EN BANC (c) On the third year and thereafter, forty percent (40%).

G.R. No. 199802, July 03, 2018
CONGRESSMAN HERMILANDO I. MANDANAS; MAYOR EFREN B. DIONA; MAYOR
ANTONINO A. AURELIO; KAGAWAD MARIO ILAGAN; BARANGAY CHAIR PERLITO
MANALO; BARANGAY CHAIR MEDEL MEDRANO; BARANGAY KAGAWAD CRIS RAMOS;
BARANGAY KAGAWAD ELISA D. BALBAGO, AND ATTY. JOSE MALVAR
VILLEGAS, Petitioners, v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; SECRETARY
CESAR PURISIMA, DEPARTMENT OF FINANCE; SECRETARY FLORENCIO H. ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT; COMMISSIONER KIM JACINTO-
HENARES, BUREAU OF INTERNAL REVENUE; AND NATIONAL TREASURER ROBERTO
TAN, BUREAU OF THE TREASURY, Respondents.
Provided, That in the event that the National Government incurs an unmanageable public sector
deficit, the President of the Philippines is hereby authorized, upon the recommendation of
Secretary of Finance, Secretary of Interior and Local Government, and Secretary of Budget and
Management, and subject to consultation with the presiding officers of both Houses of Congress
and the presidents of the "liga", to make the necessary adjustments in the internal revenue
allotment of local government units but in no case shall the allotment be less than thirty percent
(30%) of the collection of national internal revenue taxes of the third fiscal year preceding the
current fiscal year: Provided, further, That in the first year of the effectivity of this Code, the
local government units shall, in addition to the thirty percent (30%) internal revenue allotment
which shall include the cost of devolved functions for essential public services, be entitled to
receive the amount equivalent to the cost of devolved personal services. 

G.R. No. 208488, July 3, 2018
HONORABLE ENRIQUE T. GARCIA, JR., IN HIS PERSONAL AND OFFICIAL CAPACITY AS
REPRESENTATIVE OF THE 2ND DISTRICT OF THE PROVINCE OF
BATAAN, Petitioner, v.HONORABLE [PAQUITO] N. OCHOA, JR., EXECUTIVE SECRETARY;
HONORABLE CESAR V. PURISIMA, SECRETARY, DEPARTMENT OF FINANCE;
HONORABLE FLORENCIO H. ABAD, SECRETARY, DEPARTMENT OF BUDGET AND
MANAGEMENT; HONORABLE KIM S. JACINTO-HENARES, COMMISSIONER, BUREAU OF
INTERNAL REVENUE; AND HONORABLE ROZZANO RUFINO B. BIAZON,
COMMISSIONER, BUREAU OF CUSTOMS, Respondents.
DECISION
BERSAMIN, J.:
The petitioners hereby challenge the manner in which the  just share in the national taxes of the
local government units (LGUs) has been computed.
The share of the LGUs, heretofore known as the Internal Revenue Allotment (IRA), has been
regularly released to the LGUs. According to the implementing rules and regulations of the LGC,
the IRA is determined on the basis of the actual collections of the National Internal Revenue
Taxes (NIRTs) as certified by the Bureau of Internal Revenue (BIR).2
G.R. No. 199802 (Mandanas,  et al.) is a special civil action for certiorari, prohibition
and mandamusassailing the manner the General Appropriations Act (GAA) for FY 2012
computed the IRA for the LGUs. 
Mandanas, et al. allege herein that certain collections of NIRTs by the Bureau of Customs (BOC)
– specifically: excise taxes, value added taxes (VATs) and documentary stamp taxes (DSTs) –
have not been included in the base amounts for the computation of the IRA; that such taxes,
albeit collected by the BOC, should form part of the base from which the IRA should be
computed because they constituted NIRTs; that, consequently, the release of the additional
amount of P60,750,000,000.00 to the LGUs as their IRA for FY 2012 should be ordered; and
that for the same reason the LGUs should also be released their unpaid IRA for FY 1992 to FY
2011, inclusive, totaling P438,103,906,675.73.

In G.R. No. 208488, Congressman Enrique Garcia, Jr., the lone petitioner, seeks the writ
Antecedents  of mandamus to compel the respondents thereat to compute the just share of the LGUs on the
basis of all national taxes. His petition insists on a literal reading of Section 6, Article X of the
One of the key features of the 1987 Constitution is its push towards decentralization of 1987 Constitution. He avers that the insertion by Congress of the words internal revenue  in the
government and local autonomy. Local autonomy has two facets, the administrative and the phrase national taxes found in Section 284 of the LGC caused the diminution of the base for
fiscal. Fiscal autonomy means that local governments have the power to create their own determining the just share of the LGUs, and should be declared unconstitutional; that,
sources of revenue in addition to their equitable share in the national taxes released by the moreover, the exclusion of certain taxes and accounts pursuant to or in accordance with special
National Government, as well as the power to allocate their resources in accordance with their laws was similarly constitutionally untenable; that the VATs and excise taxes collected by the
own priorities.1 Such autonomy is as indispensable to the viability of the policy of BOC should be included in the computation of the IRA; and that the respondents should
decentralization as the other.  compute the IRA on the basis of all national tax collections, and thereafter distribute any
shortfall to the LGUs. 

Implementing the constitutional mandate for decentralization and local autonomy, Congress
enacted Republic Act No. 7160, otherwise known as the Local Government Code (LGC), in order It is noted that named as common respondents were the then incumbent Executive Secretary,
to guarantee the fiscal autonomy of the LGUs by specifically providing that:  Secretary of Finance, the Secretary of the Department of Budget and Management (DBM), and
the Commissioner of Internal Revenue. In addition, Mandanas, et al. impleaded the National
Treasurer, while Garcia added the Commissioner of Customs. 
SECTION 284. Allotment of Internal Revenue Taxes. — Local government units shall have a
share in the national internal revenue taxes based on the collection of the third fiscal year
preceding the current fiscal year as follows:  The cases were consolidated on October 22, 2013. 3 In the meanwhile, Congressman Garcia, Jr.
passed away. Jose Enrique Garcia III, who was subsequently elected to the same congressional
post, was substituted for Congressman Garcia, Jr. as the petitioner in G.R. No. 208488 under
(a) On the first year of the effectivity of this Code, thirty percent (30%);  the resolution promulgated on August 23, 2016.4

(b) On the second year, thirty-five percent (35%); and  In response to the petitions, the several respondents, represented by the Office of the Solicitor
General (OSG), urged the dismissal of the petitions upon procedural and substantive
considerations. 
1
Anent the procedural considerations, the OSG argues that the petitions are procedurally
defective because, firstly, mandamus does not lie in order to achieve the reliefs sought because
Congress may not be compelled to appropriate the sums allegedly illegally withheld for to do so
will violate the doctrine of separation of powers; and, secondly, mandamus does not also lie to
compel the DBM to release the amounts to the LGUs because such disbursements will be
contrary to the purposes specified in the GAA; that Garcia has no clear legal right to sustain his
suit for mandamus; that the filing of Garcia's suit violates the doctrine of hierarchy of courts;
and that Garcia's petition seeks declaratory relief but the Court cannot grant such relief in the
exercise of its original jurisdiction.  Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer or person
On the substantive considerations, the OSG avers that Article 284 of the LGC is consistent with
the mandate of Section 6, Article X of the 1987 Constitution to the effect that the LGUs shall
have a just share in the national taxes; that the determination of the just share is within the
discretion of Congress; that the limitation under the LGC of the basis for the just share in the
NIRTs was within the powers granted to Congress by the 1987 Constitution; that the LGUs have
been receiving their just share in the national taxes based on the correct base amount; that
Congress has the authority to exclude certain taxes from the base amount in computing the
IRA; that there is a distinction between the VATs, excise taxes and DSTs collected by the BIR,
on one hand, and the VATs, excise taxes and DSTs collected by the BOC, on the other, thereby
warranting their different treatment; and that Development Budget Coordination Committee
(DBCC) Resolution No. 2003-02 dated September 4, 2003 has limited the base amount for the
computation of the IRA to the "cash collections based on the BIR data as reconciled with the
Bureau of Treasury;" and that the collection of such national taxes by the BOC should be
excluded.  performed or compelled is ministerial on the part of the respondent. An act is ministerial when it
Issues
The issues for resolution are limited to the following, namely:  duty to do, or that is his duty not to do, or to obtain for the petitioner anything to which he is
Mandanas, et al. seek the writs of certiorari, prohibition and mandamus, while Garcia prays for
the writ of mandamus. Both groups of petitioners impugn the validity of Section 284 of the
LGC. 
The remedy of mandamus is defined in Section 3, Rule 65 of the Rules of Court, which
provides: 
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment
be rendered commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner, and to pay
the damages sustained by the petitioner by reason of the wrongful acts of the respondent. 
The petition shall also contain a sworn certification of non-forum shopping as provided in the
third paragraph of section 3, Rule 46. 
For the writ of mandamus to issue, the petitioner must show that the act sought to be
does not require the exercise of judgment and the act is performed pursuant to a legal
mandate. The burden of proof is on the mandamus petitioner to show that he is entitled to the
performance of a legal right, and that the respondent has a corresponding duty to perform the
act. The writ of mandamus may not issue to compel an official to do anything that is not his
not entitled by law.5

I.  Whether or not mandamus is the proper vehicle to assail the constitutionality of the relevant
provisions of the GAA and the LGC;  Considering that its determination of what constitutes the just share of the LGUs in the national
taxes under the 1987 Constitution is an entirely discretionary power, Congress cannot be
compelled by writ of mandamus to act either way. The discretion of Congress thereon, being
II.  Whether or not Section 284 of the LGC is unconstitutional for being repugnant to Section 6, exclusive, is not subject to external direction; otherwise, the delicate balance underlying our
Article X of the 1987 Constitution; system of government may be unduly disturbed. This conclusion should at once then demand
the dismissal of the Garcia petition in G.R. No. 208488, but we do not dismiss it. Garcia has
attributed the non-release of some portions of their IRA balances to an alleged congressional
III. Whether or not the existing shares given to the LGUs by virtue of the GAA is consistent with indiscretion – the diminution of the base amount for computing the LGU's just share. He has
the constitutional mandate to give LGUs a "just share" to national taxes following Article X, asserted that Congress altered the constitutional base not only by limiting the base to the NIRTs
Section 6 of the 1987 Constitution;  instead of including therein all national taxes, but also by excluding some national taxes and
revenues that only benefitted a few LGUs to the detriment of the rest of the LGUs. 
IV. Whether or not the petitioners are entitled to the reliefs prayed for. 
Garcia's petition, while dubbed as a petition for mandamus, is also a petition
Simply stated, the petitioners raise the novel question of whether or not the exclusion of certain for certiorari because it alleges that Congress thereby committed grave abuse of discretion
national taxes from the base amount for the computation of the just share of the LGUs in the amounting to lack or excess of jurisdiction. It is worth reminding that the actual nature of every
national taxes is constitutional.  action is determined by the allegations in the body of the pleading or the complaint itself, not by
the nomenclature used to designate the same. 6Moreover, neither should the prayer for relief be
controlling; hence, the courts may still grant the proper relief as the facts alleged in the
Ruling of the Court pleadings and the evidence introduced may warrant even without a prayer for specific remedy.7

The petitions are partly meritorious.  In this regard, Garcia's allegation of the unconstitutionality of the insertion by Congress of the
words internal revenue in the phrase national taxes justifies treating his petition as one
for certiorari. It becomes our duty, then, to assume jurisdiction over his petition. In Araullo v.
I Aquino III,8 the Court has emphatically opined that the Court's certiorari jurisdiction under the
Mandamus is an improper remedy expanded judicial power as stated in the second paragraph of Section 1, Article VIII of the
Constitution can be asserted: 

2
xxxx to set right and undo any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, the Court is not at all
precluded from making the inquiry provided the challenge was properly brought by interested or
affected parties. The Court has been thereby entrusted expressly or by necessary implication
with both the duty and the obligation of determining, in appropriate cases, the validity of any
assailed legislative or executive action. This entrustment is consistent with the republican
system of checks and balances.9
Further, observing that one of the reliefs being sought by Garcia is identical to the main relief
sought by Mandanas, et al., the Court should rightly dwell on the substantive arguments posited
by Garcia to the extent that they are relevant to the ultimate resolution of these consolidated
suits.  obvious. Municipal governments are only agents of the national government. Local
II.  exercise powers higher than those of the latter. It is a heresy to suggest that the local
Municipal corporations and
their relationship with Congress
The correct resolution and fair disposition of the issues interposed for our consideration require
a review of the basic principles underlying our system of local governments, and of the extent of
the autonomy granted to the LGUs by the 1987 Constitution.  cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and
Municipal corporations are now commonly known as local governments. They are the bodies
politic established by law partly as agencies of the State to assist in the civil governance of the
country. Their chief purpose has been to regulate and administer the local and internal affairs of
the cities, municipalities or districts. They are legal institutions formed by charters from the
sovereign power, whereby the populations within communities living within prescribed areas
have formed themselves into bodies politic and corporate, and assumed their corporate names
with the right of continuous succession and for the purposes and with the authority of
subordinate self-government and improvement and the local administration of the affairs of the
State.10
Municipal corporations, being the mere creatures of the State, are subject to the will of
Congress, their creator. Their continued existence and the grant of their powers are dependent
on the discretion of Congress. On this matter, Judge John F. Dillon of the State of Iowa in the
United States of America enunciated in Merriam v. Moody's Executors11 the rule of statutory
construction that came to be oft-mentioned as Dillon's Rule, to wit:  legislature is still the principal of the local government units, which cannot defy its
[A] municipal corporation possesses and can exercise the following powers and no others: First,
those granted in express words; second, those necessarily implied or necessarily incident to the
powers expressly granted; third, those absolutely essential to the declared objects and purposes
of the corporation-not simply convenient but indispensible; fourth, any fair doubt as to the
existence of a power is resolved by the courts against the corporation-against the existence of
the powers.12
The formulation of Dillon's Rule has since undergone slight modifications. Judge Dillon himself
introduced some of the modifications through his post-Merriam writings with the objective of
alleviating the original formulation's harshness. The word fairly was added to the second
proviso; the word absolutely was deleted from the third proviso; and the
words reasonable and substantial were added to the fourth proviso, thusly: 
(a)
x x x second, those necessarily or fairly implied in or incident to the powers expressly granted;
third, those essential to x x x. Any fair, reasonable, doubt.13
The modified Dillon's Rule has been followed in this jurisdiction, and has remained despite both
the 1973 Constitution and the 1987 Constitution mandating autonomy for local governments.
This has been made evident in several rulings of the Court, one of which was that handed down
in Magtajas v. Pryce Properties Corporation, Inc.:14
In light of all the above considerations, we see no way of arriving at the conclusion urged on us
by the petitioners that the ordinances in question are valid. On the contrary, we find that the
ordinances violate P.D. 1869, which has the character and force of a statute, as well as the
public policy expressed in the decree allowing the playing of certain games of chance despite the
prohibition of gambling in general. 
The rationale of the requirement that the ordinances should not contravene a statute is
councils exercise only delegated legislative powers conferred on them by Congress as
the national lawmaking body. The delegate cannot be superior to the principal or
government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly
from the legislature. It breathes into them the breath of life, without which they
control. Unless there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great a folly and so great
a wrong, sweep from existence all of the municipal corporations in the State, and the
corporation could not prevent it. We know of no limitation on the right so far as to the
corporation themselves are concerned. They are, so to phrase it, the mere tenants at
will of the legislature.
This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power to
create still includes the power to destroy. The power to grant still includes the power
to withhold or recall. True, there are certain notable innovations in the Constitution,
like the direct conferment on the local government units of the power to tax, which
cannot now be withdrawn by mere statute. By and large, however, the national
will or modify or violate it. [Bold underscoring supplied for emphasis]
Also, in the earlier ruling in Ganzon v. Court of Appeals,15 the Court has pointed out that the
1987 Constitution, in mandating autonomy for the LGUs, did not intend to deprive Congress of
its authority and prerogatives over the LGUs. 
Nonetheless, the LGC has tempered the application of Dillon's Rule in the Philippines by
providing a norm of interpretation in favor of the LGUs in its Section 5(a), to wit: 
xxxx
Any provision on a power of a local government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of
powers and of the local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local government unit
concerned; [Bold underscoring supplied for emphasis] 
x x x x 
3
III.  Purpose Republic Act No. 6734, entitled "An Act Providing for the Autonomous Region in Muslim
The extent of local autonomy in the Philippines Mindanao, " as Amended) insofar as the provision granted to the ARMM the power to create
provinces and cities, and consequently declared as void Muslim Mindanao Autonomy Act No. 201
creating the Province of Shariff Kabunsuan for being contrary to Section 5, Article VI and
Regardless, there remains no question that Congress possesses and wields plenary power to Section 20, Article X of the 1987 Constitution, as well as Section 3 of the Ordinance appended to
control and direct the destiny of the LGUs, subject only to the Constitution itself, for Congress, the 1987 Constitution. The Court clarified therein that only Congress could create provinces and
just like any branch of the Government, should bow down to the majesty of the Constitution, cities. This was because the creation of provinces and cities necessarily entailed the creation of
which is always supreme.  legislative districts, a power that only Congress could exercise pursuant to Section 5, Article VI
of the 1987 Constitution and Section 3 of the Ordinance appended to the Constitution; as such,
The 1987 Constitution limits Congress' control over the LGUs by ordaining in Section 25 of its the ARMM would be thereby usurping the power of Congress to create legislative districts and
Article II that: "The State shall ensure the autonomy of local governments." The autonomy of national offices.27
the LGUs as thereby ensured does not contemplate the fragmentation of the Philippines into a
collection of mini-states,16 or the creation of imperium in imperio.17 The grant of autonomy The 1987 Constitution has surely encouraged decentralization by mandating that a system of
simply means that Congress will allow the LGUs to perform certain functions and exercise decentralization be instituted through the LGC in order to enable a more responsive and
certain powers in order not for them to be overly dependent on the National Government accountable local government structure.28 It has also delegated the power to tax to the LGUs by
subject to the limitations that the 1987 Constitution or Congress may impose. 18 Local autonomy authorizing them to create their own sources of income that would make them self-reliant.29 It
recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even further ensures that each and every LGU will have a just share in national taxes as well in the
religious diversities.19 development of the national wealth.30

The constitutional mandate to ensure local autonomy refers to decentralization.20 In its broad or The LGC has further delineated in its Section 3 the different operative principles of
general sense, decentralization has two forms in the Philippine setting, namely: the decentralization to be adhered to consistently with the constitutional policy on local
decentralization of power and the decentralization of administration. The decentralization of autonomy, viz.: 
power involves the abdication of political power in favor of the autonomous LGUs as to grant
them the freedom to chart their own destinies and to shape their futures with minimum
intervention from the central government. This amounts to self-immolation because the Sec. 3. Operative Principles of Decentralization –
autonomous LGUs thereby become accountable not to the central authorities but to their
constituencies. On the other hand, the decentralization of administration occurs when the
central government delegates administrative powers to the LGUs as the means of broadening The formulation and implementation of policies and measures on local autonomy shall be guided
the base of governmental powers and of making the LGUs more responsive and accountable in by the following operative principles: 
the process, and thereby ensure their fullest development as self-reliant communities and more
effective partners in the pursuit of the goals of national development and social progress. This (a) There shall be an effective allocation among the different local government units of their
form of decentralization further relieves the central government of the burden of managing local respective powers, functions, responsibilities, and resources; 
affairs so that it can concentrate on national concerns.21

(b) There shall be established in every local government unit an accountable, efficient, and
Two groups of LGUs enjoy decentralization in distinct ways. The decentralization of power has dynamic organizational structure and operating mechanism that will meet the priority needs and
been given to the regional units (namely, the Autonomous Region for Muslim Mindanao [ARMM] service requirements of its communities; 
and the constitutionally-mandated Cordillera Autonomous Region [CAR]). The other group of
LGUs (i.e., provinces, cities, municipalities and barangays) enjoy the decentralization of
administration.22 The distinction can be reasonably understood. The provinces, cities, (c) Subject to civil service law, rules and regulations, local officials and employees paid wholly
municipalities and barangays are given decentralized administration to make governance at the or mainly from local funds shall be appointed or removed, according to merit and fitness, by the
local levels more directly responsive and effective. In turn, the economic, political and social appropriate appointing authority; 
developments of the smaller political units are expected to propel social and economic growth
and development.23 In contrast, the regional autonomy of the ARMM and the CAR aims to permit
(d) The vesting of duty, responsibility, and accountability in local government units shall be
determinate groups with common traditions and shared social-cultural characteristics to freely
accompanied with provision for reasonably adequate resources to discharge their powers and
develop their ways of life and heritage, to exercise their rights, and to be in charge of their own
effectively carry out their functions: hence, they shall have the power to create and broaden
affairs through the establishment of a special governance regime for certain member
their own sources of revenue and the right to a just share in national taxes and an equitable
communities who choose their own authorities from within themselves, and exercise the
share in the proceeds of the utilization and development of the national wealth within their
jurisdictional authority legally accorded to them to decide their internal community affairs.24
respective areas; 

It is to be underscored, however, that the decentralization of power in favor of the regional units
(e) Provinces with respect to component cities and municipalities, and cities and municipalities
is not unlimited but involves only the powers enumerated by Section 20, Article X of the 1987
with respect to component barangays, shall ensure that the acts of their component units are
Constitution and by the acts of Congress. For, with various powers being devolved to the
within the scope of their prescribed powers and functions; 
regional units, the grant and exercise of such powers should always be consistent with and
limited by the 1987 Constitution and the national laws. 25 In other words, the powers are
guardedly, not absolutely, abdicated by the National Government. (f) Local government units may group themselves, consolidate or coordinate their efforts,
services, and resources commonly beneficial to them; 
Illustrative of the limitation is what transpired in Sema v. Commission on Elections,26 where the
Court struck down Section 19, Article VI of Republic Act No. 9054 (An Act to Strengthen and
Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the
4
(g) The capabilities of local government units, especially the municipalities and barangays, shall
be enhanced by providing them with opportunities to participate actively in the implementation
of national programs and projects;  offices.37 Consistent with this concept, the LGC has created the Local School Boards,38 the Local
(h) There shall be a continuing mechanism to enhance local autonomy not only by legislative
enabling acts but also by administrative and organizational reforms;  localities.
(i) Local government units shall share with the national government the responsibility in the
management and maintenance of ecological balance within their territorial jurisdiction, subject
to the provisions of this Code and national policies;  Government. It includes the power to allocate their resources in accordance with their own
(j) Effective mechanisms for ensuring the accountability of local government units to their
respective constituents shall be strengthened in order to upgrade continually the quality of local
leadership;  to local needs and resources. Hence, the necessity of a balancing of viewpoints and the
(k) The realization of local autonomy shall be facilitated through improved coordination of
national government policies and programs an extension of adequate technical and material
assistance to less developed and deserving local government units;  Fiscal decentralization emanates from a specific constitutional mandate that is expressed in
(l) The participation of the private sector in local governance, particularly in the delivery of basic
services, shall be encouraged to ensure the viability of local autonomy as an alternative strategy
for sustainable development; and
(m) The national government shall ensure that decentralization contributes to the continuing
improvement of the performance of local government units and the quality of community life.
Based on the foregoing delineation, decentralization can be considered as the decision by the
central government to empower its subordinates, whether geographically or functionally
constituted, to exercise authority in certain areas. It involves decision-making by subnational
units, and is typically a delegated power, whereby a larger government chooses to delegate
authority to more local governments.31 It is also a process, being the set of policies, electoral or
constitutional reforms that transfer responsibilities, resources or authority from the higher to the
lower levels of government.32 It is often viewed as a shift of authority towards local
governments and away from the central government, with total government authority over
society and economy imagined as fixed.33
As a system of transferring authority and power from the National Government to the LGUs,
decentralization in the Philippines may be categorized into four, namely: (1) political
decentralization or devolution; (2) administrative decentralization or deconcentration; (3) fiscal
decentralization; and (4) policy or decision-making decentralization.
Political decentralization or devolution occurs when there is a transfer of powers, responsibilities,
and resources from the central government to the LGUs for the performance of certain
functions. It is a more liberal form of decentralization because there is an actual transfer of
powers and responsibilities. It aims to grant greater autonomy to the LGUs in cognizance of
their right to self-government, to make them self-reliant, and to improve their administrative
and technical capabilities.34 It is an act by which the National Government confers power and
authority upon the various LGUs to perform specific functions and responsibilities. 35 It
encompasses reforms to open sub-national representation and policies to "devolve political
authority or electoral capacities to subnational actors." 36 Section 16 to Section 19 of the LGC
characterize political decentralization in the LGC as different LGUs empowered to address the
different needs of their constituents. In contrast, devolution in favor of the regional units is
more expansive because they are given the authority to regulate a wider array of subjects,
including personal, family and property relations.
Administrative decentralization or deconcentration involves the transfer of functions or the
delegation of authority and responsibility from the national office to the regional and local
Health Boards39 and the Local Development Councils,40 and has transferred some of the
authority from the agencies of the National Government, like the Department of Education and
the Department of Health, to such bodies to better cope up with the needs of particular
 
Fiscal decentralization means that the LGUs have the power to create their own sources of
revenue in addition to their just share in the national taxes released by the National
priorities. It thus extends to the preparation of their budgets, so that the local officials have to
work within the constraints of their budgets. The budgets are not formulated at the national
level and imposed on local governments, without regard as to whether or not they are relevant
harmonization of proposals from both local and national officials, who in any case are partners in
the attainment of national goals, is recognized and addressed.41
several provisions of Article X (Local Government) of the 1987 Constitution, specifically: Section
5;42 Section 6;43 and Section 7.44
The constitutional authority extended to each and every LGU to create its own sources of
income and revenue has been formalized from Section 128 to Section 133 of the LGC. To
implement the LGUs' entitlement to the just share in the national taxes, Congress has enacted
Section 284 to Section 288 of the LGC. Congress has further enacted Section 289 to Section 294
of the LGC to define the share of the LGUs in the national wealth. Indeed, the requirement for
the automatic release to the LGUs of their just share in the national taxes is but the
consequence of the constitutional mandate for fiscal decentralization.45
For sure, fiscal decentralization does not signify the absolute freedom of the LGUs to create their
own sources of revenue and to spend their revenues unrestrictedly or upon their individual
whims and caprices. Congress has subjected the LGUs' power to tax to the guidelines set in
Section 130 of the LGC and to the limitations stated in Section 133 of the LGC. The concept of
local fiscal autonomy does not exclude any manner of intervention by the National Government
in the form of supervision if only to ensure that the local programs, fiscal and otherwise, are
consistent with the national goals.46
Lastly, policy- or decision-making decentralization exists if at least one sub-national tier of
government has exclusive authority to make decisions on at least one policy issue.47
In fine, certain limitations are and can be imposed by Congress in all the forms of
decentralization, for local autonomy, whether as to power or as to administration, is not
absolute. The LGUs remain to be the tenants of the will of Congress subject to the guarantees
that the Constitution itself imposes. 
IV.
Section 284 of the LGC deviates from 
the plain language of Section 6 
of Article X of the 1987 Constitution
Section 6, Article X the 1987 Constitution textually commands the allocation to the LGUs of
a  just share  in the national taxes, viz.: 
Section 6. Local government units shall have a just share, as determined by law, in the national
taxes which shall be automatically released to them. 
5
Section 6, when parsed, embodies three mandates, namely: (1) the LGUs shall have a just public needs. Every tax has three elements, namely: (a) it is an enforced proportional
share in the national taxes; (2) the just share shall be determined by law; and (3) the just contribution from persons and properties; (b) it is imposed by the State by virtue of its
share shall be automatically released to the LGUs.48 sovereignty; and (c) it is levied for the support of the Government. 51 Taxes are classified into
national and local. National taxes are those levied by the National Government, while local taxes
are those levied by the LGUs.52
Congress has sought to carry out the second mandate of Section 6 by enacting Section 284,
Title III (Shares of Local Government Units in the Proceeds of National Taxes), of the LGC,
which is again quoted for ready reference:  What the phrase national internal revenue taxes as used in Section 284 included are all the
taxes enumerated in Section 21 of the National Internal Revenue Code (NIRC), as amended by
R.A. No. 8424, viz.: 
Section 284. Allotment of Internal Revenue Taxes. - Local government units shall have a share
in the national internal revenue taxes based on the collection of the third fiscal year
preceding the current fiscal year as follows:  Section 21. Sources of Revenue. — The following taxes, fees and charges are deemed to be
national internal revenue taxes: 

(a) On the first year of the effectivity of this Code, thirty percent (30%); 
(a) Income tax; 
(b) Estate and donor's taxes;
(b) On the second year, thirty-five percent (35%); and  (c) Value-added tax;
(d) Other percentage taxes; 
(c) On the third year and thereafter, forty percent (40%). (e) Excise taxes; 
(f) Documentary stamp taxes; and
(g) Such other taxes as are or hereafter may be imposed and collected by the Bureau of
Provided, That in the event that the national government incurs an unmanageable public sector Internal Revenue. 
deficit, the President of the Philippines is hereby authorized, upon the recommendation of
Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and
Management, and subject to consultation with the presiding officers of both Houses of Congress In view of the foregoing enumeration of what are the national internal revenue taxes, Section
and the presidents of the "liga", to make the necessary adjustments in the internal revenue 284 has effectively deprived the LGUs from deriving their just share from other national taxes,
allotment of local government units but in no case shall the allotment be less than thirty percent like the customs duties. 
(30%) of the collection of national internal revenue taxes of the third fiscal year preceding the
current fiscal year: Provided, further, That in the first year of the effectivity of this Code, the Strictly speaking, customs duties are also taxes because they are exactions whose proceeds
local government units shall, in addition to the thirty percent (30%) internal revenue allotment become public funds. According to Garcia v. Executive Secretary,53  customs duties is the
which shall include the cost of devolved functions for essential public services, be entitled to nomenclature given to taxes imposed on the importation and exportation of commodities and
receive the amount equivalent to the cost of devolved personal services.  merchandise to or from a foreign country. Although customs duties have either or both the
generation of revenue and the regulation of economic or social activity as their moving
There is no issue as to what constitutes the LGUs' just share expressed in percentages of the purposes, it is often difficult to say which of the two is the principal objective in a particular
national taxes (i.e., 30%, 35% and 40% stipulated in subparagraphs (a), (b), and (c) of Section instance, for, verily, customs duties, much like internal revenue taxes, are rarely designed to
284). Yet, Section 6, supra, mentions national taxes as the source of the  just share of the LGUs achieve only one policy objective.54 We further note that Section 102(oo) of R.A. No. 10863
while Section 284 ordains that the share of the LGUs be taken from national internal (Customs Modernization and Tariff Act) expressly includes all fees and charges imposed under
revenue taxes instead.  the Act under the blanket term of taxes. 

Has not Congress thereby infringed the constitutional provision?  It is clear from the foregoing clarification that the exclusion of other national taxes like customs
duties from the base for determining the just share of the LGUs contravened the express
constitutional edict in Section 6, Article X the 1987 Constitution. 
Garcia contends that Congress has exceeded its constitutional boundary by limiting to the NIRTs
the base from which to compute the just share of the LGUs. 
Still, the OSG posits that Congress can manipulate, by law, the base of the allocation of the just
share in the national taxes of the LGUs. 
We agree with Garcia's contention. 

Although the power of Congress to make laws is plenary in nature, congressional lawmaking
remains subject to the limitations stated in the 1987 Constitution. 49 The phrase national internal
revenue taxes engrafted in Section 284 is undoubtedly more restrictive than the term national
taxes written in Section 6. As such, Congress has actually departed from the letter of the 1987
Constitution stating that national taxes should be the base from which the just share of the LGU
comes. Such departure is impermissible. Verba legis non est recedendum (from the words of a
statute there should be no departure).50 Equally impermissible is that Congress has also thereby
curtailed the guarantee of fiscal autonomy in favor of the LGUs under the 1987 Constitution.  in the national taxes shall be determined by law is tantamount to the unauthorized revision of
Taxes are the enforced proportional contributions exacted by the State from persons and
properties pursuant to its sovereignty in order to support the Government and to defray all the
The position of the OSG cannot be sustained. Although it has the primary discretion to
determine and fix the just share of the LGUs in the national taxes (e.g., Section 284 of the
LGC), Congress cannot disobey the express mandate of Section 6, Article X of the 1987
Constitution for the just share of the LGUs to be derived from the national taxes. The phrase
as determined by law in Section 6 follows and qualifies the phrase just share, and cannot be
construed as qualifying the succeeding phrase in the national taxes. The intent of the people in
respect of Section 6 is really that the base for reckoning the just share of the LGUs should
includes all national taxes. To read Section 6 differently as requiring that  the just share of LGUs
the 1987 Constitution. 
6
 V. 
   
Congress can validly exclude taxes
that will constitute the base amount
for the computation of the IRA only if (8) The share of the Commission of Audit (COA) in the NIRTs as provided in Section 24(3) of
a Constitutional provision allows such exclusion P.D. No. 1445 (Government Auditing Code of the Philippines)65 in relation to Section 284 of
the NIRC.66

Garcia submits that even assuming that the present version of Section 284 of the LGC is
constitutionally valid, the implementation thereof has been erroneous because Section 284 does
not authorize any exclusion or deduction from the collections of the NIRTs for purposes of the
computation of the allocations to the LGUs. He further submits that the exclusion of certain
NIRTs diminishes the fiscal autonomy granted to the LGUs. He claims that the following NIRTs
have been illegally excluded from the base for determining the fair share of the LGUs in the IRA,
to wit: 
Garcia insists that the foregoing taxes and revenues should have been included by Congress
and, by extension, the BIR in the base for computing the IRA on the strength of the cited
provisions; that the LGC did not authorize such exclusion; and that the continued exclusion has
undermined the fiscal autonomy guaranteed by the 1987 Constitution.
The insistence of Garcia is valid to an extent.

(1) NIRTs collected by the cities and provinces and divided exclusively among the LGUs of the
Autonomous Region for Muslim Mindanao (ARMM), the regional government and the
central government, pursuant to Section 1555 in relation to Section 9,56 Article IX of R.A.
No. 9054 (An Act to Strengthen and Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, amending for the purpose Republic Act No. 6734, entitled An Act
providing for an Organic Act for the Autonomous Region in Muslim Mindanao); 
(a)
An examination of the above-enumerated laws confirms that the following have been excluded
from the base for reckoning the just share of the LGUs as required by Section 6, Article X of the
1987 Constitution, namely: 
The share of the affected LGUs in the proceeds of the sale and conversion of former
military bases in accordance with R.A. No. 7227;

   
(2) The shares in the excise taxes on mineral products of the different LGUs, as provided in
Section 287 of the NIRC57 in relation to Section 290 of the LGC;58
(b) The share of the different LGUs in the excise taxes imposed on locally manufactured
Virginia tobacco products as provided for in Section 3, R.A. No. 7171, and as now provided
   
in Section 289of the NIRC;

(3) The shares of the relevant LGUs in the franchise taxes paid by Manila Jockey Club,
   
Inc.59 and Philippine Racing Club, Inc.;60

(c) The share of the different LGUs in incremental revenues from Burley and native tobacco
   
products under Section 8 of R.A. No. 8240, and as now provided for in Section 288 of the
NIRC;
(4) The shares of various municipalities in VAT collections under R.A. No. 7643 (An Act to
Empower the Commissioner of Internal Revenue to Require the Payment of the Value
   
Added Tax Every Month and to Allow Local Government Units to Share in VAT Revenue,
Amending for this Purpose Certain Sections of the National Internal Revenue Code) as
embodied in Section 283 of the NIRC;61 (d) The share of the COA in the NIRTs as provided in Section 24(3) of P.D. No. 144567 in
relation to Section 284 of the NIRC;
   
   
(5) The shares of relevant LGUs in the proceeds of the sale and conversion of former military
bases in accordance with R.A. No. 7227 (Bases Conversion and Development Act of (e) The shares of the different LGUs in the excise taxes on mineral products, as provided in
1992);62 Section 287 of the NIRC in relation to Section 290 of the LGC;

       

(6) The shares of different LGUs in the excise taxes imposed on locally manufactured Virginia
tobacco products as provided in Section 3 of R.A. No. 7171 (An Act to Promote the
Development of the Farmers in the Virginia Tobacco Producing Provinces), and as now
provided in Section 289 of the NIRC;63
(7) The shares of different LGUs in the incremental revenues from Burley and native tobacco
products under Section 8 of R.A. No. 8240 (An Act Amending Sections 138, 140 and 142 of
the National Internal Revenue Code as Amended and for Other Purposes) and as now
provided in Section 288 of the NIRC;64 and
(f) The NIRTs collected by the cities and provinces and divided exclusively among the LGUs of
the ARMM, the regional government and the central government, pursuant to Section
1568 in relation to Section 9,69 Article IX of R. A. No. 9054; and
(g) The shares of the relevant LGUs in the franchise taxes paid by Manila Jockey Club, Inc.,
and the Philippine Racing Club, Inc.
7
Anent the share of the affected LGUs in the proceeds of the sale and conversion of the former
military bases pursuant to R.A. No. 7227, the exclusion is warranted for the reason that such
proceeds do not come from a tax, fee or exaction imposed on the sale and conversion.
As to the share of the affected LGUs in the excise taxes imposed on locally manufactured
Virginia tobacco products under R.A. No. 7171 (now Section 289 of the NIRC); the share of the
affected LGUs in incremental revenues from Burley and native tobacco products under Section
8, R.A. No. 8240 (now Section 288 of the NIRC); the share of the COA in the NIRTs pursuant to
Section 24(3) of P.D. No. 1445 in relation to Section 284 of the NIRC; and the share of the host
LGUs in the franchise taxes paid by the Manila Jockey Club, Inc., and Philippine Racing Club,
Inc., under Section 6 of R.A. No. 6631 and Section 8 of R.A. No. 6632, respectively, the
exclusion is also justified. Although such shares involved national taxes as defined under the
NIRC, Congress had the authority to exclude them by virtue of their being taxes imposed for
special purposes. A reading of Section 288 and Section 289 of the NIRC and Section 24(3) of
P.D. No. 1445 in relation to Section 284 of the NIRC reveals that all such taxes are levied and
collected for a special purpose.70 The same is true for the franchise taxes paid under Section 6 of
R.A. No. 6631 and Section 8 of R.A. No. 6632, inasmuch as certain percentages of the franchise
taxes go to different beneficiaries. The exclusion conforms to Section 29(3), Article VI of the
1987 Constitution, which states:  or charges, including related surcharges, interests, or fines, and from its share in any co-
Section 29. x x x
xxxx
(3) All money collected on any tax levied for a special purpose shall be treated as a
special fund and paid out for such purpose only. If the purpose for which a special fund
was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the
general funds of the Government. [Bold emphasis supplied]
The exclusion of the share of the different LGUs in the excise taxes imposed on mineral products
pursuant to Section 287 of the NIRC in relation to Section 290 of the LGC is premised on a
different constitutional provision. Section 7, Article X of the 1987 Constitution allows affected
LGUs to have an equitable share in the proceeds of the utilization of the nation's national wealth
"within their respective areas," to wit:  Constitution.
Section 7. Local governments shall be entitled to an equitable share in the proceeds of the
utilization and development of the national wealth within their respective areas, in the manner
provided by law, including sharing the same with the inhabitants by way of direct benefits.  taxes, and nothing can validly justify their exclusion.
This constitutional provision is implemented by Section 287 of the NIRC and Section 290 of the
LGC thusly:  LGUs shall henceforth be, but shall not be limited to, the following:
SEC. 287. Shares of Local Government Units in the Proceeds from the Development and
Utilization of the National Wealth. - Local Government units shall have an equitable share in the
proceeds derived from the utilization and development of the national wealth, within their
respective areas, including sharing the same with the inhabitants by way of direct benefits. 
(A) Amount of Share of Local Government Units. - Local government units shall, in addition
to the internal revenue allotment, have a share of forty percent (40%) of the gross
collection derived by the national government from the preceding fiscal year from
excise taxes on mineral products, royalties, and such other taxes, fees or charges,
including related surcharges, interests or fines, and from its share in any co-
production, joint venture or production sharing agreement in the utilization and
development of the national wealth within their territorial jurisdiction.
(B) Share of the Local Governments from Any Government Agency or Government-owned or -
Controlled Corporation. - Local Government Units shall have a share, based on the preceding
fiscal year, from the proceeds derived by any government agency or government owned or
controlled corporation engaged in the utilization and development of the national wealth based
on the following formula, whichever will produce a higher share for the local government unit:
(1) One percent (1%) of the gross sales or receipts of the preceding calendar year, or
(2) Forty percent (40%) of the excise taxes on mineral products, royalties, and such other
taxes, fees or charges, including related surcharges, interests or fines the government agency
or government owned or -controlled corporations would have paid if it were not otherwise
exempt. [Bold emphasis supplied]
SEC. 290. Amount of Share of Local Government Units. - Local government units shall, in
addition to the internal revenue allotment, have a share of forty percent (40%) of the
gross collection derived by the national government from the preceding fiscal year
from mining taxes, royalties, forestry and fishery charges, and such other taxes, fees,
production, joint venture or production sharing agreement in the utilization and development of
the national wealth within their territorial jurisdiction. [Bold emphasis supplied]
Lastly, the NIRTs collected by the provinces and Cities within the ARMM whose portions are
distributed to the ARMM's provincial, city and regional governments are also properly excluded
for such taxes are intended to truly enable a sustainable and feasible autonomous region as
guaranteed by the 1987 Constitution. The mandate under Section 15 to Section 21, Article X of
the 1987 Constitution is to allow the separate development of peoples with distinctive cultures
and traditions in the autonomous areas. 71The grant of autonomy to the autonomous regions
includes the right of self determination – which in turn ensures the right of the peoples residing
therein to the necessary level of autonomy that will guarantee the support of their own cultural
identities, the establishment of priorities by their respective communities' internal decision-
making processes and the management of collective matters by themselves. 72 As such, the
NIRTs collected by the provinces and cities within the ARMM will ensure local autonomy and
their very existence with a continuous supply of funding sourced from their very own areas. The
ARMM will become self-reliant and dynamic consistent with the dictates of the 1987
The shares of the municipalities in the VATs collected pursuant to R.A. No. 7643 should be
included in determining the base for computing the just share because such VATs are national
 
In recapitulation, the national taxes to be included in the base for computing the just share the
 
1. The NIRTs enumerated in Section 21 of the NIRC, as amended, to be inclusive of the
VATs, excise taxes, and DSTs collected by the BIR and the BOC, and their deputized
agents; 
2. Tariff and customs duties collected by the BOC; 
3. 50% of the VATs collected in the ARMM, and 30% of all other national taxes collected
in the ARMM; the remaining 50% of the VATs and 70% of the collections of the other
national taxes in the ARMM shall be the exclusive share of the ARMM pursuant to
Section 9 and Section 15 of R.A. No. 9054; 
8
 4. 60% of the national taxes collected from the exploitation and development of the
national wealth; the remaining 40% will exclusively accrue to the host LGUs pursuant
to Section 290 of the LGC;  such legislative or executive act was in operation and presumed to be valid in all
5. 85% of the excise taxes collected from locally manufactured Virginia and other
tobacco products; the remaining 15% shall accrue to the special purpose funds
pursuant created in R.A. No. 7171 and R.A. No. 7227; 
6. The entire 50% of the national taxes collected under Section 106, Section 108 and
Section 116 of the NIRC in excess of the increase in collections for the immediately
preceding year; and 
7. 5% of the franchise taxes in favor of the national government paid by franchise
holders in accordance with Section 6 of R.A. No. 6631 and Section 8 of R.A. No. 6632.
VI.  particular conduct, private and official.'
Entitlement to the reliefs sought
The petitioners' prayer for the payment of the arrears of the LGUs' just share on the theory that
the computation of the base amount had been unconstitutional all along cannot be granted.
It is true that with our declaration today that the IRA is not in accordance with the constitutional
determination of the just share of the LGUs in the national taxes, logic demands that the LGUs
should receive the difference between the  just share  they should have received had the LGC
properly reckoned such just share from all national taxes, on the one hand, and the share –
represented by the IRA – the LGUs have actually received since the effectivity of the IRA under
the LGC, on the other. This puts the National Government in arrears as to the just share of the
LGUs. A legislative or executive act declared void for being unconstitutional cannot give rise to
any right or obligation.73
Yet, the Court has conceded in Araullo v. Aquino III74 that: 
x x x the generality of the rule makes us ponder whether rigidly applying the rule may
at times be impracticable or wasteful. Should we not recognize the need to except
from the rigid application of the rule the instances in which the void law or executive
act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely not a
novel one, has been exhaustively explained in De Agbayani v. Philippine National Bank:
The decision now on appeal reflects the orthodox view that an unconstitutional act, for that
matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot
be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its being to all intents and
purposes a mere scrap of paper. As the new Civil Code puts it: 'When the courts declare a law to
be inconsistent with the Constitution, the former shall be void and the latter shall govern.'
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws of the Constitution. It is understandable why it should be so, the
Constitution being supreme and paramount. Any legislative or executive act contrary to its
terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have been in
force and had to be complied with. This is so as until after the judiciary, in an
appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties
may have acted under it and may have changed their positions. What could be more
fitting than that in a subsequent litigation regard be had to what has been done while
respects. It is now accepted as a doctrine that prior to its being nullified, its existence
as a fact must be reckoned with. This is merely to reflect awareness that precisely
because the judiciary is the governmental organ which has the final say on whether or
not a legislative or executive measure is valid, a period of time may have elapsed
before it can exercise the power of judicial review that may lead to a declaration of
nullity. It would be to deprive the law of its quality of fairness and justice then, if
there be no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: 'The actual existence of a statute, prior
to such a determination [of unconstitutionality], is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects, with respect to particular relations, individual and corporate, and
The doctrine of operative fact recognizes the existence of the law or executive act
prior to the determination of its unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or disregarded. In short, it
nullifies the void law or executive act but sustains its effects. It provides an exception
to the general rule that a void or unconstitutional law produces no effect. 75 But its use
must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only as a matter of equity and fair
play.76 It applies only to cases where extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent conditions that will permit its application.
Conformably with the foregoing pronouncements in Araullo v. Aquino III, the effect of our
declaration through this decision of the unconstitutionality of Section 284 of the LGC and its
related laws as far as they limited the source of the just share of the LGUs to the NIRTs is
prospective. It cannot be otherwise.
VII. 
Automatic release of the LGUs' 
just share in the National Taxes
Section 6, Article X of the 1987 Constitution commands that the just share of the LGUs in
national taxes shall be automatically released to them. The term automatic connotes something
mechanical, spontaneous and perfunctory; and, in the context of this case, the LGUs are not
required to perform any act or thing in order to receive their just share in the national taxes.77
Before anything, we must highlight that the 1987 Constitution includes several provisions that
actually deal with and authorize the automatic release of funds by the National Government. 
To begin with, Section 3 of Article VIII favors the Judiciary with the automatic and regular
release of its appropriations: 
Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after
approval, shall be automatically and regularly released. 
Then there is Section 5 of Article IX(A), which contains the common provision in favor of the
Constitutional Commissions: 
9
Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations Section 284. Allotment of Taxes. – Local government units shall have a share in the national
shall be automatically and regularly released.  taxes based on the collection of the third fiscal year preceding the current fiscal year as follows: 

Section 14 of Article XI extends to the Office of the Ombudsman a similar privilege:  (a) On the first year of the effectivity of this Code, thirty percent (30%);

Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual (b) On the second year, thirty-five percent (35%); and 
appropriations shall be automatically and regularly released. 

(c) On the third year and thereafter, forty percent (40%).

Section 17(4) of Article XIII replicates the privilege in favour of the Commission on Human
Rights: 
Provided, That in the event that the national government incurs an unmanageable public sector
deficit, the President of the Philippines is hereby authorized, upon the recommendation of
Section 17(4) The approved annual appropriations of the Commission shall be automatically and Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and
regularly released.  Management, and subject to consultation with the presiding officers of both Houses of Congress
and the presidents of the "liga", to make the necessary adjustments in the allotment of local
government units but in no case shall the allotment be less than thirty percent (30%) of the
The foregoing constitutional provisions share two aspects. The first relates to the grant of fiscal collection of national taxes of the third fiscal year preceding the current fiscal year; Provided,
autonomy, and the second concerns the automatic release of funds.78 The  common further, That in the first year of the effectivity of this Code, the local government units shall, in
denominator of the provisions is that the automatic release of the appropriated amounts is addition to the thirty percent (30%) allotment which shall include the cost of devolved functions
predicated on the approval of the annual appropriations of the offices or agencies concerned.  for essential public services, be entitled to receive the amount equivalent to the cost of devolved
personal services.
Directly contrasting with the foregoing provisions is Section 6, Article X of the 1987 Constitution
because the latter provision forthrightly ordains that the "(l)ocal government units shall have a The phrase "internal revenue" is likewise hereby DELETED from the related sections of Republic
just share, as determined by law, in the national taxes which shall be automatically Act No. 7160 (Local Government Code), specifically Section 285, Section 287, and Section 290,
released to them." Section 6 does not mention of appropriation as a condition for the which provisions shall henceforth read as follows: 
automatic release of the just share to the LGUs. This is because Congress not only already
determined the just share through the LGC's fixing the percentage of the collections of the
NIRTs to constitute such fair share subject to the power of the President to adjust the same in Section 285. Allocation to Local Government Units. – The share of local government units in
order to manage public sector deficits subject to limitations on the adjustments, but also the allotment shall be collected in the following manner: 
explicitly authorized such just share to be "automatically released" to the LGUs in the
proportions and regularity set under Section 28579 of the LGC without need of annual
appropriation. To operationalize the automatic release without need of appropriation, Section (a) Provinces – Twenty-three percent (23%);
286 of the LGC clearly provides that the automatic release of the just share directly to the
provincial, city, municipal or barangay treasurer, as the case may be, shall be "without need of (b) Cities – Twenty-three percent (23%);
any further action," viz.: 

(c) Municipalities –Thirty-four percent (34%); and

Section 286. Automatic Release of Shares.— (a) The share of each local government
unit shall be released, without need of any further action; directly to the provincial,
city, municipal or barangay treasurer, as the case may be, on a quarterly basis within (d) Barangays – Twenty percent (20%)
five (5) days after the end of each quarter, and which shall not be subject to any lien
or holdback that may be imposed by the National Government for whatever purpose.  x
Provided, however, That the share of each province, city, and municipality shall be determined
x x (Bold emphasis supplied)
on the basis of the following formula: 

The 1987 Constitution is forthright and unequivocal in ordering that the just share of the LGUs
(a) Population – Fifty percent (50%); 
in the national taxes shall be  automatically released to them. With Congress having established
the just sharethrough the LGC, it seems to be beyond debate that the inclusion of the just
share of the LGUs in the annual GAAs is unnecessary, if not superfluous. Hence, the just share (b) Land Area – Twenty-five percent (25%); and
of the LGUs in the national taxes shall be released to them without need of yearly
appropriation. 
(c) Equal sharing – Twenty-five percent (25%)

WHEREFORE, the petitions in G.R. No. 199802 and G.R. No. 208488 are PARTIALLY
GRANTED, and, ACCORDINGLY, the Court:  Provided, further, That the share of each barangay with a population of not less than one
hundred (100) inhabitants shall not be less than Eighty thousand (P80,000.00) per annum
chargeable against the twenty percent (20%) share of the barangay from the allotment, and the
1. DECLARES the phrase "internal revenue" appearing in Section 284 of Republic Act No. 7160 balance to be a1located on the basis of the following formula:
(Local Government Code) UNCONSTITUTIONAL, and DELETES the phrase from Section 284. 

(a) On the first year of the effectivity of this Code:

Section 284, as hereby modified, shall henceforth read as follows: 
10
(1) Population Forty percent (40%); and
(2) Equal sharing – Sixty percent (50%)
(b) On the second year:
(1) Population – Fifty percent (50%); and
(2) Equal sharing – Fifty percent (50%)
(c) On the third year and thereafter:
(1) Population – Sixty percent (60%); and
(2) Equal sharing – Forty percent (40%). 
Provided, finally, That the financial requirements of barangays created by local government
units after the effectivity of this Code shall be the responsibility of the local government unit
concerned. 
xxxx
Section 287. Local Development Projects. – Each local government unit shall appropriate in its
annual budget no less than twenty percent (20%) of its annual allotment for development
projects. Copies of the development plans of local government units shall be furnished the
Department of Interior and Local Government. 
xxxx
Section 290. Amount of Share of Local Government Units. – Local government units shall, in
addition to the allotment, have a share of forty percent (40%) of the gross collection derived by
the national government from the preceding fiscal year from mining taxes, royalties, forestry
and fishery charges, and such other taxes, fees, or charges, including related surcharges,
interests, or fines, and from its share in any co-production, joint venture or production sharing
agreement in the utilization and development of the national wealth within their territorial
jurisdiction.
Article 378, Article 379, Article 380, Article 382, Article 409, Article 461, and related provisions
of the Implementing Rules and Regulations of R.A. No. 7160 are hereby MODIFIED to reflect
the deletion of the phrase "internal revenue" as directed herein.  percent (5%) to the host municipality or city; seven percent (7%) to the Philippine Charity
Henceforth, any mention of "Internal Revenue Allotment" or "IRA" in Republic Act No. 7160
(Local Government Code) and its Implementing Rules and Regulations shall be understood as
pertaining to the allotment of the Local Government Units derived from the national taxes; 
2. ORDERS the SECRETARY OF THE DEPARTMENT OF FINANCE; the SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; the COMMISSIONER OF INTERNAL
REVENUE; the COMMISSIONER OF CUSTOMS; and the NATIONAL TREASURER to
include ALL COLLECTIONS OF NATIONAL TAXES in the computation of the base of the just
share of the Local Government Units according to the ratio provided in the now-modified Section
284 of Republic Act No. 7160 (Local Government Code) except those accruing to special purpose
funds and special allotments for the utilization and development of the national wealth.  collections as the auditing fee of the Commission on Audit is VALID;
For this purpose, the collections of national taxes for inclusion in the base of the just share the
Local Government Units shall include, but shall not be limited to, the following: 
(a) The national internal revenue taxes enumerated in Section 21 of the National Internal
Revenue Code, as amended, collected by the Bureau of Internal Revenue and the Bureau of
Customs; 
(b) Tariff and customs duties collected by the Bureau of Customs; 
(c) 50% of the value-added taxes collected in the Autonomous Region in Muslim Mindanao, and
30% of all other national tax collected in the Autonomous Region in Muslim Mindanao. 
The remaining 50% of the collections of value-added taxes and 70% of the collections of the
other national taxes in the Autonomous Region in Muslim Mindanao shall be the exclusive share
of the Autonomous Region in Muslim Mindanao pursuant to Section 9 and Section 15 of Republic
Act No. 9054. 
(d) 60% of the national taxes collected from the exploitation and development of the national
wealth. 
The remaining 401% of the national taxes collected from the exploitation and development of
the national wealth shall exclusively accrue to the host Local Government Units pursuant to
Section 290 of Republic Act No. 7160 (Local Government Code); 
(e) 85% of the excise taxes collected from locally manufactured Virginia and other tobacco
products. 
The remaining 15% shall accrue to the special purpose funds created by Republic Act No. 7171
and Republic Act No. 7227; 
(f) The entire 50% of the national taxes collected under Sections 106, 108 and 116 of the NIRC
as provided under Section 283 of the NIRC; and
(g) 5% of the 25% franchise taxes given to the National Government under Section 6 of
Republic Act No. 6631 and Section 8 of Republic Act No. 6632. 
3. DECLARES that: 
(a) The apportionment of the 25% of the franchise taxes collected from the Manila Jockey Club
and Philippine Racing Club, Inc. – that is, five percent (5%) to the National Government; five
Sweepstakes Office; six percent (6%) to the Anti-Tuberculosis Society; and two percent (2%) to
the White Cross pursuant to Section 6 of Republic Act No. 6631 and Section 8 of Republic Act
No. 6632 – is VALID; 
(b) Section 8 and Section 12 of Republic Act No. 7227 are VALID; and, ACCORDINGLY, the
proceeds from the sale of the former military bases converted to alienable lands thereunder
are EXCLUDED from the computation of the national tax allocations of the Local Government
Units; and
(c) Section 24(3) of Presidential Decree No. 1445, in relation to Section 284 of the National
Internal Revenue Code, apportioning one-half of one percent (1/2 of 1%) of national tax
11
4. DIRECTS the Bureau of Internal Revenue and the Bureau of Customs and their deputized
collecting agents to certify all national tax collections, pursuant to Article 378 of the
Implementing Rules and Regulations of R.A. No. 7160;  2009 a petition under Section 78 of the Omnibus Election Code to deny due course and to cancel
5. DISMISSES the claims of the Local Government Units for the settlement by the National
Government of arrears in the just share on the ground that this decision shall
have PROSPECTIVE APPLICATION; and
6. COMMANDS the AUTOMATIC RELEASE WITHOUT NEED OF FURTHER ACTION of the
just shares of the Local Government Units in the national taxes, through their respective
provincial, city, municipal, or barangay treasurers, as the case may be, on a quarterly basis but
not beyond five (5) days from the end of each quarter, as directed in Section 6, Article X of the
1987 Constitution and Section 286 of Republic Act No. 7160 (Local Government Code), and
operationalized by Article 383 of the Implementing Rules and Regulations of RA 7160.
Let a copy of this decision be furnished to the President of the Republic of the Philippines, the
President of the Senate, and the Speaker of the House of Representatives for their information
and guidance.
SO ORDERED.
EN BANC
G.R. No. 193237               October 9, 2012
DOMINADOR G. JALOSJOS, JR., Petitioner,  December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod issued a
vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.
x-----------------------x
G.R. No. 193536
AGAPITO J. CARDINO, Petitioner,  a falsified Certification on December 19, 2003 attesting to the fact that respondent Jalosjos had
vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.
DECISION
CARPIO, J.:
These are two special civil actions for certiorari1 questioning the resolutions of the Commission
on Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos,
Jr. (Jalosjos) seeks to annul the 10 May 2010 Resolution 2 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
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
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
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
12
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. (Jalosjos)
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  cities, highly urbanized city or district or sector which he seeks to represent; the political party
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 resolved 11 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  seeking to deny due course or to cancel a certificate of candidacy may be filed by the person
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
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
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)
13
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
14
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,
15
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  disqualification, it is assumed that the portion of the final judgment on disqualification to run for
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 ineligible 22 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
elective public office is addressed to the COMELEC because under the Constitution the COMELEC
is duty bound to "enforce and administer all laws and regulations relative to the conduct of an
election." 24 The disqualification of a convict to run for public office under the Revised Penal Code,
as affirmed by final judgment of a competent court, is part of the enforcement and
administration of "all laws" relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy
of one suffering from perpetual special disqualification will result in the anomaly that these
cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was
elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty
to "enforce and administer all laws" relating to the conduct of elections if it does not motu
proprio bar from running for public office those suffering from perpetual special disqualification
by virtue of a final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in
G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the
COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are
AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010
elections and thus received the highest number of votes for Mayor. The COMELEC En Bane is
DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the
duly elected Mayor of Dapitan City, Zamboanga del Norte.
Let copies of this Decision be furnished the Secretaries of the Department of Justice and the
Department of Interior and Local Government so they can cause the arrest of, and enforce the
jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a
final judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No.
CCC-XIV-140-CEBU.
SO ORDERED.
G.R. No. 180363               April 28, 2009
16
EDGAR Y. TEVES, Petitioner,  THE MAIN ISSUE IS NOT RENDERED MOOT AND ACADEMIC AS THE RESOLUTION THEREOF
vs.
THE COMMISSION ON ELECTIONS and HERMINIO G. TEVES, Respondents.
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution is whether the crime of which petitioner Edgar Y. Teves was convicted in
Teves v. Sandiganbayan1 involved moral turpitude.
The facts of the case are undisputed.
Petitioner was a candidate for the position of Representative of the 3rd legislative district of
Negros Oriental during the May 14, 2007 elections. On March 30, 2007, respondent Herminio G.
Teves filed a petition to disqualify2petitioner on the ground that in Teves v. Sandiganbayan, 3 he
was convicted of violating Section 3(h), Republic Act (R.A.) No. 3019, or the Anti-Graft and
Corrupt Practices Act, for possessing pecuniary or financial interest in a cockpit, which is
prohibited under Section 89(2) of the Local Government Code (LGC) of 1991, and was
sentenced to pay a fine of P10,000.00. Respondent alleged that petitioner is disqualified from
running for public office because he was convicted of a crime involving moral turpitude which
carries the accessory penalty of perpetual disqualification from public office. 4 The case was
docketed as SPA No. 07-242 and assigned to the COMELEC’s First Division.  FINDINGS OF THE FIRST DIVISION OF THE COMELEC, THAT BASED ON THE "TOTALITY OF
On May 11, 2007, the COMELEC First Division disqualified petitioner from running for the
position of member of House of Representatives and ordered the cancellation of his Certificate of
Candidacy.5
Petitioner filed a motion for reconsideration before the COMELEC en banc which was denied in
its assailed October 9, 2007 Resolution for being moot, thus:
It appears, however, that [petitioner] lost in the last 14 May 2007 congressional elections for
the position of member of the House of Representatives of the Third district of Negros Oriental
thereby rendering the instant Motion for Reconsideration moot and academic.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration dated 28 May 2007 filed
by respondent Edgar Y. Teves challenging the Resolution of this Commission (First Division)
promulgated on 11 May 2007 is hereby DENIED for having been rendered moot and academic.
SO ORDERED.6
Hence, the instant petition based on the following grounds:
I.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION,
WHEN THE COMELEC EN BANC DEMURRED IN RESOLVING THE MAIN ISSUE RAISED IN
PETITIONER’S MOTION FOR RECONSIDERATION, WHETHER PETITIONER IS DISQUALIFIED TO
RUN FOR PUBLIC OFFICE TAKING INTO CONSIDERATION THE DECISION OF THE SUPREME
COURT IN G.R. NO. 154182.
II.
WILL DETERMINE PETITIONER’S QUALIFICATION TO RUN FOR OTHER PUBLIC POSITIONS IN
FUTURE ELECTIONS.
III.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION,
WHEN THE COMELEC EN BANC IN EFFECT AFFIRMED THE FINDINGS OF THE FIRST DIVISION
WHICH RULED THAT PETITIONER’S CONVICTION FOR VIOLATION OF SECTION 3(H) OF R.A.
3019 AND THE IMPOSITION OF FINE IS A CONVICTION FOR A CRIME INVOLVING MORAL
TURPITUDE.
A.
THE ISSUE OF WHETHER PETITIONER WAS CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE SHOULD BE RESOLVED TAKING INTO CONSIDERATION THE FINDINGS OF THE
SUPREME COURT IN G.R. NO. 154182.
B.
THERE IS NOTHING IN THE DECISION OF THE SUPREME COURT THAT SUPPORTS THE
FACTS" DOCTRINE, PETITIONER WAS CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE.7
The petition is impressed with merit.
The fact that petitioner lost in the congressional race in the May 14, 2007 elections did not
effectively moot the issue of whether he was disqualified from running for public office on the
ground that the crime he was convicted of involved moral turpitude. It is still a justiciable issue
which the COMELEC should have resolved instead of merely declaring that the disqualification
case has become moot in view of petitioner’s defeat.
Further, there is no basis in the COMELEC’s findings that petitioner is eligible to run again in the
2010 elections because his disqualification shall be deemed removed after the expiration of a
period of five years from service of the sentence. Assuming that the elections would be held on
May 14, 2010, the records show that it was only on May 24, 2005 when petitioner paid the fine
of P10,000.00 he was sentenced to pay in Teves v. Sandignbayan.8 Such being the reckoning
point, thus, the five-year disqualification period will end only on May 25, 2010. Therefore he
would still be ineligible to run for public office during the May 14, 2010 elections.
Hence, it behooves the Court to resolve the issue of whether or not petitioner’s violation of
Section 3(h), R.A. No. 3019 involves moral turpitude.1avvphi1
Section 12 of the Omnibus Election Code reads:
Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane
or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion,
or for any offense for which he has been sentenced to a penalty of more than eighteen months,
or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon or granted amnesty.lawphil.net
17
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the same
period he again becomes disqualified. (Emphasis supplied)  conjugal partnership of gains to be owned in common by the husband and wife. Hence, his
Moral turpitude has been defined as everything which is done contrary to justice, modesty, or
good morals; an act of baseness, vileness or depravity in the private and social duties which a
man owes his fellowmen, or to society in general.9
Section 3(h) of R.A. 3019 of which petitioner was convicted, reads:
Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
xxxx
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.
The essential elements of the violation of said provision are as follows: 1) The accused is a
public officer; 2) he has a direct or indirect financial or pecuniary interest in any business,
contract or transaction; 3) he either: a) intervenes or takes part in his official capacity in
connection with such interest, or b) is prohibited from having such interest by the Constitution
or by law.10
Thus, there are two modes by which a public officer who has a direct or indirect financial or
pecuniary interest in any business, contract, or transaction may violate Section 3(h) of R.A.
3019. The first mode is when the public officer intervenes or takes part in his official capacity in
connection with his financial or pecuniary interest in any business, contract, or transaction. The
second mode is when he is prohibited from having such an interest by the Constitution or by
law.11
In Teves v. Sandiganbayan,12 petitioner was convicted under the second mode for having
pecuniary or financial interest in a cockpit which is prohibited under Sec. 89(2) of the Local
Government Code of 1991. The Court held therein:
However, the evidence for the prosecution has established that petitioner Edgar Teves, then
mayor of Valencia, Negros Oriental, owned the cockpit in question. In his sworn application for
registration of cockpit filed on 26 September 1983 with the Philippine Gamefowl Commission,
Cubao, Quezon City, as well as in his renewal application dated 6 January 1989 he stated that
he is the owner and manager of the said cockpit. Absent any evidence that he divested himself
of his ownership over the cockpit, his ownership thereof is rightly to be presumed because a
thing once proved to exist continues as long as is usual with things of that nature. His affidavit
dated 27 September 1990 declaring that effective January 1990 he "turned over the
management of the cockpit to Mrs. Teresita Z. Teves for the reason that [he] could no longer
devote a full time as manager of the said entity due to other work pressure" is not sufficient
proof that he divested himself of his ownership over the cockpit. Only the management of the
cockpit was transferred to Teresita Teves effective January 1990. Being the owner of the
cockpit, his interest over it was direct. 
Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife,
still he would have a direct interest thereon because, as correctly held by respondent
Sandiganbayan, they remained married to each other from 1983 up to 1992, and as such their
property relation can be presumed to be that of conjugal partnership of gains in the absence of
evidence to the contrary. Article 160 of the Civil Code provides that all property of the marriage
is presumed to belong to the conjugal partnership unless it be proved that it pertains exclusively
to the husband or to the wife. And Section 143 of the Civil Code declares all the property of the
interest in the Valencia Cockpit is direct and is, therefore, prohibited under Section 89(2) of the
LGC of 1991, which reads:
Section 89. Prohibited Business and Pecuniary Interest. – (a) It shall be unlawful for any local
government official or employee, directly or indirectly, to:
xxxx
(2) Hold such interests in any cockpit or other games licensed by a local government unit….
[Emphasis supplied].
The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-Graft
Law, which is possession of a prohibited interest.13
However, conviction under the second mode does not automatically mean that the same
involved moral turpitude. A determination of all surrounding circumstances of the violation of
the statute must be considered. Besides, moral turpitude does not include such acts as are not
of themselves immoral but whose illegality lies in their being positively prohibited, as in the
instant case.
Thus, in Dela Torre v. Commission on Elections,14 the Court clarified that:
Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what
crime involves moral turpitude, is for the Supreme Court to determine." In resolving the
foregoing question, the Court is guided by one of the general rules that crimes mala in se
involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth
in "Zari v. Flores," to wit:
"It (moral turpitude) implies something immoral in itself, regardless of the fact that it is
punishable by law or not. It must not be merely mala prohibita, but the act itself must be
inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral
turpitude. Moral turpitude does not, however, include such acts as are not of themselves
immoral but whose illegality lies in their being positively prohibited."
This guideline nonetheless proved short of providing a clear-cut solution, for in "International
Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained
whether moral turpitude does or does not exist by merely classifying a crime as malum in se or
as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral
turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the
final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact
and frequently depends on all the circumstances surrounding the violation of the statute.
(Emphasis supplied)1awphi1
Applying the foregoing guidelines, we examined all the circumstances surrounding petitioner’s
conviction and found that the same does not involve moral turpitude.
First, there is neither merit nor factual basis in COMELEC’s finding that petitioner used his
official capacity in connection with his interest in the cockpit and that he hid the same by
transferring the management to his wife, in violation of the trust reposed on him by the people.
18
The COMELEC, in justifying its conclusion that petitioner’s conviction involved moral turpitude,
misunderstood or misapplied our ruling in Teves v. Sandiganbayan. According to the COMELEC:
In the present case, while the crime for which [petitioner] was convicted may per se not involve
moral turpitude, still the totality of facts evinces [his] moral turpitude. The prohibition was
intended to avoid any conflict of interest or any instance wherein the public official would favor
his own interest at the expense of the public interest. The [petitioner] knew of the prohibition
but he attempted to circumvent the same by holding out that the Valencia Cockpit and
Recreation Center is to be owned by a certain Daniel Teves. Later on, he would aver that he
already divested himself of any interest of the cockpit in favor of his wife. But the Supreme
Court saw through the ruse and declared that what he divested was only the management of
the cockpit but not the ownership. And even if the ownership is transferred to his wife, the
respondent would nevertheless have an interest thereon because it would still belong to the
conjugal partnership of gains, of which the [petitioner] is the other half.
[Petitioner] therefore maintained ownership of the cockpit by deceit. He has the duty to divest
himself but he did not and instead employed means to hide his interests. He knew that it was
prohibited he nevertheless concealed his interest thereon. The facts that he hid his interest
denotes his malicious intent to favor self-interest at the expense of the public. Only a man with
a malevolent, decadent, corrupt and selfish motive would cling on and conceal his interest, the
acquisition of which is prohibited. This plainly shows his moral depravity and proclivity to put
primacy on his self interest over that of his fellowmen. Being a public official, his act is also a
betrayal of the trust reposed on him by the people. Clearly, the totality of his acts is contrary to
the accepted rules of right and duty, honesty and good morals. The crime, as committed by the
[petitioner], plainly involves moral turpitude.15
On the contrary, the Court’s ruling states:
The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of the
business permit or license to operate the Valencia Cockpit and Recreation Center is "not well-
founded." This it based, and rightly so, on the additional finding that only the Sangguniang
Bayan could have issued a permit to operate the Valencia Cockpit in the year 1992. Indeed,
under Section 447(3) of the LGC of 1991, which took effect on 1 January 1992, it is the
Sangguniang Bayan that has the authority to issue a license for the establishment, operation,
and maintenance of cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the
municipal mayor was the presiding officer of the Sangguniang Bayan, under the LGC of 1991,
the mayor is not so anymore and is not even a member of the Sangguniang Bayan. Hence,
Mayor Teves could not have intervened or taken part in his official capacity in the issuance of a
cockpit license during the material time, as alleged in the information, because he was not a
member of the Sangguniang Bayan.16
Thus, petitioner, as then Mayor of Valencia, did not use his influence, authority or power to gain
such pecuniary or financial interest in the cockpit. Neither did he intentionally hide his interest in
the subject cockpit by transferring the management thereof to his wife considering that the said
transfer occurred before the effectivity of the present LGC prohibiting possession of such
interest.  conflicting theories. That is the prerogative of the political departments. It is settled that
As aptly observed in Teves v. Sandiganbayan:
As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then until
31 December 1991, possession by a local official of pecuniary interest in a cockpit was not yet
prohibited. It was before the effectivity of the LGC of 1991, or on January 1990, that he
transferred the management of the cockpit to his wife Teresita. In accordance therewith it was
Teresita who thereafter applied for the renewal of the cockpit registration. Thus, in her sworn
applications for renewal of the registration of the cockpit in question dated 28 January 1990 and
18 February 1991, she stated that she is the Owner/Licensee and Operator/Manager of the said
cockpit. In her renewal application dated 6 January 1992, she referred to herself as the
Owner/Licensee of the cockpit. Likewise in the separate Lists of Duly Licensed Personnel for
Calendar Years 1991 and 1992, which she submitted on 22 February 1991 and 17 February
1992, respectively, in compliance with the requirement of the Philippine Gamefowl Commission
for the renewal of the cockpit registration, she signed her name as
Operator/Licensee.17 (Emphasis supplied) 
Second, while possession of business and pecuniary interest in a cockpit licensed by the local
government unit is expressly prohibited by the present LGC, however, its illegality does not
mean that violation thereof necessarily involves moral turpitude or makes such possession of
interest inherently immoral. Under the old LGC, mere possession by a public officer of pecuniary
interest in a cockpit was not among the prohibitions. Thus, in Teves v. Sandiganbayan, the
Court took judicial notice of the fact that: 
x x x under the old LGC, mere possession of pecuniary interest in a cockpit was not among the
prohibitions enumerated in Section 41 thereof. Such possession became unlawful or prohibited
only upon the advent of the LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar
Teves stands charged with an offense in connection with his prohibited interest committed on or
about 4 February 1992, shortly after the maiden appearance of the prohibition. Presumably, he
was not yet very much aware of the prohibition. Although ignorance thereof would not excuse
him from criminal liability, such would justify the imposition of the lighter penalty of a fine of
P10,000 under Section 514 of the LGC of 1991.18 (Italics supplied)
The downgrading of the indeterminate penalty of imprisonment of nine years and twenty-one
days as minimum to twelve years as maximum to a lighter penalty of a fine of P10,000.00 is a
recognition that petitioner’s violation was not intentionally done contrary to justice, modesty, or
good morals but due to his lack of awareness or ignorance of the prohibition.
Lastly, it may be argued that having an interest in a cockpit is detrimental to public morality as
it tends to bring forth idlers and gamblers, hence, violation of Section 89(2) of the LGC involves
moral turpitude. 
Suffice it to state that cockfighting, or sabong in the local parlance, has a long and storied
tradition in our culture and was prevalent even during the Spanish occupation. 19 While it is a
form of gambling, the morality thereof or the wisdom in legalizing it is not a justiciable issue. In
Magtajas v. Pryce Properties Corporation, Inc., it was held that:
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is
generally considered inimical to the interests of the people, there is nothing in the Constitution
categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It
is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the
legislature may prohibit gambling altogether or allow it without limitation or it may prohibit
some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus,
it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In
making such choices, Congress has consulted its own wisdom, which this Court has no authority
to review, much less reverse. Well has it been said that courts do no sit to resolve the merits of
questions regarding the wisdom, morality, or practicability of statutes are not addressed to the
judiciary but may be resolved only by the legislative and executive departments, to which the
function belongs in our scheme of government. That function is exclusive. Whichever way these
branches decide, they are answerable only to their own conscience and the constituents who will
ultimately judge their acts, and not to the courts of justice.
WHEREFORE, the petition is GRANTED. The assailed Resolutions of the Commission on Elections
dated May 11, 2007 and October 9, 2007 disqualifying petitioner Edgar Y. Teves from running
for the position of Representative of the 3rd District of Negros Oriental, are REVERSED and SET
ASIDE and a new one is entered declaring that the crime committed by petitioner (violation of
Section 3(h) of R.A. 3019) did not involve moral turpitude.
19
SO ORDERED.
G.R. No. 168550 August 10, 2006
URBANO M. MORENO, Petitioner,
vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, Respondents.
DECISION
TINGA, J.:
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.  In this sense, Dela Torre v. Comelec  is not squarely applicable. Our pronouncement therein that
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.  interpreted and understood to apply both to those who have been sentenced by final judgment
In this petition, Moreno argues that the disqualification under the Local Government Code
applies only to those who have served their sentence and not to probationers because the latter
do not serve the adjudged sentence. The Probation Law should allegedly be read as an
exception to the Local Government Code because it is a special law which applies only to
probationers. Further, even assuming that he is disqualified, his subsequent election as Punong
Barangay allegedly constitutes an implied pardon of his previous misconduct.
In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor
General argues that this Court in Dela Torre v. Comelec 7 definitively settled a similar
controversy by ruling that conviction for an offense involving moral turpitude stands even if the
candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government
Code subsists and remains totally unaffected notwithstanding the grant of probation. 
Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and
pointing out material differences between his case and Dela Torre v. Comelec which allegedly
warrant a conclusion favorable to him. According to Moreno, Dela Torre v. Comelec  involves a
conviction for violation of the Anti-Fencing Law, an offense involving moral turpitude covered by
the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that
case, applied for probation nearly four (4) years after his conviction and only after appealing his
conviction, such that he could not have been eligible for probation under the law. 
In contrast, Moreno alleges that he applied for and was granted probation within the period
specified therefor. He never served a day of his sentence as a result. Hence, the disqualification
under Sec. 40(a) of the Local Government Code does not apply to him.
The resolution of the present controversy depends on the application of the phrase "within two
(2) years after serving sentence" found in Sec. 40(a) of the Local Government Code, which
reads:
Sec. 40. Disqualifications. –  The following persons are disqualified from running for any elective
local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence; [Emphasis supplied.]
....
We should mention at this juncture that there is no need to rule on whether Arbitrary Detention,
the crime of which Moreno was convicted by final judgment, involves moral turpitude falling
under the first part of the above-quoted provision. The question of whether Arbitrary Detention
is a crime involving moral turpitude was never raised in the petition for disqualification because
the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his
alleged disqualification from running for a local elective office within two (2) years from his
discharge from probation after having been convicted by final judgment for an offense
punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides,
a determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of
this case, the crucial issue being whether Moreno’s sentence was in fact served. 
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
for an offense involving moral turpitude and to those who have been sentenced by final
20
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 Court’s 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  the terms and conditions of his probation, his case was deemed terminated and all civil rights
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 Court’s 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.  seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government
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.  a glimpse into the legislative intent to treat probationers as a distinct class of offenders not
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 Moreno’s 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 court’s finding that he has fulfilled
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 Court’s function, in the face of this
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
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
21
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.
G.R. No. 184836               December 23, 2009
SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N.
TALABONG, Petitioners,  THE COURT’S RULING
vs.
COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.
DECISION
BRION, J.:
Is the preventive suspension of an elected public official an interruption of his term of office for
purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section
43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)?  Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive
The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an
effective interruption because it renders the suspended public official unable to provide complete
service for the full term; thus, such term should not be counted for the purpose of the three-
term limit rule. 
The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction.
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three
consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In
September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively
suspended him for 90 days in relation with a criminal case he then faced. This Court, however,
subsequently lifted the Sandiganbayan’s suspension order; hence, he resumed performing the
functions of his office and finished his term. 
In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners
Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to
deny due course to Asilo’s certificate of candidacy or to cancel it on the ground that he had been
elected and had served for three terms; his candidacy for a fourth term therefore violated the
three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA
7160. 
The COMELEC’s Second Division ruled against the petitioners and in Asilo’s favour in its
Resolution of November 28, 2007. It reasoned out that the three-term limit rule did not apply,
as Asilo failed to render complete service for the 2004-2007 term because of the suspension the
Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the Second Division’s ruling in its October 7, 2008
Resolution; hence, the PRESENT PETITION raising the following ISSUES:
1. Whether preventive suspension of an elected local official is an interruption of the
three-term limit rule; and 
2. Whether preventive suspension is considered involuntary renunciation as
contemplated in Section 43(b) of RA 7160 
Thus presented, the case raises the direct issue of whether Asilo’s preventive suspension
constituted an interruption that allowed him to run for a 4th term.
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on the three-term limit provision of the
Constitution, but is the first on the effect of preventive suspension on the continuity of an
elective official’s term. To be sure, preventive suspension, as an interruption in the term of an
elective public official, has been mentioned as an example in Borja v. Commission on
suspension, but with the application of the three-term rule on the term that an elective official
acquired by succession. 
a. The Three-term Limit Rule:
The Constitutional Provision Analyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
22
Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in
wording does not assume any significance in this case.
As worded, the constitutional provision fixes the term of a local elective office and limits an
elective official’s stay in office to no more than three consecutive terms. This is the first branch
of the rule embodied in Section 8, Article X.
Significantly, this provision refers to a "term" as a period of time – three years – during which
an official has title to office and can serve. Appari v. Court of Appeals, 3 a Resolution
promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as follows:
The word "term" in a legal sense means a fixed and definite period of time which the
law describes that an officer may hold an office. According to Mechem, the term of office is
the period during which an office may be held. Upon expiration of the officer’s term, unless he is
authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto
cease. In the law of public officers, the most and natural frequent method by which a public
officer ceases to be such is by the expiration of the terms for which he was elected or appointed.
[Emphasis supplied].1avvphi1
A later case, Gaminde v. Commission on Audit, 4 reiterated that "[T]he term means the time
during which the officer may claim to hold office as of right, and fixes the interval after which
the several incumbents shall succeed one another."  rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text
The "limitation" under this first branch of the provision is expressed in the negative – "no such
official shall serve for more than three consecutive terms." This formulation – no more than
three consecutive terms – is a clear command suggesting the existence of an inflexible rule.
While it gives no exact indication of what to "serve. . . three consecutive terms" exactly
connotes, the meaning is clear – reference is to the term, not to the service that a public official
may render.1awphi1 In other words, the limitation refers to the term.
The second branch relates to the provision’s express initiative to prevent any circumvention of
the limitation through voluntary severance of ties with the public office; it expressly states that
voluntary renunciation of office "shall not be considered as an interruption in the continuity of
his service for the full term for which he was elected." This declaration complements
the term limitation mandated by the first branch. 
A notable feature of the second branch is that it does not textually state that voluntary
renunciation is the only actual interruption of service that does not affect "continuity of service
for a full term" for purposes of the three-term limit rule. It is a pure declaratory statement of
what does not serve as an interruption of service for a full term, but the phrase "voluntary
renunciation," by itself, is not without significance in determining constitutional intent. 
The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give
up, abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an
act that operates from the outside. Read with the definition of a "term" in mind, renunciation, as
mentioned under the second branch of the constitutional provision, cannot but mean an act that
results in cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary"
linked together with "renunciation" signifies an act of surrender based on the surenderee’s own
freely exercised will; in other words, a loss of title to office by conscious choice. In the context
of the three-term limit rule, such loss of title is not considered an interruption because it is
presumed to be purposely sought to avoid the application of the term limitation. 
The following exchanges in the deliberations of the Constitutional Commission on the term
"voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term
"voluntary renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6
[of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee
please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment? 
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by
merely resigning at any given time on the second term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more
general than abandonment and resignation? 
MR. DAVIDE. It is more general, more embracing.6
From this exchange and Commissioner Davide’s expansive interpretation of the term "voluntary
renunciation," the framers’ intent apparently was to close all gaps that an elective official may
seize to defeat the three-term limit rule, in the way that voluntary renunciation has been
of the constitutional provision, we note further that Commissioner Davide’s view is consistent
with the negative formulation of the first branch of the provision and the inflexible interpretation
that it suggests.
This examination of the wording of the constitutional provision and of the circumstances
surrounding its formulation impresses upon us the clear intent to make term limitation a high
priority constitutional objective whose terms must be strictly construed and which cannot be
defeated by, nor sacrificed for, values of less than equal constitutional worth. We view
preventive suspension vis-à-vis term limitation with this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a lead into the concepts
within the provision’s contemplation, particularly on the "interruption in the continuity of service
for the full term" that it speaks of. 
Lonzanida v. Commission on Elections 7 presented the question of whether the disqualification on
the basis of the three-term limit applies if the election of the public official (to be strictly
accurate, the proclamation as winner of the public official) for his supposedly third term had
been declared invalid in a final and executory judgment. We ruled that the two requisites for the
application of the disqualification (viz., 1. that the official concerned has been elected for three
consecutive terms in the same local government post; and 2. that he has fully served three
consecutive terms) were not present. In so ruling, we said: 
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-
term limit by a voluntary renunciation of office and at the same time respect the people’s choice
and grant their elected official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the computation of the three term
limit; conversely, involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. The petitioner vacated his
post a few months before the next mayoral elections, not by voluntary renunciation but in
23
compliance with the legal process of writ of execution issued by the COMELEC to that effect.
Such involuntary severance from office is an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss
of title, that renders the three-term limit rule inapplicable. 
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there
had been a completed term for purposes of the three-term limit disqualification. These cases,
however, presented an interesting twist, as their final judgments in the electoral contest came
after the term of the contested office had expired so that the elective officials in these cases
were never effectively unseated.  xxxx
Despite the ruling that Ong  was never entitled to the office (and thus was never validly elected),
the Court concluded that there was nevertheless an election and service for a full term in
contemplation of the three-term rule based on the following premises: (1) the final decision that
the third-termer lost the election was without practical and legal use and value, having been
promulgated after the term of the contested office had expired; and (2) the official assumed and
continuously exercised the functions of the office from the start to the end of the term. The
Court noted in Ong the absurdity and the deleterious effect of a contrary view – that the official
(referring to the winner in the election protest) would, under the three-term rule, be considered
to have served a term by virtue of a veritably meaningless electoral protest ruling, when
another actually served the term pursuant to a proclamation made in due course after an
election. This factual variation led the Court to rule differently from Lonzanida. 
In the same vein, the Court in Rivera rejected the theory that the official who finally lost the
election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court
obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when
an official fully served in the same position for three consecutive terms. Whether as "caretaker"
or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that
enabled him "to stay on indefinitely."  municipality into a city did not convert the office of the municipal mayor into a local government
Ong and Rivera are important rulings for purposes of the three-term limitation because of what
they directly imply. Although the election requisite was not actually present, the Court still gave
full effect to the three-term limitation because of the constitutional intent to strictly limit elective
officials to service for three terms. By so ruling, the Court signalled how zealously it guards the
three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation
rule in favor of limitation rather than its exception.  This Court reiterates that the framers of the Constitution specifically included an exception to
Adormeo v. Commission on Elections 10 dealt with the effect of recall on the three-term limit
disqualification. The case presented the question of whether the disqualification applies if the
official lost in the regular election for the supposed third term, but was elected in a recall
election covering that term. The Court upheld the COMELEC’s ruling that the official was not
elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the
official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat
in the election for the third term.
Socrates v. Commission on Elections 11 also tackled recall vis-à-vis the three-term limit
disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to
run for a fourth term, he did not participate in the election that immediately followed his third
term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than
1 ½ years after Mayor Socrates assumed the functions of the office, recall proceedings were
initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of
candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground
that he (Hagedorn) had fully served three terms prior to the recall election and was therefore
disqualified to run because of the three-term limit rule. We decided in Hagedorn’s favor, ruling
that: 
After three consecutive terms, an elective local official cannot seek immediate reelection for a
fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent election, like a recall election, is
no longer covered by the prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after three consecutive terms. Second, the
intervening period constitutes an involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether
there would be "no immediate reelection" after three terms.
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following
three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection
for a fourth term as long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in
any other subsequent election involving the same term of office. What the Constitution prohibits
is a consecutive fourth term.12
Latasa v. Commission on Elections 13 presented the novel question of whether a municipal mayor
who had fully served for three consecutive terms could run as city mayor in light of the
intervening conversion of the municipality into a city. During the third term, the municipality
was converted into a city; the cityhood charter provided that the elective officials of the
municipality shall, in a holdover capacity, continue to exercise their powers and functions until
elections were held for the new city officials. The Court ruled that the conversion of the
post different from the office of the city mayor – the territorial jurisdiction of the city was the
same as that of the municipality; the inhabitants were the same group of voters who elected the
municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the
municipal mayor held power and authority as their chief executive for nine years. The Court
said:
the people’s freedom to choose those who will govern them in order to avoid the evil of a single
person accumulating excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor
after having served for three consecutive terms as a municipal mayor would obviously defeat
the very intent of the framers when they wrote this exception. Should he be allowed another
three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding
office as chief executive over the same territorial jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if
not abhorred by it.14
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no
three-term limit violation results if a rest period or break in the service between terms or tenure
in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no
title to any elective office for a few months before the next mayoral elections. Similarly,
in Adormeo and Socrates, the private respondents lived as private citizens for two years and
fifteen months, respectively. Thus, these cases establish that the law contemplates a complete
break from office during which the local elective official steps down and ceases to exercise
power or authority over the inhabitants of the territorial jurisdiction of a particular local
government unit. 
24
Seemingly differing from these results is the case of Montebon v. Commission on
Elections,15 where the highest-ranking municipal councilor succeeded to the position of vice-
mayor by operation of law. The question posed when he subsequently ran for councilor was
whether his assumption as vice-mayor was an interruption of his term as councilor that would
place him outside the operation of the three-term limit rule. We ruled that an interruption had
intervened so that he could again run as councilor. This result seemingly deviates from the
results in the cases heretofore discussed since the elective official continued to hold public office
and did not become a private citizen during the interim. The common thread that identifies
Montebon with the rest, however, is that the elective official vacated the office of councilor and
assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be
councilor – an interruption that effectively placed him outside the ambit of the three-term limit
rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exempting an elective official
from the three-term limit rule is one that involves no less than the involuntary loss of title to
office. The elective official must have involuntarily left his office for a length of time, however
short, for an effective interruption to occur. This has to be the case if the thrust of Section 8,
Article X and its strict intent are to be faithfully served, i.e., to limit an elective official’s
continuous stay in office to no more than three consecutive terms, using "voluntary
renunciation" as an example and standard of what does not constitute an interruption. 
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term, as we held in Montebon. On the other hand, temporary
inability or disqualification to exercise the functions of an elective post, even if involuntary,
should not be considered an effective interruption of a term because it does not involve the loss
of title to office or at least an effective break from holding office; the office holder, while
retaining title, is simply barred from exercising the functions of his office for a reason provided
by law. 
An interruption occurs when the term is broken because the office holder lost the right to hold
on to his office, and cannot be equated with the failure to render service. The latter occurs
during an office holder’s term when he retains title to the office but cannot exercise his functions
for reasons established by law. Of course, the term "failure to serve" cannot be used once the
right to office is lost; without the right to hold office or to serve, then no service can be
rendered so that none is really lost.  serve and is thus an effective interruption of an election official’s term.
To put it differently although at the risk of repetition, Section 8, Article X – both by structure
and substance – fixes an elective official’s term of office and limits his stay in office to three
consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation
as an example of a circumvention. The provision should be read in the context of  interruption of
term, not in the context of interrupting the full continuity of the exercise of the powers of the
elective position. The "voluntary renunciation" it speaks of refers only to the elective official’s
voluntary relinquishment of office and loss of title to this office. It does not speak of the
temporary "cessation of the exercise of power or authority" that may occur for various reasons,
with preventive suspension being only one of them. To quote Latasa v. Comelec:16
Indeed, [T]he law contemplates a rest period during which the local elective official steps down
from office and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit. [Emphasis supplied]. 
Preventive Suspension and the Three-Term Limit Rule 
a. Nature of Preventive Suspension
Preventive suspension – whether under the Local Government Code,17 the Anti-Graft and
Corrupt Practices Act,18or the Ombudsman Act19 – is an interim remedial measure to address the
situation of an official who have been charged administratively or criminally, where the evidence
preliminarily indicates the likelihood of or potential for eventual guilt or liability. 
Preventive suspension is imposed under the Local Government Code "when the evidence of guilt
is strong and given the gravity of the offense, there is a possibility that the continuance in office
of the respondent could influence the witnesses or pose a threat to the safety and integrity of
the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed
after a valid information (that requires a finding of probable cause) has been filed in court, while
under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the
evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; or (b) the charges would warrant removal
from the service; or (c) the respondent’s continued stay in office may prejudice the case filed
against him. 
Notably in all cases of preventive suspension, the suspended official is barred from performing
the functions of his office and does not receive salary in the meanwhile, but does not vacate and
lose title to his office; loss of office is a consequence that only results upon an eventual finding
of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-controlled conditions
and gives a premium to the protection of the service rather than to the interests of the
individual office holder. Even then, protection of the service goes only as far as a temporary
prohibition on the exercise of the functions of the official’s office; the official is reinstated to the
exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary
incapacity in the exercise of power results, no position is vacated when a public official is
preventively suspended. This was what exactly happened to Asilo. 
That the imposition of preventive suspension can be abused is a reality that is true in the
exercise of all powers and prerogative under the Constitution and the laws. The imposition of
preventive suspension, however, is not an unlimited power; there are limitations built into the
laws20 themselves that the courts can enforce when these limitations are transgressed,
particularly when grave abuse of discretion is present. In light of this well-defined parameters in
the imposition of preventive suspension, we should not view preventive suspension from the
extreme situation –  that it can totally deprive an elective office holder of the prerogative to
 
Term limitation and preventive suspension are two vastly different aspects of an elective
officials’ service in office and they do not overlap. As already mentioned above, preventive
suspension involves protection of the service and of the people being served, and prevents the
office holder from temporarily exercising the power of his office. Term limitation, on the other
hand, is triggered after an elective official has served his three terms in office without any
break. Its companion concept – interruption of a term – on the other hand, requires loss of title
to office. If preventive suspension and term limitation or interruption have any commonality at
all, this common point may be with respect to the discontinuity of service that may occur in
both. But even on this point, they merely run parallel to each other and never
intersect; preventive suspension, by its nature, is a temporary incapacity to render
service  during  an unbroken term; in the context of term limitation, interruption of service
occurs after there has been a  break in the term.
b. Preventive Suspension and the Intent of the Three-Term Limit Rule
Strict adherence to the intent of the three-term limit rule demands that preventive suspension
should not be considered an interruption that allows an elective official’s stay in office beyond
three terms. A preventive suspension cannot simply be a term interruption because the
suspended official continues to stay in office although he is barred from exercising the functions
and prerogatives of the office within the suspension period. The best indicator of the
25
suspended official’s continuity in office is the absence of a permanent replacement and the lack to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by
of the authority to appoint one since no vacancy exists.  no less than the Constitution and was one undertaken outside the contemplation of law.21

To allow a preventively suspended elective official to run for a fourth and prohibited term is to WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed
close our eyes to this reality and to allow a constitutional violation through sophistry by COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run,
equating the temporary inability to discharge the functions of office with the interruption of term and perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against
that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or private respondent Asilo.
involuntary – some of them personal and some of them by operation of law – that may
temporarily prevent an elective office holder from exercising the functions of his office in the
way that preventive suspension does. A serious extended illness, inability through force SO ORDERED.
majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples,
may prevent an office holder from exercising the functions of his office for a time without EN BANC
forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery
of service for a time within a term. Adopting such interruption of actual service as the standard
to determine effective interruption of term under the three-term rule raises at least the G.R. No. 154512. November 12, 2002
possibility of confusion in implementing this rule, given the many modes and occasions when
actual service may be interrupted in the course of serving a term of office. The standard may
VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, Petitioner, vs. THE
reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing
COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa
determination of what an effective interruption is. 
City, PRA Interim Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA Interim Secretary
Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding Officer Punong Bgy. EARL S.
c. Preventive Suspension and Voluntary Renunciation BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR. Respondents.

Preventive suspension, because it is imposed by operation of law, does not involve a voluntary [G.R. No. 154683. November 12, 2002
act on the part of the suspended official, except in the indirect sense that he may have
voluntarily committed the act that became the basis of the charge against him. From this
VICENTE S. SANDOVAL, JR., Petitioner, vs. THE COMMISSION ON ELECTIONS, respondent.
perspective, preventive suspension does not have the element of voluntariness that voluntary
renunciation embodies. Neither does it contain the element of renunciation or loss of title to
office as it merely involves the temporary incapacity to perform the service that an elective [G.R. Nos. 155083-84. November 12, 2002
office demands. Thus viewed, preventive suspension is – by its very nature – the exact opposite
of voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery
of service, not the title to the office. The easy conclusion therefore is that they are, by nature, MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE,
different and non-comparable.  SR., Petitioners, vs.  THE COMMISSION ON ELECTIONS, and EDWARD S.
HAGEDORN, Respondents.

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

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

Preventive suspension, by its nature, does not involve an effective interruption of a term and
Before us are consolidated petitions for certiorari 1 seeking the reversal of the resolutions issued
should therefore not be a reason to avoid the three-term limitation. It can pose as a threat,
by the Commission on Elections (COMELEC for brevity) in relation to the recall election for
however, if we shall disregard its nature and consider it an effective interruption of a term. Let it
mayor of Puerto Princesa City, Palawan.
be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it
does not require relinquishment or loss of office even for the briefest time. It merely requires an
easily fabricated administrative charge that can be dismissed soon after a preventive suspension The Antecedents
has been imposed. In this sense, recognizing preventive suspension as an effective interruption
of a term can serve as a circumvention more potent than the voluntary renunciation that the
Constitution expressly disallows as an interruption.  On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto
Princesa convened themselves into a Preparatory Recall Assembly (PRA for brevity) at the
Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to
Conclusion initiate the recall2 of Victorino Dennis M. Socrates (Socrates for brevity) who assumed office as
Puerto Princesas mayor on June 30, 2001. The members of the PRA designated Mark David M.
Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA.
To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed
preventive suspension in 2005, as preventive suspension does not interrupt an elective official’s
term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the
Constitution when it granted due course to Asilo’s certificate of candidacy for a prohibited fourth
term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting
26
On the same date, the PRA passed Resolution No. 01-02 (Recall Resolution for brevity) which
declared its loss of confidence in Socrates and called for his recall. The PRA requested the
COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall
Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010
(RC), to nullify and deny due course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc[3] promulgated a resolution dismissing for lack of
merit Socrates petition. The COMELEC gave due course to the Recall Resolution and scheduled
the recall election on September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the
calendar of activities and periods of certain prohibited acts in connection with the recall election.
The COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a
period of 10 days.
On August 23, 2002, Edward M. Hagedorn (Hagedorn for brevity) filed his certificate of
candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo (Adovo for brevity) and Merly E. Gilo (Gilo for brevity)
filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from
running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a
certain Bienvenido Ollave, Sr. (Ollave for brevity) filed a petition-in-intervention in SPA No. 02-
492 also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed
another petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same
facts and involving the same issues. The petitions were all anchored on the ground that
Hagedorn is disqualified from running for a fourth consecutive term, having been elected and
having served as mayor of the city for three (3) consecutive full terms immediately prior to the
instant recall election for the same post. Subsequently, SPA Nos. 02-492 and 02-539 were
consolidated.
In a resolution promulgated on September 20, 2002, the COMELECs First Division 4 dismissed for
lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in
the recall election. The COMELEC also reset the recall election from September 7, 2002 to
September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion
for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn
qualified to run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in
E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall
election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall
Resolution. Socrates cites the following circumstances as legal infirmities attending the
convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA
were notified of the meeting to adopt the resolution; (2) the proof of service of notice was
palpably and legally deficient; (3) the members of the PRA were themselves seeking a new
electoral mandate from their respective constituents; (4) the adoption of the resolution was
exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a
manner that violated his and the publics constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August
21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only
a ten-day campaign period. He prayed that the COMELEC be enjoined from holding the recall
election on September 7, 2002 and that a new date be fixed giving the candidates at least an
additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from
implementing Resolution No. 5673 insofar as it fixed the date of the recall election on
September 7, 2002. The Court directed the COMELEC to give the candidates an additional fifteen
15 days from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving
the candidates an additional 15 days from September 7, 2002 within which to campaign. Thus,
the COMELEC reset the recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELECs resolutions dated September 20, 2002
and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for
mayor in the recall election. They likewise prayed for the issuance of a temporary restraining
order to enjoin the proclamation of the winning candidate in the recall election.
Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorns
qualification to run for mayor in the recall election despite the constitutional and statutory
prohibitions against a fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from
proclaiming any winning candidate in the recall election until further orders from the Court.
Petitioners were required to post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an attached petition for
intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in the recall election with
20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes,
respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning
candidate and to allow him to assume office to give effect to the will of the electorate.
On October 1, 2002, the Court granted Socrates motion for leave to file a petition for
intervention.
The Issues
The issues for resolution of the Court are:
27
1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due
course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall election
of Puerto Princesa on September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in
fixing a campaign period of only 10 days has become moot. Our Resolution of September 3,
2002 and COMELEC Resolution No. 5708 granted an additional 15 days for the campaign period
as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding
the Recall Resolution despite the absence of notice to 130 PRA members and the defective
service of notice to other PRA members. The COMELEC, however, found that  July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the
On various dates, in the month of June 2002, the proponents for the Recall of incumbent
City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the
members thereof pursuant to Section 70 of the Local Government Code. Copies of the
said notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for
each of the said notices were attached to the Petition and marked as Annex G of
Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay Hall.
Photos establishing the same were attached to the Petition and marked as Annex H. The
proponents likewise utilized the broadcast mass media in the dissemination of the
convening of the PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a
list of 25 names of provincial elective officials, print and broadcast media practitioners,
PNP officials, COMELEC city, regional and national officials, and DILG officials].
x x x  validity of the Recall Resolution and in scheduling the recall election on September 24, 2002.
The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002
certified that upon a thorough and careful verification of the signatures appearing in PRA
Resolution 01-02, x x x the majority of all members of the PRA concerned approved said
resolution. She likewise certified that not a single member/signatory of the PRA
complained or objected as to the veracity and authenticity of their signatures.
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement
dated 10 July 2002, stated, upon proper review, all documents submitted are found in
order.
The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the
following recommendations:
This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and
substance. That the PRA was validly constituted and that the majority of all members thereof
approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.  Local Government Code, which provides:
xxx.
This Court is bound by the findings of fact of the COMELEC on matters within the competence
and expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v.
COMELEC,[5] which also dealt with alleged defective service of notice to PRA members, we
ruled that 
Needless to state, the issue of propriety of the notices sent to the PRA members is
factual in nature, and the determination of the same is therefore a function of the
COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the
Court should not disturb the same. The factual findings of the COMELEC, based on its
own assessments and duly supported by gathered evidence, are conclusive upon the
court, more so, in the absence of a substantiated attack on the validity of the same.
In the instant case, we do not find any valid reason to hold that the COMELECs findings of fact
are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on
barangay elections scheduled on July 15, 2002. This argument deserves scant consideration
considering that when the PRA members adopted the Recall Resolution their terms of office had
not yet expired. They were all de jure sangguniang barangay members with no legal
disqualification to participate in the recall assembly under Section 70 of the Local Government
Code.
Socrates bewails that the manner private respondents conducted the PRA proceedings violated
his constitutional right to information on matters of public concern. Socrates, however, admits
receiving notice of the PRA meeting and of even sending his representative and counsel who
were present during the entire PRA proceedings. Proponents of the recall election submitted to
the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA
assembly, attendance sheets, notices sent to PRA members, and authenticated master list of
barangay officials in Puerto Princesa. Socrates had the right to examine and copy all these
public records in the official custody of the COMELEC. Socrates, however, does not claim that
the COMELEC denied him this right. There is no legal basis in Socrates claim that respondents
violated his constitutional right to information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the
Second Issue: Hagedorns qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8, Article X of the
Constitution, which states:
Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected.
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the
Section 43. Term of Office. (a) x x x
28
 (b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official was elected.
These constitutional and statutory provisions have two parts. The first part provides that an
elective local official cannot serve for more than three consecutive terms. The clear intent is that
only consecutive terms count in determining the three-term limit rule. The second part states
that voluntary renunciation of office for any length of time does not interrupt the continuity of
service. The clear intent is that involuntary severance from office for any length of
time interrupts continuity of service and prevents the service before and after the interruption
from being joined together to form a continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot seek immediate reelection for a
fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent election, like a recall
election, is no longer covered by the prohibition for two reasons. First, a subsequent election
like a recall election is no longer an immediate reelection after three consecutive terms. Second,
the intervening period constitutes an involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether
there would be no immediate reelection after three terms. This is clear from the following
deliberations of the Constitutional Commission:
THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:  We are now ready to discuss the two issues, as indicated on the
6
blackboard, and these are Alternative No. I where there is no further election after a
total of three terms and Alternative No.  2  where there is no immediate reelection
after three successive terms.7cräläwvirtualibräry
The Journal of the Constitutional Commission reports the following manifestation on the term of
elective local officials:
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely:
1) Alternative No. 1 (no further reelection after a total of three terms), and 2)
Alternative No. 2 (no immediate reelection after three successive
terms).8cräläwvirtualibräry
The framers of the Constitution used the same no immediate reelection question in voting for
the term limits of Senators9 and Representatives of the House.10cräläwvirtualibräry
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following
three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection
for a fourth term as long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in
any other subsequent election involving the same term of office. What the Constitution prohibits
is a consecutive fourth term. The debates in the Constitutional Commission evidently show
that the prohibited election referred to by the framers of the Constitution is the immediate
reelection after the third term, not any other subsequent election.
If the prohibition on elective local officials is applied to any election within the three-year full
term following the three-term limit, then Senators should also be prohibited from running in any
election within the six-year full term following their two-term limit. The constitutional provision
on the term limit of Senators is worded exactly like the term limit of elective local officials, thus:
No Senator shall serve for more than two consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.11cräläwvirtualibräry
In the debates on the term limit of Senators, the following exchange in the Constitutional
Convention is instructive:
GASCON:12 I would like to ask a question with regard to the issue after the second term.
We will allow the Senator to rest for a period of time before he can run again?
DAVIDE:13 That is correct.
GASCON: And the question that we left behind before - if the Gentleman will remember
- was: How long will that period of rest be? Will it be one election which is three years or
one term which is six years?
DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether such
election will be on the third or on the sixth year thereafter, this particular member of the
Senate can run. So, it is not really a period of hibernation for six years. That was
the Committees stand.
GASCON: So, effectively, the period of rest would be three years at the
least.14 (Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run after only three
years[15] following his completion of two terms. The framers expressly acknowledged that the
prohibited election refers only to the immediate reelection, and not to any subsequent
election, during the six-year period following the two term limit. The framers of the Constitution
did not intend the period of rest of an elective official who has reached his term limit to be the
full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an
immediate reelection after his third consecutive term which ended on June 30, 2001. The
immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular
elections in 2001. Hagedorn did not seek reelection in the 2001 elections. 
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and
served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution
and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections.
The Constitution and the Local Government Code disqualified Hagedorn, who had reached the
maximum three-term limit, from running for a fourth consecutive term as mayor. Thus,
Hagedorn did not run for mayor in the 2001 elections. 16 Socrates ran and won as mayor of
Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he
became a private citizen until the recall election of September 24, 2002 when he won by 3,018
votes over his closest opponent, Socrates.
29
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto
Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This
period is clearly an interruption in the continuity of Hagedorns service as mayor, not because of
his voluntary renunciation, but because of a legal prohibition. Hagedorns three consecutive
terms ended on June 30, 2001. Hagedorns new recall term from September 24, 2002 to June
30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One
cannot stitch together Hagedorns previous three-terms with his new recall term to make the
recall term a fourth consecutive term because factually it is not. An involuntary interruption
occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive
character of Hagedorns service as mayor.
In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of
service in this manner:
x x x The second sentence of the constitutional provision under scrutiny states,
Voluntary renunciation of office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which he was elected. The
clear intent of the framers of the constitution to bar any attempt to circumvent the
three-term limit by a voluntary renunciation of office and at the same time respect the
peoples choice and grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three-term limit; conversely, involuntary severance from office
for any length of time short of the full term provided by law amounts to an
interruption of continuity of service. x x x. (Emphasis supplied)
In Hagedorns case, the nearly 15-month period he was out of office, although short of a full
term of three years, constituted an interruption in the continuity of his service as mayor. The
Constitution does not require the interruption or hiatus to be a full term of three years. The
clear intent is that interruption for any length of time, as long as the cause is involuntary, is
sufficient to break an elective local officials continuity of service.
In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the
rule that an interruption consisting of a portion of a term of office breaks the continuity of
service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two
consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in 1998,
Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won
and served the unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga
ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor,
petitioned for Talagas disqualification on the ground that Talaga had already served three
consecutive terms as mayor.
Thus, the issue in Adormeo was whether Talagas recall term was a continuation of his previous
two terms so that he was deemed to have already served three consecutive terms as mayor.
The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period
from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of
his service as mayor. Talagas recall term as mayor was not consecutive to his previous two
terms because of this interruption, there having been a break of almost two years during which
time Tagarao was the mayor.
We held in Adormeo  that the period an elective local official is out of office interrupts the
continuity of his service and prevents his recall term from being stitched together as a seamless
continuation of his previous two consecutive terms. In the instant case, we likewise hold that
the nearly 15 months Hagedorn was out of office interrupted his continuity of service and
prevents his recall term from being stitched together as a seamless continuation of his previous
three consecutive terms. The only difference between Adormeo and the instant case is the time
of the interruption. In Adormeo,  the interruption occurred after the first two consecutive terms.
In the instant case, the interruption happened after the first three consecutive terms. In both
cases, the respondents were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he assumed office after
winning the recall election. Talagas recall term did not retroact to include the tenure in office of
his predecessor. If Talagas recall term was made to so retroact, then he would have been
disqualified to run in the 2001 elections because he would already have served three
consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not
serve the full term of his predecessor but only the unexpired term. The period of time prior to
the recall term, when another elective official holds office, constitutes an interruption in
continuity of service. Clearly, Adormeo established the rule that the winner in the recall
election cannot be charged or credited with the full term of three years for purposes
of counting the consecutiveness of an elective officials terms in office.
In the same manner, Hagedorns recall term does not retroact to include the tenure in office of
Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if
the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute
a fourth consecutive term. But to consider Hagedorns recall term as a full term of three years,
retroacting to June 30, 2001, despite the fact that he won his recall term only last September
24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of
office which historically and factually are not.
Worse, to make Hagedorns recall term retroact to June 30, 2001 creates a legal fiction that
unduly curtails the freedom of the people to choose their leaders through popular elections. The
concept of term limits is in derogation of the sovereign will of the people to elect the leaders of
their own choosing. Term limits must be construed strictly to give the fullest possible effect to
the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec:
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals
that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with
preventing the monopolization of political power. Indeed, they rejected a proposal
put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms
or nine years there should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal of Commissioner
Christian Monsod that such officials be simply barred from running for the
same position in the succeeding election following the expiration of the third
consecutive term.Monsod warned against prescreening candidates [from] whom the
people will choose as a result of the proposed absolute disqualification, considering that
the draft constitution contained provisions recognizing people's power.19 (Emphasis
supplied)
A necessary consequence of the interruption of continuity of service is the start of a new term
following the interruption. An official elected in recall election serves the unexpired term of the
recalled official. This unexpired term is in itself one term for purposes of counting the three-
term limit. This is clear from the following discussion in the Constitutional Commission:
SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly
elected would have to serve the unexpired portion of the term. Would that mean that
serving the unexpired portion of the term is already considered one term? So, half a
term, which is actually the correct statement, plus one term would disqualify the Senator
concerned from running? Is that the meaning of this provision on disqualification,
Madam President?
DAVIDE: Yes, because we speak of term, and if there is a special election, he will serve
only for the unexpired portion of that particular term plus one more term for the Senator
and two more terms for the Members of the Lower House.21cräläwvirtualibräry
Although the discussion referred to special elections for Senators and Representatives of the
House, the same principle applies to a recall election of local officials. Otherwise, an elective
local official who serves a recall term can serve for more than nine consecutive years
30
comprising of the recall term plus the regular three full terms. A local official who serves a recall
term should know that the recall term is in itself one term although less than three years. This
is the inherent limitation he takes by running and winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election
for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three consecutive terms as
mayor which ended on June 30, 2001;
The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for
injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other
things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en
banc resolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No.
163295.
Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these
petitions. 
The recourse stemmed from the following essential and undisputed factual backdrop:

2. Hagedorns continuity of service as mayor was involuntarily interrupted from June 30, 2001 to
September 24, 2002 during which time he was a private citizen;
3. Hagedorns recall term from September 24, 2002 to June 30, 2004 cannot be made to
retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is
not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the right of the
electorate to choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The
temporary restraining order issued by this Court on September 24, 2002 enjoining the
proclamation of the winning candidate for mayor of Puerto Princesa in the recall election of
September 24, 2002 is lifted. No costs.
SO ORDERED.
EN BANC
Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were
candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the
May 10, 2004 elections. Francis was then the incumbent mayor. 
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify,
Deny Due Course and Cancel Certificate of Candidacy3 of Francis. Docketed as SPA Case No. 04-
048, the petition to disqualify was predicated on the three-consecutive term rule, Francis
having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections
and have assumed office as mayor and discharged the duties thereof for three (3) consecutive
full terms corresponding to those elections.
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for
the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently
proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest,
docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines
Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty
contest,4 albeit the decision came out only on July 4, 2001, when Francis had fully served the
1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as
mayor-elect of the municipality of San Vicente.

[G.R. NO. 163295 - January 23, 2006]
FRANCIS G. ONG, Petitioner, v. JOSEPH
ELECTIONS, Respondents.
[G.R. NO. 163354 - January 23, 2006]
ROMMEL G. ONG, Petitioner, v. JOSEPH
ELECTIONS, Respondents.
DECISION
Acting on Alegre's petition to disqualify and to cancel Francis' certificate of candidacy for the
May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a
resolution5 dismissing the said petition of Alegre, rationalizing as follows:
STANLEY ALEGRE and COMMISSION ON
We see the circumstances in the case now before us analogous to those obtaining in the sample
situations addressed by the Highest Court in the Borja case. Herein, one of the requisites for the
application of the three term rule is not present. Francis Ong might have indeed fully served the
mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however,
STANLEY ALEGRE and COMMISSION ON from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The
[RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it
held, in its decision that Stanley Alegre was the "legally elected mayor in the 1998 mayoralty
election in San Vicente, Camarines Norte." This disposition had become final after the
[COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic.

GARCIA, J.: xxx

Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable
and set aside certain issuances of the Commission on Elections (COMELEC) en banc.  in the case at bench, Ong could not be considered as having served as mayor from 1998 to
2001 because "he was not duly elected to the post; he merely assumed office as a presumptive
winner; which presumption was later overturned - when [the RTC] decided with finality that [he]
The first, docketed as G.R. No. 163295, is a Petition for Certiorari with petitioner Francis G. Ong
lost in the May 1998 elections." (Words in bracket and emphasis in the original).
impugning the COMELEC en banc resolution1 dated May 7, 2004 in SPA Case No. 04-048,
granting private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution
dated March 31, 20042 of the COMELEC's First Division.  Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there
was a misapplication of the three-term rule, as applied in the cited cases of Borja v.
Comelec and Lonzanida v. Comelec, infra.
31
On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution 6 reversing the
March 31, 2004 resolution of the COMELEC's First Division and thereby (a) declaring Francis "as
disqualified to run for mayor of San Vicente, Camarines Norte in the 'May 10, 2004"; (b)
ordering the deletion of Francis' name from the official list of candidates; and (c) directing the
concerned board of election inspectors not to count the votes cast in his favor.
The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004
resolution, sending him posthaste to seek the assistance of his political party, the Nationalist
People's Coalition, which immediately nominated his older brother, Rommel Ong (Rommel), as
substitute candidate. At about 5:05 p.m. of the very same day - which is past the deadline for
filing a certificate of candidacy, Rommel filed his own certificate of candidacy for the position of
mayor, as substitute candidate for his brother Francis. 
The following undisputed events then transpired:  consolidated.13
1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due
Course to or Cancel Certificate  of Rommel Ong.  Alegre's Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong, for
2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter7 to Provincial
Election Supervisor (PES) of Camarines Norte Liza Z. Cariño and Acting Election Officer Emily G.
Basilonia in which he appealed that, owing to the COMELEC's inaction on Alegre's petition to
cancel Rommel's certificate of candidacy, the name "Rommel Ong" be included in the official
certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was
granted by the PES Carino.
3. On May 10, 2004, Alegre wrote8 to then COMELEC Commissioner Virgilio Garcillano,
Commissioner-in-Charge for Regions IV and V, seeking clarification on the legality of the action
thus taken by the PES Cariño. Responding, Commissioner Garcillano issued a Memorandum
under date May 10, 20049 addressed to PES Liza D. Zabala-Cariño, ordering her to implement
the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004.10Said
Memorandum partly stated:
The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law
Department], which he quote your stand, "that substitution is not proper if the certificate of the
substituted candidacy is denied due course. In the Resolution of the Commission En banc, the
Certificate of candidacy of Francis Ong was denied due course," and elaborated further that:
"x x x there is an existing policy of the Commission not to include the name of a substitute
candidate in the certified list of candidates unless the substitution is approved by the
Commission.
In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel
Ong Gan Ong, should be denied due course; and 2) the election officer be directed to delete his
name from the list of candidates."
The above position of the Commission was in line with the pronouncement of Supreme Court in
Miranda v. Abaya (311 SCRA 617) which states:
"There can no valid substitution where a candidate is excluded not only by disqualification but
also by denial and cancellation of his certificate of candidacy."
In view thereof, you are hereby directed to faithfully implement the said Resolution of the
Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original;
words in bracket added].
4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of
the Municipal Board of Canvasser of San Vicente issued an order enjoining all concerned not to
canvass the votes cast for Rommel, prompting the latter to file a protest with that Board.11
5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning
candidate for the mayoralty post in San Vicente, Camarines Norte.12
On May 12, 2004, Francis filed before the Court a Petition for Certiorari, presently docketed as
G.R. No. 163295. His brother Rommel's petition in G.R. No. 163354 followed barely a week
after.
In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were
Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent
being moot and academic.14
The issues for resolution of the Court are:
In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing its en bancresolution dated May 7, 2004 declaring
petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the May
10, 2004 elections and consequently ordering the deletion of his name from the official list of
candidates so that any vote cast in his favor shall be considered stray.
In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied
due course to Rommel's certificate of candidacy in the same mayoralty election as substitute for
his brother Francis.
A resolution of the issues thus formulated hinges on the question of whether or not petitioner
Francis's assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term
1998 to 2001 should be considered as full service for the purpose of the three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other
hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as
Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elect in the May
1998 election was contested and eventually nullified per the decision of the RTC of Daet,
Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v.
Comelec15 ,  that a proclamation subsequently declared void is no proclamation at all and one
assuming office on the strength of a protested proclamation does so as a presumptive winner
and subject to the final outcome of the election protest. 
The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987
Constitution, which provides: 
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
Section 43 (b) of the Local Government Code restates the same rule as follows:
32
Sec. 43. Term of Office.
xxx
(b) No local elective official shall serve for more than three consecutive years in the same
position. Voluntary renunciation of the office for any length of time shall not be considered an
interruption in the continuity of service for the full term for which the elective official concerned
was elected.
For the three-term limit for elective local government officials to apply, two conditions or
requisites must concur, to wit: (1) that the official concerned has been elected for three (3)
consecutive terms in the same local government post, and (2) that he has fully served three (3)
consecutive terms.16
With the view we take of the case, the disqualifying requisites are present herein, thus
effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in
the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been
duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections
and serving the July 1, 1995 - June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full.
The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be
no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and
actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him
mayor-elect of the municipality of San Vicente. The question that begs to be addressed,
therefore, is whether or not Francis's assumption of office as Mayor of San Vicente, Camarines
Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the
context of the consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, "service for the full term", and
should be counted as a full term served in contemplation of the three-term limit prescribed by
the constitutional and statutory provisions, supra, barring local elective officials from being
elected and serving for more than three consecutive term for the same position.  milieu in those cases is different from the one obtaining here. Explicitly, the three-term limit
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,17 that it
was Francis' opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the
legally elected mayor of San Vicente. However, that disposition, it must be stressed, was
without practical and legal use and value, having been promulgated after the term of the
contested office has expired. Petitioner Francis' contention that he was only a presumptive
winner in the 1998 mayoralty derby as his proclamation was under protest did not make him
less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San
Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of
office and his continuous exercise of the functions thereof from start to finish of the term,
should legally be taken as service for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary
view would mean that Alegre would - under the three-term rule - be considered as having
served a term by virtue of a veritably meaningless electoral protest ruling, when another
actually served such term pursuant to a proclamation made in due course after an election.  substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were,
Petitioner cites, but, to our mind, cannot seek refuge from the Court's ruling in, Lonzanida v.
Comelec,18 citing Borja v. Comelec19 . In Lonzanida, petitioner Lonzanida was elected and served
for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995
elections. He then ran again for the same position in the May 1995 elections, won and
discharged his duties as Mayor. However, his opponent contested his proclamation and filed an
election protest before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled
that there was a failure of elections and declared the position vacant. The COMELEC affirmed
this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed
the office and performed his duties up to March 1998 only. Now, during the May 1998 elections,
Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term
rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be
considered as having been duly elected to the post in the May 1995 election, and that he did not
fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As
the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to
1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration
of the term."
The difference between the case at bench and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of
"failure of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-
elect was nullified, followed by an order for him to vacate the office of mayor. For another,
Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary
severance from office as a result of legal processes. In fine, there was an effective interruption
of the continuity of service. 
On the other hand, the failure-of-election factor does not obtain in the present case. But more
importantly, here, there was actually no interruption or break in the continuity of Francis'
service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during
the term in question; he never ceased discharging his duties and responsibilities as mayor of
San Vicente, Camarines Norte for the entire period covering the 1998-2001 term. 
The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en
banc when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty
post of San Vicente and denying due course to his certificate of candidacy by force of the
constitutional and statutory provisions regarding the three-term limit rule for any local elective
official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed
Resolution commends itself for concurrence: 
As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in
the Borja and Lonzanida cases in the instant petition will be erroneous because the factual
was not made applicable in the cases of Borja and Lonzanida because there was an
interruption in the continuity of service of the three consecutive terms. Here, Respondent Ong
would have served continuously for three consecutive terms, from 1995 to 2004. His full term
from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected
thereto on account of void proclamation because it would have iniquitous effects producing
outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a
crown of victory. (Word in bracket added; emphasis in the original)
Given the foregoing consideration, the question of whether or not then Commissioner Virgilio
Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering
the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its
finality20 is now of little moment and need not detain us any longer. 
Just as unmeritorious as Francis' petition in G.R. No. 163295 is Rommel's petition in G.R. No.
163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a
existing COMELEC policy21 provides for the non-inclusion of the name of substitute candidates in
the certified list of candidates pending approval of the substitution. 
Not to be overlooked is the Court's holding in Miranda v. Abaya,22 that a candidate whose
certificate of candidacy has been cancelled or not given due course cannot be substituted by
another belonging to the same political party as that of the former, thus:
33
While there is no dispute as to whether or not a nominee of a registered or accredited political
party may substitute for a candidate of the same party who had been disqualified for any cause,
this does not include those cases where the certificate of candidacy of the person to be
substituted had been denied due course and cancelled under Section 78 of the Code.

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

xxx

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

xxx

After having considered the importance of a certificate of candidacy, it can be readily

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

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

WHEREFORE, the instant petitions are DISMISSED and the assailed en bancResolution dated

May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED. 

Costs against petitioners. 

SO ORDERED.

34