G.R. No.

226792

SOFRONIO B. ALBANIA, Petitioner vs.COMMISSION ON ELECTIONS Promulgated: and EDGARDO A.

TALLADO, Respondent

Challenged in this petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Civil
Procedure is the Resolution 1 dated August 24, 2016 of the Commission on Elections (COMELEC) En
Banc which upheld the Resolution 2 dated April 22, 2016 of the COMELEC Second Division dismissing the
petition to deny due course to or to cancel respondent Edgardo A. Tallado's Certificate of Candidacy
(COC) for being filed out of time.

The facts are as follows:

In the May 14, 2007 National and Local Elections, respondent Edgardo A. Tallado and Jesus O. Typoco
were both candidates for the position of Governor in Camarines Norte. After the counting and
canvassing of votes, Typoco was proclaimed as the winner. Respondent questioned Typoco's
proclamation by filing with the COMELEC, a petition for correction of a manifest error. The Petition was
decided3 in respondent's favor on March 5, 2010 and the latter assumed the position of Governor of
Camarines Norte from March 22, 2010 to June 30, 2010, the end of the 2007-2010 term.

Respondent ran again in the 2010 4 and 2013 5 National and Local Elections where he won and served as
Governor of Camarines Norte, respectively.

On October 16, 2015, respondent filed his Certificate of Candidacy 6 as Governor of Camarines Norte in
the May 9, 2016 National and Local elections

On November 13, 2015, petitioner, a registered voter of Poblacion Sta. Elena, Camarines Norte, filed a
petition 7for respondent's disqualification from running as Governor based on Rule 25 of COMELEC
Resolution No. 9523 8on two grounds: (1) he violated the three term limit I rule under Section 43 of RA
No 7160, otherwise known as the Local Government Code of 1991 (LGC); and (2) respondent's
suspension froni office for one year without pay, together with its accessory penalties, after he was
found guilty of oppression and grave abuse of authority in the Ombudsman's Order9 dated October 2,
2015.

In his Verified Answer, respondent argued that since the petition was primarily based on his alleged
violation of the three-term limit rule, the same1 should have been filed as a petition to deny due course
to or cancel certificate of candidacy under Rule 23 of COMELEC Resolution 9523, in relation to Section 78
of the Omnibus Election Code, as the ground cited affected a candidate's eligibility; that based on
Section 23, the petition should had been filed on November 10, 2015, but the petition was filed only on
November 13, 2015, hence, the same had already prescribed and must be dismissed. His suspension
from office is also not a ground for a petition for disqualification. On the substantive issues, he denied
violating the three-term limit rule as he did not fully serve three consecutive terms since he only served
as Governor for the 2007 elections from March 22, 2010 to June 30, 2010.

On April 22, 2016, the COMELEC Second Division dismissed the petition for being filed out of time. It
ruled that a violation of the three-term limit rule and suspension from office as a result of an
administrative case are not grounds for disqualification of a candidate under the law; that the alleged

1
violation of three-term limit rule is a ground for ineligibility which constituted false material
representation under Section 78 of the OEC; and such petition must be filed within 25 days from the
time of filing of the COC, which respondent failed to do.

Petitioner filed a motion for reconsideration with the COMELEC En Banc, which dismissed the same in a
Resolution dated August 24, 2016.

The COMELEC En Banc echoed the Division's findings that the grounds relied upon by petitioner are not
proper for a petition for disqualification but one for denial of due course to or cancellation of
respondent's COC, which was filed out of time. It then continued to rule on the merits finding that
respondent did not serve the full 2007-2010 term as Governor of Camarines Norte, thus, cannot be
considered as one term for purposes of counting the three-term threshold; and that the ground for a
candidate's disqualification referred to by Section 40 (b) of the LGC is the actual removal from office as a
result of an administrative case, and not mere suspension as imposed by the Ombudsman.

Dissatisfied, petitioner is now before us in a petition for certiorari raising the following grounds, to wit:
Whether or not the respondent COMELEC acted with grave abuse of discretion amounting to lack of
jurisdiction.: (1) in ruling that the grounds relied upon are not proper grounds for a petition for
disqualification; (2) in ruling that even if the petition for disqualification is considered one for denial of
due course to or cancellation of private respondent Tallado's COC, the same is filed out of time; (3) in
failing to rule that private respondent Tallado should be disqualified pursuant to Section 43 of RA No.
7160 or the LGC; and (4) in failing to rule that private respondent Tallado should be disqualified due to
the Order dated October of the Ombudsman. 10

We find the petition without merit.

In a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court, the primordial issue
to be resolved is whether the respondent tribunal committed grave abuse of discretion amounting to
lack or excess ofjurisdiction in issuing the assailed resolution. 11 The term "grave abuse of discretion" is
defined as a capricious and whimsical exercise of judgment so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is
exercised in an arbitrary and despotic manner because of passion or hostility. 12 Grave abuse of
discretion arises when a court or tribunal violates the Constitution, the law or .existing
jurisprudence. 13 and as a matter of policy, this Court will not interfere with the resolutions of the
Comelec unless it is shown that it had committed grave abuse of discretion. Thus, in the absence of grave
abuse of discretion, a Rule 64 petition will not prosper. 14

The grounds for disqualification of a candidate are found under Sections 12 and 68 of Batas Pambansa
Blg. 881, as amended, otherwise known as the Omnibus Election Code of the Philippines, as well as
Section 40 of the Local Government Code, which respectively provide:

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.

2
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 or sentence, unless within the same period he again becomes
disqualified.

xxxx

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

xxxx

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

(a) Those sentence 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) Fugitive from justice in criminal or nonpolitical cases here or abroad;

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

(g) The insane or feeble-minded.

Petitioner filed the petition for disqualification of respondent on the grounds that he allegedly violated
the three-term limit rule provided under the Constitution and the LGC; and that he was suspended from
office as a result of an administrative case. Notably, however, a reading of the grounds enumerated
under the above-quoted provisions for a candidate's disqualification does not include the two grounds
relied upon by petitioner. Thus, the COMELEC Second Division was correct when it found that the
petition was not based on any of the grounds for disqualification as enumerated in the foregoing
statutory provisions.

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Respondent's suspension from office is indeed not a ground for a petition for disqualification as Section
40 (b) clearly speaks of removal from office as a result of an administrative offense that would disqualify
a candidate from running for any elective local position. In fact, the penalty of suspension cannot be a
bar to the candidacy of the respondent so suspended as long as he meets the qualifications for the office
as provided under Section 66(b) of R.A. No. 7160, to wit:

SEC. 66. Form and Notice of Decision. - x x x

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications for the office.

While the alleged violation of the three-term limit rule is not a ground for a petition for disqualification,
however, the COMELEC Second Division found that it is an ineligibility which is a proper ground for a
petition to deny due course to or to cancel a Certificate of Candidacy under Section 78 of the OEC, hence
considered the petition as such.

The Constitution has vested in the COMELEC broad powers, involving not only the enforcement and
administration of all laws and regulations relative to the conduct of elections, but also the resolution and
determination of election controversies. 15 It also granted the COMELEC the power and authority to
promulgate its rules of procedure, with the primary objective of ensuring the expeditious disposition of
election cases. 16Concomitant to such powers is the authority of the COMELEC to determine the true
nature of the cases filed before it. Thus, it examines the allegations of every pleading filed, obviously
aware that in determining the nature of the complaint or petition, its averments, rather than its
title/caption, are the proper· gauges. 17

Since the petition filed was a petition to deny due course to or to cancel a certificate of candidacy, such
petition must be filed within 25 days from the time of filing of the COC, as provided under Section 78 of
the Omnibus Election Code. However, as the COMELEC found, the petition was filed beyond the
reglementary period, and dismissed the petition for being filed out time. The COMELEC En Banc affirmed
such dismissal.

We agree.

The three-term limit rule is embodied in Section 8 of Article X of the Constitution, to wit:

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.

which is restated in Section 43 of the Local Government Code, thus:

Section 43. Term of Office. - (a) x x x

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

Section 74 of the OEC provides that 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. The word
"eligible" in Section 74 means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for the public office. 20 And We had held 21 that a
violation of the three-term limit rule is an ineligibility which is a proper ground for a petition to deny due
course to or to cancel a COC under Section 78 of the Omnibus Election Code, to wit:

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

As the petition filed is indeed a petition under Section 78 of the OEC, the filing of the same must comply
with the period prescribed therein, i.e., the filing of the same must be made not later than twenty-five
days from the time of the filing of the certificate of candidacy. 22 In this ca.se, respondent filed his COC
for Governor of Camarines Norte for the 2016 elections on October 16, 2015, and he had 25 days
therefrom to file the petition for denial of due course or cancellation of COC on the ground of violation
of the three-term limit rule, which fell on November 10, 2015. However, the petition was filed only on
November 13, 2015 which was already beyond the period to file the same; thus, find no grave abuse of
discretion committed by the COMELEC in dismissing the petition for being filed out of time.

Petitioner's insistence that the petition filed with the COMELEC was based on Rule 25 of COMELEC
Resolution No. 9523 which provides:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an action or protest in which he is a party, is declared by
final decision of a competent court, guilty of, or found by the Commission to be suffering from any
disqualification provided by law or the Constitution.

x x xx

Section 3. Period to File Petition. - The Petition shall be filed any day after the last day for filing of
certificates of candidacy, but not later than the date of proclamation.

is not meritorious. Rule 25 of Comelec Resolution No. 9523 refers to disqualification of candidates and
the grounds thereof, which are those provided in Sections 12 and 68 of the OEC and Section 40 of the
LGC, as quoted in the early part of the decision. To reiterate, a violation of the three-term limit rule is not
included among the grounds for disqualification, but a ground for a petition to deny due course to or
cancel certificate of candidacy; thus, it is Rule 23 of COMELEC Resolution No. 9523 which is applicable,
and We quote:

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Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy

Section 1. Ground for Denial or Cancellation of Certificate of Candidacy. - A verified Petition to Deny Due
Course to or Cancel a Certificate of Candidacy for any elective office may be filed by any registered voter
or a duly registered political party, organization, or coalition of political parties on the exclusive ground
that any material representation contained therein as required by law is false.

Section 2. Period to File Petition. - The Petition must be filed within five (5) days from the last day for
filing of certificate of candidacy; but not later than twenty five (25) days from the time of filing of the
certificate of candidacy subject of the Petition. In case of a substitute candidate, the Petition must be
filed within five (5) days from the time the substitute candidate filed his certificate of candidacy.

We, likewise, find no grave abuse of discretion committed by the COMELEC En Banc when it found that
the petition to deny due course to or cancel a COC will not also prosper as there was no violation of the
three-term limit rule. Petitioner alleges that since respondent had already been elected and had served
as Governor of Camarines Norte for three consecutive terms, i.e., 2007, 2010, and 2013, he is proscribed
from running for the same position in the 2016 elections as it would already be his fourth consecutive
term.

We are not convinced.

We held that two conditions must concur for the application of the disqualification of a candidate based
on violation of the three-term limit rule, which are: (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. 23

In Aldovino, Jr. v. Commission on Elections, 24 we said: 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. x x 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, 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.

A later case, Gaminde v. Commission on Audit, reiterated that 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. 25

In this case, while respondent ran as Governor of Camarines Norte in the 2007 elections, he did not win
as such. It was only after he filed la petition for correction of manifest error that he was proclaimed as

6
the duly-elected Governor. He assumed the post and served the unexpired term of his opponent from
March 22, 2010 until June 30, 2010. Consequently, he did not hold the office for the full term of three
years to which he was supposedly entitled to. Thus, such period of time that respondent served as
Governor did not constitute a complete and full service of his term. The period when he was out of office
involuntarily interrupted the continuity of his service as Governor.26 As he had not fully served the 2007-
2010 term, and had not been elected for three consecutive terms as Governor, there was no violation of
the three-term limit rule when he ran again in the 2016 elections.

We quote with approval the COMELEC En Banc's ruling on the matter as follows:

x x xx

The Supreme Court has ruled in several occasions that in.order for the ineligibility under the "three-term
limit rule" to apply, two conditions must concur: first, that the official concerned has been elected for
three consecutive terms in the same local government post; and second, that he has fully served three
consecutive terms.

While it is undisputed that respondent was duly elected as Governor of Camarines Norte for three
consecutive terms, the issue lies on whether he is deemed to have fully served his first term, specifically,
whether the service by an elected official of a term less than the full three years arising from his being
declared as the duly elected official in an election contest is considered full service of the term for
purposes of counting the three-term threshold.

The facts involved in the present case are similar to those involved

in Abundo v. COMELEC, where the Court declared:

There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision of
the election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and served
the term until June 30, 2007 or for a period of a little over one year and one month. xxx It cannot be said
that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise
entitled.

Xxx

Needless to stress, the almost two-year period during which Abundo 's opponent actually served as
Mayor is and ought to be considered an involuntary interruption of Abundo 's continuity of service. An
involuntary interrupted term,

cannot, in the context of the disqualification rule, be considered as one term for purposes of counting
the threeterm threshold.

Xxx

As previously stated, the declaration of being the winner in an election protest grants the local elected
official the right to serve the unexpired portion of the term.1âwphi1 Verily, while he was declared the
winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo's full term has been

7
substantially reduced by the actual service rendered by his dpponent (Torres). Hence, there was actual
involuntary interruption in the term of Abundo and he cannot be considered to have served the full
2004-2007 term.

Applying the foregoing in the instant case, since Respondent did not serve the full 2007-2010 term, it
cannot be considered as one term for purposes of counting the three-term threshold. Consequently,
Respondent cannot be said to have continuously served as Governor for three consecutive terms prior to
the 2016 elections.

WHEREFORE, the petition is DENIED. The Resolution dated August 24, 2016 of the Commission on
Elections En Banc is hereby AFFIRMED.

G.R. No. 201716 January 8, 2013

MAYOR ABELARDO ABUNDO, SR., Petitioner, vs.COMMISSION ON ELECTIONS and ERNESTO R.

VEGA, Respondents.

The Case

In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo) assails and seeks
to nullify (1) the February 8, 2012 Resolution 1 of the Second Division, Commission on Elections
(COMELEC), in EAC (AE) No. A-25-2010 and (2) the May 10, 2012 Resolution 2 of the COMELEC en banc
affirming that division’s disposition. The assailed issuances, in turn, affirmed the Decision of the Regional
Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55
declaring Abundo as ineligible, under the three-term limit rule, to run in the 2010 elections for the
position of, and necessarily to sit as, Mayor of Viga, Catanduanes.

The antecedent facts are undisputed.

For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national and local
elections, Abundo vied for the position of municipal mayor of Viga, Catanduanes. In both the 2001 and
2007 runs, he emerged and was proclaimed as the winning mayoralty candidate and accordingly served
the corresponding terms as mayor. In the 2004 electoral derby, however, the Viga municipal board of
canvassers initially proclaimed as winner one Jose Torres (Torres), who, in due time, performed the
functions of the office of mayor. Abundo protested Torres’ election and proclamation. Abundo was
eventually declared the winner of the 2004 mayoralty electoral contest, paving the way for his
assumption of office starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a
period of a little over one year and one month.

Then came the May 10, 2010 elections where Abundo and Torres again opposed each other. When
Abundo filed his certificate of candidacy3 for the mayoralty seat relative to this electoral contest, Torres
lost no time in seeking the former’s disqualification to run, the corresponding petition, 4 docketed as SPA
Case No. 10-128 (DC), predicated on the three-consecutive term limit rule. On June 16, 2010, the
COMELEC First Division issued a Resolution5 finding for Abundo, who in the meantime bested Torres by
219 votes6 and was accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.

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Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted disqualification case
Torres initiated against Abundo, herein private respondent Ernesto R. Vega (Vega) commenced a quo
warranto7 action before the RTC-Br. 43 in Virac, Catanduanes, docketed as Election Case No. 55, to
unseat Abundo on essentially the same grounds Torres raised in his petition to disqualify.

The Ruling of the Regional Trial Court

By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve as
municipal mayor, disposing as follows:

WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo Abundo, Sr.
ineligible to serve as municipal mayor of Viga, Catanduanes.

SO ORDERED.9

In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC, 10 found Abundo to have already served three
consecutive mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-2010, and, hence, disqualified for
another, i.e., fourth, consecutive term. Abundo, the RTC noted, had been declared winner in the
aforesaid 2004 elections consequent to his protest and occupied the position of and actually served as
Viga mayor for over a year of the remaining term, i.e., from May 9, 2006 to June 30, 2007, to be exact. To
the RTC, the year and a month service constitutes a complete and full service of Abundo’s second term
as mayor.

Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-25-2010.

The Ruling of the COMELEC

On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELEC’s Second Division rendered the first
assailed Resolution, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73, Virac,
Catanduanes is AFFIRMED and the appeal is DISMISSED for lack of merit.

SO ORDERED.11

Just like the RTC, the COMELEC’s Second Division ruled against Abundo on the strength of Aldovino, Jr.
and held that service of the unexpired portion of a term by a protestant who is declared winner in an
election protest is considered as service for one full term within the contemplation of the three-term
limit rule.

In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its equally assailed
Resolution of May 10, 2012. The fallo of the COMELEC en banc’s Resolution reads as follows:

WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of merit. The
Resolution of the Commission (Second Division) is hereby AFFIRMED.

SO ORDERED.12

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In affirming the Resolution of its Second Division, the COMELEC en banc held in essence the following:
first, there was no involuntary interruption of Abundo’s 2004-2007 term service which would be an
exception to the three-term limit rule as he is considered never to have lost title to the disputed office
after he won in his election protest; and second, what the Constitution prohibits is for an elective official
to be in office for the same position for more than three consecutive terms and not to the service of the
term.

Hence, the instant petition with prayer for the issuance of a temporary restraining order (TRO) and/or
preliminary injunction.

Intervening Events

In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution denying
Abundo’s motion for reconsideration, the following events transpired:

1. On June 20, 2012, the COMELEC issued an Order 13 declaring its May 10, 2012 Resolution final
and executory. The following day, June 21, 2012, the COMELEC issued an Entry of Judgment. 14

2. On June 25, 2012, Vega filed a Motion for Execution 15 with the RTC-Br. 43 in Virac,
Catanduanes.

3. On June 27, 2012, the COMELEC, acting on Vega’s counsel’s motion 16 filed a day earlier, issued
an Order17 directing the bailiff of ECAD (COMELEC) to personally deliver the entire records to said
RTC.

On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire records of the
instant case to, and were duly received by, the clerk of court of RTC-Br. 43.

4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-Br. 43 in Virac,
Catanduanes granted Vega’s Motion for Execution through an Order 18 of even date. And a Writ of
Execution19 was issued on the same day.

5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served the same at the
office of Mayor Abundo on the same day via substituted service.

6. On July 3, 2012, the Court issued a TRO 20 enjoining the enforcement of the assailed COMELEC
Resolutions.

7. On July 4, 2012, Vega received the Court’s July 3, 2012 Resolution 21 and a copy of the TRO. On
the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes of Viga,
Catanduanes took their oaths of office22 as mayor and vice-mayor of Viga, Catanduanes,
respectively.

8. On July 5, 2012, Vega received a copy of Abundo’s Seventh (7th) Most Extremely Urgent
Manifestation and Motion23 dated June 28, 2012 praying for the issuance of a TRO and/or status
quo ante Order. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O.

10
 Cervantes––who had taken their oaths of office the day before—assumed the posts of mayor
and vice-mayor of Viga, Catanduanes.24

9. On July 6, 2012, Vega interposed a Motion (To Admit Attached Manifestation) 25 and
Manifestation with Leave to Admit26 dated July 5, 2012 stating that the TRO thus issued by the
Court has become functus officio owing to the execution of the RTC’s Decision in Election Case
No. 55.

10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the Petitioner’s Prayer
for the Issuance of a Status Quo Ante Order 27 reiterating the argument that since Vice-Mayor
Emeterio M. Tarin and First Councilor Cesar O. Cervantes already assumed the posts of Mayor
and Vice-Mayor of Viga, Catanduanes, then a Status Quo Ante Order would serve no purpose.

11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to Convert the July
3, 2012 TRO into a Status Quo Ante Order (In View of the Unreasonable and Inappropriate
Progression of Events).28

It is upon the foregoing backdrop of events that Abundo was dislodged from his post as incumbent
mayor of Viga, Catanduanes. To be sure, the speed which characterized Abundo’s ouster despite the
supervening issuance by the Court of a TRO on July 3, 2012 is not lost on the Court. While it is not clear
whether Vice-Mayor Tarin and First Councilor Cervantes knew of or put on notice about the TRO either
before they took their oaths of office on July 4, 2012 or before assuming the posts of mayor and vice-
mayor on July 5, 2012, the confluence of events following the issuance of the assailed COMELEC en banc
irresistibly tends to show that the TRO––issued as it were to maintain the status quo, thus averting the
premature ouster of Abundo pending this Court’s resolution of his appeal––appears to have been
trivialized.

On September 11, 2012, Vega filed his Comment on Abundo’s petition, followed not long after by public
respondent COMELEC’s Consolidated Comment.29

The Issues

Abundo raises the following grounds for the allowance of the petition:

6.1 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared the arguments in Abundo’s motion for reconsideration as mere
rehash and reiterations of the claims he raised prior to the promulgation of the Resolution.

6.2 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared that Abundo has consecutively served for three terms despite the
fact that he only served the remaining one year and one month of the second term as a result of
an election protest.30

First Issue:

Arguments in Motion for Reconsideration Not Mere Reiteration

11
The COMELEC en banc denied Abundo’s motion for reconsideration on the basis that his arguments in
said motion are mere reiterations of what he already brought up in his appeal Brief before the COMELEC
Second Division. In this petition, petitioner claims otherwise.

Petitioner’s assertion is devoid of merit.

A comparison of Abundo’s arguments in the latter’s Brief vis-à-vis those in his Motion for
Reconsideration (MR) reveals that the arguments in the MR are elucidations and amplications of the
same issues raised in the brief. First, in his Brief, Abundo raised the sole issue of lack of jurisdiction of the
RTC to consider the quo warranto case since the alleged violation of the three-term limit has already
been rejected by the COMELEC First Division in SPA Case No. 10-128 (DC), while in his MR, Abundo raised
the similar ground of the conclusiveness of the COMELEC’s finding on the issue of his qualification to run
for the current term. Second, in his Brief, Abundo assailed RTC’s reliance on Aldovino, Jr., while in his MR,
he argued that the Court’s pronouncement in Aldovino, Jr., which dealt with preventive suspension, is
not applicable to the instant case as it involves only a partial service of the term. Abundo argued in his
Brief that his situation cannot be equated with the case of preventive suspension as held in Aldovino, Jr.,
while in his MR, he argued before that the almost two years which he did not sit as mayor during the
2004-2007 term is an interruption in the continuity of his service for the full term.

Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the Brief.

Core Issue:

Whether or not Abundo is deemed to have served three consecutive terms

The pivotal determinative issue then is whether the service of a term less than the full three years by an
elected official arising from his being declared as the duly elected official upon an election protest is
considered as full service of the term for purposes of the application of the three consecutive term limit
for elective local officials.

On this core issue, We find the petition meritorious. The consecutiveness of what otherwise would have
been Abundo’s three successive, continuous mayorship was effectively broken during the 2004-2007
term when he was initially deprived of title to, and was veritably disallowed to serve and occupy, an
office to which he, after due proceedings, was eventually declared to have been the rightful choice of the
electorate.

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

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

and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC) of
1991, thusly:

12
Sec. 43. Term of Office. —

xxxx

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

To constitute a disqualification to run for an elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following requisites must concur:

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

(2) that he has fully served three consecutive terms. 31

Judging from extant jurisprudence, the three-term limit rule, as applied to the different factual milieus,
has its complicated side. We shall revisit and analyze the various holdings and relevant pronouncements
of the Court on the matter.

As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC, voluntary
renunciation of the office by the incumbent elective local official for any length of time shall NOT, in
determining service for three consecutive terms, be considered an interruption in the continuity of
service for the full term for which the elective official concerned was elected. In Aldovino, Jr., however,
the Court stated the observation that the law "does not textually state that voluntary renunciation is the
only actual interruption of service that does not affect ‘continuity of service for a full term’ for purposes
of the three-term limit rule."32

As stressed in Socrates v. Commission on Elections,33 the principle behind the three-term limit rule
covers only consecutive terms and that what the Constitution prohibits is a consecutive fourth term. Put
a bit differently, an elective local official cannot, following his third consecutive term, seek immediate
reelection for a fourth term,34albeit he is allowed to seek a fresh term for the same position after the
election where he could have sought his fourth term but prevented to do so by reason of the prohibition.

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

While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes
resulting from the varying interpretations applied on local officials who were elected and served for
three terms or more, but whose terms or service was punctuated by what they view as involuntary

13
interruptions, thus entitling them to a, but what their opponents perceive as a proscribed, fourth term.
Involuntary interruption is claimed to result from any of these events or causes: succession or
assumption of office by operation of law, preventive suspension, declaration of the defeated candidate
as the winner in an election contest, declaration of the proclaimed candidate as the losing party in an
election contest, proclamation of a non-candidate as the winner in a recall election, removal of the
official by operation of law, and other analogous causes.

This brings us to an examination of situations and jurisprudence wherein such consecutive terms were
considered or not considered as having been "involuntarily interrupted or broken."

(1) Assumption of Office by Operation of Law

In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr. 35 (1998) and Montebon v. Commission on
Elections36 (2008), the Court delved on the effects of "assumption to office by operation of law" on the
three-term limit rule. This contemplates a situation wherein an elective local official fills by succession a
higher local government post permanently left vacant due to any of the following contingencies, i.e.,
when the supposed incumbent refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office. 37

In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for a term
ending June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law, upon the death
of the incumbent mayor, Cesar Borja. Capco was then elected and served as mayor for terms 1992-1995
and 1995-1998. When Capco expressed his intention to run again for the mayoralty position during the
1998 elections, Benjamin U. Borja, Jr., who was then also a candidate for mayor, sought Capco’s
disqualification for violation of the three-term limit rule.

Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an
individual has served three consecutive terms in an elective local office, he must also have been elected
to the same position for the same number of times before the disqualification can apply." 38 There was,
the Court ruled, no violation of the three-term limit, for Capco "was not elected to the office of the
mayor in the first term but simply found himself thrust into it by operation of law" 39 when a permanent
vacancy occurred in that office.

The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been elected
for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and
2004-2007. However, in January 2004, or during his second term, Montebon succeeded and assumed
the position of vice-mayor of Tuburan when the incumbent vice-mayor retired. When Montebon filed his
certificate of candidacy again as municipal councilor, a petition for disqualification was filed against him
based on the three-term limit rule. The Court ruled that Montebon’s assumption of office as vice-mayor
in January 2004 was an interruption of his continuity of service as councilor. The Court emphasized that
succession in local government office is by operation of law and as such, it is an involuntary severance
from office. Since the law no less allowed Montebon to vacate his post as councilor in order to assume
office as vice-mayor, his occupation of the higher office cannot, without more, be deemed as a voluntary
renunciation of his position as councilor.

(2) Recall Election

14
With reference to the effects of recall election on the continuity of service, Adormeo v. Commission on
Elections40(2002) and the aforementioned case of Socrates (2002) provide guidance.

In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during terms
1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao. However, before
Tagarao’s 1998-2001 term ended, a recall election was conducted in May 2000 wherein Talaga won and
served the unexpired term of Tagarao until June 2001. When Talaga ran for mayor in 2001, his candidacy
was challenged on the ground he had already served as mayor for three consecutive terms for violation
of the three term-limit rule. The Court held therein that the remainder of Tagarao’s term after the recall
election during which Talaga served as mayor should not be considered for purposes of applying the
three-term limit rule. The Court emphasized that the continuity of Talaga’s mayorship was disrupted by
his defeat during the 1998 elections.

A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the
COMELEC Resolution which declared Edward Hagedorn qualified to run for mayor in a recall election. It
appeared that Hagedorn had been elected and served as mayor of Puerto Princesa City for three
consecutive terms: in 1992-1995, 1995-1998 and 1998-2001. Obviously aware of the three-term limit
principle, Hagedorn opted not to vie for the same mayoralty position in the 2001 elections, in which
Socrates ran and eventually won. However, midway into his term, Socrates faced recall proceedings and
in the recall election held, Hagedorn run for the former’s unexpired term as mayor. Socrates sought
Hagedorn’s disqualification under the three-term limit rule.

In upholding Hagedorn’s candidacy to run in the recall election, the Court ruled:

x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall
election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was
Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorn’s service as mayor, not because of his voluntary renunciation,
but because of a legal prohibition. 41

The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular election for the same
office following the end of the third consecutive term and, hence, any subsequent election, like recall
election, is no longer covered x x x."42

(3) Conversion of a Municipality into a City

On the other hand, the conversion of a municipality into a city does not constitute an interruption of the
incumbent official’s continuity of service. The Court said so in Latasa v. Commission on Elections 43 (2003).

Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of the
Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third
term, Digos was converted into a component city, with the corresponding cityhood law providing the
holdover of elective officials. When Latasa filed his certificate of candidacy as mayor for the 2001

15
elections, the Court declared Latasa as disqualified to run as mayor of Digos City for violation of the
three-term limit rule on the basis of the following ratiocination:

This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the said
office has been deemed abolished due to the conversion. However, the very instant he vacated his office
as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein,
for even just a short period of time, stepped down from office, petitioner Latasa never ceased from
acting as chief executive of the local government unit. He never ceased from discharging his duties and
responsibilities as chief executive of Digos.

(Emphasis supplied.)

(4) Period of Preventive Suspension

In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a local
elected official is under preventive suspension cannot be considered as an interruption of the continuity
of his service. The Court explained why so:

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should
not be considered an interruption that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended official continues to
stay in office although he is barred from exercising the functions and prerogatives of the office within the
suspension period. The best indicator of the suspended official’s continuity in office is the absence of a
permanent replacement and the lack of the authority to appoint one since no vacancy
exists.44 (Emphasis supplied.)

(5) Election Protest

With regard to the effects of an election protest vis-à-vis the three-term limit rule, jurisprudence
presents a more differing picture. The Court’s pronouncements in Lonzanida v. Commission on
Elections45 (1999), Ong v. Alegre46(2006), Rivera III v. Commission on Elections47 (2007) and Dizon v.
Commission on Elections48 (2009), all protest cases, are illuminating.

In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio,
Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to the
1995 election was protested and was eventually declared by the RTC and then by COMELEC null and void
on the ground of failure of elections. On February 27, 1998, or about three months before the May 1998
elections, Lonzanida vacated the mayoralty post in light of a COMELEC order and writ of execution it
issued. Lonzanida’s opponent assumed office for the remainder of the term. In the May 1998 elections,
Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli, filed a petition for
disqualification on the ground that Lonzanida had already served three consecutive terms in the same
post. The Court, citing Borja Jr., reiterated the two (2) conditions which must concur for the three-term
limit to apply: "1) that the official concerned has been elected for three consecutive terms in the same
local government post and 2) that he has fully served three consecutive terms." 49

In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of Lonzanida.
The Court held that Lonzanida cannot be considered as having been duly elected to the post in the May

16
1995 elections since his assumption of office as mayor "cannot be deemed to have been by reason of a
valid election but by reason of a void proclamation." And as a corollary point, the Court stated that
Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before
the expiration of the term, a situation which amounts to an involuntary relinquishment of office.This
Court deviated from the ruling in Lonzanida in Ong v. Alegre 50owing to a variance in the factual situations
attendant.

In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte for
terms 1995-1998, 1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his
supposed second term, the COMELEC nullified Ong’s proclamation on the postulate that Ong lost during
the 1998 elections. However, the COMELEC’s decision became final and executory on July 4, 2001, when
Ong had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-
2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his certificate of
candidacy for the same position as mayor, which his opponent opposed for violation of the three-term
limit rule.

Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served as
mayor from 1998-2001 because he was not duly elected to the post and merely assumed office as a
"presumptive winner." Dismissing Ong’s argument, the Court held that his assumption of office as mayor
for the term 1998-2001 constitutes "service for the full term" and hence, should be counted for
purposes of the three-term limit rule. The Court modified the conditions stated in Lonzanida in the sense
that Ong’s service was deemed and counted as service for a full term because Ong’s proclamation was
voided only after the expiry of the term. The Court noted that the COMELEC decision which declared
Ong as not having won the 1998 elections was "without practical and legal use and value" promulgated
as it was after the contested term has expired. The Court further reasoned:

Petitioner Francis Ong’s contention that he was only a presumptive winner in the 1998 mayoralty derby
as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation
as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the term, should legally be taken as
service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view
would mean that Alegre would – under the three-term rule - be considered as having served a term by
virtue of a veritably meaningless electoral protest ruling, when another actually served such term
pursuant to a proclamation made in due course after an election. 51 (Emphasis supplied.)

The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit:

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the
result of the mayoralty election was declared a nullity for the stated reason of "failure of election", and,
as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an
order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998
mayoral term, there being an involuntary severance from office as a result of legal processes. In fine,
there was an effective interruption of the continuity of service. 52 (Emphasis supplied.)

17
Ong’s slight departure from Lonzanida would later find reinforcement in the consolidated cases of Rivera
III v. Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor of Mabalacat,
Pampanga for the following consecutive terms: 1995-1998, 1998-2001 and 2001-2004. In relation to the
2004 elections, Morales again ran as mayor of the same town, emerged as garnering the majority votes
and was proclaimed elective mayor for term commencing July 1, 2004 to June 30, 2007. A petition for
quo warranto was later filed against Morales predicated on the ground that he is ineligible to run for a
"fourth" term, having served as mayor for three consecutive terms. In his answer, Morales averred that
his supposed 1998-2001 term cannot be considered against him, for, although he was proclaimed by the
Mabalacat board of canvassers as elected mayor vis-à-vis the 1998 elections and discharged the duties of
mayor until June 30, 2001, his proclamation was later nullified by the RTC of Angeles City and his closest
rival, Anthony Dee, proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea
that he only served as a mere caretaker.

The Court found Morales’ posture untenable and held that the case of Morales presents a factual milieu
similar with Ong, not with Lonzanida. For ease of reference, the proclamation of Francis Ong, in Ong, was
nullified, but after he, like Morales, had served the three-year term from the start to the end of the term.
Hence, the Court concluded that Morales exceeded the three-term limit rule, to wit:

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

xxxx

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously
without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of
Mabalacat for twelve (12) continuous years.55 (Emphasis supplied.)

The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term, cannot
constitute an interruption in Morales’ service of the full term; neither can Morales, as he argued, be
considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of applying the
three-term limit rule.

In a related 2009 case of Dizon v. Commission on Elections, 56 the Court would again find the same Mayor
Morales as respondent in a disqualification proceeding when he ran again as a mayoralty candidate
during the 2007 elections for a term ending June 30, 2010. Having been unseated from his post by virtue
of this Court’s ruling in Rivera, Morales would argue this time around that the three-term limit rule was
no longer applicable as to his 2007 mayoralty bid. This time, the Court ruled in his favor, holding that for
purposes of the 2007 elections, the three-term limit rule was no longer a disqualifying factor as against
Morales. The Court wrote:

Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to the
2004-2007 term. Involuntary severance from office for any length of time short of the full term provided
by law amounts to an interruption of continuity of service. Our decision in the Rivera case was
promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the vice

18
mayor’s office of our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to
30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short it may
seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales did not hold office for the full
term of 1 July 2004 to 30 June 2007. 57 (Emphasis supplied)

To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of terms
and/or involuntary interruption, viz:

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

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

3. The abolition of an elective local office due to the conversion of a municipality to a city does
not, by itself, work to interrupt the incumbent official’s continuity of service (Latasa).

4. Preventive suspension is not a term-interrupting event as the elective officer’s continued stay
and entitlement to the office remain unaffected during the period of suspension, although he is
barred from exercising the functions of his office during this period (Aldovino, Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes office, his
term is interrupted when he loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need not
be for a full term of three years or for the major part of the 3-year term; an interruption for any
length of time, provided the cause is involuntary, is sufficient to break the continuity of service
(Socrates, citing Lonzanida).

6. When an official is defeated in an election protest and said decision becomes final after said
official had served the full term for said office, then his loss in the election contest does not
constitute an interruption since he has managed to serve the term from start to finish. His full
service, despite the defeat, should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the term (Ong and Rivera).

The Case of Abundo

Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had already served three
consecutive terms and is, thus, barred by the constitutional three-term limit rule to run for the current
2010-2013 term. In gist, Abundo arguments run thusly:

19
 1. Aldovino, Jr. is not on all fours with the present case as the former dealt with preventive
suspension which does not interrupt the continuity of service of a term;

2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so as to remove
him from the reach of the constitutional three-term limitation;

3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its reliance on a mere
portion of the Decision and not on the unified logic in the disquisition;

4. Of appropriate governance in this case is the holding in Lonzanida 58 and Rivera III v.
Commission on Elections.59

5. The COMELEC missed the point when it ruled that there was no interruption in the service of
Abundo since what he considered as an "interruption" of his 2004-2007 term occurred before
his term started; and

6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid was
interrupted while that of the protestant (Abundo) who was eventually proclaimed winner was
not so interrupted is at once absurd as it is illogical.

Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr. finds
application in the instant case. The COMELEC ruled that Abundo did not lose title to the office as his
victory in the protest case confirmed his entitlement to said office and he was only unable to temporarily
discharge the functions of the office during the pendency of the election protest.

We note that this present case of Abundo deals with the effects of an election protest, for which the
rulings in Lonzanida, Ong, Rivera and Dizon appear to be more attuned than the case of Aldovino Jr., the
interrupting effects of the imposition of a preventive suspension being the very lis mota in the Aldovino,
Jr. case. But just the same, We find that Abundo’s case presents a different factual backdrop.

Unlike in the abovementioned election protest cases wherein the individuals subject of disqualification
were candidates who lost in the election protest and each declared loser during the elections, Abundo
was the winner during the election protest and was declared the rightful holder of the mayoralty post.
Unlike Mayor Lonzanida and Mayor Morales, who were both unseated toward the end of their
respective terms, Abundo was the protestant who ousted his opponent and had assumed the remainder
of the term.

Notwithstanding, We still find this Court’s pronouncements in the past as instructive, and consider
several doctrines established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino Jr. in
2009, as potent aids in arriving at this Court’s conclusion.

The intention behind the three-term limit rule was not only to abrogate the "monopolization of political
power" and prevent elected officials from breeding "proprietary interest in their position" 60 but also to
"enhance the people’s freedom of choice." 61 In the words of Justice Vicente V. Mendoza, "while people
should be protected from the evils that a monopoly of power may bring about, care should be taken that
their freedom of choice is not unduly curtailed." 62

20
In the present case, the Court finds Abundo’s case meritorious and declares that the two-year period
during which his opponent, Torres, was serving as mayor should be considered as an interruption, which
effectively removed Abundo’s case from the ambit of the three-term limit rule.

It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July 1, 2004 to
June 30, 2007, was the duly elected mayor. Otherwise how explain his victory in his election protest
against Torres and his consequent proclamation as duly elected mayor. Accordingly, the first requisite for
the application of the disqualification rule based on the three-term limit that the official has been
elected is satisfied.

This thus brings us to the second requisite of whether or not Abundo had served for "three consecutive
terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes immediately before the
2010 national and local elections. Subsumed to this issue is of course the question of whether or not
there was an effective involuntary interruption during the three three-year periods, resulting in the
disruption of the continuity of Abundo’s mayoralty.

The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007 term.

There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision of
the election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and served
the term until June 30, 2007 or for a period of a little over one year and one month. Consequently, unlike
Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be said that Mayor Abundo was able to serve
fully the entire 2004-2007 term to which he was otherwise entitled.

A "term," as defined in Appari v. Court of Appeals, 63 means, in a legal sense, "a fixed and definite period
of time which the law describes that an officer may hold an office." 64 It also means the "time during
which the officer may claim to hold office as a matter of right, and fixes the interval after which the
several incumbents shall succeed one another." 65 It is the period of time during which a duly elected
official has title to and can serve the functions of an elective office. From paragraph (a) of Sec. 43, RA
7160,66 the term for local elected officials is three (3) years starting from noon of June 30 of the first year
of said term.

In the present case, during the period of one year and ten months, or from June 30, 2004 until May 8,
2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold office of the mayor as a
matter of right. Neither can he assert title to the same nor serve the functions of the said elective office.
The reason is simple: during that period, title to hold such office and the corresponding right to assume
the functions thereof still belonged to his opponent, as proclaimed election winner. Accordingly, Abundo
actually held the office and exercised the functions as mayor only upon his declaration, following the
resolution of the protest, as duly elected candidate in the May 2004 elections or for only a little over one
year and one month. Consequently, since the legally contemplated full term for local elected officials is
three (3) years, it cannot be said that Abundo fully served the term 2004-2007. The reality on the ground
is that Abundo actually served less.

Needless to stress, the almost two-year period during which Abundo’s opponent actually served as
Mayor is and ought to be considered an involuntary interruption of Abundo’s continuity of service. An
involuntary interrupted term, cannot, in the context of the disqualification rule, be considered as one
term for purposes of counting the three-term threshold. 67

21
The notion of full service of three consecutive terms is related to the concepts of interruption of service
and voluntary renunciation of service. The word interruption means temporary cessation, intermission
or suspension.68To interrupt is to obstruct, thwart or prevent. 69 When the Constitution and the LGC of
1991 speak of interruption, the reference is to the obstruction to the continuance of the service by the
concerned elected official by effectively cutting short the service of a term or giving a hiatus in the
occupation of the elective office. On the other hand, the word "renunciation" connotes the idea of
waiver or abandonment of a known right. To renounce is to give up, abandon, decline or
resign.70 Voluntary renunciation of the office by an elective local official would thus mean to give up or
abandon the title to the office and to cut short the service of the term the concerned elected official is
entitled to.

In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr., 71 held:

It must be stressed that involuntary interruption of service which jurisprudence deems an exception to
the three-term limit rule, implies that the service of the term has begun before it was interrupted. Here,
the respondent did not lose title to the office. As the assailed Resolution states:

In the case at bar, respondent cannot be said to have lost his title to the office. On the contrary, he
actively sought entitlement to the office when he lodged the election protest case. And respondent-
appellant’s victory in the said case is a final confirmation that he was validly elected for the mayoralty
post of Viga, Catanduanes in 2004-2007. At most, respondent-appellant was only unable to temporarily
discharge the functions of the office to which he was validly elected during the pendency of the election
protest, but he never lost title to the said office. 72 (Emphasis added.)

The COMELEC’s Second Division, on the other hand, pronounced that the actual length of service by the
public official in a given term is immaterial by reckoning said service for the term in the application of the
three-term limit rule, thus:

As emphasized in the case of Aldovino, "this formulation—no more than three consecutive terms—is a
clear command suggesting the existence of an inflexible rule." Therefore we cannot subscribe to the
argument that since respondent Abundo served only a portion of the term, his 2004-2007 "term" should
not be considered for purposes of the application of the three term limit rule. When the framers of the
Constitution drafted and incorporated the three term limit rule, it is clear that reference is to the term,
not the actual length of the service the public official may render. Therefore, one’s actual service of term
no matter how long or how short is immaterial. 73

In fine, the COMELEC ruled against Abundo on the theory that the length of the actual service of the
term is immaterial in his case as he was only temporarily unable to discharge his functions as mayor.

The COMELEC’s case disposition and its heavy reliance on Aldovino, Jr. do not commend themselves for
concurrence. The Court cannot simply find its way clear to understand the poll body’s determination that
Abundo was only temporarily unable to discharge his functions as mayor during the pendency of the
election protest.

As previously stated, the declaration of being the winner in an election protest grants the local elected
official the right to serve the unexpired portion of the term. Verily, while he was declared winner in the
protest for the mayoralty seat for the 2004-2007 term, Abundo’s full term has been substantially

22
reduced by the actual service rendered by his opponent (Torres). Hence, there was actual involuntary
interruption in the term of Abundo and he cannot be considered to have served the full 2004-2007 term.

This is what happened in the instant case. It cannot be overemphasized that pending the favorable
resolution of his election protest, Abundo was relegated to being an ordinary constituent since his
opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. In other
words, for almost two years or from July 1, 2004—the start of the term—until May 9, 2006 or during
which his opponent actually assumed the mayoralty office, Abundo was a private citizen warming his
heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to serve
the elective position from July 1, 2004, such declaration would not erase the fact that prior to the finality
of the election protest, Abundo did not serve in the mayor’s office and, in fact, had no legal right to said
position.

Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to COMELEC’s resolution
against Abundo. In Aldovino Jr., the Court succinctly defines what temporary inability or disqualification
to exercise the functions of an elective office means, thus:

On the other hand, temporary inability or disqualification to exercise the functions of an elective post,
even if involuntary, should not be considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from holding office; the office holder, while
retaining title, is simply barred from exercising the functions of his office for a reason provided by law. 74

We rule that the above pronouncement on preventive suspension does not apply to the instant case.
Verily, it is erroneous to say that Abundo merely was temporarily unable or disqualified to exercise the
functions of an elective post. For one, during the intervening period of almost two years, reckoned from
the start of the 2004-2007 term, Abundo cannot be said to have retained title to the mayoralty office as
he was at that time not the duly proclaimed winner who would have the legal right to assume and serve
such elective office. For another, not having been declared winner yet, Abundo cannot be said to have
lost title to the office since one cannot plausibly lose a title which, in the first place, he did not have.
Thus, for all intents and purposes, even if the belated declaration in the election protest accords him title
to the elective office from the start of the term, Abundo was not entitled to the elective office until the
election protest was finally resolved in his favor.1âwphi1

Consequently, there was a hiatus of almost two years, consisting of a break and effective interruption of
his service, until he assumed the office and served barely over a year of the remaining term. At this
juncture, We observe the apparent similarities of Mayor Abundo’s case with the cases of Mayor Talaga in
Adormeo and Mayor Hagedorn in Socrates as Mayors Talaga and Hagedorn were not proclaimed winners
since they were non-candidates in the regularelections. They were proclaimed winners during the recall
elections and clearly were not able to fully serve the terms of the deposed incumbent officials. Similar to
their cases where the Court deemed their terms as involuntarily interrupted, Abundo also became or
was a private citizen during the period over which his opponent was serving as mayor. If in Lonzanida,
the Court ruled that there was interruption in Lonzanida’s service because of his subsequent defeat in
the election protest, then with more reason, Abundo’s term for 2004-2007 should be declared
interrupted since he was not proclaimed winner after the 2004 elections and was able to assume the
office and serve only for a little more than a year after winning the protest.

23
As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest period
during which the local elective official steps down from office and ceases to exercise power or authority
over the inhabitants of the territorial jurisdiction of a particular local government unit." 75 Applying the
said principle in the present case, there is no question that during the pendency of the election protest,
Abundo ceased from exercising power or authority over the good people of Viga, Catanduanes.

Consequently, the period during which Abundo was not serving as mayor should be considered as a rest
period or break in his service because, as earlier stated, prior to the judgment in the election protest, it
was Abundo’s opponent, Torres, who was exercising such powers by virtue of the still then valid
proclamation.

As a final note, We reiterate that Abundo’s case differs from other cases involving the effects of an
election protest because while Abundo was, in the final reckoning, the winning candidate, he was the
one deprived of his right and opportunity to serve his constituents. To a certain extent, Abundo was a
victim of an imperfect election system. While admittedly the Court does not possess the mandate to
remedy such imperfections, the Constitution has clothed it with enough authority to establish a fortress
against the injustices it may bring.

In this regard, We find that a contrary ruling would work damage and cause grave injustice to Abundo––
an elected official who was belatedly declared as the winner and assumed office for only a short period
of the term. If in the cases of Lonzanida and Dizon, this Court ruled in favor of a losing candidate––or the
person who was adjudged not legally entitled to hold the contested public office but held it anyway––We
find more reason to rule in favor of a winning candidate-protestant who, by popular vote, deserves title
to the public office but whose opportunity to hold the same was halted by an invalid proclamation.

Also, more than the injustice that may be committed against Abundo is the injustice that may likewise be
committed against the people of Viga, Catanduanes by depriving them of their right to choose their
leaders. Like the framers of the Constitution, We bear in mind that We "cannot arrogate unto ourselves
the right to decide what the people want" 76 and hence, should, as much as possible, "allow the people to
exercise their own sense of proportion and rely on their own strength to curtail the power when it
overreaches itself."77 For democracy draws strength from the choice the people make which is the same
choice We are likewise bound to protect.

WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8, 2012
Resolution of the Commission on Elections Second Division and May 10, 2012 Resolution of the
Commission on Elections en banc in EAC (AE) No. A-25-2010 and the Decision of the Regional Trial Court
(RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55, are hereby
REVERSED and SET ASIDE.

Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga, Catanduanes to
which he was duly elected in the May 2010 elections and is accordingly ordered IMMEDIATELY
REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar O. Cervantes are ordered to
immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes, respectively, and shall
revert to their original positions of Vice-Mayor and First Councilor, respectively, upon receipt of this
Decision.

The TRO issued by the Court on July 3, 2012 is hereby LIFTED.

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This Decision is immediately executory.

SO ORDERED. G.R. No. 193237 October 9, 2012

DOMINADOR G. JALOSJOS, JR., Petitioner, vs.COMMISSION ON ELECTIONS and AGAPITO J.

CARDINO, Respondents.

These are two special civil actions for certiorari 1 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 2009 a petition
under Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of
candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material representation in his
certificate of candidacy when he declared under oath that he was eligible for the Office of Mayor.

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

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

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

25
This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan
dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation
Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on
December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms and
conditions of his probation. A portion of the decision of the Sandiganbayan is quoted hereunder:

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

The COMELEC’s Rulings

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

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

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

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

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

26
SO ORDERED.8

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

On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.

WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed
Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in
SPA Case No. 09-076 (DC) are hereby AFFIRMED. 9

Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its
resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration 10 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

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

27
candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos’ certificate of
candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest
number of votes for the position of Mayor.

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

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

Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if
for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized
city or district or sector which he seeks to represent; the political party to which he belongs; civil status;
his date of birth; residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true faith and
allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the
obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion;
and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking
to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the
ground that any material representation contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days
before the election. (Emphasis supplied)

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

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

Section 40, Local Government Code:

28
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:

29
Art. 27. Reclusion perpetua. — x x x

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

xxxx

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

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

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

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

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3

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

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

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

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

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

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

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

30
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)

31
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;

32
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount
in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k,
v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphasis supplied)

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

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

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

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

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

33
The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the
ground of ineligibility that existed at the time of the filing of the certificate of candidacy can never give
rise to a valid candidacy, and much less to valid votes. 21 Jalosjos’ certificate of candidacy was cancelled
because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is
cancelled before or after the elections is immaterial because the cancellation on such ground means he
was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio.
Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his
certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only
one qualified candidate for Mayor in the May 2010 elections – Cardino – who received the highest
number of votes.

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

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

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

To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one
suffering from perpetual special disqualification will result in the anomaly that these cases so
grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served
twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer

34
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.

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

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.

Local Government Code Section 40

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

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

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

35
 (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.

RA 10742 Section 27

SEC. 27. Mandatory and Continuing Training Programs. – For the purpose of emphasizing the role of the
youth in nation-building and molding them to become better citizens with the values of patriotism,
nationalism and honor as a Filipino, any Sangguniang Kabataan official, whether elected or appointed, or
any member of the LYDC must undergo the mandatory training programs before he or she can assume
office. During their incumbency, they must attend the continuing training programs to be undertaken by
the Commission in coordination with the DILG. Deliberate failure to attend the said training programs
shall constitute sufficient ground to disqualify said Sangguniang Kabataan official or LYDC member or
subject them to disciplinary actions.

RA 9285

G.R. No. 202202 March 19, 2013

SILVERIO R. TAGOLINO, Petitioner, vs.HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY

MARIE TORRES-GOMEZ, Respondents.

Assailed in this Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court is the March
22, 2012 Decision1 of the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 10-031
(QW) which declared the validity of private respondent Lucy Marie Torres-Gomez’s substitution as the
Liberal Party’s replacement candidate for the position of Leyte Representative (Fourth Legislative
District) in lieu of Richard Gomez.

The Facts

On November 30, 2009, Richard Gomez (Richard) filed his certificate of candidacy 2 (CoC) with the
Commission on Elections (COMELEC), seeking congressional office as Representative for the Fourth
Legislative District of Leyte under the ticket of the Liberal Party. Subsequently, on December 6, 2009, one
of the opposing candidates, Buenaventura Juntilla (Juntilla), filed a Verified Petition, 3 alleging that
Richard, who was actually a resident of College Street, East Greenhills, San Juan City, Metro Manila,
misrepresented in his CoC that he resided in 910 Carlota Hills, Can-adieng, Ormoc City. In this regard,
Juntilla asserted that Richard failed to meet the one (1) year residency requirement under Section 6,
Article VI4 of the 1987 Philippine Constitution (Constitution) and thus should be declared
disqualified/ineligible to run for the said office. In addition, Juntilla prayed that Richard’s CoC be denied
due course and/or cancelled.5

36
On February 17, 2010, the COMELEC First Division rendered a Resolution 6 granting Juntilla’s petition
without any qualification. The dispositive portion of which reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVE, to GRANT the
Petition to Disqualify Candidate for Lack of Qualification filed by BUENAVENTURA O. JUNTILLA against
RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of
Congressman, Fourth District of Leyte, for lack of residency requirement.

SO ORDERED.

Aggrieved, Richard moved for reconsideration but the same was denied by the COMELEC En Banc
through a Resolution dated May 4, 2010.7 Thereafter, in a Manifestation of even date, Richard accepted
the said resolution with finality "in order to enable his substitute to facilitate the filing of the necessary
documents for substitution."8

On May 5, 2010, Lucy Marie Torres-Gomez (private respondent) filed her CoC 9 together with a Certificate
of Nomination and Acceptance10 from the Liberal Party endorsing her as the party’s official substitute
candidate vice her husband, Richard, for the same congressional post. In response to various letter-
requests submitted to the COMELEC’s Law Department (Law Department), the COMELEC En Banc, in the
exercise of its administrative functions, issued Resolution No. 8890 11 on May 8, 2010, approving, among
others, the recommendation of the said department to allow the substitution of private respondent. The
recommendation reads:

STUDY AND OBSERVATION

On the same date, this Department received an Opposition from Mr. Buenaventura O. Juntilla, thru his
counsel, opposing the candidacy of Ms. Lucy Marie Torres Gomez, as a substitute candidate for Mr.
Richard I. Gomez.

The crux of the opposition stemmed from the issue that there should be no substitution because there is
no candidate to substitute for.

It must be stressed that the resolution of the First Division, this Commission, in SPA No. 09-059 speaks
for disqualification of candidate Richard I. Gomez and not of cancellation of his Certificate of Candidacy:

‘Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
Petition to Disqualify Candidate for Lack of Qualification filed x x x against RICHARD I. GOMEZ.
Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth
District of Leyte, for lack of residency requirement.’

The said resolution was affirmed by the Commission En Banc on May 04, 2010.

The disqualification of a candidate does not automatically cancel one’s certificate of candidacy, especially
when it is nominated by a political party. In effect, the political party is still allowed to substitute the
candidate whose candidacy was declared disqualified. After all, the right to substitute is a privilege given
to a political party to exercise and not dependent totally to a candidate.

37
Nonetheless, in case of doubt, the same must always be resolved to the qualification of a candidate to
run in the public office.

The substitution complied with the requirements provided under Section 12 in relation to Section 13 of
Comelec Resolution No. 8678 dated October 6, 2009.

xxxx

In view of the foregoing, the Law Department RECOMMENDS the following:

xxxx

2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE FOR RICHARD
GOMEZ: (Emphasis and underscoring supplied)

xxxx

The following day, or on May 9, 2010, Juntilla filed an Extremely Urgent Motion for
Reconsideration12 (May 9, 2010 Motion) of the above-mentioned COMELEC En Banc resolution

Pending resolution of Juntilla’s May 9, 2010 Motion, the national and local elections were conducted as
scheduled on May 10, 2010. During the elections, Richards, whose name remained on the ballots,
garnered 101, 250 votes while his opponents, namely, Eufrocino Codilla, Jr. and herein petitioner Silverio
Tagolino, obtained 76,549 and 493 votes, respectively. 13 In view of the aforementioned substitution,
Richard’s votes were credited in favor of private respondent and as a result, she was proclaimed the
duly-elected Representative of the Fourth District of Leyte.

On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9, 2010 Motion
relative to Resolution No. 8890.14 The said motion, however, remained unacted.

On May 24, 2010, petitioner filed a Petition 15 for quo warranto before the HRET in order to oust private
respondent from her congressional seat, claiming that: (1) she failed to comply with the one (1) year
residency requirement under Section 6, Article VI of the Constitution considering that the transfer of her
voter registration from San Rafael Bulacan16 to the Fourth District of Leyte was only applied for on July
23, 2009; (2) she did not validly substitute Richard as his CoC was void ab initio; and (3) private
respondent’s CoC was void due to her non-compliance with the prescribed notarial requirements i.e.,
she failed to present valid and competent proof of her identity before the notarizing officer. 17

In her Verified Answer,18 private respondent denied petitioner’s allegations and claimed that she validly
substituted her husband in the electoral process. She also averred that she personally known to the
notary public who notarized her CoC, one Atty. Edgardo Cordeno, and thus, she was not required to have
presented any competent proof of identity during the notarization of the said document. Lastly, she
asserted that despite her marriage to Richard and exercise of profession in Metro Manila, she continued
to maintain her residency in Ormoc City which was the place where she was born and raised.

During the preliminary conference, and as shown in the Preliminary Conference Order dated September
2, 2010, the parties agreed on the following issues for resolution:

38
 1. Whether or not the instant petition for quo warranto is meritorious;
2. Whether or not the substitution of respondent is valid;
3. Whether or not a petition for quo warranto can be used as a substitute for failure to file the
necessary petition for disqualification with the COMELEC;
4. Whether or not respondent’s COC was duly subscribed; and
5. Whether or not respondent is ineligible for the position of Representative of the Fourth District
of Leyte for lack of residency requirement. 19

Ruling of the HRET

After due proceedings, the HRET issued the assailed March 22, 2012 Decision 20 which dismissed the quo
warranto petition and declared that private respondent was a qualified candidate for the position of
Leyte Representative (Fourth Legislative District). It observed that the resolution denying Richard’s
candidacy i.e., the COMELEC First Division’s February 17, 2010 Resolution, spoke of disqualification and
not of CoC cancellation. Hence, it held that the substitution of private respondent in lieu of Richard was
legal and valid.21 Also, it upheld the validity of private respondent’s CoC due to petitioner’s failure to
controvert her claim that she was personally known to the notary public who notarized her CoC. 22 Finally,
the HRET ruled that while it had been admitted that private respondent resides in Colgate Street, San
Juan City and lived in San Rafael, Bulacan, the fact was she continued to retain her domicile in Ormoc
City given that her absence therefrom was only temporary.

Hence, the instant petition.

Issues Before the Court

The crux of the present controversy is whatever or not the HRET gravely abused its discretion in finding
that Richard was validly substituted by private respondent as candidate for Leyte Representative (Fourth
Legislative District) in view of the former’s failure to meet the one (1) year residency requirement
provided under Section 6, Article VI of the Constitution.

It is petitioner’s submission that the HRET gravely abused its discretion when it upheld the validity of
private respondent’s substitution despite contrary jurisprudence holding that substitution is
impermissible where the substituted candidate’s CoC was denied due course to and/or cancelled, as in
the case of Richard. On the other hand, respondents maintain that Richard’s CoC was not denied due
course to and/or cancelled by the COMELEC as he was only "disqualified" and therefore, was properly
substituted by private respondent.

Ruling of the Court

The petition is meritorious.

A. Distinction between a petition for disqualification and a petition to deny due course to/cancel a
certificate of candidacy

39
The Omnibus Election Code23 (OEC) provides for certain remedies to assail a candidate’s bid for public
office. Among these which obtain particular significance to this case are: (1) a petition for disqualification
under Section 68; and (2) a petition to deny due course to and/or cancel a certificate of candidacy under
Section 78. The distinctions between the two are well-perceived.

Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a candidate’s
possession of a permanent resident status in a foreign country; 24 or (b) his or her commission of certain
acts of disqualification. Anent the latter, the prohibited acts under Section 68 refer to election offenses
under the OEC, and not to violations of other penal laws. 25 In particular, these are: (1) giving money or
other material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions; (2) committing acts of terrorism to enhance one’s candidacy; (3) spending in one’s
election campaign an amount in excess of that allowed by the OEC; (4) soliciting, receiving or making any
contribution prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections
80,26 83,27 85,28 8629 and 261, paragraphs d,30 e,31 k,32 v,33and cc, sub-paragraph 634 of the OEC.
Accordingly, the same provision (Section 68) states that any candidate who, in an action or protest in
which he or she is a party, is declared by final decision of a competent court guilty of, or found by the
COMELEC to have committed any of the foregoing acts shall be disqualified from continuing as a
candidate for public office, or disallowed from holding the same, if he or she had already been elected. 35

It must be stressed that one who is disqualified under Section 68 is still technically considered to have
been a candidate, albeit proscribed to continue as such only because of supervening infractions which
do not, however, deny his or her statutory eligibility. In other words, while the candidate’s compliance
with the eligibility requirements as prescribed by law, such as age, residency, and citizenship, is not in
question, he or she is, however, ordered to discontinue such candidacy as a form of penal sanction
brought by the commission of the above-mentioned election offenses.

On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78
of the OEC36 is premised on a person’s misrepresentation of any of the material qualifications required
for the elective office aspired for. It is not enough that a person lacks the relevant qualification; he or she
must have also made a false representation of the same in the CoC. 37 The nature of a Section 78 petition
was discussed in the case of Fermin v. COMELEC, 38 where the Court illumined:

Let 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 candidates 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. (Emphasis supplied)

Corollary thereto, it must be noted that the deliberateness of the misrepresentation, much less one’s
intent to defraud, is of bare significance in a Section 78 petition as it is enough that the person’s
declaration of a material qualification in the CoC be false. In this relation, jurisprudence holds that an

40
express finding that the person committed any deliberate misrepresentation is of little consequence in
the determination of whether one’s CoC should be deemed cancelled or not. 39 What remains material is
that the petition essentially seeks to deny due course to and/or cancel the CoC on the basis of one’s
ineligibility and that the same be granted without any qualification. 40

Pertinently, while a disqualified candidate under Section 68 is still considered to have been a candidate
for all intents and purposes, on the other hand, a person whose CoC had been denied due course to
and/or cancelled under Section 78 is deemed to have not been a candidate at all. The reason being is
that a cancelled CoC is considered void ab initio and thus, cannot give rise to a valid candidacy and
necessarily, to valid votes.41 In Talaga v. COMELEC42 (Talaga), the Court ruled that:

x x x x While a person who is disqualified under Section 68 is merely prohibited to continue as a

candidate, a person who certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.

The foregoing variance gains utmost importance to the present case considering its implications on
candidate substitution.

B. Valid CoC as a condition sine qua non for candidate substitution

Section 77 of the OEC provides that if an official candidate of a registered or accredited political party
dies, withdraws or is disqualified for any cause, a person belonging to and certified by the same political
party may file a CoC to replace the candidate who died, withdrew or was disqualified. It states that:

Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for
the filing of certificates of candidacy, an official candidate of a registered or accredited political party
dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same
political party may file a certificate of candidacy to replace the candidate who died, withdrew or was
disqualified. (Emphasis supplied)

Evidently, Section 77 requires that there be an "official candidate" before candidate substitution
proceeds. Thus, whether the ground for substitution is death, withdrawal or disqualification of a
candidate, the said section unequivocally states that only an official candidate of a registered or
accredited party may be substituted. 43

As defined under Section 79(a) of the OEC, the term "candidate" refers to any person aspiring for or
seeking an elective public office who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of parties. Clearly, the law requires that one must
have validly filed a CoC in order to be considered a candidate. The requirement of having a CoC obtains
even greater importance if one considers its nature. In particular, a CoC formalizes not only a person’s
public declaration to run for office but evidences as well his or her statutory eligibility to be elected for
the said post. In Sinaca v. Mula,44 the Court has illumined:

A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate’s
political creed or lack of political creed. It is a statement of a person seeking to run for a public office
certifying that he announces his candidacy for the office mentioned and the be is eligible for the office,

41
the name of the political party to which he belongs, if he belongs to any, and his post-office address for
all election purposes being as well stated. (Emphasis and underscoring supplied).

In this regard, the CoC is the document which formally accords upon a person the status of a candidate.
In other words, absent a valid CoC one is not considered a candidate under legal contemplation. As held
in Talaga:45

x x x a person’s declaration of his intention to run for public office and his affirmation that he possesses
the eligibility for the position he seeks to assume, followed by the timely filing of such declaration,
constitute a valid CoC that render the person making the declaration a valid or official candidate.
(Emphasis supplied)

Considering that Section 77 requires that there be a candidate in order for substitution to take place, as
well as the precept that a person without a valid CoC is not considered as a candidate at all, it necessarily
follows that if a person’s CoC had been denied due course to and/or cancelled, he or she cannot be
validly substituted in the electoral process. The existence of a valid CoC is therefore a condition sine qua
non for a disqualified candidate to be validly substituted. 46

C. Divergent effects of disqualification and denial of due course to and/or cancellation of CoC cases vis-à-
vis candidate substitution

Proceeding, from the foregoing discourse, it is evident that there lies a clear-cut distinction between a
disqualification case under Section 68 and denial of due course to and/or cancellation of COC case under
Section 78 vis-à-vis their respective effects on candidate substitution under Section 77.1âwphi1

As explained in the case of Miranda v. Abaya 47 (Miranda), a candidate who is disqualified under Section
68 can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified;
but a person whose CoC has been denied due course to and/or cancelled under Section 78 cannot be
substituted because he is not considered a candidate. 48 Stated differently, since there would be no
candidate to speak of under a denial of due course to and/or cancellation of a CoC case, then there
would be no candidate to be substituted; the same does not obtain, however, in a disqualification case
since there remains to be a candidate to be substituted, although his or her candidacy is discontinued.

On this note, it is equally revelatory that Section 77 expressly enumerates the instances where
substitution is permissible, that is when an official candidate of a registered or accredited political party
"dies, withdraws or is disqualified for any cause." Noticeably, material misrepresentation cases are not
included in the said section and therefore, cannot be a valid basis to proceed with candidate
substitution.

D. Application to the case at bar

In this case, it is undisputed that Richard was disqualified to run in the May 10, 2010 elections due to his
failure to comply with the one year residency requirement. 49 The confusion, however, stemmed from the
use of the word "disqualified" in the February 17, 2010 Resolution of the COMELEC First Division, which
was adopted by the COMELEC En Banc in granting the substitution of private respondent, and even
further perpetuated by the HRET in denying the quo warranto petition. In short, a finding that Richard

42
was merely disqualified – and not that his CoC was denied due course to and/or cancelled – would mean
that he could have been validly substitute by private respondent, thereby legitimizing her candidacy.

Yet the fact that the COMELEC First Division’s February 17, 2010 Resolution did not explicitly decree the
denial of due course to and/or cancellation of Richard’s CoC should not have obviated the COMELEC En
Banc from declaring the invalidity of private respondent’s substitution. It should be stressed that the
clear and unequivocal basis for Richard’s "disqualification" is his failure to comply with the residency
requirement under Section 6, Article VI of the Constitution which is a ground for the denial of due course
to and/or cancellation a CoC under Section 78 of the OEC, misrepresentation contemplated under a
Section 78 petition refers to statements affecting one’s qualifications for elective office such as age,
residence and citizenship or non-possession of natural-born Filipino status. 51 There is therefore no legal
basis to support a finding of disqualification within the ambit of election laws. Accordingly, given
Richard’s non-compliance with the one year residency requirement, it cannot be mistaken that the
COMELEC First Division’s unqualified grant of Juntilla’s "Verified Petition to Disqualify Candidate for Lack
of Qualification"52 – which prayed that the COMELEC declare Richard "DISQUALIFIED and INELIGIBLE
from seeking the office of Member of the House of Representatives" and "x x x that his Certificate of
Candidacy x x x be DENIED DUE COURSE and/or CANCELLED" 53 – carried with it the denial of due course
to and/or cancellation of Richard’s CoC pursuant to Section 78.

Case law dictates that if a petition prays for the denial of due course to and/or cancellation of CoC and
the same is granted by the COMELEC without any qualification, the cancellation of the candidate’s CoC in
in order. This is precisely the crux of the Miranda ruling wherein the Court, in upholding the COMELEC En
Banc’s nullification of the substitution in that case, decreed that the COMELEC Division’s unqualified
grant of the petition necessarily included the denial of due course to and/or cancellation of the
candidate’s CoC, notwithstanding the use of the term "disqualified" in the COMELEC Division’s
resolution, as the foregoing was prayed for in the said petition:

The question to settle next is whether or not aside from Joiel "Pempe" Miranda being disqualified by the
COMELEC in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course
and cancelled.

The Court rules that it was.

Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the
position of Mayor for the City of Snatiago be not given due course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

In resolving the petition filed by private respondent specifying a very particular relief, the COMELEC ruled
favorably in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition.
Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of mayor of
Santiago City, Isabela, in the May 11, 1998 national and local elections.

43
SO ORDERED.

From a plain reading of the dispositive portion of the COMELEC resolution of May 5, 1998 in SPA No. 98-
019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was
GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled
over and above the granting of the specific prayer for denial of due course and cancellation of the
certificate of candidacy.

xxxx

There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to
deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda. There is likewise no
question that the said petition was GRANTED without any qualification whatsoever. It is rather clear,
therefore, that whether or not the COMELEC granted any further relief in SPA No. 98-019 by disqualifying
the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of
Jose "Pempe" Miranda was denied due course and cancelled. (Emphasis and underscoring supplied)

The same rule was later discussed in the case of Talaga, viz:

3. Granting without any qualification or petition in SPA No. 09-029(DC) manifested COMELEC’s intention
to declare Ramon disqualified and to cancel his CoC

xxxx

In Miranda v. Abaya, the specific relief that the petition prayed for was that the CoC "be not given due
course and/or cancelled". The COMELEC categorically granted "the petition" and then pronounced – in
apparent contradiction – that Joel Pempe Miranda was "disqualified." The Court held that the COMELEC,
by granting the petition without any qualification, disqualified Joel Pempe Miranda and at the same time
cancelled Jose Pempe Miranda’s CoC.

xxxx

The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of
cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to any
qualification. (Emphasis and underscoring supplied)

In view of the foregoing rulings, the COMELEC En Banc direly misconstrued the COMELEC First Division’s
February 17, 2010 Resolution when it adopted the Law Department’s finding that Richard was only
"disqualified" and that his CoC was not denied due course to and/or cancelled, paving the way for the
approval of private respondent’s substitution. It overlooked the fact that the COMELEC First Division’s
ruling encompassed the cancellation of Richard’s CoC and in consequence, disallowed the substitution of
private respondent. It was therefore grave and serious error on the part of the COMELEC En Banc to have
approved private respondent’s substitution.

Consequently, in perpetuating the COMELEC En Banc’s error as above-discussed, the HRET committed a
grave abuse of discretion, warranting the grant of the instant petition.

44
Fundamental is the rule that grave abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence. 54 While it is well-recognized that the HRET
has been empowered by the Constitution to be the "sole judge" of all contests relating to the election,
returns, and qualifications of the members of the House, the Court maintains jurisdiction over it to check
"whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction"
on the part of the latter. 55 In other words, when the HRET utterly disregards the law and settled
precedents on the matter before it, it commits a grave abuse of discretion.

Records clearly show that: (1) Richard was held ineligible as a congressional candidate for the Fourth
District of Leyte due to his failure to comply with the one year residency requirement; (2) Juntilla’s
petition prayed for the denial of due course to and/or cancellation of his CoC; and (3) the COMELEC First
Division granted the foregoing petition without any qualification. By these undisputed and essential facts
alone, the HRET should not have adopted the COMELEC En Banc’s erroneous finding that the COMELEC
First Division’s February 17, 2010 Resolution "speaks only of "disqualification and not of cancellation of
Richard’s CoC"36 and thereby, sanctioned the substitution of private respondent.

Lest it be misunderstood, the HRET is not bound by previous COMELEC pronouncements relative to the
qualifications of the Members of the House. Being the sole judge 57 of all contests relating to the election,
returns, and qualifications of its respective members, the HRET cannot be tied down by COMELEC
resolutions, else its constitutional mandate 58 be circumvented and rendered nugatory. Instructive on this
point is the Court’s disquisition in Fernandez v. HRET, 59 to wit:

Private respondent concludes from the above that petitioner had no legal basis to claim that the HRET,
when reference to the qualification/s of Members of the House of Representatives is concerned, is "co-
equal", to the COMELEC respecting the matter of eligibility and qualification of a member of the House
of Representatives. The truth is the other way around, because the COMELEC is subservient to the HRET
when the dispute or contest at issue refers to the eligibility and/or qualification of a Member of the
House of Representatives. A petition for quo warranto is within the exclusive jurisdiction of the HRET as
sole judge, and cannot be considered forum shopping even if another body may have passed upon in
administrative or quasi-judicial proceedings the issue of the Member’s qualification while the Member
was still a candidate. There is forum-shopping only where two cases involve the same parties and the
same cause of action. The two cases here are distinct and dissimilar in their nature and character.
(Emphasis and underscoring supplied)

Notably, the phrase "election, returns, and qualifications" should be interpreted in its totality as referring
to all matters affecting the validity of the contestee’s title. More particularly, the term "qualifications"
refers to matters that could be raised in a quo warranto proceeding against the pro-claimed winner, such
as his disloyalty or ineligibility, or the inadequacy of his certificate of candidacy. 60 As used in Section 74 of
the OEC, the word "eligible" means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for the public office. 61 In this relation, private
respondent’s own qualification to run for public office – which was inextricably linked to her husband’s
own qualifications due to her substitution – was the proper subject of quo warranto proceedings falling
within the exclusive jurisdiction of the HRET and independent from any previous proceedings before the
COMELEC, lest the jurisdiction divide between the two be blurred.

Nonetheless, it must be pointed out that the HRET’s independence is not without limitation. As earlier
mentioned, the Court retains certiorari jurisdiction over the HRET if only to check whether or not it has

45
gravely abused its discretion. In this regard, the Court does not endeavor to denigrate nor undermine the
HRET’s independence; rather, it merely fulfills its duty to ensure that the Constitution and the laws are
upheld through the exercise of its power of judicial review.

In fine, the Court observes that the HRET wantonly disregarded the law by deliberately adopting the
COMELEC En Banc’s flawed findings regarding private respondent’s eligibility to run for public office
which essentially stemmed from her substitution. In this light, it cannot be gainsaid that the HRET
gravely abused its discretion.

Owing to the lack of proper substitution in its case, private respondent was therefore not a bona fide
candidate for the position of Representative for the Fourth District of Leyte when she ran for office,
which means that she could not have been elected. Considering this pronouncement, there exists no
cogent reason to further dwell on the other issues respecting private respondent’s own qualification to
office.

WHEREFORE, the petition is GRANTED. Accordingly, the March 22, 2012 Decision rendered by the House
of Representatives Electoral Tribunal in HRET Case No. 10-031 (QW) is hereby REVERSED and SET ASIDE.

SO ORDERED.

G.R. No. 206666 January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,ALFREDO S. LIM Petitioner-Intervenor, vs.COMMISSION ON

ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both of the
Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of
the writ of certiorari annulling and setting aside the April 1, 2013 1 and April 23, 20132 Resolutions of the
Commission on Elections (COMELEC), Second Division and En bane, respectively, in SPA No. 13-211 (DC),
entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for having been rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (2) a Petition-in-Intervention 3 filed by Alfredo
S. Lim (Lim), wherein he prays to be declared the 2013 winning candidate for Mayor of the City of Manila
in view of private respondent former President Joseph Ejercito Estrada’s (former President Estrada)
disqualification to run for and hold public office.

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President of
the Republic of the Philippines, for the crime of plunder in Criminal Case No. 26558, entitled "People of
the Philippines v. Joseph Ejercito Estrada, et al." The dispositive part of the graft court’s decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558
finding the accused, Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the
crime of PLUNDER, defined in and penalized by Republic Act No. 7080, as amended. On the other hand,
for failure of the prosecution to prove and establish their guilt beyond reasonable doubt, the Court finds

46
the accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY of the crime of plunder, and
accordingly, the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by Republic
Act No. 7659, is Reclusion Perpetua to Death. There being no aggravating or mitigating circumstances,
however, the lesser penalty shall be applied in accordance with Article 63 of the Revised Penal Code.
Accordingly, the accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer the
penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of
sentence and perpetual absolute disqualification.

The period within which accused Former President Joseph Ejercito Estrada has been under detention
shall be credited to him in full as long as he agrees voluntarily in writing to abide by the same disciplinary
rules imposed upon convicted prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659,
the Court hereby declares the forfeiture in favor of the government of the following:

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One Thousand
Pesos (₱545,291,000.00), with interest and income earned, inclusive of the amount of Two
Hundred Million Pesos (₱200,000,000.00), deposited in the name and account of the Erap
Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (₱189,000,000.00), inclusive of
interests and income earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as "Boracay Mansion" located at #100
11th Street, New Manila, Quezon City.

The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are hereby ordered
cancelled and released to the said accused or their duly authorized representatives upon presentation of
the original receipt evidencing payment thereof and subject to the usual accounting and auditing
procedures. Likewise, the hold-departure orders issued against the said accused are hereby recalled and
declared functus oficio.4

On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President Arroyo)
extended executive clemency, by way of pardon, to former President Estrada. The full text of said pardon
states:

MALACAÑAN PALACE
MANILA

By the President of the Philippines

PARDON

WHEREAS, this Administration has a policy of releasing inmates who have reached the age of seventy
(70),

47
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or
office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby grant
executive clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and
imposed a penalty of Reclusion Perpetua. He is hereby restored to his civil and political rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and
processes issued by the Sandiganbayan in pursuance hereof, except for the bank account(s) he owned
before his tenure as President.

Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.

Given under my hand at the City of Manila, this 25th Day of October, in the year of Our Lord, two
thousand and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)

Acting Executive Secretary 5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted" 6 the pardon by
affixing his signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy 7 for the position of
President. During that time, his candidacy earned three oppositions in the COMELEC: (1) SPA No. 09-024
(DC), a "Petition to Deny Due Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao
Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for "Disqualification as Presidential Candidate" filed
by Evilio C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), a "Petition to Disqualify Estrada Ejercito,
Joseph M.from Running as President due to Constitutional Disqualification and Creating Confusion to the
Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate Resolutions 8 dated January 20,
2010 by the COMELEC, Second Division, however, all three petitions were effectively dismissed on the
uniform grounds that (i) the Constitutional proscription on reelection applies to a sitting president; and
(ii) the pardon granted to former President Estrada by former President Arroyo restored the former’s
right to vote and be voted for a public office. The subsequent motions for reconsideration thereto were
denied by the COMELEC En banc.

After the conduct of the May 10, 2010 synchronized elections, however, former President Estrada only
managed to garner the second highest number of votes.

Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed a
petition for certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v.
Joseph ‘ERAP’ Ejercito Estrada and Commission on Elections." But in a Resolution 9 dated August 31,

48
2010, the Court dismissed the aforementioned petition on the ground of mootness considering that
former President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed a
Certificate of Candidacy,10 this time vying for a local elective post, that ofthe Mayor of the City of Manila.

On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification against
former President Estrada before the COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos
Vidal anchored her petition on the theory that "[Former President Estrada] is Disqualified to Run for
Public Office because of his Conviction for Plunder by the Sandiganbayan in Criminal Case No. 26558
entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing Him to Suffer the Penalty of
Reclusion Perpetuawith Perpetual Absolute Disqualification." 11 She relied on Section 40 of the Local
Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC), which state
respectively, that:

Sec. 40, Local Government Code:

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

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;

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

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

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

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgmentfor 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 public office, unless he
has been given plenary pardon or granted amnesty. (Emphases supplied.)

In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition for
disqualification, the fallo of which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of merit. 12

49
The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the consolidated
resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution
affirming it, this Commission will not be labor the controversy further. Moreso, [Risos-Vidal] failed to
present cogent proof sufficient to reverse the standing pronouncement of this Commission declaring
categorically that [former President Estrada’s] right to seek public office has been effectively restored by
the pardon vested upon him by former President Gloria M. Arroyo. Since this Commission has already
spoken, it will no longer engage in disquisitions of a settled matter lest indulged in wastage of
government resources."13

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution dated April
23, 2013.

On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She
presented five issues for the Court’s resolution, to wit:

I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR

EXCESS OF JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT
CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK

OR EXCESS OF JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO
RUN AS MAYOR OF MANILA UNDER SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR
HAVING BEEN CONVICTED OF PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK

OR EXCESS OF JURISDICTION IN DISMISSING THE PETITION FOR DISQUALIFICATION ON THE
GROUND THAT THE CASE INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY RESOLVED IN THE
CASES OF "PORMENTO VS. ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO
DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.," SPA NO. 09-
104 (DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK

OR EXCESS OF JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S PARDON NEITHER
RESTORED HIS RIGHT OF SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE
DISQUALIFICATION FROM SEEKING PUBLIC OFFICE; and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR

EXCESS OF JURISDICTION IN NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY
RESPONDENT ESTRADA IN THE FACE OF HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC
OFFICE BECAUSE OF HIS PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE
AND TO VOTE RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER. 14

While this case was pending beforethe Court, or on May 13, 2013, the elections were conducted as
scheduled and former President Estrada was voted into office with 349,770 votes cast in his favor. The
next day, the local board of canvassers proclaimed him as the duly elected Mayor of the City of Manila.

50
On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor, moved for
leave to intervene in this case. His motion was granted by the Court in a Resolution 15 dated June 25,
2013. Lim subscribed to Risos-Vidal’s theory that former President Estrada is disqualified to run for and
hold public office as the pardon granted to the latter failed to expressly remit his perpetual
disqualification. Further, given that former President Estrada is disqualified to run for and hold public
office, all the votes obtained by the latter should be declared stray, and, being the second placer with
313,764 votes to his name, he (Lim) should be declared the rightful winning candidate for the position of
Mayor of the City of Manila.

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal actually
presents only one essential question for resolution by the Court, that is, whether or not the COMELEC
committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that former
President Estrada is qualified to vote and be voted for in public office as a result of the pardon granted to
him by former President Arroyo.

In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to former
President Estrada was conditional as evidenced by the latter’s express acceptance thereof. The
"acceptance," she claims, is an indication of the conditional natureof the pardon, with the condition
being embodied in the third Whereas Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office." She explains that the
aforementioned commitment was what impelled former President Arroyo to pardon former President
Estrada, without it, the clemency would not have been extended. And any breach thereof, that is,
whenformer President Estrada filed his Certificate of Candidacy for President and Mayor of the City of
Manila, he breached the condition of the pardon; hence, "he ought to be recommitted to prison to serve
the unexpired portion of his sentence x x x and disqualifies him as a candidate for the mayoralty
[position] of Manila."16

Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President Estrada must
be disqualified from running for and holding public elective office is actually the proscription found in
Section 40 of the LGC, in relation to Section 12 of the OEC. She argues that the crime of plunder is both
an offense punishable by imprisonment of one year or more and involving moral turpitude; such that
former President Estrada must be disqualified to run for and hold public elective office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the same did
not operate to make available to former President Estrada the exception provided under Section 12 of
the OEC, the pardon being merely conditional and not absolute or plenary. Moreover, Risos-Vidal puts a
premium on the ostensible requirements provided under Articles 36 and 41 of the Revised Penal Code,
to wit:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or
the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence.

51
xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during
the period of the sentence as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)

She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a general
statement that such pardon carries with it the restoration of civil and political rights. By virtue of Articles
36 and 41, a pardon restoring civil and political rights without categorically making mention what specific
civil and political rights are restored "shall not work to restore the right to hold public office, or the right
of suffrage; nor shall it remit the accessory penalties of civil interdiction and perpetual absolute
disqualification for the principal penalties of reclusion perpetua and reclusion temporal." 17 In other
words, she considers the above constraints as mandatory requirements that shun a general or implied
restoration of civil and political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and Florentino P.
Feliciano in Monsanto v. Factoran, Jr. 18 to endorse her position that "[t]he restoration of the right to hold
public office to one who has lost such right by reason of conviction in a criminal case, but subsequently
pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express,
explicit, positive and specific language."

Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such express restoration
is further demanded by the existence of the condition in the [third] [W]hereas [C]lause of the pardon x x
x indubitably indicating that the privilege to hold public office was not restored to him." 19

On the other hand, the Office of the Solicitor General (OSG) for public respondent COMELEC, maintains
that "the issue of whether or not the pardon extended to [former President Estrada] restored his right to
run for public office had already been passed upon by public respondent COMELEC way back in 2010 via
its rulings in SPA Nos. 09-024, 09-028 and 09-104, there is no cogent reason for it to reverse its standing
pronouncement and declare [former President Estrada] disqualified to run and be voted as mayor of the
City of Manila in the absence of any new argument that would warrant its reversal. To be sure, public
respondent COMELEC correctly exercised its discretion in taking judicial cognizance of the aforesaid
rulings which are known to it and which can be verified from its own records, in accordance with Section
2, Rule 129 of the Rules of Court on the courts’ discretionary power to take judicial notice of matters
which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known
to them because of their judicial functions." 20

Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President Estrada’s]
conviction for plunder disqualifies him from running as mayor of Manila under Section 40 of the [LGC],
the subsequent grant of pardon to him, however, effectively restored his right to run for any public
office."21 The restoration of his right to run for any public office is the exception to the prohibition under
Section 40 of the LGC, as provided under Section 12 of the OEC. As to the seeming requirement of
Articles 36 and 41 of the Revised Penal Code, i.e., the express restoration/remission of a particular right
to be stated in the pardon, the OSG asserts that "an airtight and rigid interpretation of Article 36 and
Article 41 of the [RPC] x x x would be stretching too much the clear and plain meaning of the aforesaid

52
provisions."22 Lastly, taking into consideration the third Whereas Clause of the pardon granted to former
President Estrada, the OSG supports the position that it "is not an integral part of the decree of the
pardon and cannot therefore serve to restrict its effectivity." 23

Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed Resolutions." 24

For his part, former President Estrada presents the following significant arguments to defend his stay in
office: that "the factual findings of public respondent COMELEC, the Constitutional body mandated to
administer and enforce all laws relative to the conduct of the elections, [relative to the absoluteness of
the pardon, the effects thereof, and the eligibility of former President Estrada to seek public elective
office] are binding [and conclusive] on this Honorable Supreme Court;" that he "was granted an absolute
pardon and thereby restored to his full civil and political rights, including the right to seek public elective
office such as the mayoral (sic) position in the City of Manila;" that "the majority decision in the case of
Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both Vidal and Lim as
authority for their respective claims, x x x reveal that there was no discussion whatsoever in the ratio
decidendi of the Monsanto case as to the alleged necessity for an expressed restoration of the ‘right to
hold public office in the pardon’ as a legal prerequisite to remove the subject perpetual special
disqualification;" that moreover, the "principal question raised in this Monsanto case is whether or not a
public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to
reinstatement to her former position without need of a new appointment;" that his "expressed
acceptance [of the pardon] is not proof that the pardon extended to [him] is conditional and not
absolute;" that this case is a mere rehash of the cases filed against him during his candidacy for President
back in 2009-2010; that Articles 36 and 41 of the Revised Penal Code "cannot abridge or diminish the
pardoning power of the President expressly granted by the Constitution;" that the text of the pardon
granted to him substantially, if not fully, complied with the requirement posed by Article 36 of the
Revised Penal Code as it was categorically stated in the said document that he was "restored to his civil
and political rights;" that since pardon is an act of grace, it must be construed favorably in favor of the
grantee;25and that his disqualification will result in massive disenfranchisement of the hundreds of
thousands of Manileños who voted for him. 26

The Court's Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored allhis civil and political
rights, which naturally includes the right to seek public elective office, the focal point of this controversy.
The wording of the pardon extended to former President Estrada is complete, unambiguous, and
unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only
reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in
fact conforms to Articles 36 and 41 of the Revised Penal Code. Recall that the petition for disqualification
filed by Risos-Vidal against former President Estrada, docketed as SPA No. 13-211 (DC), was anchored on
Section 40 of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving moral turpitude, former President
Estrada must be disqualified to run for and hold public elective office notwithstanding the fact that he is
a grantee of a pardon that includes a statement expressing "[h]e is hereby restored to his civil and
political rights." Risos-Vidal theorizes that former President Estrada is disqualified from running for

53
Mayor of Manila in the May 13, 2013 Elections, and remains disqualified to hold any local elective post
despite the presidential pardon extended to him in 2007 by former President Arroyo for the reason that
it (pardon) did not expressly provide for the remission of the penalty of perpetual absolute
disqualification, particularly the restoration of his (former President Estrada) right to vote and be voted
upon for public office. She invokes Articles 36 and 41 of the Revised Penal Code as the foundations of her
theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former President
Estrada does not actually specify which political right is restored, it could be inferred that former
President Arroyo did not deliberately intend to restore former President Estrada’s rights of suffrage and
to hold public office, or to otherwise remit the penalty of perpetual absolute disqualification. Even if her
intention was the contrary, the same cannot be upheld based on the pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the
President of the Philippines possesses the power to grant pardons, along with other acts of executive
clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by
final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of
the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules,
and regulations shall be granted by the President without the favorable recommendation of the
Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the President
may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a
final conviction; and (3) cases involving violations of election laws, rules and regulations in which there
was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act
of Congress by way of statute cannot operate to delimit the pardoning power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935 Constitution,
wherein the provision granting pardoning power to the President shared similar phraseology with what
is found in the present 1987 Constitution, the Court then unequivocally declared that "subject to the
limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action." The Court reiterated this pronouncement in Monsanto v. Factoran, Jr. 29 thereby
establishing that, under the present Constitution, "a pardon, being a presidential prerogative, should not
be circumscribed by legislative action." Thus, it is unmistakably the long-standing position of this Court
that the exercise of the pardoning power is discretionary in the President and may not be interfered with
by Congress or the Court, except only when it exceeds the limits provided for by the Constitution.

54
This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of
Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the
framers of the 1987 Constitution when they flatly rejected a proposal to carve out an exception from the
pardoning power of the President in the form of "offenses involving graft and corruption" that would be
enumerated and defined by Congress through the enactment of a law. The following is the pertinent
portion lifted from the Record of the Commission (Vol. II):

MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the same
section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may be limited
by legislation.

I suggest that this be deleted on the grounds that, first, violations of corrupt practices may include a very
little offense like stealing ₱10; second, which I think is more important, I get the impression, rightly or
wrongly, that subconsciously we are drafting a constitution on the premise that all our future Presidents
will be bad and dishonest and, consequently, their acts will be lacking in wisdom. Therefore, this Article
seems to contribute towards the creation of an anti-President Constitution or a President with vast
responsibilities but no corresponding power except to declare martial law. Therefore, I request that
these lines be deleted.

MR. REGALADO. Madam President,may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of the fact
that similar to the provisions on the Commission on Elections, the recommendation of that Commission
is required before executive clemency isgranted because violations of the election laws go into the very
political life of the country.

With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have that
subjected to the same condition because violation of our Corrupt Practices Law may be of such
magnitude as to affect the very economic systemof the country. Nevertheless, as a compromise, we
provided here that it will be the Congress that will provide for the classification as to which convictions
will still require prior recommendation; after all, the Congress could take into account whether or not
the violation of the Corrupt Practices Law is of such magnitude as to affect the economic life of the
country, if it is in the millions or billions of dollars. But I assume the Congress in its collective wisdom will
exclude those petty crimes of corruption as not to require any further stricture on the exercise of
executive clemency because, of course, there is a whale of a difference if we consider a lowly clerk
committing malversation of government property or funds involving one hundred pesos. But then, we
also anticipate the possibility that the corrupt practice of a public officer is of such magnitude as to have
virtually drained a substantial portion of the treasury, and then he goes through all the judicial processes
and later on, a President who may have close connections with him or out of improvident compassion

55
may grant clemency under such conditions. That is why we left it to Congress to provide and make a
classification based on substantial distinctions between a minor act of corruption or an act of substantial
proportions. SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the word
"violations"?

MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or "GROSS" can
be misconstrued by putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and that is
precisely why it is called executive clemency. In this sentence, which the amendment seeks to delete, an
exception is being made. Congress, which is the legislative arm, is allowed to intrude into this prerogative
of the executive. Then it limits the power of Congress to subtract from this prerogative of the President
to grant executive clemency by limiting the power of Congress to only corrupt practices laws. There are
many other crimes more serious than these. Under this amendment, Congress cannot limit the power of
executive clemency in cases of drug addiction and drug pushing which are very, very serious crimes that
can endanger the State; also, rape with murder, kidnapping and treason. Aside from the fact that it is a
derogation of the power of the President to grant executive clemency, it is also defective in that it singles
out just one kind of crime. There are far more serious crimes which are not included.

MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is
anexecutive power. But even in the provisions on the COMELEC, one will notice that constitutionally, it is
required that there be a favorable recommendation by the Commission on Elections for any violation of
election laws.

At any rate, Commissioner Davide, as the principal proponent of that and as a member of the
Committee, has explained in the committee meetings we had why he sought the inclusion of this
particular provision. May we call on Commissioner Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the Article on
Accountability of Public Officers. Under it, it is mandated that a public office is a public trust, and all
government officers are under obligation to observe the utmost of responsibility, integrity, loyalty and
efficiency, to lead modest lives and to act with patriotism and justice.

In all cases, therefore, which would go into the verycore of the concept that a public office is a public
trust, the violation is itself a violation not only of the economy but the moral fabric of public officials.

56
And that is the reason we now want that if there is any conviction for the violation of the Anti-Graft and
Corrupt Practices Act, which, in effect, is a violation of the public trust character of the public office, no
pardon shall be extended to the offender, unless some limitations are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the
Committee left it entirely to the legislature to formulate the mechanics at trying, probably, to distinguish
between grave and less grave or serious cases of violation of the Anti-Graft and Corrupt Practices Act.
Perhaps this is now the best time, since we have strengthened the Article on Accountability of Public
Officers, to accompany it with a mandate that the President’s right to grant executive clemency for
offenders or violators of laws relating to the concept of a public office may be limited by Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this Constitutional
Commission that we are emasculating the powers of the presidency, and this provision to me is another
clear example of that. So, I speak against this provision. Even the 1935 and the 1973 Constitutions do not
provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I am in
sympathy with the stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we should
remember that above all the elected or appointed officers of our Republic, the leader is the President. I
believe that the country will be as the President is, and if we systematically emasculate the power of this
presidency, the time may come whenhe will be also handcuffed that he will no longer be able to act like
he should be acting.

So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

MR. COLAYCO. Thank you very much, Madam President.

I seldom rise here to object to or to commend or to recommend the approval of proposals, but now I
find that the proposal of Commissioner Tan is worthy of approval of this body.

57
Why are we singling out this particular offense? There are other crimes which cast a bigger blot on the
moral character of the public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief Executive in
deciding whether to pardon, to reprieve or to commute the sentence rendered by the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be Commissioner
Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the Anti-Graft
Court, so if this is allowed to stay, it would mean that the President’s power togrant pardon or reprieve
will be limited to the cases decided by the Anti-Graft Court, when as already stated, there are many
provisions inthe Revised Penal Code that penalize more serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the exercise
of executive clemency, usually under Article V of the Revised Penal Code the judge will recommend such
exercise of clemency. And so, I am in favor of the amendment proposed by Commissioner Tan for the
deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the President. In
case of other criminals convicted in our society, we extend probation to them while in this case, they
have already been convicted and we offer mercy. The only way we can offer mercy to them is through
this executive clemency extended to them by the President. If we still close this avenue to them, they
would be prejudiced even worse than the murderers and the more vicious killers in our society. I do not
think they deserve this opprobrium and punishment under the new Constitution.

I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also because
of the objection of the main proponent, Commissioner Davide. So we feel that the Commissioners
should vote on this question.

58
VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to delete the
last sentence of Section 17 appearing on lines 7, 8 and 9, please raise their hand. (Several Members
raised their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is approved. 30 (Emphases
supplied.)

The proper interpretation of Articles

36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code
cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of the President to
pardon persons convicted of violating penal statutes.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific textual
commands which must be strictly followed in order to free the beneficiary of presidential grace from the
disqualifications specifically prescribed by them.

Again, Articles 36 and 41 of the Revised Penal Code provides:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or
the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during
the period of the sentence as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)

A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verba legis
non est recedendum. From the words of a statute there should be no departure. 31 It is this Court’s firm
view that the phrase in the presidential pardon at issue which declares that former President Estrada "is

59
hereby restored to his civil and political rights" substantially complies with the requirement of express
restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express remission
and/or restoration of the rights of suffrage and/or to hold public office in the pardon granted to former
President Estrada, as required by Articles 36 and 41 of the Revised Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed by the
President, as they do not abridge or diminish the President’s power to extend clemency. He opines that
they do not reduce the coverage of the President’s pardoning power. Particularly, he states:

Articles 36 and 41 refer only to requirements of convention or form. They only provide a procedural
prescription. They are not concerned with areas where or the instances when the President may grant
pardon; they are only concerned with how he or she is to exercise such power so that no other
governmental instrumentality needs to intervene to give it full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the
restoration of the rights of suffrage and to hold public office, or the remission of the accessory penalty of
perpetual absolute disqualification, he or she should do so expressly. Articles 36 and 41 only ask that the
President state his or her intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the
point, the President retains the power to make such restoration or remission, subject to a prescription
on the manner by which he or she is to state it. 32

With due respect, I disagree with the overbroad statement that Congress may dictate as to how the
President may exercise his/her power of executive clemency. The form or manner by which the
President, or Congress for that matter, should exercise their respective Constitutional powers or
prerogatives cannot be interfered with unless it is so provided in the Constitution. This is the essence of
the principle of separation of powers deeply ingrained in our system of government which "ordains that
each of the three great branches of government has exclusive cognizance of and is supreme in matters
falling within its own constitutionally allocated sphere." 33 Moreso, this fundamental principle must be
observed if noncompliance with the form imposed by one branch on a co-equal and coordinate branch
will result into the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give
full effect to the executive clemency granted by the President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish the import of the pardon which emanated from the
Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions
must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for
such crimes and the power of the President to grant executive clemency. All that the said provisions
impart is that the pardon of the principal penalty does notcarry with it the remission of the accessory
penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes
the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only
clarify the effect of the pardon so decided upon by the President on the penalties imposedin accordance
with law.

60
A close scrutiny of the text of the pardon extended to former President Estrada shows that both the
principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first
sentence refers to the executive clemency extended to former President Estrada who was convicted by
the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal
penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that
"(h)e is hereby restored to his civil and political rights," expressly remitted the accessory penalties that
attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the
Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly remitted together with the principal
penalty of reclusion perpetua.

In this jurisdiction, the right to seek public elective office is recognized by law as falling under the whole
gamut of civil and political rights.

Section 5 of Republic Act No. 9225, 34 otherwise known as the "Citizenship Retention and Reacquisition
Act of 2003," reads as follows:

Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire Philippine citizenship
under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to
exercise their right of suffrage must meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003"
and other existing laws;

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

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to the country where they took that
oath; (4) Those intending to practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or

(b) are in active service as commissioned or non commissioned officers in the armed
forces of the country which they are naturalized citizens. (Emphases supplied.)

No less than the International Covenant on Civil and Political Rights, to which the Philippines is a
signatory, acknowledges the existence of said right. Article 25(b) of the Convention states: Article 25

61
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
Article 2 and without unreasonable restrictions:

xxxx

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the will of the electors[.]
(Emphasis supplied.)

Recently, in Sobejana-Condon v. Commission on Elections, 35 the Court unequivocally referred to the right
to seek public elective office as a political right, to wit:

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who
re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their
right to run for public office. The petitioner’s failure to comply there with in accordance with the exact
tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she
executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office.
Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and
hold any elective office in the Philippines. (Emphasis supplied.)

Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally
considered as a political right. Hence, the Court reiterates its earlier statement that the pardon granted
to former President Estrada admits no other interpretation other than to mean that, upon acceptance of
the pardon granted to him, he regained his FULL civil and political rights – including the right to seek
elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal provisions;
and prescribes a formal requirement that is not only unnecessary but, if insisted upon, could be in
derogation of the constitutional prohibition relative to the principle that the exercise of presidential
pardon cannot be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr. 36 to justify her
argument that an absolute pardon must expressly state that the right to hold public office has been
restored, and that the penalty of perpetual absolute disqualification has been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices Teodoro R.
Padilla and Florentino P. Feliciano are to be respected, they do not form partof the controlling doctrine
nor to be considered part of the law of the land. On the contrary, a careful reading of the majority
opinion in Monsanto, penned by no less than Chief Justice Marcelo B. Fernan, reveals no statement that
denotes adherence to a stringent and overly nuanced application of Articles 36 and 41 of the Revised
Penal Code that will in effect require the President to use a statutorily prescribed language in extending
executive clemency, even if the intent of the President can otherwise be deduced from the text or words
used in the pardon. Furthermore, as explained above, the pardon here is consistent with, and not
contrary to, the provisions of Articles 36 and 41.

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The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of
the OEC was removed by his acceptance of the absolute pardon granted to him.

Section 40 of the LGC identifies who are disqualified from running for any elective local position. Risos-
Vidal argues that former President Estrada is disqualified under item (a), to wit:

(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.)

Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an exception, to wit:

Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted amnesty.
(Emphasis supplied.)

As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder disqualifies
him from running for the elective local position of Mayor of the City of Manila under Section 40(a) of the
LGC. However, the subsequent absolute pardon granted to former President Estrada effectively restored
his right to seek public elective office. This is made possible by reading Section 40(a) of the LGC in
relation to Section 12 of the OEC.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms,
Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In
other words, the latter provision allows any person who has been granted plenary pardon or amnesty
after conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold
any public office, whether local or national position.

Take notice that the applicability of Section 12 of the OEC to candidates running for local elective
positions is not unprecedented. In Jalosjos, Jr. v. Commission on Elections, 37 the Court acknowledged the
aforementioned provision as one of the legal remedies that may be availed of to disqualify a candidate in
a local election filed any day after the last day for filing of certificates of candidacy, but not later than the
date of proclamation.38 The pertinent ruling in the Jalosjos case is quoted as follows:

What is indisputably clear is that 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 prision
mayor, a petition under Section 12 ofthe 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
petitioner.39 (Emphasis supplied.)

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or office," neither makes
the pardon conditional, nor militate against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored.

63
This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering
the unqualified use of the term "civil and political rights"as being restored. Jurisprudence educates that
a preamble is not an essential part of an act as it is an introductory or preparatory clause that explains
the reasons for the enactment, usually introduced by the word "whereas." 40 Whereas clauses do not
form part of a statute because, strictly speaking, they are not part of the operative language of the
statute.41 In this case, the whereas clause at issue is not an integral part of the decree of the pardon, and
therefore, does not by itself alone operate to make the pardon conditional or to make its effectivity
contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner Maria
Gracia Padaca’s separate concurring opinion in the assailed April 1, 2013 Resolution of the COMELEC in
SPA No. 13-211 (DC), which captured the essence of the legal effect of preambular paragraphs/whereas
clauses, viz:

The present dispute does not raise anything which the 20 January 2010 Resolution did not conclude
upon. Here, Petitioner Risos-Vidal raised the same argument with respect to the 3rd "whereas clause" or
preambular paragraph of the decree of pardon. It states that "Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office." On this contention, the undersigned
reiterates the ruling of the Commission that the 3rd preambular paragraph does not have any legal or
binding effect on the absolute nature of the pardon extended by former President Arroyo to herein
Respondent. This ruling is consistent with the traditional and customary usage of preambular
paragraphs. In the case of Echegaray v. Secretary of Justice, the Supreme Court ruled on the legal effect
of preambular paragraphs or whereas clauses on statutes. The Court stated, viz.:

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent
or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and
unambiguous, the preamble can neither expand nor restrict its operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to
seek a public office again, the former ought to have explicitly stated the same in the text of the pardon
itself. Since former President Arroyo did not make this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition
to the pardon extended to former President Estrada. 42 (Emphasis supplied.)

Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s decision
to run for President in the May 2010 elections against, among others, the candidate of the political party
of former President Arroyo, after the latter’s receipt and acceptance of the pardon speaks volume of her
intention to restore him to his rights to suffrage and to hold public office.

Where the scope and import of the executive clemency extended by the President is in issue, the Court
must turn to the only evidence available to it, and that is the pardon itself. From a detailed review ofthe
four corners of said document, nothing therein gives an iota of intimation that the third Whereas Clause
is actually a limitation, proviso, stipulation or condition on the grant of the pardon, such that the breach
of the mentioned commitment not to seek public office will result ina revocation or cancellation of said
pardon. To the Court, what it is simply is a statement of fact or the prevailing situation at the time the
executive clemency was granted. It was not used as a condition to the efficacy orto delimit the scope of
the pardon.

64
Even if the Court were to subscribe to the view that the third Whereas Clause was one of the reasons to
grant the pardon, the pardon itself does not provide for the attendant consequence of the breach
thereof. This Court will be hard put to discern the resultant effect of an eventual infringement. Just like it
will be hard put to determine which civil or political rights were restored if the Court were to take the
road suggested by Risos-Vidal that the statement "[h]e is hereby restored to his civil and political rights"
excludes the restoration of former President Estrada’s rights to suffrage and to hold public office. The
aforequoted text of the executive clemency granted does not provide the Court with any guide asto how
and where to draw the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the pardon is
contingent on the condition that former President Estrada will not seek another elective public office,
but it actually concerns the coverage of the pardon – whether the pardon granted to former President
Estrada was so expansive as to have restored all his political rights, inclusive of the rights of suffrage and
to hold public office. Justice Leonen is of the view that the pardon in question is not absolute nor plenary
in scope despite the statement that former President Estrada is "hereby restored to his civil and political
rights," that is, the foregoing statement restored to former President Estrada all his civil and political
rights except the rights denied to him by the unremitted penalty of perpetual absolute disqualification
made up of, among others, the rights of suffrage and to hold public office. He adds that had the
President chosen to be so expansive as to include the rights of suffrage and to hold public office, she
should have been more clear on her intentions.

However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of the Court,
is crystal clear – the pardon granted to former President Estrada was absolute, meaning, it was not only
unconditional, it was unrestricted in scope, complete and plenary in character, as the term "political
rights “adverted to has a settled meaning in law and jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word "full" can
be construed as excluding the restoration of the rights of suffrage and to hold public office. There
appears to be no distinction as to the coverage of the term "full political rights" and the term "political
rights" used alone without any qualification. How to ascribe to the latter term the meaning that it is
"partial" and not "full" defies one’s understanding. More so, it will be extremely difficult to identify
which of the political rights are restored by the pardon, when the text of the latter is silent on this
matter. Exceptions to the grant of pardon cannot be presumed from the absence of the qualifying word
"full" when the pardon restored the "political rights" of former President Estrada without any exclusion
or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former President
Estrada was absolute in the absence of a clear, unequivocal and concrete factual basis upon which to
anchor or support the Presidential intent to grant a limited pardon.

To reiterate, insofar as its coverage is concerned, the text of the pardon can withstand close scrutiny
even under the provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.

65
In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

The Court has consistently held that a petition for certiorari against actions of the COMELEC is confined
only to instances of grave abuse of discretion amounting to patent and substantial denial of due process,
because the COMELEC is presumed to be most competent in matters falling within its domain. 43

As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to passion,
prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts
to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of
law. For an act to be condemned as having been done with grave abuse of discretion, such an abuse
must be patent and gross.44

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to
prove that the assailed COMELEC Resolutions were issued in a "whimsical, arbitrary or capricious
exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law" or
were so "patent and gross" as to constitute grave abuse of discretion.

On the foregoing premises and conclusions, this Court finds it unnecessary to separately discuss Lim's
petition-in-intervention, which substantially presented the same arguments as Risos-Vidal's petition.

WHEREFORE, the petition for certiorari and petition-in intervention are DISMISSED. The Resolution dated
April 1, 2013 of the Commission on Elections, Second Division, and the Resolution dated April 23, 2013
of the Commission on Elections, En bane, both in SPA No. 13-211 (DC), are AFFIRMED.

SO ORDERED.

G.R. No. 205033 June 18, 2013

ROMEO G. JALOSJOS, Petitioner, vs.THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-

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

Assailed in this petition for certiorari 1 file under Rule 64 in relation to Rule 65 of the Rules of Court is the
Commission on Elections' (COMELEC) En Bane Resolution No. 9613 2 dated January 15, 2013, ordering the
denial of due course to and/or cancellation of petitioner Romeo G. Jalosjos' certificate of candidacy (CoC)
as a mayoralty candidate for Zamboanga City.

The Facts

On November 16, 2001, the Court promulgated its Decision in G.R. Nos. 132875-76, entitled "People of
the Philippines v. Romeo G. Jalosjos," convicting petitioner by final judgment of two (2) counts of
statutory rape and six (6) counts of acts of lasciviousness. 4 Consequently, he was sentenced to suffer the
principal penalties of reclusion perpetua and reclusion temporal 5 for each count, respectively, which
carried the accessory penalty of perpetual absolute disqualification pursuant to Article 41 of the Revised
Penal Code (RPC).6 On April 30, 2007, then President Gloria Macapagal Arroyo issued an order
commuting his prison term to sixteen (16) years, three (3) months and three (3) days (Order of

66
Commutation). After serving the same, he was issued a Certificate of Discharge From Prison on March
18, 2009.7

On April 26, 2012,8 petitioner applied to register as a voter in Zamboanga City. However, because of his
previous conviction, his application was denied by the Acting City Election Officer of the Election
Registration Board (ERB), prompting him to file a Petition for Inclusion in the Permanent List of Voters
(Petition for Inclusion) before the Municipal Trial Court in Cities of Zamboanga City, Branch 1
(MTCC).9 Pending resolution of the same, he filed a CoC 10 on October 5, 2012, seeking to run as mayor
for Zamboanga City in the upcoming local elections scheduled on May 13, 2013 (May 2013 Elections). In
his CoC, petitioner stated, inter alia, that he is eligible for the said office and that he is a registered voter
of Barangay Tetuan, Zamboanga City.

On October 18, 2012,11 the MTCC denied his Petition for Inclusion on account of his perpetual absolute
disqualification which in effect, deprived him of the right to vote in any election. Such denial was
affirmed by the Regional Trial Court of Zamboanga City, Branch 14 (RTC) in its October 31, 2012
Order12 which, pursuant to Section 13813 of Batas Pambansa Bilang 881, as amended, otherwise known
as the "Omnibus Election Code" (OEC), was immediately final and executory.

Meanwhile, five (5) petitions were lodged before the COMELEC’s First and Second Divisions (COMELEC
Divisions), praying for the denial of due course to and/or cancellation of petitioner’s CoC. Pending
resolution, the COMELEC En Banc issued motu proprio Resolution No. 9613 14 on January 15, 2013,
resolving "to CANCEL and DENY due course the Certificate of Candidacy filed by Romeo G. Jalosjos as
Mayor of Zamboanga City in the May 13, 2013 National and Local Elections" due to his perpetual
absolute disqualification as well as his failure to comply with the voter registration requirement. As basis,
the COMELEC En Banc relied on the Court’s pronouncement in the consolidated cases of Dominador
Jalosjos, Jr. v. COMELEC and Agapito Cardino v. COMELEC 15 (Jalosjos, Jr. and Cardino).

Hence, the instant petition.

Issues Before the Court

Submitted for the Court’s determination are the following issues: (a) whether the COMELEC En Banc
acted beyond its jurisdiction when it issued motu proprio Resolution No. 9613 and in so doing, violated
petitioner’s right to due process; and (b) whether petitioner’s perpetual absolute disqualification to run
for elective office had already been removed by Section 40(a) of Republic Act No. 7160, otherwise
known as the "Local Government Code of 1991" (LGC).

The Court’s Ruling

The petition is bereft of merit.

At the outset, the Court observes that the controversy in this case had already been mooted by the
exclusion of petitioner in the May 2013 Elections. Nevertheless, in view of the doctrinal value of the
issues raised herein, which may serve to guide both the bench and the bar in the future, the Court takes
this opportunity to discuss on the same.

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A. Nature and validity of motu
proprio issuance of Resolution No.
9613.

Petitioner claims that the COMELEC En Banc usurped the COMELEC Divisions’ jurisdiction by cancelling
motu proprio petitioner’s CoC through Resolution No. 9613, contrary to Section 3, Article IX-C of the
1987 Philippine Constitution (Constitution) which reads:

SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies.
All such election cases shall be heard and decided in division, provided that motions for reconsideration
of decisions shall be decided by the Commission en banc. (Emphasis and underscoring supplied)

Concomitantly, he also claims that his right to procedural due process had been violated by the
aforementioned issuance.

The Court is not persuaded.

The above-cited constitutional provision requiring a motion for reconsideration before the COMELEC En
Banc may take action is confined only to cases where the COMELEC exercises its quasi-judicial power. It
finds no application, however, in matters concerning the COMELEC’s exercise of administrative functions.
The distinction between the two is well-defined. As illumined in Villarosa v. COMELEC: 16

The term ‘administrative’ connotes, or pertains, to ‘administration, especially management, as by

managing or conducting, directing or superintending, the execution, application, or conduct of persons
or things. It does not entail an opportunity to be heard, the production and weighing of evidence, and a
decision or resolution thereon. While a ‘quasi-judicial function’ is a term which applies to the action,
discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or
ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their
official action and to exercise discretion of a judicial nature. (Emphasis and underscoring supplied)

Crucial therefore to the present disquisition is the determination of the nature of the power exercised by
the COMELEC En Banc when it promulgated Resolution No. 9613.

The foregoing matter is not without established precedent. In Jalosjos, Jr. and Cardino, the Court held
that the COMELEC’s denial of due course to and/or cancellation of a CoC in view of a candidate’s
disqualification to run for elective office based on a final conviction is subsumed under its mandate to
enforce and administer all laws relating to the conduct of elections. Accordingly, in such a situation, it is
the COMELEC’s duty to cancel motu proprio the candidate’s CoC, notwithstanding the absence of any
petition initiating a quasi-judicial proceeding for the resolution of the same. Thus, the Court stated: 17

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.

68
The final judgment of the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification,
it is assumed that the portion of the final judgment on disqualification to run for elective public office is
addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and
administer all laws and regulations relative to the conduct of an election." 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. (Emphasis and
underscoring supplied)

In Aratea v. COMELEC (Aratea),18 the Court similarly pronounced that the disqualification of a convict to
run for public office, 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. 19

Applying these principles to the case at bar, it is clear that the COMELEC En Banc did not exercise its
quasi-judicial functions when it issued Resolution No. 9613 as it did not assume jurisdiction over any
pending petition or resolve any election case before it or any of its divisions. Rather, it merely performed
its duty to enforce and administer election laws in cancelling petitioner’s CoC on the basis of his
perpetual absolute disqualification, the fact of which had already been established by his final
conviction. In this regard, the COMELEC En Banc was exercising its administrative functions, dispensing
with the need for a motion for reconsideration of a division ruling under Section 3, Article IX-C of the
Constitution, the same being required only in quasi-judicial proceedings.

Lest it be misunderstood, while the denial of due course to and/or cancellation of one’s CoC generally
necessitates the exercise of the COMELEC’s quasi-judicial functions commenced through a petition based
on either Sections 1220 or 7821 of the OEC, or Section 4022 of the LGC, when the grounds therefor are
rendered conclusive on account of final and executory judgments – as when a candidate’s
disqualification to run for public office is based on a final conviction – such exercise falls within the
COMELEC’s administrative functions, as in this case.

In this light, there is also no violation of procedural due process since the COMELEC En Banc would be
acting in a purely administrative manner. Administrative power is concerned with the work of applying
policies and enforcing orders as determined by proper governmental organs. 23 As petitioner’s
disqualification to run for public office had already been settled in a previous case and now stands
beyond dispute, it is incumbent upon the COMELEC En Banc to cancel his CoC as a matter of course, else
it be remiss in fulfilling its duty to enforce and administer all laws and regulations relative to the conduct
of an election.

69
Equally compelling is the fact that the denial of petitioner’s Petition for Inclusion as a registered voter in
Zamboanga City had already attained finality by virtue of the RTC’s Order dated October 31, 2012. In this
accord, petitioner’s non-compliance with the voter registration requirement under Section 39(a) of the
LGC24 is already beyond question and likewise provides a sufficient ground for the cancellation of his CoC
altogether.

B. Petitioner’s right to run for

elective office.

It is petitioner’s submission that Article 30 of the RPC was partially amended by Section 40(a) of the LGC
and thus, claims that his perpetual absolute disqualification had already been removed.

The argument is untenable.

Well-established is the rule that every new statute should be construed in connection with those already
existing in relation to the same subject matter and all should be made to harmonize and stand together,
if they can be done by any fair and reasonable interpretation. 25

On the one hand, Section 40(a) of the LGC, applicable as it is to local elective candidates, provides:

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

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

And on the other hand, Article 30 of the RPC reads:

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

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

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

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

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3

of this Article shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held. (Emphasis
and underscoring supplied)

70
Keeping with the above-mentioned statutory construction principle, the Court observes that the conflict
between these provisions of law may be properly reconciled. In particular, while Section 40(a) of the LGC
allows a prior convict to run for local elective office after the lapse of two (2) years from the time he
serves his sentence, the said provision should not be deemed to cover cases wherein the law 26 imposes a
penalty, either as principal or accessory, 27 which has the effect of disqualifying the convict to run for
elective office. An example of this would be Article 41 of the RPC, which imposes the penalty of
perpetual28 absolute29 disqualification as an accessory to the principal penalties of reclusion perpetua
and reclusion temporal:

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties. - The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during
the period of the sentence as the case may be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphasis and underscoring supplied)

In this relation, Article 30 of the RPC, as earlier cited, provides that the penalty of perpetual absolute
disqualification has the effect of depriving the convicted felon of the privilege to run for elective office.
To note, this penalty, as well as other penalties of similar import, is based on the presumptive rule that
one who is rendered infamous by conviction of a felony, or other base offense indicative of moral
turpitude, is unfit to hold public office, 30 as the same partakes of a privilege which the State grants only
to such classes of persons which are most likely to exercise it for the common good. 31

Pertinently, it is observed that the import of Article 41 in relation to Article 30 of the RPC is more direct
and specific in nature – insofar as it deprives the candidate to run for elective office due to his conviction
– as compared to Section 40(a) of the LGC which broadly speaks of offenses involving moral turpitude
and those punishable by one (1) year or more of imprisonment without any consideration of certain
disqualifying effects to one’s right to suffrage. Accordingly, Section 40(a) of the LGC should be considered
as a law of general application and therefore, must yield to the more definitive RPC provisions in line
with the principle of lex specialis derogat generali – general legislation must give way to special
legislation on the same subject, and generally is so interpreted as to embrace only cases in which the
special provisions are not applicable. In other words, where two statutes are of equal theoretical
application to a particular case, the one specially designed therefor should prevail. 32

In the present case, petitioner was sentenced to suffer the principal penalties of reclusion perpetua and
reclusion temporal which, pursuant to Article 41 of the RPC, carried with it the accessory penalty of
perpetual absolute disqualification and in turn, pursuant to Article 30 of the RPC, disqualified him to run
for elective office. As discussed, Section 40(a) of the LGC would not apply to cases wherein a penal
provision – such as Article 41 in this case – directly and specifically prohibits the convict from running for
elective office. Hence, despite the lapse of two (2) years from petitioner’s service of his commuted
prison term, he remains bound to suffer the accessory penalty of perpetual absolute disqualification
which consequently, disqualifies him to run as mayor for Zamboanga City.

Notably, Article 41 of the RPC expressly states that one who is previously convicted of a crime punishable
by reclusion perpetua or reclusion temporal continues to suffer the accessory penalty of perpetual
absolute disqualification even though pardoned as to the principal penalty, unless the said accessory
penalty shall have been expressly remitted in the pardon. 33 In this case, the same accessory penalty had

71
not been expressly remitted in the Order of Commutation or by any subsequent pardon and as such,
petitioner’s disqualification to run for elective office is deemed to subsist.

Further, it is well to note that the use of the word "perpetual" in the aforementioned accessory penalty
connotes a lifetime restriction and in this respect, does not depend on the length of the prison term
which is imposed as its principal penalty. Instructive on this point is the Court’s ruling in Lacuna v.
Abes,34 where the court explained the meaning of the term "perpetual" as applied to the penalty of
disqualification to run for public office:

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

But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the
right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special
disqualification, which lasts during the term of the sentence. (Emphasis and underscoring supplied)

Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of Aratea, 35 Jalosjos, Jr. and
Cardino,36held:

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. (Emphasis underscoring supplied)

All told, applying the established principles of statutory construction, and more significantly, considering
the higher interests of preserving the sanctity of our elections, the Court holds that Section 40(a) of the
LGC has not removed the penalty of perpetual absolute disqualification which petitioner continues to
suffer.1âwphi1 Thereby, he remains disqualified to run for any elective office pursuant to Article 30 of
the RPC.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 226792

72
SOFRONIO B. ALBANIA, Petitioner vs.COMMISSION ON ELECTIONS Promulgated: and EDGARDO A.
TALLADO, Respondent

Challenged in this petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Civil
Procedure is the Resolution 1 dated August 24, 2016 of the Commission on Elections (COMELEC) En
Banc which upheld the Resolution 2 dated April 22, 2016 of the COMELEC Second Division dismissing the
petition to deny due course to or to cancel respondent Edgardo A. Tallado's Certificate of Candidacy
(COC) for being filed out of time.

The facts are as follows:

In the May 14, 2007 National and Local Elections, respondent Edgardo A. Tallado and Jesus O. Typoco
were both candidates for the position of Governor in Camarines Norte. After the counting and
canvassing of votes, Typoco was proclaimed as the winner. Respondent questioned Typoco's
proclamation by filing with the COMELEC, a petition for correction of a manifest error. The Petition was
decided3 in respondent's favor on March 5, 2010 and the latter assumed the position of Governor of
Camarines Norte from March 22, 2010 to June 30, 2010, the end of the 2007-2010 term.

Respondent ran again in the 2010 4 and 2013 5 National and Local Elections where he won and served as
Governor of Camarines Norte, respectively.

On October 16, 2015, respondent filed his Certificate of Candidacy 6 as Governor of Camarines Norte in
the May 9, 2016 National and Local elections

On November 13, 2015, petitioner, a registered voter of Poblacion Sta. Elena, Camarines Norte, filed a
petition 7for respondent's disqualification from running as Governor based on Rule 25 of COMELEC
Resolution No. 9523 8on two grounds: (1) he violated the three term limit I rule under Section 43 of RA
No 7160, otherwise known as the Local Government Code of 1991 (LGC); and (2) respondent's
suspension froni office for one year without pay, together with its accessory penalties, after he was
found guilty of oppression and grave abuse of authority in the Ombudsman's Order9 dated October 2,
2015.

In his Verified Answer, respondent argued that since the petition was primarily based on his alleged
violation of the three-term limit rule, the same1 should have been filed as a petition to deny due course
to or cancel certificate of candidacy under Rule 23 of COMELEC Resolution 9523, in relation to Section 78
of the Omnibus Election Code, as the ground cited affected a candidate's eligibility; that based on
Section 23, the petition should had been filed on November 10, 2015, but the petition was filed only on
November 13, 2015, hence, the same had already prescribed and must be dismissed. His suspension
from office is also not a ground for a petition for disqualification. On the substantive issues, he denied
violating the three-term limit rule as he did not fully serve three consecutive terms since he only served
as Governor for the 2007 elections from March 22, 2010 to June 30, 2010.

On April 22, 2016, the COMELEC Second Division dismissed the petition for being filed out of time. It
ruled that a violation of the three-term limit rule and suspension from office as a result of an
administrative case are not grounds for disqualification of a candidate under the law; that the alleged
violation of three-term limit rule is a ground for ineligibility which constituted false material

73
representation under Section 78 of the OEC; and such petition must be filed within 25 days from the
time of filing of the COC, which respondent failed to do.

Petitioner filed a motion for reconsideration with the COMELEC En Banc, which dismissed the same in a
Resolution dated August 24, 2016.

The COMELEC En Banc echoed the Division's findings that the grounds relied upon by petitioner are not
proper for a petition for disqualification but one for denial of due course to or cancellation of
respondent's COC, which was filed out of time. It then continued to rule on the merits finding that
respondent did not serve the full 2007-2010 term as Governor of Camarines Norte, thus, cannot be
considered as one term for purposes of counting the three-term threshold; and that the ground for a
candidate's disqualification referred to by Section 40 (b) of the LGC is the actual removal from office as a
result of an administrative case, and not mere suspension as imposed by the Ombudsman.

Dissatisfied, petitioner is now before us in a petition for certiorari raising the following grounds, to wit:
Whether or not the respondent COMELEC acted with grave abuse of discretion amounting to lack of
jurisdiction.: (1) in ruling that the grounds relied upon are not proper grounds for a petition for
disqualification; (2) in ruling that even if the petition for disqualification is considered one for denial of
due course to or cancellation of private respondent Tallado's COC, the same is filed out of time; (3) in
failing to rule that private respondent Tallado should be disqualified pursuant to Section 43 of RA No.
7160 or the LGC; and (4) in failing to rule that private respondent Tallado should be disqualified due to
the Order dated October of the Ombudsman. 10

We find the petition without merit.

In a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court, the primordial issue
to be resolved is whether the respondent tribunal committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed resolution. 11 The term "grave abuse of discretion" is
defined as a capricious and whimsical exercise of judgment so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is
exercised in an arbitrary and despotic manner because of passion or hostility. 12 Grave abuse of
discretion arises when a court or tribunal violates the Constitution, the law or .existing
jurisprudence. 13 and as a matter of policy, this Court will not interfere with the resolutions of the
Comelec unless it is shown that it had committed grave abuse of discretion. Thus, in the absence of grave
abuse of discretion, a Rule 64 petition will not prosper. 14

The grounds for disqualification of a candidate are found under Sections 12 and 68 of Batas Pambansa
Blg. 881, as amended, otherwise known as the Omnibus Election Code of the Philippines, as well as
Section 40 of the Local Government Code, which respectively provide:

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.

74
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 or sentence, unless within the same period he again becomes
disqualified.

xxxx

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

xxxx

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

(a) Those sentence 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) Fugitive from justice in criminal or nonpolitical cases here or abroad;

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

(g) The insane or feeble-minded.

Petitioner filed the petition for disqualification of respondent on the grounds that he allegedly violated
the three-term limit rule provided under the Constitution and the LGC; and that he was suspended from
office as a result of an administrative case. Notably, however, a reading of the grounds enumerated
under the above-quoted provisions for a candidate's disqualification does not include the two grounds
relied upon by petitioner. Thus, the COMELEC Second Division was correct when it found that the

75
petition was not based on any of the grounds for disqualification as enumerated in the foregoing
statutory provisions.

Respondent's suspension from office is indeed not a ground for a petition for disqualification as Section
40 (b) clearly speaks of removal from office as a result of an administrative offense that would disqualify
a candidate from running for any elective local position. In fact, the penalty of suspension cannot be a
bar to the candidacy of the respondent so suspended as long as he meets the qualifications for the office
as provided under Section 66(b) of R.A. No. 7160, to wit:

SEC. 66. Form and Notice of Decision. - x x x

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications for the office.

While the alleged violation of the three-term limit rule is not a ground for a petition for disqualification,
however, the COMELEC Second Division found that it is an ineligibility which is a proper ground for a
petition to deny due course to or to cancel a Certificate of Candidacy under Section 78 of the OEC, hence
considered the petition as such.

The Constitution has vested in the COMELEC broad powers, involving not only the enforcement and
administration of all laws and regulations relative to the conduct of elections, but also the resolution and
determination of election controversies. 15 It also granted the COMELEC the power and authority to
promulgate its rules of procedure, with the primary objective of ensuring the expeditious disposition of
election cases. 16Concomitant to such powers is the authority of the COMELEC to determine the true
nature of the cases filed before it. Thus, it examines the allegations of every pleading filed, obviously
aware that in determining the nature of the complaint or petition, its averments, rather than its
title/caption, are the proper· gauges. 17

Since the petition filed was a petition to deny due course to or to cancel a certificate of candidacy, such
petition must be filed within 25 days from the time of filing of the COC, as provided under Section 78 of
the Omnibus Election Code. However, as the COMELEC found, the petition was filed beyond the
reglementary period, and dismissed the petition for being filed out time. The COMELEC En Banc affirmed
such dismissal.

We agree.

The three-term limit rule is embodied in Section 8 of Article X of the Constitution, to wit:

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.

which is restated in Section 43 of the Local Government Code, thus:

Section 43. Term of Office. - (a) x x x

76
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in
the continuity of service for the full term for which the elective official concerned was elected.

Section 74 of the OEC provides that 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. The word
"eligible" in Section 74 means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for the public office. 20 And We had held 21 that a
violation of the three-term limit rule is an ineligibility which is a proper ground for a petition to deny due
course to or to cancel a COC under Section 78 of the Omnibus Election Code, to wit:

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

As the petition filed is indeed a petition under Section 78 of the OEC, the filing of the same must comply
with the period prescribed therein, i.e., the filing of the same must be made not later than twenty-five
days from the time of the filing of the certificate of candidacy. 22 In this ca.se, respondent filed his COC
for Governor of Camarines Norte for the 2016 elections on October 16, 2015, and he had 25 days
therefrom to file the petition for denial of due course or cancellation of COC on the ground of violation
of the three-term limit rule, which fell on November 10, 2015. However, the petition was filed only on
November 13, 2015 which was already beyond the period to file the same; thus, find no grave abuse of
discretion committed by the COMELEC in dismissing the petition for being filed out of time.

Petitioner's insistence that the petition filed with the COMELEC was based on Rule 25 of COMELEC
Resolution No. 9523 which provides:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an action or protest in which he is a party, is declared by
final decision of a competent court, guilty of, or found by the Commission to be suffering from any
disqualification provided by law or the Constitution.

x x xx

Section 3. Period to File Petition. - The Petition shall be filed any day after the last day for filing of
certificates of candidacy, but not later than the date of proclamation.

is not meritorious. Rule 25 of Comelec Resolution No. 9523 refers to disqualification of candidates and
the grounds thereof, which are those provided in Sections 12 and 68 of the OEC and Section 40 of the
LGC, as quoted in the early part of the decision. To reiterate, a violation of the three-term limit rule is not
included among the grounds for disqualification, but a ground for a petition to deny due course to or
cancel certificate of candidacy; thus, it is Rule 23 of COMELEC Resolution No. 9523 which is applicable,
and We quote:

77
Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy

Section 1. Ground for Denial or Cancellation of Certificate of Candidacy. - A verified Petition to Deny Due
Course to or Cancel a Certificate of Candidacy for any elective office may be filed by any registered voter
or a duly registered political party, organization, or coalition of political parties on the exclusive ground
that any material representation contained therein as required by law is false.

Section 2. Period to File Petition. - The Petition must be filed within five (5) days from the last day for
filing of certificate of candidacy; but not later than twenty five (25) days from the time of filing of the
certificate of candidacy subject of the Petition. In case of a substitute candidate, the Petition must be
filed within five (5) days from the time the substitute candidate filed his certificate of candidacy.

We, likewise, find no grave abuse of discretion committed by the COMELEC En Banc when it found that
the petition to deny due course to or cancel a COC will not also prosper as there was no violation of the
three-term limit rule. Petitioner alleges that since respondent had already been elected and had served
as Governor of Camarines Norte for three consecutive terms, i.e., 2007, 2010, and 2013, he is proscribed
from running for the same position in the 2016 elections as it would already be his fourth consecutive
term.

We are not convinced.

We held that two conditions must concur for the application of the disqualification of a candidate based
on violation of the three-term limit rule, which are: (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. 23

In Aldovino, Jr. v. Commission on Elections, 24 we said: 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. x x 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, 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.

A later case, Gaminde v. Commission on Audit, reiterated that 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. 25

In this case, while respondent ran as Governor of Camarines Norte in the 2007 elections, he did not win
as such. It was only after he filed la petition for correction of manifest error that he was proclaimed as

78
the duly-elected Governor. He assumed the post and served the unexpired term of his opponent from
March 22, 2010 until June 30, 2010. Consequently, he did not hold the office for the full term of three
years to which he was supposedly entitled to. Thus, such period of time that respondent served as
Governor did not constitute a complete and full service of his term. The period when he was out of office
involuntarily interrupted the continuity of his service as Governor.26 As he had not fully served the 2007-
2010 term, and had not been elected for three consecutive terms as Governor, there was no violation of
the three-term limit rule when he ran again in the 2016 elections.

We quote with approval the COMELEC En Banc's ruling on the matter as follows:

x x xx

The Supreme Court has ruled in several occasions that in.order for the ineligibility under the "three-term
limit rule" to apply, two conditions must concur: first, that the official concerned has been elected for
three consecutive terms in the same local government post; and second, that he has fully served three
consecutive terms.

While it is undisputed that respondent was duly elected as Governor of Camarines Norte for three
consecutive terms, the issue lies on whether he is deemed to have fully served his first term, specifically,
whether the service by an elected official of a term less than the full three years arising from his being
declared as the duly elected official in an election contest is considered full service of the term for
purposes of counting the three-term threshold.

The facts involved in the present case are similar to those involved

in Abundo v. COMELEC, where the Court declared:

There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision of
the election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and served
the term until June 30, 2007 or for a period of a little over one year and one month. xxx It cannot be said
that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise
entitled.

Xxx

Needless to stress, the almost two-year period during which Abundo 's opponent actually served as
Mayor is and ought to be considered an involuntary interruption of Abundo 's continuity of service. An
involuntary interrupted term,

cannot, in the context of the disqualification rule, be considered as one term for purposes of counting
the three term threshold.

Xxx

As previously stated, the declaration of being the winner in an election protest grants the local elected
official the right to serve the unexpired portion of the term.1âwphi1 Verily, while he was declared the
winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo's full term has been

79
substantially reduced by the actual service rendered by his opponent (Torres). Hence, there was actual
involuntary interruption in the term of Abundo and he cannot be considered to have served the full
2004-2007 term.

Applying the foregoing in the instant case, since Respondent did not serve the full 2007-2010 term, it
cannot be considered as one term for purposes of counting the three-term threshold. Consequently,
Respondent cannot be said to have continuously served as Governor for three consecutive terms prior to
the 2016 elections.

x x x 27

WHEREFORE, the petition is DENIED. The Resolution dated August 24, 2016 of the Commission on
Elections En Banc is hereby AFFIRMED.

G.R. Nos. 217126-27, November 10, 2015CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE
OMBUDSMAN, Petitioner, v. COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY,
JR., Respondents.

"All government is a trust, every branch of government is a trust, and immemorially acknowledged so to
be[.]"1ChanRoblesVirtualawlibrary

The Case

Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner
Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office of the
Solicitor General (OSG), assailing: (a) the Resolution 3 dated March 16, 2015 of public respondent the
Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private respondent Jejomar Erwin S.
Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order4 dated March 10, 20,15 of the Ombudsman in OMB-C-A-15-0058 to
0063 (preventive suspension order) preventively suspending him and several other public officers and
employees of the City Government of Makati, for six (6) months without pay; and (b) the
Resolution5dated March 20, 2015 of the CA, ordering the Ombudsman to comment on Binay, Jr.'s
petition for contempt6 in CA-G.R. SP No. 139504.

Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction 8 (WPI) in
CA-G.R. SP No. 139453 which further enjoined the implementation of the preventive suspension order,
prompting the Ombudsman to file a supplemental petition 9 on April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit 10 was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI
before the Office of the Ombudsman against Binay, Jr. and other public officers and employees of the
City Government of Makati (Binay, Jr., et al), accusing them of Plunder11 and violation of Republic Act No.
(RA) 3019,12 otherwise known as "The Anti-Graft and Corrupt Practices Act," in connection with the five
(5) phases of the procurement and construction of the Makati City Hall Parking Building (Makati Parking
Building).13

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On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators 14 to conduct a fact-
finding investigation, submit an investigation report, and file the necessary complaint, if warranted (1st
Special Panel).15 Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st Special Panel filed a
complaint16 (OMB Complaint) against Binay, Jr., et al, charging them with six (6) administrative cases 17 for
Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service, and
six (6) criminal cases18 for violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and
Falsification of Public Documents (OMB Cases).19

As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending the
following procurement and construction phases of the Makati Parking Building project, committed
during his previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)20

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati Parking
Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently, executed the
corresponding contract22 on September 28, 2010,23without the required publication and the lack of
architectural design,24 and approved the release of funds therefor in the following amounts as follows:
(1) P130,518,394.80 on December 15, 2010;25 (2) P134,470,659.64 on January 19, 2011; 26 (3)
P92,775,202.27 on February 25, 2011;27 (4) P57,148,625.51 on March 28, 2011;28(5) P40,908,750.61
on May 3, 2011;29 and (6) P106,672,761.90 on July 7, 2011; 30

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award 31 for Phase IV of the Makati Parking Building
project to Hilmarc's, and consequently, executed the corresponding contract 32 on August 18,
2011,33 without the required publication and the lack of architectural design, 34 and approved the release
of funds therefor in the following amounts as follows: (1) P182,325,538.97 on October 4, 2O11; 35 (2)
P173,132,606.91 on October 28,2011; 36 (3) P80,408,735.20 on December 12, 2011;37(4) P62,878,291.81
on February 10, 2012;38 and (5) P59,639,167.90 on October 1, 2012; 39

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award 40 for Phase V of the Makati Parking
Building project to Hilmarc's, and consequently, executed the corresponding contract 41 on September 13,
2012,42 without the required publication and the lack of architectural design, 43 and approved the release
of the funds therefor in the amounts of P32,398,220.05 44 and P30,582,629.3045 on December 20, 2012;
and

Binay, Jr.'s Second Term (2013 to 2016)46

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining balance of
the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking Building project in the
amount of P27,443,629.97;47 and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and architectural
services covering the Makati Parking Building project in the amount of P429,011.48. 49

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2 nd Special
Panel).50Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders51 for each of the OMB
Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.52

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Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the recommendation of
the 2nd Special Panel, issued on March 10, 2015, the subject preventive suspension order, placing Binay,
Jr., et al. under preventive suspension for not more than six (6) months without pay, during the
pendency of the OMB Cases.53 The Ombudsman ruled that the requisites for the preventive suspension
of a public officer are present,54 finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong given
that (1) the losing bidders and members of the Bids and Awards Committee of Makati City had attested
to the irregularities attending the Makati Parking Building project; (2) the documents on record negated
the publication of bids; and (3) the disbursement vouchers, checks, and official receipts showed the
release of funds; and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct,
Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if proven
to be true, warrant removal from public service under the Revised Rules on Administrative Cases in the
Civil Service (RRACCS), and (3) Binay, Jr., et al.'s respective positions give them access to public records
and allow them to influence possible witnesses; hence, their continued stay in office may prejudice the
investigation relative to the OMB Cases filed against them. 55 Consequently, the Ombudsman directed the
Department of Interior and Local Government (DILG), through Secretary Manuel A. Roxas II (Secretary
Roxas), to immediately implement the preventive suspension order against Binay, Jr., et al., upon receipt
of the same.56

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City Mayor,
and received by Maricon Ausan, a member of Binay, Jr.'s staff. 57

The Proceedings Before the CA

On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP No.
139453, seeking the nullification of the preventive suspension order, and praying for the issuance of a
TRO and/or WPI to enjoin its implementation. 60Primarily, Binay, Jr. argued that he could not be held
administratively liable for any anomalous activity attending any of the five (5) phases of the Makati
Parking Building project since: (a) Phases I and II were undertaken before he was elected Mayor of
Makati in 2010; and (b) Phases III to V transpired during his first term and that his re-election as City
Mayor of Makati for a second term effectively condoned his administrative liability therefor, if any,
thus rendering the administrative cases against him moot and academic. 61In any event, Binay, Jr.
claimed that the Ombudsman's preventive suspension order failed to show that the evidence of guilt
presented against him is strong, maintaining that he did not participate in any of the purported
irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear and
unmistakable right to hold public office, having won by landslide vote in the 2010 and 2013 elections,
and that, in view of the condonation doctrine, as well as the lack of evidence to sustain the charges
against him, his suspension from office would undeservedly deprive the electorate of the services of the
person they have conscientiously chosen and voted into office. 63

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the preventive
suspension order through the DILG National Capital Region - Regional Director, Renato L. Brion, CESO III
(Director Brion), who posted a copy thereof on the wall of the Makati City Hall after failing to personally
serve the same on Binay, Jr. as the points of entry to the Makati City Hall were closed. At around 9:47
a.m., Assistant City Prosecutor of Makati Billy C. Evangelista administered the oath of office on Makati
City Vice Mayor Romulo V. Peña, Jr. (Peña, Jr.) who thereupon assumed office as Acting Mayor. 64

At noon of the same day, the CA issued a Resolution 65 (dated March 16, 2015), granting Binay, Jr.'s prayer

82
for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day. 67 Citing the
case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent on its part to issue a TRO in
view of the extreme urgency of the matter and seriousness of the issues raised, considering that if it
were established that the acts subject of the administrative cases against Binay, Jr. were all committed
during his prior term, then, applying the condonation doctrine, Binay, Jr.'s re-election meant that he can
no longer be administratively charged.69 The CA then directed the Ombudsman to comment on Binay,
Jr.'s petition for certiorari .70

On March 17, 2015, the Ombudsman manifested 71 that the TRO did not state what act was being
restrained and that since the preventive suspension order had already been served and implemented,
there was no longer any act to restrain. 72

On the same day, Binay, Jr. filed a petition for contempt, 73 docketed as CA-G.R. SP No. 139504, accusing
Secretary Roxas, Director Brion, the officials of the Philippine National Police, and Pena, Jr. of deliberately
refusing to obey the CA, thereby allegedly impeding, obstructing, or degrading the administration of
justice.74 The Ombudsman and Department of Justice Secretary Leila M. De Lima were subsequently
impleaded as additional respondents upon Binay, Jr.'s filing of the amended and supplemental petition
for contempt75 (petition for contempt) on March 19, 2015.76 Among others, Binay, Jr. accused the
Ombudsman and other respondents therein for willfully and maliciously ignoring the TRO issued by the
CA against the preventive suspension order. 77

In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No. 139453 and
CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s petition for
contempt, directed the Ombudsman to file her comment thereto. 79 The cases were set for hearing of
oral arguments on March 30 and 31, 2015. 80

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed
the present petition before this Court, assailing the CA's March 16, 2015 Resolution, which granted
Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015 Resolution directing her to
file a comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504. 81 The Ombudsman claims
that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770, 82 or
"The Ombudsman Act of 1989," which states that no injunctive writ could be issued to delay the
Ombudsman's investigation unless there is prima facie evidence that the subject matter thereof is
outside the latter's jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay,
Jr.'s petition for contempt is illegal and improper, considering that the Ombudsman is an impeachable
officer, and therefore, cannot be subjected to contempt proceedings. 84

In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or instrumentality of
government, including the Office of the Ombudsman, in case of grave abuse of discretion amounting to
lack or excess of jurisdiction, which he asserts was committed in this case when said office issued the
preventive suspension order against him.86 Binay, Jr. posits that it was incumbent upon the Ombudsman
to1 have been apprised of the condonation doctrine as this would have weighed heavily in determining
whether there was strong evidence to warrant the issuance of the preventive suspension order. 87 In this
relation, Binay, Jr. maintains that the CA correctly enjoined the implementation of the preventive
suspension order given his clear and unmistakable right to public office, and that it is clear that he could

83
not be held administratively liable for any of the charges against him since his subsequent re-election in
2013 operated as a condonation of any administrative offenses he may have committed during his
previous term.88 As regards the CA's order for the Ombudsman to comment on his petition for contempt,
Binay, Jr. submits that while the Ombudsman is indeed an impeachable officer and, hence, cannot be
removed from office except by way of impeachment, an action for contempt imposes the penalty of fine
and imprisonment, without necessarily resulting in removal from office. Thus, the fact that the
Ombudsman is an impeachable officer should not deprive the CA of its inherent power to punish
contempt.89

Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it were
held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of the preventive
suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right to the final relief prayed
for, namely, the nullification of the preventive suspension order, in view of the condonation doctrine,
citing Aguinaldo v. Santos.92 Particularly, it found that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati condoned any
administrative liability arising from anomalous activities relative to the Makati Parking Building project
from 2007 to 2013.93 In this regard, the CA added that, although there were acts which were apparently
committed by Binay, Jr. beyond his first term — namely, the alleged payments on July 3, July 4, and July
24, 2013,94 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,95 and Mayor Garcia v.
Mojica96 wherein the condonation doctrine was still applied by the Court although the payments were
made after the official's re-election, reasoning that the payments were merely effected pursuant to
contracts executed before said re-election.97 To this, the CA added that there was no concrete evidence
of Binay, Jr.'s participation for the alleged payments made on July 3, 4, and 24, 2013. 98

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation doctrine is
irrelevant to the determination of whether the evidence of guilt is strong for purposes of issuing
preventive suspension orders. The Ombudsman also maintained that a reliance on the condonation
doctrine is a matter of defense, which should have been raised by Binay, Jr. before it during the
administrative proceedings, and that, at any rate, there is no condonation because Binay, Jr. committed
acts subject of the OMB Complaint after his re-election in 2013. 100

On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties.
Thereafter, they were required to file their respective memoranda. 102 In compliance thereto, the
Ombudsman filed her Memorandum103 on May 20, 2015, while Binay, Jr. submitted his Memorandum the
following day.104

Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on each
other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all within ten (10)
days from receipt of the notice.

On July 15, 2015, both parties filed their respective comments to each other's
memoranda.106Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of
Comment,107 simply stating that it was mutually agreed upon that the Office of the Ombudsman would
file its Memorandum, consistent with its desire to state its "institutional position." 108 In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded, among others, that

84
this Court abandon the condonation doctrine. 109 In view of the foregoing, the case was deemed
submitted for resolution.chanrobleslaw

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted before
this Court, the main issues to be resolved in seriatim are as follows:

I. Whether or not the present petition, and not motions for reconsideration of the assailed
CA issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's
plain, speedy, and adequate remedy;cralawlawlibrary

II. Whether or not the CA has subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453;cralawlawlibrary
III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI
enjoining the implementation of a preventive suspension order issued by the
Ombudsman;cralawlawlibrary
IV. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually,
the WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive
suspension order against Binay, Jr. based on the condonation doctrine; and
V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s
petition for contempt in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.chanrobleslaw

I.

A common requirement to both a petition for certiorari and a petition for prohibition taken under Rule
65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and adequate
remedy in the ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its

85
or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts r with certainty and
praying that judgment be rendered commanding the respondent to desist from further proceedings in
the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice
may require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to
resorting to the extraordinary remedy of certiorari or prohibition since a motion for reconsideration may
still be considered as a plain, speedy, and adequate remedy in the ordinary course of law. The rationale
for the pre-requisite is to grant an opportunity for the lower court or agency to correct any actual or
perceived error attributed to it by the re-examination of the legal and factual circumstances of the
case.110

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal remedies
and the danger of failure of justice without the writ, that must usually determine the propriety
of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency, x
x x."111

In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a petition for
prohibition.112 These are: (a) where the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c)
where there is an urgent necessity for the resolution of the question and any further delay would
prejudice the interests of the Government or of the petitioner or the subject matter of the action is
perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e)
where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is
improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where
the proceedings were ex parte or in which the petitioner had no opportunity to object; and (i) where the
issue raised is one purely of law or where public interest is involved.113

In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first time,
the question on the authority of the CA - and of this Court, for that matter - to enjoin the
implementation of a preventive suspension order issued by the Office of the Ombudsman is put to the
fore. This case tests the constitutional and statutory limits of the fundamental powers of key government
institutions - namely, the Office of the Ombudsman, the Legislature, and the Judiciary - and hence,
involves an issue of transcendental public importance that demands no less than a careful but
expeditious resolution. Also raised is the equally important issue on the propriety of the continuous
application of the condonation doctrine as invoked by a public officer who desires exculpation from
administrative liability. As such, the Ombudsman's direct resort to certiorari and prohibition before this
Court, notwithstanding her failure to move for the prior reconsideration of the assailed issuances in CA-
G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the CA, is justified.chanrobleslaw

86
II.

Albeit raised for the first time by the Ombudsman in her Memorandum, 114 it is nonetheless proper to
resolve the issue on the CA's lack of subject matter jurisdiction over the main petition for certiorari in
CA-G.R. SP No. 139453, in view of the well-established rule that a court's jurisdiction over the subject
matter may be raised at any stage of the proceedings. The rationale is that subject matter jurisdiction is
conferred by law, and the lack of it affects the very authority of the court to take cognizance of and to
render judgment on the action.115 Hence, it should be preliminarily determined if the CA indeed had
subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, as the same determines the
validity of all subsequent proceedings relative thereto. It is noteworthy to point out that Binay, Jr. was
given the opportunity by this Court to be heard on this issue, 116 as he, in fact, duly submitted his
opposition through his comment to the Ombudsman's Memorandum. 117 That being said, the Court
perceives no reasonable objection against ruling on this issue.

The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main petition,
and her corollary prayer for its dismissal, is based on her interpretation of Section 14, RA 6770, or the
Ombudsman Act,118 which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an investigation
being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the
subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme
Court119) from issuing a writ of injunction to delay an investigation being conducted by the Office of the
Ombudsman. Generally speaking, "[injunction is a judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional
remedy for and as an incident in the main action." 120 Considering the textual qualifier "to delay," which
connotes a suspension of an action while the main case remains pending, the "writ of injunction"
mentioned in this paragraph could only refer to injunctions of the provisional kind, consistent with the
nature of a provisional injunctive relief.

The exception to the no injunction policy is when there is prima facie evidence that the subject matter of
the investigation is outside the office's jurisdiction. The Office of the Ombudsman has disciplinary
authority over all elective and appointive officials of the government and its subdivisions,
instrumentalities, and agencies, with the exception only of impeachable officers, Members of Congress,
and the Judiciary.121 Nonetheless, the Ombudsman retains the power to investigate any serious
misconduct in office allegedly committed by officials removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if warranted. 122 Note that the Ombudsman has concurrent
jurisdiction over certain administrative cases which are within the jurisdiction of the regular courts or
administrative agencies, but has primary jurisdiction to investigate any act or omission of a public officer
or employee who is under the jurisdiction of the Sandiganbayan. 123

87
On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or application
for remedy may be heard against the decision or findings of the Ombudsman, with the exception of the
Supreme Court on pure questions of law. This paragraph, which the Ombudsman particularly relies on in
arguing that the CA had no jurisdiction over the main CA-G.R. SP No. 139453 petition, as it is supposedly
this Court which has the sole jurisdiction to conduct a judicial review of its decisions or findings, is vague
for two (2) reasons: (1) it is unclear what the phrase "application for remedy" or the word "findings"
refers to; and (2) it does not specify what procedural remedy is solely allowable to this Court, save that
the same be taken only against a pure question of law. The task then, is to apply the relevant principles
of statutory construction to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be sought in the
words employed to express it, and that when found[,] it should be made to govern, x x x. If the words of
the law seem to be of doubtful import, it may then perhaps become necessary to look beyond them in
order to ascertain what was in the legislative mind at the time the law was enacted; what the
circumstances were, under which the action was taken; what evil, if any, was meant to be redressed; x x
x [a]nd where the law has contemporaneously been put into operation, and in doing so a construction
has necessarily been put upon it, this construction, especially if followed for some considerable period, is
entitled to great respect, as being very probably a true expression of the legislative purpose, and is not
lightly to be overruled, although it is not conclusive." 124

As an aid to construction, courts may avail themselves of the actual proceedings of the legislative body in
interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a statute means,
the meaning put to the provision during the legislative deliberations may be adopted, 125albeit not
controlling in the interpretation of the law. 126

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the
matter of judicial review of her office's decisions or findings, is supposedly clear from the following
Senate deliberations:127

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition for"
delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that, review or appeal from
the decision of the Ombudsman would only be taken not on a petition for review, but on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to
reverse the decision under review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts of the
Ombudsman would be almost conclusive if supported by substantial evidence. Second, we would not
unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very strict appeal
procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive remedies

88
available to a respondent, the respondent himself has the right to exhaust the administrative remedies
available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme Court
only on certiorari ?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari available, is the respondent given the right to
exhaust his administrative remedies first before the Ombudsman can take the appropriate action?

Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law principle
that before one can go to court, he must exhaust all administrative remedies xxx available to him before
he goes and seeks judicial review.

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for certiorari ?

Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the effect
that the finding of facts of the Ombudsman is conclusive if supported by substantial evidence.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I
concur, that in an appeal by certiorari , the appeal is more difficult. Because in certiorari it is a matter
of discretion on the part of the court, whether to give due course to the petition or dismiss it
outright. Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not the
Ombudsman here has acted without jurisdiction and has committed a grave abuse of discretion
amounting to lack of jurisdiction. Is that not the consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to make it
harder to have a judicial review, but should be limited only to cases that I have enumerated.

Senator Angara. Yes, Mr. President.

89
Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a petition
for review and a petition for certiorari ; because before, under the 1935 Constitution appeal from any
order, ruling or decision of the COMELEC shall be by means of review. But under the Constitution it is
now by certiorari and the Supreme Court said that by this change, the court exercising judicial review will
not inquire into the facts, into the evidence, because we will not go deeply by way of review into the
evidence on record but its authority will be limited to a determination of whether the administrative
agency acted without, or in excess of, jurisdiction, or committed a grave abuse of discretion. So, I assume
that that is the purpose of this amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated, Mr.
President.

xxxx

The President. It is evident that there must be some final authority to render decisions. Should it be
the Ombudsman or should it be the Supreme Court?

Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and has to be
the Supreme Court to make the final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to
introduce an appropriate change during the period of Individual Amendments.

xxxx

The President. All right. Is there any objection to the amendment inserting the word CERTIORARI instead
of "review"? [Silence] Hearing none, the same is approved. 128

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the provision
debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the exchange begins with
the suggestion of Senator Angara to delete the word "review" that comes after the phrase "petition for
review" and, in its stead, insert the word "certiorari" so that the "review or appeal from the decision of
the Ombudsman would not only be taken on a petition for review, but on certiorari" The ensuing
exchange between Senators Gonzales and Angara then dwells on the purpose of changing the method of
review from one of a petition for review to a petition for certiorari - that is, to make "the appeal x x x
more difficult." Ultimately, the amendment to the change in wording, from "petition for review" to
"petition for certiorari" was approved.

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are
nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that this
provision, particularly its second paragraph, does not indicate what specific procedural remedy one
should take in assailing a decision or finding of the Ombudsman; it only reveals that the remedy be taken
to this Court based on pure questions of law. More so, it was even commented upon during the oral

90
arguments of this case129 that there was no debate or clarification made on the current formulation of
the second paragraph of Section 14, RA 6770 per the available excerpts of the Senate deliberations. In
any case, at least for the above-cited deliberations, the Court finds no adequate support to sustain the
Ombudsman's entreaty that the CA had no subject matter jurisdiction over the main CA-G.R. SP No.
139453 petition.

On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually reflects the
approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's decision or finding may
be assailed in a petition for certiorari to this Court (fourth paragraph), and further, his comment on the
conclusive nature of the factual findings of the Ombudsman, if supported by substantial evidence (third
paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be
filed within five (5) days after receipt of written notice and shall be entertained only on any of the
following grounds:chanRoblesvirtualLawlibrary
(1) New evidence has been discovered which materially affects the order, directive or
decision;cralawlawlibrary

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The
motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one
motion for reconsideration shall be entertained.ChanRoblesVirtualawlibrary
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive.
Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not
more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from
receipt of the written notice of the order, directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest of justice
may require. (Emphasis and underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition
for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-known that
under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed by Rule 65 of the
said Rules. However, it should be discerned that the Ombudsman Act was passed way back in
1989130 and, hence, before the advent of the 1997 Rules of Civil Procedure. 131 At that time, the
governing 1964 Rules of Court,132 consistent with Section 27, RA 6770, referred to the appeal taken
thereunder as a petition for certiorari , thus possibly explaining the remedy's textual denomination, at
least in the provision's final approved version:

91
RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a judgment of
the Court of Appeals, by filing with the Supreme Court a petition for certiorari , within fifteen (15) days
from notice of judgment or of the denial of his motion for reconsideration filed in due time, and paying
at the same time, to the clerk of said court the corresponding docketing fee. The petition shall not be
acted upon without proof of service of a copy thereof to the Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the meaning of the
provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any appeal or
application for remedy against the decision or findings of the Ombudsman, except the Supreme Court,
on pure question of law." ;cralawlawlibrary

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of remedies
against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision or finding of the
Ombudsman, and (b) "any application of remedy" (subject to the exception below) against the same. To
clarify, the phrase "application for remedy," being a generally worded provision, and being separated
from the term "appeal" by the disjunctive "or", 133 refers to any remedy (whether taken mainly or
provisionally), except an appeal, following the maxim generalia verba sunt generaliter intelligenda:
general words are to be understood in a general sense. 134 By the same principle, the word "findings,"
which is also separated from the word "decision" by the disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the specific
procedural vehicle is not explicit from its text, it is fairly deducible that the second paragraph of Section
14, RA 6770 excepts, as the only allowable remedy against "the decision or findings of the
Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy taken to the Supreme Court
on "pure questions of law," whether under the 1964 Rules of Court or the 1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters involved,
the assignment of errors made in the court below, and the reasons relied on for the allowance of the
petition, and it should be accompanied with a true copy of the judgment sought to be reviewed,
together with twelve (12) copies of the record on appeal, if any, and of the petitioner's brief as filed in

92
the Court of Appeals. A verified statement of the date when notice of judgment and denial of the motion
for reconsideration, if any, were received shall accompany the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no record on
appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of the
petition, shall demand from the Court of Appeals the elevation of the whole record of the case.
(Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals,
the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only questions of law, which must be distinctly
set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same
action or proceeding at any time during its pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a suggestion
that defies traditional norms of procedure. It is basic procedural law that a Rule 65 petition is based on
errors of jurisdiction, and not errors of judgment to which the classifications of (a) questions of fact, (b)
questions of law, or (c) questions of mixed fact and law, relate to. In fact, there is no procedural rule,
whether in the old or new Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it is
also a statutory construction principle that the lawmaking body cannot be said to have intended the
establishment of conflicting and hostile systems on the same subject. Such a result would render
legislation a useless and idle ceremony, and subject the laws to uncertainty and unintelligibility. 135 There
should then be no confusion that the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal
to this Court, and no other. In sum, the appropriate construction of this Ombudsman Act provision is that
all remedies against issuances of the Office of the Ombudsman are prohibited, except the above-stated
Rule 45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on remedies is
inappropriate since a Rule 45 appeal -which is within the sphere of the rules of procedure promulgated
by this Court - can only be taken against final decisions or orders of lower courts, 136 and not against
"findings" of quasi-judicial agencies. As will be later elaborated upon, Congress cannot interfere with
matters of procedure; hence, it cannot alter the scope of a Rule 45 appeal so as to apply to interlocutory
"findings" issued by the Ombudsman. More significantly, by confining the remedy to a Rule 45 appeal,
the provision takes away the remedy of certiorari, grounded on errors of jurisdiction, in denigration of
the judicial power constitutionally vested in courts. In this light, the second paragraph of Section 14, RA
6770 also increased this Court's appellate jurisdiction, without a showing, however, that it gave its

93
consent to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770
(as above-cited), which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional since it
had the effect of increasing the appellate jurisdiction of the Court without its advice and concurrence in
violation of Section 30, Article VI of the 1987 Constitution. 139 Moreover, this provision was found to be
inconsistent with Section 1, Rule 45 of the present 1997 Rules of Procedure which, as above-intimated,
applies only to a review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-
judicial agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the
Court of Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's ratiocinations and ruling
in Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of R.A. No.
6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the
Ombudsman) on the availability of appeal before the Supreme Court to assail a decision or order of the
Ombudsman in administrative cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and Section
7, Rule III of A.O. No. 7 and the other rules implementing the Act) insofar as it provided for appeal
by certiorari under Rule 45 from the decisions or orders of the Ombudsman in administrative cases.
We held that Section 27 of R.A. No. 6770 had the effect, not only of increasing the appellate
jurisdiction of this Court without its advice and concurrence in violation of Section 30, Article VI of the
Constitution; it was also inconsistent with Section 1, Rule 45 of the Rules of Court which provides that
a petition for review on certiorari shall apply only to a review of "judgments or final orders of the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other
courts authorized by law." We pointedly said:chanRoblesvirtualLawlibrary
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the
Ombudsman in administrative disciplinary cases should be taken to the CA under the provisions of Rule
43.141 (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or findings" of
the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of Section 27, RA
6770142 - attempts to effectively increase the Supreme Court's appellate jurisdiction without its advice
and concurrence,143 it is therefore concluded that the former provision is also unconstitutional and
perforce, invalid. Contrary to the Ombudsman's posturing, 144Fabian should squarely apply since the
above-stated Ombudsman Act provisions are in part materia in that they "cover the same specific or
particular subject matter," 145 that is, the manner of judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence of
the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, including all
subsequent proceedings relative thereto, as the Ombudsman herself has developed, the Court deems it
proper to resolve this issue ex mero motu (on its own motion146). This procedure, as was similarly
adopted in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party
to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.

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Since the constitution is intended for the observance of the judiciary and other departments of the
government and the judges are sworn to support its provisions, the courts are not at liberty to overlook
or disregard its commands or countenance evasions thereof. When it is clear , that a statute transgresses
the authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and
not the statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a court from
inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a
statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it
necessarily follows that it may inquire into the constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or that of the appellate court is involved in which
case it may be raised at any time or on the court's own motion. The Court ex mero motu may take
cognizance of lack of jurisdiction at any point in the case where that fact is developed. The court has a
clearly recognized right to determine its own jurisdiction in any proceeding. 147(Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr. before the
CA in order to nullify the preventive suspension order issued by the Ombudsman, an interlocutory
order,148 hence, unappealable.149

In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari against
unappelable issuances150 of the Ombudsman should be filed before the CA, and not directly before this
Court:

In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension order
issued by the Office of the Ombudsman was - similar to this case - assailed through a Rule 65 petition
for certiorari filed by the public officer before the CA, the Court held that "[t]here being a finding of
grave abuse of discretion on the part of the Ombudsman, it was certainly imperative for the CA to grant
incidental reliefs, as sanctioned by Section 1 of Rule 65." 152

In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition
for certiorari assailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner employed the correct mode of review in this
case, i.e., a special civil action for certiorari before the Court of Appeals."154 In this relation, it stated that
while "a special civil action for Certiorari is within the concurrent original jurisdiction of the Supreme
Court and the Court of Appeals, such petition should be initially filed with the Court of Appeals in
observance of the doctrine of hierarchy of courts." Further, the Court upheld Barata v. Abalos, Jr.155 (June
6, 2001), wherein it was ruled that the remedy against final and unappealable orders of the Office of the
Ombudsman in an administrative case was a Rule 65 petition to the CA. The same verdict was reached
in Ruivivar156 (September 16, 2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court, consistent

95
with existing jurisprudence, concludes that the CA has subject matter jurisdiction over the main CA-G.R.
SP No. 139453 petition. That being said, the Court now examines the objections of the Ombudsman, this
time against the CA's authority to issue the assailed TRO and WPI against the implementation of the
preventive suspension order, incidental to that main case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has no
jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive suspension
orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in conjunction with her office's
independence under the 1987 Constitution. She advances the idea that "[i]n order to further ensure [her
office's] independence, [RA 6770] likewise insulated it from judicial intervention," 157 particularly, "from
injunctive reliefs traditionally obtainable from the courts," 158claiming that said writs may work "just as
effectively as direct harassment or political pressure would." 159

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,
Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
(Emphasis supplied)

In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical underpinnings of
the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as
the people's medium for airing grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance of their function as government critic.

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate. Pursuant
to the ( 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as
amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to be known as
Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any administrative
act of any administrative agency, including any government-owned or controlled corporation. When the
Office of the Tanodbayan was reorganized in 1979, the powers previously vested in the Special
Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan, file the corresponding
information, and control the prosecution of these cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional
fiat. Unlike in the 1973 Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in Section 27, Article II and the standard of

96
accountability in public service under Section 1, Article XI of the 1987 Constitution. These provisions
read:chanRoblesvirtualLawlibrary
Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism
and justice, and lead modest lives. 161 (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's mandate, and in correlation, the
impetus behind its independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be
the "protector of the people" against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau. This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses , of the bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987 Constitution,
Congress enacted RA No. 6770 to enable it to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:chanRoblesvirtualLawlibrary
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities, and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the
Judiciary.ChanRoblesVirtualawlibrary
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions,
although not squarely falling under the broad powers granted [to] it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law and the
Constitution.

The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive
officers, during their tenure. To support these broad powers, the Constitution saw it fit to insulate the
Office of the Ombudsman from the pressures and influence of officialdom and partisan politics and
from fear of external reprisal by making it an "independent" office, x x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and statutory, that are commensurate , with its
daunting task of enforcing accountability of public officers. 162 (Emphasis and underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's independence vis-a-
vis the independence of the other constitutional bodies. Pertinently, the Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional

97
Commissions shares certain characteristics - they do not owe their existence to any act of Congress, but
are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these 'independent' bodies be insulated from political
pressure to the extent that the absence of 'independence' would result in the impairment of their core
functions"163;cralawlawlibrary

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only [of] the express
mandate of the Constitution, but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based"; 164 and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for independence.
In the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing
for a constitutionally-created Civil Service Commission, instead of one created by law, on the premise
that the effectivity of this body is dependent on its freedom from the tentacles of politics. In a similar
manner, the deliberations of the 1987 Constitution on the Commission on Audit highlighted the
developments in the past Constitutions geared towards insulating the Commission on Audit from
political pressure."165

At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the
Ombudsman, as well as that of the foregoing independent bodies, meant freedom from control or
supervision of the Executive Department:

[T]he independent constitutional commissions have been consistently intended by the framers to
be independent from executive control or supervision or any form of political influence. At least insofar
as these bodies are concerned, jurisprudence is not scarce on how the "independence" granted to these
bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the
Constitutional Commissions, which have been characterized under the Constitution as "independent,"
are not under the control of the President, even if they discharge functions that are executive in nature.
The Court declared as unconstitutional the President's act of temporarily appointing the respondent in
that case as Acting Chairman of the [Commission on Elections] "however well-meaning" it might have
been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the tenure
of the commissioners of the independent Commission on Human Rights could not be placed under the
discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior - but is
similar in degree and kind - to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican democracy
that are crucial to its existence and proper functioning. 166 (Emphases and underscoring supplied)

98
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy or the
Special Prosecutor, may be removed from office by the President for any of the grounds provided for the
removal of the Ombudsman, and after due process," partially unconstitutional insofar as it subjected the
Deputy Ombudsman to the disciplinary authority of the President for violating the principle of
independence. Meanwhile, the validity of Section 8 (2), RA 6770 was maintained insofar as the Office of
the Special Prosecutor was concerned since said office was not considered to be constitutionally within
the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under
the Constitution.167

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless the
Constitution itself allows, or an amendment thereto is made;cralawlawlibrary

Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to use
or dispose of [its] funds for purposes germane to [its] functions; 168hence, its budget cannot be
strategically decreased by officials of the political branches of government so as to impair said functions;
and

Third: insulation from executive supervision and control, which means that those within the ranks of
the office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the "insidious tentacles of politics." 169

That being the case, the concept of Ombudsman independence cannot be invoked as basis to insulate
the Ombudsman from judicial power constitutionally vested unto the courts. Courts are apolitical bodies,
which are ordained to act as impartial tribunals and apply even justice to all. Hence, the Ombudsman's
notion that it can be exempt from an incident of judicial power - that is, a provisional writ of injunction
against a preventive suspension order - clearly strays from the concept's rationale of insulating the office
from political harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it remains that
the first paragraph of Section 14, RA 6770 textually prohibits courts from extending provisional injunctive
relief to delay any investigation conducted by her office. Despite the usage of the general phrase "[n]o
writ of injunction shall be issued by any court," the Ombudsman herself concedes that the prohibition
does not cover the Supreme Court.170 As support, she cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I would just
like to inquire for the record whether below the Supreme Court, it is understood that there is no
injunction policy against the Ombudsman by lower courts. Or, is it necessary to have a special

99
paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction against
the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest constitutional
bodies, is to subject this only to certiorari to the Supreme Court. I think an injunction from the
Supreme Court is, of course, in order but no lower courts should be allowed to interfere. We had a very
bad experience with even, let us say, the Forestry Code where no injunction is supposed to be issued
against the Department of Natural Resources. Injunctions are issued right and left by RTC judges all
over the country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.171

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987 Constitution,
acts of the Ombudsman, including interlocutory orders, are subject to the Supreme Court's power of
judicial review As a corollary, the Supreme Court may issue ancillary mjunctive writs or provisional
remedies in the exercise of its power of judicial review over matters pertaining to ongoing investigations
by the Office of the Ombudsman. Respecting the CA, however, the Ombudsman begs to differ. 172

With these submissions, it is therefore apt to examine the validity of the first paragraph of Section 14, RA
6770 insofar as it prohibits all courts, except this Court, from issuing provisional writs of injunction to
enjoin an Ombudsman investigation. That the constitutionality of this provision is the lis mota of this
case has not been seriously disputed. In fact, the issue anent its constitutionality was properly raised and
presented during the course of these proceedings. 173 More importantly, its resolution is clearly necessary
to the complete disposition of this case.174

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the
"Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive,
the legislative[,] and the judicial departments of the government." 176 The constitutional demarcation of
the three fundamental powers of government is more commonly known as the principle of separation of
powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),177 the Court held that "there is a violation
of the separation of powers principle when one branch of government unduly encroaches on the domain
of another."178 In particular, "there is a violation of the principle when there is impermissible (a)
interference with and/or (b) assumption of another department's functions." 179

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme Court
and all such lower courts:

100
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress. Thus, through the passage of Batas Pambansa Bilang (BP)
129,180 known as "The Judiciary Reorganization Act of 1980," the Court of Appeals, 181 the Regional Trial
Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts183 were established. Later, through the passage of RA 1125, 184 and Presidential Decree No. (PD)
1486,185 the Court of Tax Appeals, and the Sandiganbayan were respectively established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, except that it may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5186 of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.

x x x xChanRoblesVirtualawlibrary

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter of an
action. In The Diocese ofBacolod v. Commission on Elections,187 subject matter jurisdiction was defined as
"the authority 'to hear and determine cases of the general class to which the proceedings in question
belong and is conferred by the sovereign authority which organizes the court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this
Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and the trial
courts, through the passage of BP 129, as amended.

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrentwith
the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and the Supreme Court (under
Section 5, Article VIII of the 1987 Philippine Constitution). In view of the concurrence of these courts'

101
jurisdiction over petitions for certiorari, the doctrine of hierarchy of courts should be followed. In People
v. Cuaresma,188 the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and
should also serve as a general determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of Appeals. 189

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law, said
court may then exercise its jurisdiction acquired over that case, which is called judicial power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has been defined
as the "totality of powers a court exercises when it assumes jurisdiction and hears and decides a
case."190 Under Section 1, Article VIII of the 1987 Constitution, it includes "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the 1987
Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents a
broadening of f judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because they are tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the judiciary. 192

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired over
a particular case conforms to the limits and parameters of the rules of procedure duly promulgated by
this Court. In other words, procedure is the framework within which judicial power is exercised.
In Manila Railroad Co. v. Attorney-General,193 the Court elucidated that "[t]he power or authority of the
court over the subject matter existed and was fixed before procedure in a given cause began. Procedure
does not alter or change that power or authority; it simply directs the manner in which it shall be fully
and justly exercised. To be sure, in certain cases, if that power is not exercised in conformity with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it
legally. This does not mean that it loses jurisdiction of the subject matter." 194

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the protection

102
and enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs
exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-making
authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly subjected to a power-
sharing scheme with Congress.198 As it now stands, the 1987 Constitution textually altered the old
provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying in one
body the Court's rule-making powers, in line with the Framers' vision of institutionalizing a "[s]tronger
and more independent judiciary."199

The records of the deliberations of the Constitutional Commission would show 200 that the Framers
debated on whether or not the Court's rule-making powers should be shared with Congress. There was
an initial suggestion to insert the sentence "The National Assembly may repeal, alter, or supplement the
said rules with the advice and concurrence of the Supreme Court", right after the phrase "Promulgate
rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to
the underprivileged^" in the enumeration of powers of the Supreme Court. Later, Commissioner Felicitas
S. Aquino proposed to delete the former sentence and, instead, after the word "[underprivileged," place
a comma (,) to be followed by "the phrase with the concurrence of the National Assembly." Eventually, a
compromise formulation was reached wherein (a) the Committee members agreed to Commissioner
Aquino's proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said
rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino
agreed to withdraw his proposal to add "the phrase with the concurrence of the National
Assembly." The changes were approved, thereby leading to the present lack of textual reference to any
form of Congressional participation in Section 5 (5), Article VIII, supra. The prevailing consideration
was that "both bodies, the Supreme Court and the Legislature, have their inherent powers."201

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning
pleading, practice, and procedure. As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also
r granted for the first time the power to disapprove rules of procedure of special courts and quasi-
judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to
repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to
promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress,
more so with the Executive.202 (Emphasis and underscoring supplied)

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Under its rule-making authority, the Court has periodically passed various rules of procedure, among
others, the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural remedies
needed for the reasonable exercise of every court's judicial power, the provisional remedies of
temporary restraining orders and writs of preliminary injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary measures
availed of during the pendency of the action. They are, by nature, ancillary because they are mere
incidents in and are dependent upon the result of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo203 until the merits of the case can be heard. They are usually
granted when it is made to appear that there is a substantial controversy between the parties and one of
them is committing an act or threatening the immediate commission of an act that will cause irreparable
injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the
case. In other words, they are preservative remedies for the protection of substantive rights or interests,
and, hence, not a cause of action in itself, but merely adjunct to a main suit. 204 In a sense, they are
regulatory processes meant to prevent a case from being mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and a
WPI. A preliminary injunction is defined under Section 1, 205 Rule 58, while Section 3206 of the same Rule
enumerates the grounds for its issuance. Meanwhile, under Section 5 207 thereof, a TRO may be issued as
a precursor to the issuance of a writ of preliminary injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to
issue all auxiliary writs, processes, and other means necessary to carry its acquired jurisdiction into
effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or
judicial officer, all auxiliary writs, f processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction
is not specifically pointed out by law208or by these rules, any suitable process or mode of proceeding may
be adopted which appears comfortable to the spirit of the said law or rules.ChanRoblesVirtualawlibrary

In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or jurisdiction of
the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction"210 over
"decisions, orders or resolutions of the RTCs in local tax cases originally decided or resolved by them in
the exercise of their original or appellate jurisdiction," 211 the Court ruled that said power "should coexist
with, and be a complement to, its appellate jurisdiction to review, by appeal, the final orders and
decisions of the RTC, in order to have complete supervision over the acts of the latter:" 212

A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it
effectively, to make all orders that ; will preserve the subject of the action, and to give effect to the
final determination of the appeal. It carries with it the power to protect that jurisdiction and to make
the decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction, has
authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise of
that jurisdiction. For this purpose, it may, when necessary, prohibit or restrain the performance of any
act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before
it.213 (Emphasis supplied)

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In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are necessary to
enable it to act effectively within such jurisdiction. These should be regarded as powers which are
inherent in its jurisdiction and the court must possess them in order to enforce its rules of practice and
to suppress any abuses of its process and to t defeat any attempted thwarting of such process.

x x x x cralawlawlibrary

Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers
as are necessary for the ordinary and efficient exercise of jurisdiction; or are essential to the existence,
dignity and functions of the courts, as well as to the due administration of justice; or are directly
appropriate, convenient and suitable to the execution of their granted powers; and include the power
to maintain the court's jurisdiction and render it effective in behalf of the litigants. 214 (Emphases and
underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional
principle, articulated way back in the 1936 case of Angara, that "where a general power is conferred or
duty enjoined, every particular power necessary for the exercise of the one or the performance of the
other is also conferred."215

In the United States, the "inherent powers doctrine refers to the principle, by which the courts deal with
diverse matters over which they are thought to have intrinsic authority like procedural [rule-making] and
general judicial housekeeping. To justify the invocation or exercise of inherent powers, a court must
show that the powers are reasonably necessary to achieve the specific purpose for which the exercise
is sought. Inherent powers enable the judiciary to accomplish its constitutionally mandated
functions."216

In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which prohibited
courts from enjoining the enforcement of a revocation order of an alcohol beverage license pending
appeal,218 the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably necessary for
the administration of justice within the scope of their jurisdiction. x x x [W]e said while considering the
rule making power and the judicial power to be one and the same that ". . . the grant of judicial power
[rule making power] to the courts by the constitution carries with it, as a necessary incident, the right
to make that power effective in the administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an exercise of

the court's inherent power, and to this end, stated that any attempt on the part of Congress to interfere
with the same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having obtained

105
jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, inherent power
to do all things reasonably necessary to the administration of justice in the case before it. In the exercise
of this power, a court, when necessary in order to protect or preserve the subject matter of the
litigation, to protect its jurisdiction and to make its judgment effective, may grant or issue a temporary
injunction in aid of or ancillary to the principal action.

The control over this inherent judicial power, in this particular instance the injunction, is exclusively
within the constitutional realm of the courts. As such, it is not within the purview of the legislature to
grant or deny the power nor is it within the purview of the legislature to shape or fashion
circumstances under which this inherently judicial power may be or may not be granted or denied.

This Court has historically recognized constitutional limitations upon the power of the legislature to
interfere with or to inhibit the performance of constitutionally granted and inherently provided judicial
functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a cause
of action, has, as incidental to its general jurisdiction, inherent power to do all things reasonably
necessary f to the administration of justice in the case before it. . ." This includes the inherent power to
issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right to appeal in the statute does
not necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the right to
encroach upon the constitutionally granted powers of the judiciary. Once the administrative action has
ended and the right to appeal arises the legislature is void of any right to control a subsequent
appellate judicial proceeding. The judicial rules have come into play and have preempted the
field.219 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first paragraph of
Section 14, RA 6770 and, in so doing, took away from the courts their power to issue a TRO and/or WPI
to enjoin an investigation conducted by the Ombudsman, it encroached upon this Court's constitutional
rule-making authority. Clearly, these issuances, which are, by nature, provisional reliefs and auxiliary
writs created under the provisions of the Rules of Court, are matters of procedurewhich belong
exclusively within the province of this Court. Rule 58 of the Rules of Court did not create, define, and
regulate a right but merely prescribed the means of implementing an existing right 220 since it only
provided for temporary reliefs to preserve the applicant's right in esse which is threatened to be violated
during the course of a pending litigation. In the case of Fabian,211 it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to
appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.ChanRoblesVirtualawlibrary

Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative power,
to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The National Power Corporation

106
from Payment of Filing/ Docket Fees;222 (b) Re: Petition for Recognition of the Exemption of the
Government Service Insurance System (GSIS) from Payment of Legal Fees; 223 and (c) Baguio Market
Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes 224 While these cases involved
legislative enactments exempting government owned and controlled corporations and cooperatives from
paying filing fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish new rules of
procedure225 solely belongs to the Court, to the exclusion of the legislative and executive branches of
government. On this score, the Court described its authority to promulgate rules on pleading, practice,
and procedure as exclusive and "[o]ne of the safeguards of [its] institutional independence."226

That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of
the various courts under Section 2, Article VIII supra, as well as to create statutory courts under Section
1, Article VIII supra, does not result in an abnegation of the Court's own power to promulgate rules of
pleading, practice, and procedure under Section 5 (5), Article VIII supra. Albeit operatively interrelated,
these powers are nonetheless institutionally separate and distinct, each to be preserved under its own
sphere of authority. When Congress creates a court and delimits its jurisdiction, the procedure for
which its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The first
paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives,227 because it does not define, prescribe, and apportion the subject matter jurisdiction of
courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly the CA, stands under the
relevant sections of BP 129 which were not shown to have been repealed. Instead, through this
provision, Congress interfered with a provisional remedy that was created by this Court under its duly
promulgated rules of procedure, which utility is both integral and inherent to every court's exercise of
judicial power. Without the Court's consent to the proscription, as may be manifested by an adoption
of the same as part of the rules of procedure through an administrative circular issued therefor, there
thus, stands to be a violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional injunctions,
such as in the first paragraph of Section 14, RA 6770, does not only undermine the constitutional
allocation of powers; it also practically dilutes a court's ability to carry out its functions.This is so since
a particular case can easily be mooted by supervening events if no provisional injunctive relief is
extended while the court is hearing the same. Accordingly, the court's acquired jurisdiction, through
which it exercises its judicial power, is rendered nugatory. Indeed, the force of judicial power, especially
under the present Constitution, cannot be enervated due to a court's inability to regulate what occurs
during a proceeding's course. As earlier intimated, when jurisdiction over the subject matter is accorded
by law and has been acquired by a court, its exercise thereof should be undipped. To give true meaning
to the judicial power contemplated by the Framers of our Constitution, the Court's duly promulgated
rules of procedure should therefore remain unabridged, this, even by statute. Truth be told, the policy
against provisional injunctive writs in whatever variant should only subsist under rules of procedure duly
promulgated by the Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) and
the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors the foregoing
observations:

JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?

107
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under the
rubric of what is called provisional remedies, our resident expert because Justice Peralta is not here so
Justice Bersamin for a while. So provisional remedy you have injunction, x x x.

xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, if you
have a copy of the Constitution, can you please read that provision? Section 5, Article VIII the Judiciary
subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice
and procedure in all courts..."

JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all courts.
This is the power, the competence, the jurisdiction of what constitutional organ?

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been
discussed with you by my other colleagues, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in an
ordinary case?

108
ACTING SOLICITOR GENERAL HILBAY:
It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be rendered moot
and academic, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the
supplemental pleading called the bill of t particular [s]? It cannot, because that's part of procedure...

ACTING SOLICITOR GENERAL HILBAY:

That is true.

JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct.

JUSTICE LEONEN:
So what's different with the writ of injunction?

ACTING SOLICITOR GENERAL HILBAY:

109
Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was
created by Congress. In the absence of jurisdiction... (interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special agrarian
court it has all procedures with it but it does not attach particularly to that particular court, is that not
correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A rule of
procedure and the Rules of Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a particular
injunction in a court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx228 (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010, 229 the Court instructed that "[i]t is through the
Constitution that the fundamental powers of government are established, limited and defined, and by
which these powers are distributed among the several departments. The Constitution is the basic and
paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer." It would then follow that laws that do not conform to the Constitution
shall be stricken down for being unconstitutional. 230

However, despite the ostensible breach of the separation of powers principle, the Court is not oblivious
to the policy considerations behind the first paragraph of Section 14, RA 6770, as well as other statutory
provisions of similar import. Thus, pending deliberation on whether or not to adopt the same, the Court,
under its sole prerogative and authority over all matters of procedure, deems it proper to declare as
ineffective the prohibition against courts other than the Supreme Court from issuing provisional
injunctive writs to enjoin investigations conducted by the Office of the Ombudsman, until it is adopted as
part of the rules of procedure through an administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first paragraph of
Section 14, RA 6770) without the Court's consent thereto, it remains that the CA had the authority to
issue the questioned injunctive writs enjoining the implementation of the preventive suspension order
against Binay, Jr. At the risk of belaboring the point, these issuances were merely ancillary to the exercise

110
of the CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP 129, as amended,
and which it had already acquired over the main CA-G.R. SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in
issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order is a persisting
objection to the validity of said injunctive writs. For its proper analysis, the Court first provides the
context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure. In Quimbo v.
Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its purpose is to
prevent the official to be suspended from using his position and the powers and prerogatives of his
office to influence potential witnesses or tamper with records which may be vital in the prosecution of
the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive

measure and suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative

investigation. The purpose of the suspension order is to prevent the accused from using his position
and the powers and prerogatives of his office to influence potential witnesses or tamper with records
which may be vital in the prosecution of the case against him. If after such investigation, the charge is
established and the person investigated is found guilty of acts warranting his suspension or removal,
then he is suspended, removed or dismissed. This is the penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the
Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and
other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary
Not being a penalty, the period within which one is under preventive suspension is not considered part
of the actual penalty of suspension. So Section 25 of the same Rule XIV
provides:chanRoblesvirtualLawlibrary
Section 25. The period within which a public officer or employee charged is placed under preventive
suspension shall not be considered part of the actual penalty of suspension imposed upon the
employee found guilty.232 (Emphases supplied)ChanRoblesVirtualawlibrary

The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt
is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the

111
service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman
but not more than six (6) months, without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case
the period of such delay shall not be counted in computing the period of suspension herein provided.
(Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of an
order of preventive suspension pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first requirement:chanRoblesvirtualLawlibrary
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of
duty;cralawlawlibrary

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against
him.233ChanRoblesVirtualawlibrary

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the Ombudsman's
non-compliance with the requisites provided in Section 24, RA 6770 was not the basis for the issuance of
the assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on the
case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were
established in the CA that the acts subject of the administrative complaint were indeed committed
during petitioner [Garcia's] prior term, then, following settled jurisprudence, he can no longer be
administratively charged."235 Thus, the Court, contemplating the application of the condonation doctrine,
among others, cautioned, in the said case, that "it would have been more prudent for [the appellate
court] to have, at the very least, on account of the extreme urgency of the matter and the seriousness of
the issues raised in the certiorari petition, issued a TRO x x x"236during the pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was based on
the condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that Binay, Jr. has an
ostensible right to the final relief prayed for, i.e., the nullification of the preventive suspension order,
finding that the Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned any administrative liability arising from anomalous
activities relative to the Makati Parking Building project from 2007 to 2013. 238 Moreover, the CA
observed that although there were acts which were apparently committed by Binay, Jr. beyond his first
term , i.e., the alleged payments on July 3, 4, and 24, 2013, 239 corresponding to the services of Hillmarc's
and MANA - still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima
v. Guingona, Jr.,240 and Mayor Garcia v. Mojica,241 wherein the condonation dobtrine was applied by the

112
Court although the payments were made after the official's election, reasoning that the payments were
merely effected pursuant to contracts executed before said re-election. 242

The Ombudsman contends that it was inappropriate for the CA to have considered the condonation
doctrine since it was a matter of defense which should have been raised and passed upon by her office
during the administrative disciplinary proceedings. 243 However, the Court agrees with the CA that it was
not precluded from considering the same given that it was material to the propriety of according
provisional injunctive relief in conformity with the ruling in Governor Garcia, Jr., which was the subsisting
jurisprudence at that time. Thus, since condonation was duly raised by Binay, Jr. in his petition in CA-G.R.
SP No. 139453,244 the CA did not err in passing upon the same. Note that although Binay, Jr. secondarily
argued that the evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453, 245 it
appears that the CA found that the application of the condonation doctrine was already sufficient to
enjoin the implementation of the preventive suspension order. Again, there is nothing aberrant with this
since, as remarked in the same case of Governor Garcia, Jr., if it was established that the acts subject of
the administrative complaint were indeed committed during Binay, Jr.'s prior term, then, following the
condonation doctrine, he can no longer be administratively charged. In other words, with condonation
having been invoked by Binay, Jr. as an exculpatory affirmative defense at the onset, the CA deemed it
unnecessary to determine if the evidence of guilt against him was strong, at least for the purpose of
issuing the subject injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court
now proceeds to determine if the CA gravely abused its discretion in applying the condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness of an
offense, [especially] by treating the offender as if there had been no offense."246

The condonation doctrine - which connotes this same sense of complete extinguishment of liability as
will be herein elaborated upon - is not based on statutory law. It is a jurisprudential creation that
originated from the 1959 case of Pascual v. Hon. Provincial Board ofNueva Ecija,247 (Pascual),which was
therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, sometime in
November 1951, and was later re-elected to the same position in 1955. During his second term, or on
October 6, 1956, the Acting Provincial Governor filed administrative charges before the Provincial Board
of Nueva Ecija against him for grave abuse of authority and usurpation of judicial functions for acting on
a criminal complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In defense, Arturo Pascual
argued that he cannot be made liable for the acts charged against him since they were committed during
his previous term of office, and therefore, invalid grounds for disciplining him during his second term.
The Provincial Board, as well as the Court of First Instance of Nueva Ecija, later decided against Arturo
Pascual, and when the case reached this Court on appeal, it recognized that the controversy posed a
novel issue - that is, whether or not an elective official may be disciplined for a wrongful act committed
by him during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to American
authorities and "found that cases on the matter are conflicting due in part, probably, to differences in
statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the

113
question of whether the subsequent election or appointment condones the prior
misconduct."248Without going into the variables of these conflicting views and cases, it proceeded to
state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove one from
office because of misconduct during a prior term, to which we fully subscribe.249 (Emphasis and
underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation, which, in
the words of Pascual, theorizes that an official's re-election denies the right to remove him from office
due to a misconduct during a prior term. In fact, as pointed out during the oral arguments of this case, at
least seventeen (17) states in the US have abandoned the condonation doctrine. 250 The Ombudsman
aptly cites several rulings of various US State courts, as well as literature published on the matter, to
demonstrate the fact that the doctrine is not uniformly applied across all state jurisdictions. Indeed, the
treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from his current
term or office for misconduct which he allegedly committed in a prior term of office is governed by the
language of the statute or constitutional provision applicable to the facts of a particular case (see In Re
Removal of Member of Council Coppola).251 As an example, a Texas statute, on the one hand, expressly
allows removal only for an act committed during a present term: "no officer shall be prosecuted or
removed from office for any act he may have committed prior to his election to office" (see State ex rel.
Rowlings v. Loomis).252 On the other hand, the Supreme Court of Oklahoma allows removal from office
for "acts of commission, omission, or neglect committed, done or omitted during a previous or preceding
term of office" (see State v. Bailey)253 Meanwhile, in some states where the removal statute is silent or
unclear, the case's resolution was contingent upon the interpretation of the phrase "in office." On one
end, the Supreme Court of Ohio strictly construed a removal statute containing the phrase "misfeasance
of malfeasance in office" and thereby declared that, in the absence of clear legislative language making,
the word "office" must be limited to the single term during which the offense charged against the public
officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga County)254 Similarly, the Common
Pleas Court of Allegheny County, Pennsylvania decided that the phrase "in office" in its state constitution
was a time limitation with regard to the grounds of removal, so that an officer could not be removed for
misbehaviour which occurred; prior to the taking of the office (see Commonwealth v. Rudman)255 The
opposite was construed in the Supreme Court of Louisiana which took the view that an officer's inability
to hold an office resulted from the commission of certain offenses, and at once rendered him unfit to
continue in office, adding the fact that the officer had been re-elected did not condone or purge the
offense (seeState ex rel. Billon v. Bourgeois).256 Also, in the Supreme Court of New York, Apellate Division,
Fourth Department, the court construed the words "in office" to refer not to a particular term of office
but to an entire tenure; it stated that the whole purpose of the legislature in enacting the statute in
question could easily be lost sight of, and the intent of the law-making body be thwarted, if an unworthy
official could not be removed during one term for misconduct for a previous one (Newman v. Strobel).257

(2) For another, condonation depended on whether or not the public officer was a successor in the same
office for which he has been administratively charged. The "own-successor theory," which is recognized
in numerous States as an exception to condonation doctrine, is premised on the idea that each term of a
re-elected incumbent is not taken as separate and distinct, but rather, regarded as one continuous term

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of office. Thus, infractions committed in a previous term are grounds for removal because a re-elected
incumbent has no prior term to speak of 258 (see Attorney-General v. Tufts;259State v. Welsh;260Hawkins v.
Common Council of Grand Rapids;261Territory v. Sanches;262and Tibbs v. City of Atlanta).263

(3) Furthermore, some State courts took into consideration the continuing nature of an offense in cases
where the condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 the public officer
charged with malversation of public funds was denied the defense of condonation by the Supreme Court
of Minnesota, observing that "the large sums of money illegally collected during the previous years are
still retained by him." In State ex rel. Beck v. Harvey265 the Supreme Court of Kansas ruled that "there is
no necessity" of applying the condonation doctrine since "the misconduct continued in the present term
of office[;] [thus] there was a duty upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court of Kansas held
that "insofar as nondelivery and excessive prices are concerned, x x x there remains a continuing duty on
the part of the defendant to make restitution to the country x x x, this duty extends into the present
term, and neglect to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a
"weight of authority" in the US on the condonation doctrine. In fact, without any cogent exegesis to
show that Pascual had accounted for the numerous factors relevant to the debate on condonation, an
outright adoption of the doctrine in this jurisdiction would not have been proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-making.
"[They] are not relied upon as precedents, but as guides of interpretation." 267 Therefore, the ultimate
analysis is on whether or not the condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal norms. Note that the doctrine of stare
decisis does not preclude this Court from revisiting existing doctrine. As adjudged in the case of Belgica,
the stare decisis rule should not operate when there are powerful countervailing considerations against
its application.268 In other words, stare decisis becomes an intractable rule only when circumstances exist
to preclude reversal of standing precedent. 269 As the Ombudsman correctly points out, jurisprudence,
after all, is not a rigid, atemporal abstraction; it is an organic creature that develops and devolves along
with the society within which it thrives. 270 In the words of a recent US Supreme Court Decision, "[w]hat
we can decide, we can undecide."271

In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the legal
landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution,
which dated provisions do not reflect the experience of the Filipino People under the 1973 and 1987
Constitutions. Therefore, the plain difference in setting, including, of course, the sheer impact of the
condonation doctrine on public accountability, calls for Pascual's judicious re-examination.

D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer was
elected for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause for
removal and this is especially true where the constitution provides that the penalty in proceedings for

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removal shall not extend beyond the removal from office, and disqualification from holding office for
the term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W.
2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d.
237; Board of Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re
Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.272

Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting
the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the
extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184
Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. 273(emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and character of
candidates, of their right to elect officers:

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with knowledge of his life and character,
and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for
the court, by reason of such faults or misconduct to practically overrule the will of the
people.274 (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation doctrine,
thereby quoting the above-stated passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the condonation
doctrine does not apply to a criminal case. It was explained that a criminal case is different from an
administrative case in that the former involves the People of the Philippines as a community, and is a
public wrong to the State at large; whereas, in the latter, only the populace of the constituency he serves
is affected. In addition, the Court noted that it is only the President who may pardon a criminal offense.

(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987
Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor Rodolfo
E. Aguinaldo although his re-election merely supervened the pendency of, the proceedings.

(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the condonation
doctrine by stating that the same is justified by "sound public policy." According to the Court,
condonation prevented the elective official from being "hounded" by administrative cases filed by his
"political enemies" during a new term, for which he has to defend himself "to the detriment of public
service." Also, the Court mentioned that the administrative liability condoned by re-election covered the
execution of the contract and the incidents related therewith. 279

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(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the doctrine
was extended to then Cebu City Mayor Alvin B. Garcia who was administratively charged for his
involvement in an anomalous contract for the supply of asphalt for Cebu City, executed only four (4) days
before the upcoming elections. The Court ruled that notwithstanding the timing of the contract's
execution, the electorate is presumed to have known the petitioner's background and character,
including his past misconduct; hence, his subsequent re-election was deemed a condonation of his prior
transgressions. More importantly, the Court held that the determinative time element in applying the
condonation doctrine should be the time when the contract was perfected; this meant that as long as
the contract was entered into during a prior term, acts which were done to implement the same, even
if done during a succeeding term, do not negate the application of the condonation doctrine in favor
of the elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein the Court
explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation rule
was applied even if the administrative complaint was not filed before the reelection of the public
official, and even if the alleged misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long
as the alleged misconduct was committed during the prior term, the precise timing or period of
which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's
culpability was committed prior to the date of reelection. 282 (Emphasis
supplied)ChanRoblesVirtualawlibrary

The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation doctrine would
not apply to appointive officials since, as to them, there is no sovereign will to disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked that it
would have been prudent for the appellate court therein to have issued a temporary restraining order
against the implementation of a preventive suspension order issued by the Ombudsman in view of the
condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia,
and Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions
directing the issuance of the assailed injunctive writs - would show that the basis for condonation under
the prevailing constitutional and statutory framework was never accounted for. What remains apparent
from the text of these cases is that the basis for condonation, as jurisprudential doctrine, was - and still
remains - the above-cited postulates of Pascual, which was lifted from rulings of US courts where
condonation was amply supported by their own state laws. With respect to its applicability to
administrative cases, the core premise of condonation - that is, an elective official's re-election cuts qff
the right to remove him for an administrative offense committed during a prior term - was adopted
hook, line, and sinker in our jurisprudence largely because the legality of that doctrine was never tested
against existing legal norms. As in the US, the propriety of condonation is - as it should be -dependent on
the legal foundation of the adjudicating jurisdiction. Hence, the Court undertakes an examination of our
current laws in order to determine if there is legal basis for the continued application of the doctrine of
condonation.

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The foundation of our entire legal system is the Constitution. It is the supreme law of the land; 284thus,
the unbending rule is that every statute should be read in light of the Constitution. 285 Likewise, the
Constitution is a framework of a workable government; hence, its interpretation must take into account
the complexities, realities, and politics attendant to the operation of the political branches of
government.286

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with respect to public accountability, or of the nature
of public office being a public trust. The provision in the 1935 Constitution that comes closest in dealing
with public office is Section 2, Article II which states that "[t]he defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens may be required by law to render personal
military or civil service."287 Perhaps owing to the 1935 Constitution's silence on public accountability, and
considering the dearth of jurisprudential rulings on the matter, as well as the variance in the policy
considerations, there was no glaring objection confronting the Pascual Court in adopting the
condonation doctrine that originated from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a
significant change. The new charter introduced an entire article on accountability of public officers,
found in Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that "[p]ublic
office is a public trust." Accordingly, "[p]ublic officers and employees shall serve with the highest
degree of responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987
Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that "[t]he
State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption."288 Learning how unbridled power could corrupt public servants
under the regime of a dictator, the Framers put primacy on the integrity of the public service by
declaring it as a constitutional principle and a State policy. More significantly, the 1987 Constitution
strengthened and solidified what has been first proclaimed in the 1973 Constitution by commanding
public officers to be accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency and act with
patriotism and justice, and lead modest lives.ChanRoblesVirtualawlibrary

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the people's trust. The notion of a public trust connotes accountability x x
x.289 (Emphasis supplied)ChanRoblesVirtualawlibrary

The same mandate is found in the Revised Administrative Code under the section of the Civil Service
Commission,290 and also, in the Code of Conduct and Ethical Standards for Public Officials and
Employees.291

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For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local
official from office are stated in Section 60 of Republic Act No. 7160,292otherwise known as the "Local
Government Code of 1991" (LGC), which was approved on October 10 1991, and took effect on January
1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or
removed from office on any of the r following grounds:chanRoblesvirtualLawlibrary
(a) Disloyalty to the Republic of the Philippines;cralawlawlibrary
(b) Culpable violation of the Constitution;cralawlawlibrary
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;cralawlawlibrary
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor;cralawlawlibrary
(e) Abuse of authority;cralawlawlibrary
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of
the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang
barangay;cralawlawlibrary
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of
another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order of the
proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a
result of an administrative case shall be disqualified from running for any elective local position:

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

xxxx

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

x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from service
carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of
retirement benefits, perpetual disqualification from holding public office, and bar from
taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets
the qualifications required for the office. Note, however, that the provision only pertains to the duration

119
of the penalty and its effect on the official's candidacy. Nothing therein states that the administrative
liability therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision. - x x x.

xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the
conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term of
office, or even another elective post. Election is not a mode of condoning an administrative offense,
and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any administrative liability arising from an offense
done during a prior term. In this jurisdiction, liability arising from administrative offenses may be
condoned bv the President in light of Section 19, Article VII of the 1987 Constitution which was
interpreted in Llamas v. Orbos293 to apply to administrative offenses:

The Constitution does not distinguish between which cases executive clemency may be exercised by the
President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may
be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following
petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the
same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President cannot grant
executive clemency in administrative cases. It is Our considered view that if the President can grant
reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more
reason can she grant executive clemency in administrative cases, which are clearly less serious than
criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein
cannot anymore be invoked against an elective local official to hold him administratively liable once he is
re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an
elective local official who is meted with the penalty of removal could not be re-elected to an elective
local position due to a direct disqualification from running for such post. In similar regard, Section 52 (a)
of the RRACCS imposes a penalty of perpetual disqualification from holding public office as an accessory
to the penalty of dismissal from service.

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the

120
doctrine of condonation of administrative liability was supported by either a constitutional or statutory
provision stating, in effect, that an officer cannot be removed by a misconduct committed during a
previous term,294 or that the disqualification to hold the office does not extend beyond the term in
which the official's delinquency occurred.295 In one case,296 the absence of a provision against the re-
election of an officer removed - unlike Section 40 (b) of the LGC-was the justification behind
condonation. In another case,297 it was deemed that condonation through re-election was a policy under
their constitution - which adoption in this jurisdiction runs counter to our present Constitution's
requirements on public accountability. There was even one case where the doctrine of condonation was
not adjudicated upon but only invoked by a party as a ground; 298 while in another case, which was not
reported in full in the official series, the crux of the disposition was that the evidence of a prior
irregularity in no way pertained to the charge at issue and therefore, was deemed to be
incompetent.299 Hence, owing to either their variance or inapplicability, none of these cases can be used
as basis for the continued adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspensionbeyond the
unexpired portion of the elective local official's prior term, and likewise allows said official to still run for
re-election This treatment is similar to People ex rel Bagshaw v. Thompson300 and Montgomery v.
Novell301 both cited in Pascual, wherein it was ruled that an officer cannot be suspended for a
misconduct committed during a prior term. However, as previously stated, nothing in Section 66 (b)
states that the elective local official's administrative liability is extinguished by the fact of re-election.
Thus, at all events, no legal provision actually supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would be
depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In
political law, election pertains to the process by which a particular constituency chooses an individual to
hold a public office. In this jurisdiction, there is, again, no legal basis to conclude that election
automatically implies condonation. Neither is there any legal basis to say that every democratic and
republican state has an inherent regime of condonation. If condonation of an elective official's
administrative liability would perhaps, be allowed in this jurisdiction, then the same should have been
provided by law under our governing legal mechanisms. May it be at the time of Pascual or at present,
by no means has it been shown that such a law, whether in a constitutional or statutory provision, exists.
Therefore, inferring from this manifest absence, it cannot be said that the electorate's will has been
abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are assumed
to have done so with knowledge of his life and character, and that they disregarded or forgave his faults
or misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists in any
statute or procedural rule.302 Besides, it is contrary to human experience that the electorate would have
full knowledge of a public official's misdeeds. The Ombudsman correctly points out the reality that most
corrupt acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct
committed by an elective official is easily covered up, and is almost always unknown to the electorate
when they cast their votes.303 At a conceptual level, condonation presupposes that the condoner has
actual knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton 304 decided by the New Jersey Supreme Court:

Many of the cases holding that re-election of a public official prevents his removal for acts done in a
preceding term of office are reasoned out on the theory of condonation. We cannot subscribe to that

121
theory because condonation, implying as it does forgiveness, connotes knowledge and in the absence of
knowledge there can be no condonation. One cannot forgive something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this
jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of US rulings
way back in 1959 and thus, out of touch from - and now rendered obsolete by - the current legal regime.
In consequence, it is high time for this Court to abandon the condonation doctrine that originated from
Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor
Garcia, and Governor Garcia, Jr. which were all relied upon by the CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine should
be prospective in application for the reason that judicial decisions applying or interpreting the laws or
the Constitution, until reversed, shall form part of the legal system of the Philippines. 305 Unto this Court
devolves the sole authority to interpret what the Constitution means, and all persons are bound to
follow its interpretation. As explained in De Castro v. Judicial Bar Council.306

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to
them.307

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance thereupon
should be respected. The landmark case on this matter is People v. Jabinal,308 wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on
the faith thereof.

Later, in Spouses Benzonan v. CA,309 it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of
the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall
have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal
maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity
is easy to perceive. The retroactive application of a law usually divests rights that have already become
vested or impairs the obligations of contract and hence, is
unconstitutional.310ChanRoblesVirtualawlibrary

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its
ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren of legal
anchorage was able to endure in our jurisprudence for a considerable length of time, this Court, under a
new membership, takes up the cudgels and now abandons the condonation doctrine.

E. Consequence of ruling.

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As for this section of the Decision, the issue to be resolved is whether or not the CA committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.311 It has also been held that "grave abuse of discretion arises when a lower court or tribunal
patently violates the Constitution, the law or existing jurisprudence."312

As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed
injunctive writs were all hinged on cases enunciating the condonation doctrine. To recount, the March
16, 2015 Resolution directing the issuance of the subject TRO was based on the case of Governor Garcia,
Jr., while the April 6, 2015 Resolution directing the issuance of the subject WPI was based on the cases
of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled
precedents on the condonation doctrine, which at that time, unwittingly remained "good law," it cannot
be concluded that the CA committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the Ombudsman, on
October 9, 2015, had already found Binay, Jr. administratively liable and imposed upon him the penalty
of dismissal, which carries the accessory penalty of perpetual disqualification from holding public office,
for the present administrative charges against him, the said CA petition appears to have been
mooted.313 As initially intimated, the preventive suspension order is only an ancillary issuance that, at its
core, serves the purpose of assisting the Office of the Ombudsman in its investigation. It therefore has no
more purpose - and perforce, dissolves - upon the termination of the office's process of investigation in
the instant administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the
validity of the preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As explained in Belgica, '"the
moot and academic principle' is not a magical formula that can automatically dissuade the Court in
resolving a case. The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review."314 All of these scenarios obtain in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not
to abandon the condonation doctrine now that its infirmities have become apparent. As extensively
discussed, the continued application of the condonation doctrine is simply impermissible under the
auspices of the present Constitution which explicitly mandates that public office is a public trust and that
public officials shall be accountable to the people at all times.

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Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of
elective officials to escape administrative liability. It is the first time that the legal intricacies of this
doctrine have been brought to light; thus, this is a situation of exceptional character which this Court
must ultimately resolve. Further, since the doctrine has served as a perennial obstacle against exacting
public accountability from the multitude of elective local officials throughout the years, it is indubitable
that paramount public interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar, and the public. The issue does not only involve an in-
depth exegesis of administrative law principles, but also puts to the forefront of legal discourse the
potency of the accountability provisions of the 1987 Constitution. The Court owes it to the bench, the
bar, and the public to explain how this controversial doctrine came about, and now, its reasons for
abandoning the same in view of its relevance on the parameters of public office.

And fourth, the defense of condonation has been consistently invoked by elective local officials against
the administrative charges filed against them. To provide a sample size, the Ombudsman has informed
the Court that "for the period of July 2013 to December 2014 alone, 85 cases from the Luzon Office and
24 cases from the Central Office were dismissed on the ground of condonation. Thus, in just one and a
half years, over a hundred cases of alleged misconduct - involving infractions such as dishonesty,
oppression, gross neglect of duty and grave misconduct - were placed beyond the reach of the
Ombudsman's investigatory and prosecutorial powers." 315 Evidently, this fortifies the finding that the
case is capable of repetition and must therefore, not evade review.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to uphold
and defend the Constitution, revoke it notwithstanding supervening events that render the subject of
discussion moot.chanrobleslaw

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the final issue
on whether or not the CA's Resolution316 dated March 20, 2015 directing the Ombudsman to comment
on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot be the
subject of a charge for indirect contempt 317 because this action is criminal in nature and the penalty
therefor would result in her effective removal from office. 318 However, a reading of the aforesaid March
20, 2015 Resolution does not show that she has already been subjected to contempt proceedings. This
issuance, in? fact, makes it clear that notwithstanding the directive for the Ombudsman to comment, the
CA has not necessarily given due course to Binay, Jr.'s contempt petition:

Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita Carpio
Morales, in her capacity as the Ombudsman, and the Department of Interior and Local Government] are
hereby DIRECTED to file Comment on the Petition/Amended and Supplemental Petition for Contempt
(CA-G.R. SP No. 139504) within an inextendible period of three (3) days from receipt hereof. (Emphasis
and underscoring supplied)ChanRoblesVirtualawlibrary

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may

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properly raise her objections to the contempt proceedings by virtue of her being an impeachable officer,
the CA, in the exercise of its sound judicial discretion, may still opt not to give due course to Binay, Jr.'s
contempt petition and accordingly, dismiss the same. Sjmply put, absent any indication that the
contempt petition has been given due course by the CA, it would then be premature for this Court to
rule on the issue. The submission of the Ombudsman on this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court resolves
as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while
the policy against the issuance of provisional injunctive writs by courts other than the Supreme Court to
enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph of the said
provision is DECLARED ineffective until the Court adopts the same as part of the rules of procedure
through an administrative circular duly issued therefor;cralawlawlibrary

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in

effect;cralawlawlibrary

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.)
petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the Ombudsman's supervening
issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr. administratively liable in the six (6)
administrative complamts, docketed as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-
C-A-15-0061, OMB-C-A-15-0062, and OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA is DIRECTED to
resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost dispatch.

SO ORDERED.chanroblesvirtuallawlibr

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