberto C. Agra, then the Acting Secretary of
Justice, as concurrently the Acting Solicitor General.
Antecedents
The petitioner alleges that on March 1, 2010, President
Gloria M. Macapagal-Arroyo appointed Agra as the Acting
Secretary of Justice following the resignation of Secretary
Agnes VST Devanadera in order to vie for a congressional
seat in Quezon Province; that on March 5, 2010, President
Arroyo designated Agra as the Acting Solicitor General in a
concurrent capacity;1 that on April 7, 2010, the petitioner, in
his capacity as a taxpayer, a concerned citizen and a lawyer,
commenced this suit to challenge the constitutionality of
Agra’s concurrent appointments or designations, claiming it
to be prohibited under Section 13, Article VII of the 1987
Constitution; that during the pendency of the suit, President
Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz
as the Solicitor General; and that Cadiz assumed as the
Solicitor General and commenced his duties as such on
August 5, 2010.2
Agra renders a different version of the antecedents. He
represents that on January 12, 2010, he was then the
Government Corporate Counsel when President Arroyo
designated him as the Acting Solicitor General in place of
Solicitor General Devanadera who had been appointed as the
Secretary of Justice;3 that on March 5, 2010, President
Arroyo designated him also as the Acting Secretary of Justice
vice Secretary Devanadera who had meanwhile tendered her
resignation in order to run for Congress representing a
district in Quezon Province in the May 2010 elections; that
he then relinquished his position as the Government
Corporate Counsel; and that pending the appointment of his
successor, Agra continued to perform his duties as the Acting
Solicitor General.4
Notwithstanding the conflict in the versions of the parties,
the fact that Agra has admitted to holding the two offices
concurrently in acting capacities is settled, which is sufficient
for purposes of resolving the constitutional question that
petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for
certiorari, prohibition and mandamus brought by herein
petitioner assailing the constitutionality of the designation of
then Undersecretary of the Department of Transportation
and Communications (DOTC) Maria Elena H. Bautista as
concurrently the Officer-in-Charge of the Maritime Industry
Authority. The petitioner has adopted here the arguments he
advanced in Funa v. Ermita, and he has rested his grounds of
challenge mainly on the pronouncements in Civil Liberties
Union v. Executive Secretary6 and Public Interest Center, Inc.
v. Elma.7
What may differentiate this challenge from those in the
others is that the appointments being hereby challenged
were in acting or temporary capacities. Still, the petitioner
submits that the prohibition under Section 13, Article VII of
the 1987 Constitution does not distinguish between an
appointment or designation of a Member of the Cabinet in an
acting or temporary capacity, on the one hand, and one in a
permanent capacity, on the other hand; and that Acting
Secretaries, being nonetheless Members of the Cabinet, are
not exempt from the constitutional ban. He emphasizes that
the position of the Solicitor General is not an ex officio
position in relation to the position of the Secretary of Justice,
considering that the Office of the Solicitor General (OSG) is
an independent and autonomous office attached to the
Department of Justice (DOJ).8 He insists that the fact that
Agra was extended an appointment as the Acting Solicitor
General shows that he did not occupy that office in an ex
officio capacity because an ex officio position does not
require any further warrant or appointment.
Respondents contend, in contrast, that Agra’s concurrent
designations as the Acting Secretary of Justice and Acting
Solicitor General were only in a temporary capacity, the only
effect of which was to confer additional duties to him. Thus,
as the Acting Solicitor General and Acting Secretary of
Justice, Agra was not "holding" both offices in the strict
constitutional sense.9 They argue that an appointment, to be
covered by the constitutional prohibition, must be regular
and permanent, instead of a mere designation.
Respondents further contend that, even on the assumption
that Agra’s concurrent designation constituted "holding of
multiple offices," his continued service as the Acting Solicitor
General was akin to a hold-over; that upon Agra’s
designation as the Acting Secretary of Justice, his term as the
Acting Solicitor General expired in view of the constitutional
prohibition against holding of multiple offices by the
Members of the Cabinet; that under the principle of hold-
over, Agra continued his service as the Acting Solicitor
General "until his successor is elected and qualified"10 to
"prevent a hiatus in the government pending the time when
a successor may be chosen and inducted into office;"11 and
that during his continued service as the Acting Solicitor
General, he did not receive any salaries and emoluments
from the OSG after becoming the Acting Secretary of Justice
on March 5, 2010.12
Respondents point out that the OSG’s independence and
autonomy are defined by the powers and functions
conferred to that office by law, not by the person appointed
to head such office;13 and that although the OSG is attached
to the DOJ, the DOJ’s authority, control and supervision over
the OSG are limited only to budgetary purposes.14
In his reply, petitioner counters that there was no "prevailing
special circumstance" that justified the non-application to
Agra of Section 13, Article VII of the 1987 Constitution;15
that the temporariness of the appointment or designation is
not an excuse to disregard the constitutional ban against
holding of multiple offices by the Members of the Cabinet;16
that Agra’s invocation of the principle of hold-over is
misplaced for being predicated upon an erroneous
presentation of a material fact as to the time of his
designation as the Acting Solicitor General and Acting
Secretary of Justice; that Agra’s concurrent designations
further violated the Administrative Code of 1987 which
mandates that the OSG shall be autonomous and
independent.17
Issue
Did the designation of Agra as the Acting Secretary of Justice,
concurrently with his position of Acting Solicitor General,
violate the constitutional prohibition against dual or multiple
offices for the Members of the Cabinet and their deputies and
assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice
concurrently with his position of Acting Solicitor General
was unconstitutional and void for being in violation of the
constitutional prohibition under Section 13, Article VII of the
1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit:
(1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the
act must have the standing to assail the validity of the subject
act or issuance, that is, he must have a personal and
substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement; (3)
the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality
must be the very lis mota of the case.18
Here, the OSG does not dispute the justiciability and ripeness
for consideration and resolution by the Court of the matter
raised by the petitioner. Also, the locus standi of the
petitioner as a taxpayer, a concerned citizen and a lawyer to
bring a suit of this nature has already been settled in his
favor in rulings by the Court on several other public law
litigations he brought. In Funa v. Villar,19 for one, the Court
has held:
To have legal standing, therefore, a suitor must show that he
has sustained or will sustain a "direct injury" as a result of a
government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court
has time and again acted liberally on the locus standi
requirements and has accorded certain individuals, not
otherwise directly injured, or with material interest affected,
by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The
rule on locus standi is after all a mere procedural technicality
in relation to which the Court, in a catena of cases involving a
subject of transcendental import, has waived, or relaxed,
thus allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been personally injured by
the operation of a law or any other government act. In David,
the Court laid out the bare minimum norm before the so-
called "non-traditional suitors" may be extended standing to
sue, thusly:
1.) For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;
2.) For voters, there must be a showing of obvious interest in
the validity of the election law in question;
3.) For concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must
be settled early; and
4.) For legislators, there must be a claim that the official
action complained of infringes their prerogatives as
legislators.
This case before Us is of transcendental importance, since it
obviously has "far-reaching implications," and there is a need
to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal
stance and allow petitioner to institute the instant
petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of
the petitioner as a taxpayer, a concerned citizen and a lawyer
because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary
to promulgate rules to guide the Bench, Bar, and the public in
similar cases.
But, it is next posed, did not the intervening appointment of
and assumption by Cadiz as the Solicitor General during the
pendency of this suit render this suit and the issue tendered
herein moot and academic?
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or
value.22 Although the controversy could have ceased due to
the intervening appointment of and assumption by Cadiz as
the Solicitor General during the pendency of this suit, and
such cessation of the controversy seemingly rendered moot
and academic the resolution of the issue of the
constitutionality of the concurrent holding of the two
positions by Agra, the Court should still go forward and
resolve the issue and not abstain from exercising its power
of judicial review because this case comes under several of
the well-recognized exceptions established in jurisprudence.
Verily, the Court did not desist from resolving an issue that a
supervening event meanwhile rendered moot and academic
if any of the following recognized exceptions obtained,
namely: (1) there was a grave violation of the Constitution;
(2) the case involved a situation of exceptional character and
was of paramount public interest; (3) the constitutional issue
raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) the case was
capable of repetition, yet evading review.23
It is the same here. The constitutionality of the concurrent
holding by Agra of the two positions in the Cabinet, albeit in
acting capacities, was an issue that comes under all the
recognized exceptions. The issue involves a probable
violation of the Constitution, and relates to a situation of
exceptional character and of paramount public interest by
reason of its transcendental importance to the people. The
resolution of the issue will also be of the greatest value to the
Bench and the Bar in view of the broad powers wielded
through said positions. The situation further calls for the
review because the situation is capable of repetition, yet
evading review.24 In other words, many important and
practical benefits are still to be gained were the Court to
proceed to the ultimate resolution of the constitutional issue
posed.
2.
Unconstitutionality of Agra’s concurrent designation as
Acting Secretary of Justice and Acting Solicitor General
At the center of the controversy is the correct application of
Section 13, Article VII of the 1987 Constitution, viz:
Section 13. The President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office
or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other
profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their
office.

A relevant and complementing provision is Section 7,
paragraph (2), Article IX-B of the 1987 Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of
his position, no appointive official shall hold any other office
or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The differentiation of the two constitutional provisions was
well stated in Funa v. Ermita,25 a case in which the
petitioner herein also assailed the designation of DOTC
Undersecretary as concurrent Officer-in-Charge of the
Maritime Industry Authority, with the Court reiterating its
pronouncement in Civil Liberties Union v. The Executive
Secretary26 on the intent of the Framers behind these
provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is allowed by law
or by the primary functions of their positions, members of
the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant
to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and
assistants.
xxxx
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple
offices or employment in the government during their
tenure, the exception to this prohibition must be read with
equal severity. On its face, the language of Section 13, Article
VII is prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the privilege of
holding multiple government offices or employment. Verily,
wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a
positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of
the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII. (Bold emphasis supplied.)
Being designated as the Acting Secretary of Justice
concurrently with his position of Acting Solicitor General,
therefore, Agra was undoubtedly covered by Section 13,
Article VII, supra, whose text and spirit were too clear to be
differently read. Hence, Agra could not validly hold any other
office or employment during his tenure as the Acting
Solicitor General, because the Constitution has not otherwise
so provided.27
It was of no moment that Agra’s designation was in an acting
or temporary capacity. The text of Section 13, supra, plainly
indicates that the intent of the Framers of the Constitution
was to impose a stricter prohibition on the President and the
Members of his Cabinet in so far as holding other offices or
employments in the Government or in government-owned or
government controlled-corporations was concerned.28 In
this regard, to hold an office means to possess or to occupy
the office, or to be in possession and administration of the
office, which implies nothing less than the actual discharge of
the functions and duties of the office.29 Indeed, in the
language of Section 13 itself, supra, the Constitution makes
no reference to the nature of the appointment or
designation. The prohibition against dual or multiple offices
being held by one official must be construed as to apply to all
appointments or designations, whether permanent or
temporary, for it is without question that the avowed
objective of Section 13, supra, is to prevent the concentration
of powers in the Executive Department officials, specifically
the President, the Vice-President, the Members of the
Cabinet and their deputies and assistants.30 To construe
differently is to "open the veritable floodgates of
circumvention of an important constitutional disqualification
of officials in the Executive Department and of limitations on
the President’s power of appointment in the guise of
temporary designations of Cabinet Members,
undersecretaries and assistant secretaries as officers-in-
charge of government agencies, instrumentalities, or
government-owned or controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the only
two exceptions against the holding of multiple offices are: (1)
those provided for under the Constitution, such as Section 3,
Article VII, authorizing the Vice President to become a
member of the Cabinet; and (2) posts occupied by Executive
officials specified in Section 13, Article VII without additional
compensation in ex officio capacities as provided by law and
as required by the primary functions of the officials’ offices.
In this regard, the decision in Public Interest Center, Inc. v.
Elma adverted to the resolution issued on August 1, 1991 in
Civil Liberties Union v. The Executive Secretary, whereby the
Court held that the phrase "the Members of the Cabinet, and
their deputies or assistants" found in Section 13, supra,
referred only to the heads of the various executive
departments, their undersecretaries and assistant
secretaries, and did not extend to other public officials given
the rank of Secretary, Undersecretary or Assistant
Secretary.33 Hence, in Public Interest Center, Inc. v. Elma,
the Court opined that the prohibition under Section 13 did
not cover Elma, a Presidential Assistant with the rank of
Undersecretary.34
It is equally remarkable, therefore, that Agra’s designation as
the Acting Secretary of Justice was not in an ex officio
capacity, by which he would have been validly authorized to
concurrently hold the two positions due to the holding of one
office being the consequence of holding the other. Being
included in the stricter prohibition embodied in Section 13,
supra, Agra cannot liberally apply in his favor the broad
exceptions provided in Section 7, paragraph 2, Article IX-B of
the Constitution ("Unless otherwise allowed by law or the
primary functions of his position") to justify his designation
as Acting Secretary of Justice concurrently with his
designation as Acting Solicitor General, or vice versa. Thus,
the Court has said –
[T]he qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer
to the broad exceptions provided under Section 7, Article IX-
B of the 1987 Constitution. To construe said qualifying
phrase as respondents would have us do, would render
nugatory and meaningless the manifest intent and purpose
of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the
Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their
tenure. Respondents’ interpretation that Section 13 of Article
VII admits of the exceptions found in Section 7, par. (2) of
Article IX-B would obliterate the distinction so carefully set
by the framers of the Constitution as to when the
highranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately below
Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their
tenure.35
To underscore the obvious, it is not sufficient for Agra to
show that his holding of the other office was "allowed by law
or the primary functions of his position." To claim the
exemption of his concurrent designations from the coverage
of the stricter prohibition under Section 13, supra, he needed
to establish herein that his concurrent designation was
expressly allowed by the Constitution. But, alas, he did not
do so.
To be sure, Agra’s concurrent designations as Acting
Secretary of Justice and Acting Solicitor General did not come
within the definition of an ex officio capacity. Had either of
his concurrent designations been in an ex officio capacity in
relation to the other, the Court might now be ruling in his
favor.
The import of an ex officio capacity has been fittingly
explained in Civil Liberties Union v. Executive Secretary,36
as follows:
x x x. The term ex officio means "from office; by virtue of
office." It refers to an "authority derived from official
character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position." Ex officio likewise denotes an "act done in an
official character, or as a consequence of office, and without
any other appointment or authority other than that
conferred by the office." An ex officio member of a board is
one who is a member by virtue of his title to a certain office,
and without further warrant or appointment. x x x.
xxxx
The ex officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and covered
by the compensation attached to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated
to "provide the government with a principal law agency
which shall be both its legal counsel and prosecution arm;
administer the criminal justice system in accordance with
the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and
administration of the correctional system; implement the
laws on the admission and stay of aliens, citizenship, land
titling system, and settlement of land problems involving
small landowners and members of indigenous cultural
minorities; and provide free legal services to indigent
members of the society."37 The DOJ’s specific powers and
functions are as follows:
(1) Act as principal law agency of the government and as
legal counsel and representative thereof, whenever so
required;
(2) Investigate the commission of crimes, prosecute
offenders and administer the probation and correction
system;
(3) Extend free legal assistance/representation to indigents
and poor litigants in criminal cases and non-commercial civil
disputes;
(4) Preserve the integrity of land titles through proper
registration;
(5) Investigate and arbitrate untitled land disputes involving
small landowners and members of indigenous cultural
communities;
(6) Provide immigration and naturalization regulatory
services and implement the laws governing citizenship and
the admission and stay of aliens;
(7) Provide legal services to the national government and its
functionaries, including government-owned or controlled
corporations and their subsidiaries; and
(8) Perform such other functions as may be provided by
law.38
On the other hand, the Administrative Code of 1987 confers
upon the Office of the Solicitor General the following powers
and functions, to wit:
The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of
lawyers. When authorized by the President or head of the
office concerned, it shall also represent government owned
or controlled corporations. The Office of the Solicitor General
shall discharge duties requiring the services of lawyers. It
shall have the following specific powers and functions:
1. Represent the Government in the Supreme Court and the
Court of Appeals in all criminal proceedings; represent the
Government and its officers in the Supreme Court, the Court
of Appeals, and all other courts or tribunals in all civil actions
and special proceedings in which the Government or any
officer thereof in his official capacity is a party.
2. Investigate, initiate court action, or in any manner proceed
against any person, corporation or firm for the enforcement
of any contract, bond, guarantee, mortgage, pledge or other
collateral executed in favor of the Government. Where
proceedings are to be conducted outside of the Philippines
the Solicitor General may employ counsel to assist in the
discharge of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of
any treaty, law, executive order or proclamation, rule or
regulation when in his judgment his intervention is
necessary or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss
of Philippine citizenship.
5. Represent the Government in all land registration and
related proceedings. Institute actions for the reversion to the
Government of lands of the public domain and
improvements thereon as well as lands held in violation of
the Constitution.
6. Prepare, upon request of the President or other proper
officer of the National Government, rules and guidelines for
government entities governing the preparation of contracts,
making investments, undertaking of transactions, and
drafting of forms or other writings needed for official use,
with the end in view of facilitating their enforcement and
insuring that they are entered into or prepared conformably
with law and for the best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General
the public interest requires, any provincial or city fiscal to
assist him in the performance of any function or discharge of
any duty incumbent upon him, within the jurisdiction of the
aforesaid provincial or city fiscal. When so deputized, the
fiscal shall be under the control and supervision of the
Solicitor General with regard to the conduct of the
proceedings assigned to the fiscal, and he may be required to
render reports or furnish information regarding the
assignment.
8. Deputize legal officers of government departments,
bureaus, agencies and offices to assist the Solicitor General
and appear or represent the Government in cased involving
their respective offices, brought before the courts and
exercise supervision and control over such legal Officers
with respect to such cases.
9. Call on any department, bureau, office, agency or
instrumentality of the Government for such service,
assistance and cooperation as may be necessary in fulfilling
its functions and responsibilities and for this purpose enlist
the services of any government official or employee in the
pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities
and corporations to whom the Office of the Solicitor General
renders legal services are authorized to disburse funds from
their sundry operating and other funds for the latter Office.
For this purpose, the Solicitor General and his staff are
specifically authorized to receive allowances as may be
provided by the Government offices, instrumentalities and
corporations concerned, in addition to their regular
compensation.
11. Represent, upon the instructions of the President, the
Republic of the Philippines in international litigations,
negotiations or conferences where the legal position of the
Republic must be defended or presented.
12. Act and represent the Republic and/or the people before
any court, tribunal, body or commission in any matter, action
or proceedings which, in his opinion affects the welfare of
the people as the ends of justice may require; and
13. Perform such other functions as may be provided by
law.39
The foregoing provisions of the applicable laws show that
one position was not derived from the other. Indeed, the
powers and functions of the OSG are neither required by the
primary functions nor included by the powers of the DOJ,
and vice versa. The OSG, while attached to the DOJ,40 is not a
constituent unit of the latter,41 as, in fact, the Administrative
Code of 1987 decrees that the OSG is independent and
autonomous.42 With the enactment of Republic Act No.
9417,43 the Solicitor General is now vested with a cabinet
rank, and has the same qualifications for appointment, rank,
prerogatives, salaries, allowances, benefits and privileges as
those of the Presiding Justice of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the Solicitor
General, if added to the equally demanding tasks of the
Secretary of Justice, is obviously too much for any one official
to bear. Apart from the sure peril of political pressure, the
concurrent holding of the two positions, even if they are not
entirely incompatible, may affect sound government
operations and the proper performance of duties. Heed
should be paid to what the Court has pointedly observed in
Civil Liberties Union v. Executive Secretary: 45
Being head of an executive department is no mean job. It is
more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise. If maximum benefits are to
be derived from a department head’s ability and expertise,
he should be allowed to attend to his duties and
responsibilities without the distraction of other
governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may
result in haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage
of our national and economic development, far outweigh the
benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he
can handle.
It is not amiss to observe, lastly, that assuming that Agra, as
the Acting Solicitor General, was not covered by the stricter
prohibition under Section 13, supra, due to such position
being merely vested with a cabinet rank under Section 3,
Republic Act No. 9417, he nonetheless remained covered by
the general prohibition under Section 7, supra. Hence, his
concurrent designations were still subject to the conditions
under the latter constitutional provision. In this regard, the
Court aptly pointed out in Public Interest Center, Inc. v.
Elma:46
The general rule contained in Article IX-B of the 1987
Constitution permits an appointive official to hold more than
one office only if "allowed by law or by the primary functions
of his position." In the case of Quimson v. Ozaeta, this Court
ruled that, "[t]here is no legal objection to a government
official occupying two government offices and performing
the functions of both as long as there is no incompatibility."
The crucial test in determining whether incompatibility
exists between two offices was laid out in People v. Green -
whether one office is subordinate to the other, in the sense
that one office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in
the functions of the two; x x x Where one office is not
subordinate to the other, nor the relations of the one to the
other such as are inconsistent and repugnant, there is not
that incompatibility from which the law declares that the
acceptance of the one is the vacation of the other. The force
of the word, in its application to this matter is, that from the
nature and relations to each other, of the two places, they
ought not to be held by the same person, from the
contrariety and antagonism which would result in the
attempt by one person to faithfully and impartially discharge
the duties of one, toward the incumbent of the other. X x x
The offices must subordinate, one [over] the other, and they
must, per se, have the right to interfere, one with the other,
before they are incompatible at common law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies
in general to all elective and appointive officials, Section 13,
Article VII, thereof applies in particular to Cabinet
secretaries, undersecretaries and assistant secretaries. In the
Resolution in Civil Liberties Union v. Executive Secretary,
this Court already clarified the scope of the prohibition
provided in Section 13, Article VII of the 1987 Constitution.
Citing the case of US v. Mouat, it specifically identified the
persons who are affected by this prohibition as secretaries,
undersecretaries and assistant secretaries; and categorically
excluded public officers who merely have the rank of
secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General
refers to the persons affected by the constitutional
prohibition. The persons cited in the constitutional provision
are the "Members of the Cabinet, their deputies and
assistants." These terms must be given their common and
general acceptation as referring to the heads of the executive
departments, their undersecretaries and assistant
secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not
covered by the prohibition, nor is the Solicitor General
affected thereby. (Italics supplied).
It is clear from the foregoing that the strict prohibition under
Section 13, Article VII of the 1987 Constitution is not
applicable to the PCGG Chairman nor to the CPLC, as neither
of them is a secretary, undersecretary, nor an assistant
secretary, even if the former may have the same rank as the
latter positions.
It must be emphasized, however, that despite the non-
applicability of Section 13, Article VII of the 1987
Constitution to respondent Elma, he remains covered by the
general prohibition under Section 7, Article IX-B and his
appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his
appointments are hereby pronounced in violation of the
Constitution.47
Clearly, the primary functions of the Office of the Solicitor
General are not related or necessary to the primary functions
of the Department of Justice. Considering that the nature and
duties of the two offices are such as to render it improper,
from considerations of public policy, for one person to retain
both,48 an incompatibility between the offices exists, further
warranting the declaration of Agra’s designation as the
Acting Secretary of Justice, concurrently with his designation
as the Acting Solicitor General, to be void for being in
violation of the express provisions of the Constitution.
appointed and qualified for the office. 54 This clarification is
necessary in order to protect the sanctity of the dealings by
the public with persons whose ostensible authority
emanates from the State. 55 Agra's official actions covered
by this claritlcation extend to but are not limited to the
promulgation of resolutions on petitions for review filed in
the Department of Justice, and the issuance of department
orders, memoranda and circulars relative to the prosecution
of criminal cases.
WHEREFORE, the Comi GRANTS the petition for certiorari
and prohibition; ANNULS AND VOIDS the designation of Hon.
Alberto C. Agra as the Acting Secretary of Justice in a
concurrent capacity with his position as the Acting Solicitor
General for being unconstitutional and violative of Section
13, Article VII of the 1987 Constitution; and DECLARES that
l-Ion. Alberto C. Agra was a de facto officer during his tenure
as Acting Secretary of Justice.
No pronouncement on costs of suit.
SO ORDERED.

3.

Effect of declaration of unconstitutionality of Agra’s

concurrent appointment; the de facto officer doctrine

In view of the application of the stricter prohibition under

Section 13, supra, Agra did not validly hold the position of
Acting Secretary of Justice concurrently with his holding of
the position of Acting Solicitor General. Accordingly, he was
not to be considered as a de jure officer for the entire period
of his tenure as the Acting Secretary of Justice. A de jure
officer is one who is deemed, in all respects, legally
appointed and qualified and whose term of office has not
expired.49

That notwithstanding, Agra was a de facto officer during his

tenure as Acting Secretary of Justice. In Civil Liberties Union
v. Executive Secretary,50 the Court said:

During their tenure in the questioned positions, respondents

may be considered de facto officers and as such entitled to
emoluments for actual services rendered. It has been held
that "in cases where there is no de jure, officer, a de facto
officer, who, in good faith has had possession of the office
and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any
one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore
be retained by them.

A de facto officer is one who derives his appointment from

one having colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on its
face.51 He may also be one who is in possession of an office,
and is discharging its duties under color of authority, by
which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent is not a
mere volunteer.52 Consequently, the acts of the de facto
officer are just as valid for all purposes as those of a de jure
officer, in so far as the public or third persons who are
interested therein are concerned. 53

In order to be clear, therefore, the Court holds that all official

actions of Agra as a de facto Acting Secretary of Justice,
assuming that was his later designation, were presumed
valid, binding and effective as if he was the officer legally