and the Land Use Development Plan and Zoning Ordinance of the
ADMIN CASE POOL 2
4. RECLASSIFICATION OF LANDS
DEPT OF AGRARIAN REFORM VS SARANGGANI AGRICULTURAL CO. INC
FACTS:
The Province of Sarangani was created pursuant to Republic Act No.
7228 on March 16, 1992, composed of seven (7) municipalities, namely,
Alabel, Glan, Maasin, Maitum, Malapatan, Malungon and Kiamba which
were segregated from the Province of South Cotabato. Under said Act,
the Municipality of Alabel was made the capital of the new province
where the capitol building and all other national and provincial offices
shall be established.
On February 14, 1997, the Sangguniang Bayan of Alabel passed
Resolution No. 97-08 or "Resolution Adopting and Endorsing the Ten-
Year Municipal Comprehensive Development Plan (MCDP 1995-2005)
of the Municipality of Alabel and Its Land Use Development Plan and
Zoning”
On January 30, 1998, pursuant to Municipal Zoning Ordinance No. 08,
Series of 1997, and to accelerate the development and urbanization of
Alabel, the Sangguniang Bayan of Alabel passed Resolution No. 98-03
reclassifying lots that were located within the built-up areas, based on
the 1995-2005 Land Use Plan of the municipality, from agricultural to
non-agricultural uses.
On March 2, 1998, the Sangguniang Panlalawigan of Sarangani
approved Resolution No. 98-018 or the "Resolution Adopting the Ten-
Year Municipal Comprehensive Development Plan (MCDP 1995-2205)
Municipality of Alabel, Sarangani Per Resolution No. 97-08 and
Municipal Ordinance No. 97-08, S. of 1997 of the Sangguniang Bayan of
Alabel." A portion of the area involving 376.5424 hectares, however,
was covered by the Comprehensive Agrarian Reform Law (R.A. No.
6657) commercial farms deferment scheme.
The Zoning Certification issued by the office of the Municipal Planning
and Development Council (MPDC) showed that respondents’ properties
located at Barangay Maribulan, Alabel were among those reclassified
from agricultural and pasture land to residential, commercial
institutional, light industrial and open space in the 1995-2005 land use
plan of Alabel.
On July 2, 1998, respondent Sarangani Agricultural Company, Inc. (SACI)
filed an application for land use conversion of the following parcels of
land with an aggregate area of 1,005 hectares.
Accompanying SACI’s application for conversion were the documents
required under the Department of Agrarian Reform (DAR)
Administrative Order No. 7, Series of 1997.
Subsequently, a Site Inspection Report was prepared by the Housing
and Land Use Regulatory Board (HLURB) Regional Office (Region XI) and
was indorsed to DAR Secretary Horacio R. Morales, Jr.
On March 16, 1999, the Provincial Agrarian Reform Council (PARC) and
the Provincial Land Use Technical Committee (PLUTC) conducted an
inspection of the subject properties. In a Memorandum dated July 9,
1999, the PLUTC recommended that SACI’s application be made subject
to the following conditions: 1) presentation by SACI of its development
plan; 2) submission of the lacking documents; 3) re-survey and
segregation of the property according to use or project in coordination
with the DAR Regional Office; and, 4) submission of the resulting map
indicating the technical description of the area per actual use/project
attested by the Regional Director.
Meanwhile, on March 22, 1999, members of the Sarangani Agrarian
Reform Beneficiaries Association, Inc. (SARBAI) sent a letter-petition to
the DAR Secretary oppposing the application for land use conversion
filed by SACI. SARBAI alleged that its members were merely forced to
sign the waiver of rights, considering that the commercial farm
deferment period ended on June 15, 1998. Later, an "Urgent Petition for
the Denial of Land Use Conversion Application of Banana Commercial
Farm of SACI" was filed by SARBAI and was received by the PARC
Secretariat on July 14, 1999.
In the March 30, 2000 deliberation of the PLUTC, the committee agreed
to recommend the disapproval of 158.0672 hectares that had been
planted with bananas and coconuts. The committee noted that said
portion of the property was still viable for agriculture, irrigated, with
Notice of Coverage, and under protest or with opposition from SARBAI.
The conversion was deferred subject to the submission of certain
requirements.
On November 9, 2000, DAR Secretary Horacio R. Morales, Jr. denied
SACI’s application for land use conversion. Petitioner filed a Motion for
Reconsideration of the above decision but the same was denied by the
Court of Appeals in a Resolution.
Their Motion for Reconsideration of the above Order having been
denied, respondents appealed to the Office of the President alleging
that the Secretary of Agrarian Reform committed serious errors. In a
Decision, the Office of the President through Presidential Assistant
Manuel C. Domingo dismissed the appeal and affirmed in toto the
challenged DAR Orders. Respondents’ motion for reconsideration was
denied, so they filed with the Court of Appeals a petition for review
raising substantially the same issues.
On July 19, 2004, the Court of Appeals rendered a Decision granting the
petition. Hence, this petition.
ISSUE:
WON DAR SHOULD USE THE COMPREHENSIVE LAND USE PLANS AND
ACCOMPANYING ORDINANCE OF THE LOCAL SANGGUNIAN AS PRIMARY
REFERENCE SO AS NOT TO DEFEAT THE VERY PURPOSE OF THE LOCAL
GOVERNMENT UNIT (LGU) CONCERNED IN RECLASSIFYING CERTAIN
AREAS TO ACHIEVE SOCIAL AND ECONOMIC BENEFITS IN PURSUANCE
TO ITS MANDATE TOWARDS THE GENERAL WELFARE.
RULING:
YES. DAR Administrative Order No. 7, Series of 1997, or the Omnibus
Rules and Procedures Governing Conversion of Agricultural Lands to
Non-agricultural Uses prescribes the guidelines for land use conversion:
VI. POLICIES AND GUIDELINES
B. General Guidelines
b) Conversion may be allowed if at the time of the application, the lands
are reclassified as commercial, industrial, residential or other non-
agricultural in the new or revised town plans promulgated by the local
government unit (LGU) and approved by the Housing and Land Use
Regulatory Board (HLURB) or by the Sangguniang Panlalawigan (SP)
after June 15, 1988, in accordance with Section 20 of R.A. No. 7160, as
implemented by MC No. 54, and Executive Order No. 72, Series of
199317 of the Office of the President.
In connection with the afore-stated administrative order, Section 20 of
Republic Act No. 7160, otherwise known as the Local Government Code
of 1991, empowers the local government units to reclassify agricultural
lands:
Sec. 20. Reclassification of Lands. - (a) A city or municipality may,
through an ordinance passed by the Sanggunian after conducting public
hearings for the purpose, authorize the reclassification of agricultural
lands and provide for the manner of their utilization or disposition in
the following cases: (1) when the land ceases to be economically
feasible and sound for agricultural purposes as determined by the
Department of Agriculture or (2) where the land shall have substantially
greater economic value for residential, commercial, or industrial
purposes, as determined by the Sanggunian concerned: Provided, That
such reclassification shall be limited to the following percentage of the
total agricultural land area at the time of the passage of the ordinance:
(1) For highly urbanized and independent component cities, FIFTEEN
PERCENT (15%);
(2) For component cities and first to third class municipalities, ten
percent (10%), and
(3) For fourth to sixth class municipalities, five percent (5%); Provided
further, That agricultural lands distributed to agrarian reform
beneficiaries pursuant to Republic Act No. 6657, otherwise known as
"The Comprehensive Agrarian Reform Law," shall not be affected by the
said reclassification and the conversion of such lands into other
purposes shall be governed by Section 65 of said Act.
…..
(c) The local government units shall in conformity with existing laws,
continue to prepare their respective comprehensive land use plans
enacted though zoning ordinances which shall be the primary and
dominant bases for the future use of land resources: Provided, That the
requirements for food production, human settlements, and industrial
expansion shall be taken into consideration in the preparation of such
plans.1avvphi1.net
(e) Nothing in this section shall be construed as repealing, amending or
modifying in any manner the provisions of R.A. No. 6657.
Memorandum Circular No. 54 "Prescribing the Guidelines Governing
Section 20 of R.A. No. 7160 Otherwise Known as the Local Government
Code of 1991 Authorizing Cities and Municipalities to Reclassify
Agricultural Lands Into Non-Agricultural Uses" issued by President Fidel
V. Ramos on June 8, 1993 specified the scope and limitations on the
power of the cities and municipalities to reclassify agricultural lands
into other uses. It provided that all ordinances authorizing
reclassification of agricultural lands shall be subject to the review and
approval of the province in the case of component cities or
municipalities, or by the HLURB for highly urbanized or independent
component cities in accordance with Executive Order No. 72, Series of
1993, thus:
SECTION 4. Use of the comprehensive land use plans19 and ordinances
as primary reference documents in land use conversions. - Pursuant to
RA 6657 and EO 129-A, actions on applications for land use conversions
on individual landholdings shall remain as the responsibility of DAR,
which shall utilize as its primary reference documents the
comprehensive land use plans and accompanying ordinance passed
upon and approved by the LGUs concerned, together with the National
Land Use Policy.
Hence, with regard to agricultural lands that have been reclassified for
non-agricultural uses by the local government unit concerned, the CA is
correct in declaring that DAR should refer to the comprehensive land
use plans and the ordinances of the Sanggunian in assessing land use
conversion applications, thus:
Construing Sec. 20 of the Local Government Code and the subsequent
administrative issuances implementing the same, we are of the opinion
that while the DAR retains the responsibility for approving or
disapproving applications for land use conversion filed by individual
landowners on their landholdings, the exercise of such authority should
be confined to compliance with the requirements and limitations under
existing laws and regulations, such as the allowable percentage of
agricultural [area] to be reclassified, ensuring sufficient food
production, areas non-negotiable for conversion and those falling under
environmentally critical areas or highly restricted for conversion under
the NIPAS law. Definitely, the DAR’s power in such cases may not be
exercised in such a manner as to defeat the very purpose of the LGU
concerned in reclassifying certain areas to achieve social and economic
benefits in pursuit of its mandate towards the general welfare.
Precisely, therefore, the DAR is required to use the comprehensive land
use plans and accompanying ordinances of the local Sanggunian as
primary references in evaluating applications for land use conversion
filed by individual landowners. In this case, petitioners have already
complied with the standard requirements laid down under the
applicable rules and regulations of the DAR.
The conversion of agricultural lands into non-agricultural uses shall be
strictly regulated and may be allowed only when the conditions
prescribed under R.A. No. 6657 are present. In this regard, the Court
agrees with the ratiocination of the CA that DAR’s scope of authority in
assessing land use conversion applications is limited to examining
whether the requirements prescribed by law and existing rules and
regulations have been complied with. This holds true in the present
case where, because of the creation of the Province of Sarangani and in
view of its thrust to urbanize, particularly its provincial capital which is
the Municipality of Alabel, the local government has reclassified certain
portions of its land area from agricultural to non-agricultural. Thus, to
reiterate, in accordance with E.O. No. 72, Series of 1993, and subject to
the limitations prescribed by law, DAR should utilize the comprehensive
land use plans in evaluating the land use conversion application of
respondents whose lands have already been reclassified by the local
government for non-agricultural uses.
This is not to say, however, that every property of respondents which is
included in the comprehensive land use plan of the Municipality of
Alabel shall be automatically granted non-coverage. As mentioned
earlier, said application is subject to the limitations and conditions
prescribed by law. One such limitation that is present here is that a
portion of respondents’ property of 376.5424 hectares, a portion
totaling 154.622 [or 154.1622] hectares which are planted to bananas
and coconuts, are covered by CARL’s ten-year deferment scheme, which
has expired on June 15, 1998. By law, these lands are subject to
redistribution to CARP beneficiaries upon the lapse of the ten-year
period, counted from the date of the effectivity of the CARL or R.A. No.
6657 on June 15, 1988, which was way before the creation of the
Province of Sarangani and the eventual reclassification of the
agricultural lands into non-agricultural in the Municipality of Alabel
where respondents’ properties are located.
In short, the creation of the new Province of Sarangani, and the
reclassification that was effected by the Municipality of Alabel did not
operate to supersede the applicable provisions of R.A. No. 6657.
Moreover, Section 20 of the LGC of 1991 on the reclassification of lands
explicitly states that "[n]othing in this section shall be construed as
repealing, amending or modifying in any manner the provisions of R.A.
No. 6657." Thus, where the law speaks in clear and categorical
language, there is no room for interpretation. There is only room for
application.
5. CLOSURE AND OPENING OF ROADS
Sangalang VS IAC
Facts: Bel-Air Village was owned and developed into a residential subdivision in
the 1950s by Makati Development Corporation (hereinafter referred to as
MDC), which in 1968 was merged with appellant Ayala Corporation.
Appellees-spouses Sangalang reside at No. 11O Jupiter Street between Makati
Avenue and Reposo Street; appellees-spouses Gaston reside at No. 64 Jupiter
Street between Makati Avenue and Zodiac Street; appellees-spouses Briones
reside at No. 66 Jupiter Street also between Makati Avenue and Zodiac Street;
while appellee Bel-Air Village Association, Inc. (hereinafter referred to as BAVA)
is the homeowners' association in Bel-Air Village which takes care of the
sanitation, security, traffic regulations and general welfare of the village.
The lots which were acquired by appellees Sangalang and spouse Gaston and
spouse and Briones and spouse in 1960, 1957 and 1958, respectively, were all
sold by MDC subject to certain conditions and easements contained in Deed
Restrictions which formed a part of each deed of sale.
When MDC sold the above-mentioned lots to appellees' predecessors-in-
interest, the whole stretch of the commercial block between Buendia Avenue
and Jupiter Street, from Reposo Street in the west to Zodiac Street in the east,
was still undeveloped. Access, therefore, to Bel-Air Village was opened to all
kinds of people and even animals. So in 1966, although it was not part of the
original plan, MDC constructed a fence or wall on the commercial block along
Jupiter Street. In 1970, the fence or wall was partly destroyed by typhoon
"Yoling." The destroyed portions were subsequently rebuilt by the appellant.
When Jupiter Street was widened in 1972 by 3.5 meters, the fence or wall had
to be destroyed. Upon request of BAVA, the wall was rebuilt inside the
boundary of the commercial block.
When the appellant finally decided to subdivide and sell the lots in the
commercial block between Buendia and Jupiter, BAVA wrote the appellant on
May 9, 1972, requesting for confirmation on the use of the commercial lots.
The appellant replied on May 16, 1972, informing BAVA of the restrictions
intended to be imposed in the sale and use of the lots. Among these
restrictions are: that the building shall have a set back of 19 meters; and that
with respect to vehicular traffic along Buendia Avenue, entrance only will be
allowed, and along Jupiter Street and side streets, both entrance and exit will
be allowed.
(7) On June 30, 1972, appellant informed BAVA that in a few months it shall
subdivide and sell the commercial lots bordering the north side of Buendia
Avenue Extension from Reposo Street up to Zodiac Street. Appellant also
informed BAVA that it had taken all precautions and will impose upon the
commercial lot owners deed restrictions which will harmonize and blend with
the development and welfare of Bel-Air Village. Appellant further applied for
special membership in BAVA of the commercial lot owners. A copy of the deed
restrictions for the commercial lots was also enclosed. The proposed deed
restrictions shall include the 19 meter set back of buildings from Jupiter Street,
the requirement for parking space within the lot of one (1) parking slot for
every seventy five (75) meters of office space in the building and the limitation
of vehicular traffic along Buendia to entrance only, but allowing both vehicular
entrance and vehicular exit through Jupiter Street and any side street.
In its letter of July 10, 1972, BAVA acknowledged the above letter of appellant
and informed the latter that the application for special membership of the
commercial lot owners in BAVA would be submitted to BAVA's board of
governors for decision.
(8) On September 25, 1972, appellant notified BAVA that, after a careful study,
it was finally decided that the height limitation of buildings on the commercial
lots shall be increased from 12.5 meters to 15 meters. Appellant further
informed BAVA that Jupiter Street shall be widened by 3.5 meters to improve
traffic flow in said street. BAVA did not reply to said letter, but on January 22,
1973, BAVA wrote a letter to the appellant informing the latter that the
Association had assessed the appellant, as special member of the association,
the amount of P40,795.00 (based on 81,590 square meters at P.50 per square
meter) representing the membership dues to the commercial lot owners for
the year 1973, and requested the appellant to remit the amount which its
board of governors had already included in its current budget. In reply,
appellant on January 31, 1973 informed BAVA that due to the widening of
Jupiter Street, the area of the lots which were accepted by the Association as
members was reduced to 76,726 square meters. Thus, the corresponding dues
at P.50 per square meter should be reduced to P38,363.00. This amount,
therefore, was remitted by the appellant to BAVA. Since then, the latter has
been collecting membership dues from the owners of the commercial lots as
special members of the Association. As a matter of fact, the dues were
increased several times. In 1980, the commercial lot owners were already
being charged dues at the rate of P3.00 per square meter. (Domingo, TSN, p.
36, March 19, 1980). At this rate, the total membership dues of the commercial
lot owners amount to P230,178. 00 annually based on the total area of 76,726
square meters of the commercial lots.
(9) Meantime, on April 4, 1975, the municipal council of Makati enacted its
ordinance No. 81, providing for the zonification of Makati (Exh. 18). Under this
Ordinance, Bel-Air Village was classified as a Class A Residential Zone, with its
boundary in the south extending to the center line of Jupiter Street (Exh. 18-A).
Meanwhile, in 1972, BAVA had installed gates at strategic locations across
Jupiter Street which were manned and operated by its own security guards
who were employed to maintain, supervise and enforce traffic regulations in
the roads and streets of the village. (Villavicencio, TSN, pp, 22-25, Oct. 30,
1980; BAVA Petition, par. 11, Exh. 17).
Then, on January 17, 1977, the Office of the Mayor of Makati wrote BAVA
directing that, in the interest of public welfare and for the purpose of easing
traffic congestion, streets in Bel Air will be opened for public use.
On February 10, 1977, BAVA wrote the Mayor of Makati, expressing the
concern of the residents about the opening of the streets to the general public,
and requesting specifically the indefinite postponement of the plan to open
Jupiter Street to public vehicles. (Exh. 17, Annex B, BAVA Petition).
However, BAVA voluntarily opened to the public Amapola, Mercedes, Zodiac,
Neptune and Paseo de Roxas streets. (Exh. 17-A, Answer of Makati par. 3-7).
Later, on June 17,1977, the Barangay Captain of Bel-Air Village was advised by
the Office of the Mayor that, in accordance with the agreement entered into
during the meeting on January 28, 1 977, the Municipal Engineer and the
Station Commander of the Makati Police were ordered to open for public use
Jupiter Street from Makati Avenue to Reposo Street. Accordingly, he was
requested to advise the village residents of the necessity of the opening of the
street in the interest of public welfare. (Exh. 17, Annex E, BAVA Petition).
Then, on June 10, 1977, the Municipal Engineer of Makati in a letter addressed
to BAVA advised the latter to open for vehicular and pedestrian traffic the
entire portion of Jupiter Street from Makati Avenue to Reposo Street (Exh. 17,
BAVA Petition, par. 14).
Finally, on August 12, 1977, the municipal officials of Makati concerned
allegedly opened, destroyed and removed the gates constructed/located at the
corner of Reposo Street and Jupiter Street as well as the gates/fences
located/constructed at Jupiter Street and Makati Avenue forcibly, and then
opened the entire length of Jupiter Street to public traffic. (Exh. 17, BAVA
Petition, pars. 16 and 17).
(11) Before the gates were-removed, there was no parking problem or traffic
problem in Jupiter Street, because Jupiter Street was not allowed to be used by
the general public (Villavicencio, TSN, pp. 24-25, Oct. 30, 1980). However, with
the opening of Zodiac Street from Estrella Street to Jupiter Street and also the
opening to the public of the entire length of Jupiter Street, there was a
tremendous increase in the volume of traffic passing along Jupiter Street
coming from EDSA to Estrella Street, then to Zodiac Street to Jupiter Street,
and along the entire length of Jupiter Street to its other end at Reposo Street.
(Villavicencio, TSN, pp. 30-32, Oct. 30, 1980).
In the meantime, the purchasers of the commercial lots between Jupiter Street
and Buendia Avenue extension had started constructing their respective
buildings in 1974-1975. They demolished the portions of the fence or wall
standing within the boundary of their lots. Many of the owners constructed
their own fences or walls in lieu of the wall and they employed their own
security guards. (TSN, p. 83, Feb. 20,1981; TSN, pp. 53-54; 72-74, March
20,1981; TSN, pp. 54-55, July 23, 1981).
(12) Then, on January 27, 1978, appellant donated the entire Jupiter Street
from Metropolitan Avenue to Zodiac Street to BAVA (Exh. 7)- However, even
before 1978, the Makati Police and the security force of BAVA were already the
ones regulating the traffic along Jupiter Street after the gates were opened in
1977. Sancianco TSN, pp. 26-30, Oct. 2,1981).
In October, 1979, the fence at the corner of Orbit and Neptune Streets was
opened and removed (BAVA Petition, par. 22, Exh. 17). The opening of the
whole stretch of Orbit Street from J.P. Rizal Avenue up to Imelda Avenue and
later to Jupiter Street was agreed to at the conference attended by the
President of BAVA in the office of the Station Commander of Makati, subject to
certain conditions, to wit:
That, maintenance of Orbit St. up to Jupiter St. shall be shouldered by the
Municipality of Makati.
That, street lights will be installed and maintenance of the same along Orbit St.
from J.P. Rizal Ave. up to Jupiter St. shall be undertaken by the Municipality.
That for the security of the residents of San Miguel Village and Bel-Air Village,
as a result of the opening of Orbit Street, police outposts shall be constructed
by the Municipality of Makati to be headed by personnel of Station No. 4, in
close coordination with the Security Guards of San Miguel Village and Bel-Air
Village." (CF. Exh. 3 to Counter-Affidavit, of Station Commander, Ruperto Acle
p. 253, records)" (Order, Civil Case No. 34948, Exh. 17-c).
(13) Thus, with the opening of the entire length of Jupiter Street to public
traffic, the different residential lots located in the northern side of Jupiter
Street ceased to be used for purely residential purposes. They became, for all
purposes, commercial in character.
(14) Subsequently, on October 29, 1979, the plaintiffs-appellees Jose D.
Sangalang and Lutgarda D. Sangalang brought the present action for damages
against the defendant-appellant Ayala Corporation predicated on both breach
of contract and on tort or quasi-delict A supplemental complaint was later filed
by said appellees seeking to augment the reliefs prayed for in the original
complaint because of alleged supervening events which occurred during the
trial of the case. Claiming to be similarly situated as the plaintiffs-appellees, the
spouses Felix C. Gaston and Dolores R. Gaston, Jose V. Briones and Alicia R.
Briones, and the homeowners' association (BAVA) intervened in the case.
Issue: Whether or not Ayala is liable for damages
Held: No. we reiterate, that Jupiter Street lies as a mere boundary, a fact
acknowledged by the authorities of Makati and the National Government and,
as a scrutiny of the records themselves reveals, by the petitioners themselves,
as the articles of incorporation of Bel-Air Village Association itself would
confirm. As a consequence, Jupiter Street was intended for the use by both
-the commercial and residential blocks. It was not originally constructed,
therefore, for the exclusive use of either block, least of all the residents of Bel-
Air Village, but, we repeat, in favor of both, as distinguished from the general
public.
When the wall was erected in 1966 and rebuilt twice, in 1970 and 1972, it was
not for the purpose of physically separating the two blocks. According to Ayala
Corporation, it was put up to enable the Bel-Air Village Association "better
control of the security in the area, 41 and as the Ayala Corporation's "show of
goodwill " 42 a view we find acceptable in the premises. For it cannot be denied
that at that time, the commercial area was vacant, "open for [sic] animals and
people to have access to Bel-Air Village." 43 There was hence a necessity for a
wall.
In any case, we find the petitioners' theory, that maintaining the wall was a
matter of a contractual obligation on the part of Ayala, to be pure conjecture.
The records do not establish the existence of such a purported commitment.
For one, the subdivision plans submitted did not mention anything about it.
For another, there is nothing in the "deed restrictions" that would point to any
covenant regarding the construction of a wall. There is no representation or
promise whatsoever therein to that effect.
With the construction of the commercial buildings in 1974, the reason for
which the wall was built- to secure Bel-Air Village from interlopers had
naturally ceased to exist. The buildings themselves had provided formidable
curtains of security for the residents. It should be noted that the commercial
lot buyers themselves were forced to demolish parts of the wall to gain access
to Jupiter Street, which they had after all equal right to use.
In fine, we cannot hold the Ayala Corporation liable for damages for a
commitment it did not make, much less for alleged resort to machinations in
evading it. The records, on the contrary, will show that the Bel-Air Village
Association had been informed, at the very outset, about the impending use of
Jupiter Street by commercial lot buyers.
The petitioners cannot successfully rely on the alleged promise by Demetrio
Copuyoc, Ayala's manager, to build a "[f]ence along Jupiter with gate for
entrance and/or exit 45 as evidence of Ayala's alleged continuing obligation to MMDA v. BEL-AIR VILLAGE ASSOCIATION
maintain a wall between the residential and commercial sections. It should be
observed that the fence referred to included a "gate for entrance and or exit"
which would have defeated the purpose of a wall, in the sense the petitioners
FACTS:
would put in one, that is to say, an impenetrable barrier. But as Ayala would  30 December 1995 – respondent received a letter from
point out subsequently, the proposed fence was not constructed because it petitioner, requesting respondent to open Neptune Street
had become unnecessary when the commercial lot owners commenced to public vehicular traffic starting Jan. 2 1996.
constructions thereon.
 In the letter, petitioner based its requested on RA 7924,
which requires them to “rationalize the use of roads
Be that as it may, the Court cannot visualize any purported obligation by Ayala
Corporation to keep the wall on the strength of this supposed promise alone. If and/or thoroughfares for the safe and convenient
truly Ayala promised anything assuming that Capuyoc was authorized to bind movement of persons. “
the corporation with a promise it would have been with respect to the fence. It  On the same day, respondent was apprised that the
would not have established the pre-existing obligation alleged with respect to perimeter wall separating the subdivision from the
the wall.
adjacent Kalayaan Avenue would be demolished.
Obligations arise, among other things, from contract. 46 If Ayala, then, were  Respondent filed a petition for injunction with the Makati
bound by an obligation, it would have been pursuant to a contract. A contract, RTC, praying that the court issue a temporary restraining
however, is characterized by a "meeting of minds between two persons . 47 As a order and preliminary injunction enjoining the opening of
consensual relation, it must be shown to exist as a fact, clearly and Neptune Street and prohibiting the demolition of the
convincingly. But it cannot be inferred from a mishmash of circumstances alone perimeter wall.
disclosing some kind of an "understanding," when especially, those disparate
circumstances are not themselves incompatible with contentions that no  After due hearing, the trial court denied the preliminary
accord had existed or had been reached. 48 injunction. When brought to the appellate court, the latter
reversed the decision and cited that MMDA has no
The petitioners cannot simply assume that the wall was there for the purpose authority to order the opening of Neptune Street, a
with which they now give it, by the bare coincidence that it had divided the private subdivision road and cause the demolition of its
residential block from the commercial section of Bel-Air. The burden of proof
perimeter walls. It held that the authority is lodged in the
rests with them to show that it had indeed been built precisely for that
objective, a proof that must satisfy the requirements of our rules of evidence. Makati City Council by ordinance.
It cannot be made to stand on the strength of plain inferences
ISSUE: Whether or not MMDA has the power/authority to open a
private subdivision road and order the demolition of the
subdivision’s perimeter walls.

HELD/RULING: No.
 Through the Local Government Code (LGC), LGUs exercise
their police power delegated by Congress through their
respective legislative bodies. Specifically, it empowers the
sangguniang panlalawigan, sangguniang panlungsod and
sangguniang bayan “to enact ordinances, approve resolutions
and appropriate funds for the general welfare of the LGU, and
its inhabitants.
 Sec. 21, RA 7160. “A local government unit may, pursuant to
an ordinance, permanently or temporarily close or open any
local road, alley, park, or square falling within its
jurisdiction…”
 RA No. 7924 created the Metropolitan Manila Development
Authority. The scope of MMDA’s function is limited to the
delivery of seven basic services. Also, its powers are limited to
the following acts: formulation, coordination, regulation,
implementation, preparation, management, monitoring,
settling of policies, installation of a system and administration.
 There is no syllable in RA No. 7924 that grants the MMDA
police power, let alone legislative power. Unlike the legislative
bodies of LGUs, there is no provision in RA no. 7924 that
empowers MMDA or its council to “enact ordinances, approve
resolutions and appropriate the funds for the general welfare”
of the inhabitants of Metro Manila.
 All its functions are administrative in nature which has the
purpose of laying down policies and coordinating with the
various national government agencies, peoples organizations,
NGOs and the private sector for the efficient and expeditious
delivery of basic services in the vast metropolitan area.
 Clearly, MMDA is not a political unit of government. There is
no grant of authority to enact ordinances and regulations for
the general welfare of the inhabitants of the metropolis.
LUCENA GRAND CENTRAL TERMINAL INC. vs. JAC
LINER, INC.
G.R. No. 148339, February 23, 2005
Doctrine: The true role of Constitutional law is to effect an equilibrium
between authority and liberty so that rights are exercised within the
framework of the law and the laws are enacted with due deference to
rights.
Two ordinances were enacted by the Sangguniang Panlungsod of
Lucena with the objective of alleviating the traffic congestion said to
have been caused by the existence of various bus and jeepney terminals
within the city. City Ordinance 1631 grants franchise to the Lucena
Grand Central Terminal, Inc. to construct, finance, establish, operate
and maintain common bus- jeepney terminal facility in the City of
Lucena. City Ordinance 1778, on the other hand, strips out all the
temporary terminals in the City of Lucena the right to operate which as
a result favors only the Lucena Grand Central Terminal, Inc.
The Regional Trial Court of Lucena declared City Ordinance 1631 as a
valid exercise of police power while declaring City Ordinance 1778 as
null and void for being invalid. Petitioner Lucena Grand Central
Terminal, Inc. filed its Motion for Reconsideration which was denied.
Lucena then elevated it via petition for review under Rule 45 before the
Court. The Court referred the petition to the Court of Appeals (CA) with
which it has concurrent jurisdiction. The CA dismissed the petition and
affirmed the challenged orders of the trial court. Its motion for
reconsideration having been denied by the CA, Lucena now comes to
the Court via petition for review to assail the Decision and Resolution of
the CA.
Issue: Whether or not the means employed by the Lucena Sannguniang
Panlungsod to attain its professed objective were reasonably necessary
and not duly oppressive upon individuals.
Held: With the aim of localizing the source of traffic congestion in the
city to a single location, the subject ordinances prohibit the operation
of all bus and jeepney terminals within Lucena, including those already
existing, and allow the operation of only one common terminal located
outside the city proper, the franchise for which was granted to Lucena.
The common carriers plying routes to and from Lucena City are thus
compelled to close down their existing terminals and use the facilities
of Lucena.
The true role of Constitutional Law is to effect an equilibrium between
authority and liberty so that rights are exercised within the framework
of the law and the laws are enacted with due deference to rights.
A due deference to the rights of the individual thus requires a more
careful formulation of solutions to societal problems.
From the memorandum filed before the Court by Lucena, it is gathered
that the Sangguniang Panlungsod had identified the cause of traffic
congestion to be the indiscriminate loading and unloading of
passengers by buses on the streets of the city proper, hence, the
conclusion that the terminals contributed to the proliferation of buses
obstructing traffic on the city streets.
Bus terminals per se do not, however, impede or help impede the flow
of traffic. How the outright proscription against the existence of all
terminals, apart from that franchised to Lucena, can be considered as
reasonably necessary to solve the traffic problem, the Court has not
been enlightened. If terminals lack adequate space such that bus
drivers are compelled to load and unload passengers on the streets
instead of inside the terminals, then reasonable specifications for the
size of terminals could be instituted, with permits to operate the same
denied those which are unable to meet the specifications.
In the subject ordinances, however, the scope of the proscription
against the maintenance of terminals is so broad that even entities
which might be able to provide facilities better than the franchised
terminal are barred from operating at all.
The Court is not unaware of the resolutions of various barangays in
Lucena City supporting the establishment of a common terminal, and
similar expressions of support from the private sector, copies of which
were submitted to this Court by Lucena Grand Central Terminal, Inc. The
weight of popular opinion, however, must be balanced with that of an
individual‘s rights.
6. Legislative Power
City of Manila v Laguio Jr.
Facts:
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and
lodging houses.
It built and opened Victoria Court in Malate which was licensed as a motel
although duly accredited with the Department of Tourism as a hotel.
On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a
Writ of Preliminary Injunction and/or Temporary Restraining
Order[7] (RTC Petition) with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza,
and the members of the City Council of Manila (City Council). MTDC prayed
that the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional.
Enacted by the City Council[9] on 9 March 1993 and approved by petitioner City
Mayor on 30 March 1993, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.[10]
In the RTC Petition, MTDC argued that the Ordinance erroneously and
improperly included in its enumeration of prohibited establishments, motels
and inns such as MTDCs Victoria Court considering that these were not
establishments for amusement or entertainment and they were not services or
facilities for entertainment, nor did they use women as tools for
entertainment, and neither did they disturb the community, annoy the
inhabitants or adversely affect the social and moral welfare of the community.
[11]
MTDC further advanced that the Ordinance was invalid and unconstitutional
for the following reasons: (1) The City Council has no power to prohibit the
operation of motels as Section 458 (a) 4 (iv) [12] of the Local Government Code
of 1991 (the Code) grants to the City Council only the power to regulate the
establishment, operation and maintenance of hotels, motels, inns, pension
houses, lodging houses and other similar establishments; (2) The Ordinance is
void as it is violative of Presidential Decree (P.D.) No. 499 [13] which specifically
declared portions of the Ermita-Malate area as a commercial zone with certain
restrictions; (3) The Ordinance does not constitute a proper exercise of police
power as the compulsory closure of the motel business has no reasonable
relation to the legitimate municipal interests sought to be protected; (4)
The Ordinance constitutes an ex post facto law by punishing the operation of
Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinance violates MTDCs constitutional rights in that: (a) it is confiscatory
and constitutes an invasion of plaintiffs property rights; (b) the City Council has
no power to find as a fact that a particular thing is a nuisance per se nor does it
have the power to extrajudicially destroy it; and (6) The Ordinance constitutes
a denial of equal protection under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not pension houses, hotels,
lodging houses or other similar establishments, and for prohibiting said
business in the Ermita-Malate area but not outside of this area. [14]
In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to prohibit certain forms of
entertainment in order to protect the social and moral welfare of the
community as provided for in Section 458 (a) 4 (vii) of the Local Government
Code
Petitioners likewise asserted that the Ordinance was enacted by the City
Council of Manila to protect the social and moral welfare of the community in
conjunction with its police power as found in Article III, Section 18(kk) of
Republic Act No. 409,[19] otherwise known as the Revised Charter of the City of
Manila (Revised Charter of Manila
Further, the petitioners noted, the Ordinance had the presumption of
validity; hence, private respondent had the burden to prove its illegality or
unconstitutionality.[21]
Petitioners also maintained that there was no inconsistency between P.D.
499 and the Ordinance as the latter simply disauthorized certain forms of
businesses and allowed the Ermita-Malate area to remain a commercial zone.
[22]
The Ordinance, the petitioners likewise claimed, cannot be assailed as ex
post facto as it was prospective in operation. [23] TheOrdinance also did not
infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the
Ermita-Malate area and other places in the City of Manila. [24]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the
general law. It reiterates that the questioned Ordinance is not a valid exercise
of police power; that it is violative of due process, confiscatory and amounts to
an arbitrary interference with its lawful business; that it is violative of the equal
protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide
and control his actions.
Issue: Whether or not said ordinance is unconstitutional
Held: Yes.
The tests of a valid ordinance are well established. A long line of decisions
has held that for an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and must be passed
according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the Constitution
or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable. [37]
Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws. [38] The Ordinance must satisfy two
requirements: it must pass muster under the test of constitutionality and the
test of consistency with the prevailing laws. That ordinances should be
constitutional uphold the principle of the supremacy of the Constitution. The
requirement that the enactment must not violate existing law gives stress to
the precept that local government units are able to legislate only by virtue of
their derivative legislative power, a delegation of legislative power from the
national legislature. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter.[39]
This relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. The national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it.[40]
The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress. Local
government units, as agencies of the State, are endowed with police power in
order to effectively accomplish and carry out the declared objects of their
creation.[41] This delegated police power is found in Section 16 of the Code,
known as the general welfare clause
The Ordinance contravenes the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the
limitation that its exercise must be reasonable and for the public good. [43] In the
case at bar, the enactment of the Ordinance was an invalid exercise of
delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy. [44]
SEC. 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men. [45]
SEC. 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of laws. [46]
Sec. 9. Private property shall not be taken for public use without just
compensation.[47]
A. The Ordinance infringes the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o person
shall be deprived of life, liberty or property without due process of law. . . . [48]
This clause has been interpreted as imposing two separate limits on
government, usually called procedural due process and substantive due
process.
Procedural due process, as the phrase implies, refers to the procedures
that the government must follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues are concerned with what kind
of notice and what form of hearing the government must provide when it takes
a particular action.[53]
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a persons life, liberty, or
property. In other words, substantive due process looks to whether there is a
sufficient justification for the governments action.
The police power granted to local government units must always be exercised
with utmost observance of the rights of the people to due process and equal
protection of the law. Such power cannot be exercised whimsically, arbitrarily
or despotically[57] as its exercise is subject to a qualification, limitation or
restriction demanded by the respect and regard due to the prescription of the
fundamental law, particularly those forming part of the Bill of Rights.
Requisites for the valid exercise of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of
constitutional infirmity, not only must it appear that the interests of the public
generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals.[60] It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work.
Lacking a concurrence of these two requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights [62] a violation of the due
process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate area which
are allegedly operated under the deceptive veneer of legitimate, licensed and
tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels
and motels. Petitioners insist that even the Court in the case of Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City Mayor of Manila [63] had
already taken judicial notice of the alarming increase in the rate of prostitution,
adultery and fornication in Manila traceable in great part to existence of
motels, which provide a necessary atmosphere for clandestine entry, presence
and exit and thus become the ideal haven for prostitutes and thrill-seekers. [64]
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community. Granting for the
sake of argument that the objectives of the Ordinance are within the scope of
the City Councils police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to
make all reasonable regulations looking to the promotion of the moral and
social values of the community. However, the worthy aim of fostering public
morals and the eradication of the communitys social ills can be achieved
through means less restrictive of private rights; it can be attained by
reasonable restrictions rather than by an absolute prohibition. The closing
down and transfer of businesses or their conversion into businesses allowed
under the Ordinance have no reasonable relation to the accomplishment of its
purposes. Otherwise stated, the prohibition of the enumerated establishments
will not per se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution,
adultery, fornication nor will it arrest the spread of sexual disease in Manila.
The problem, it needs to be pointed out, is not the establishment, which
by its nature cannot be said to be injurious to the health or comfort of the
community and which in itself is amoral, but the deplorable human activity
that may occur within its premises. While a motel may be used as a venue for
immoral sexual activity, it cannot for that reason alone be punished. It cannot
be classified as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption. If that were so and if that were allowed,
then the Ermita-Malate area would not only be purged of its supposed social
ills, it would be extinguished of its soul as well as every human activity,
reprehensible or not, in its every nook and cranny would be laid bare to the
estimation of the authorities.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those motels and
property in terms of the investments made and the salaries to be paid to those
therein employed. If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable regulations
such as daily inspections of the establishments for any violation of the
conditions of their licenses or permits; it may exercise its authority to suspend
or revoke their licenses for these violations; [67] and it may even impose
increased license fees. In other words, there are other means to reasonably
accomplish the desired end.
Means employed are constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given
three (3) months from the date of approval of theOrdinance within which to
wind up business operations or to transfer to any place outside the Ermita-
Malate area or convert said businesses to other kinds of business allowable
within the area. Further, it states in Section 4 that in cases of subsequent
violations of the provisions of the Ordinance, the premises of the erring
establishment shall be closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on
the constitutional guarantees of a persons fundamental right to liberty and
property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm
to include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare. [68] In
accordance with this case, the rights of the citizen to be free to use his faculties
in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.[69]
Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository
of freedom. The right to be let alone is the beginning of all freedom it is the
most comprehensive of rights and the right most valued by civilized men.
Modality employed is unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its property.
[77]
The Ordinance in Section 1 thereof forbids the running of the enumerated
businesses in the Ermita-Malate area and in Section 3 instructs its
owners/operators to wind up business operations or to transfer outside the
area or convert said businesses into allowed businesses. An ordinance which
permanently restricts the use of property that it can not be used for any
reasonable purpose goes beyond regulation and must be recognized as a
taking of the property without just compensation. [78] It is intrusive and violative
of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private
property shall not be taken for public use without just compensation. The
provision is the most important protection of property rights in the
Constitution. This is a restriction on the general power of the government to
take property.
There are two different types of taking that can be identified. A possessory
taking occurs when the government confiscates or physically occupies
property. A regulatory taking occurs when the governments regulation leaves
no reasonable economically viable use of the property. [80]
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable economically viable
use of property in a manner that interferes with reasonable expectations for
use.[84] A regulation that permanently denies all economically beneficial or
productive use of land is, from the owners point of view, equivalent to a taking
unless principles of nuisance or property law that existed when the owner
acquired the land make the use prohibitable.[85] When the owner of real
property has been called upon to sacrifice all economically beneficial uses in
the name of the common good, that is, to leave his property economically idle,
he has suffered a taking.[86]
The Ordinance gives the owners and operators of the prohibited
establishments three (3) months from its approval within which to wind up
business operations or to transfer to any place outside of the Ermita-Malate
area or convert said businesses to other kinds of business allowable within the
area. The directive to wind up business operations amounts to a closure of the
establishment, a permanent deprivation of property, and is practically
confiscatory. It is apparent that the Ordinance leaves no reasonable
economically viable use of property in a manner that interferes with
reasonable expectations for use.
Petitioners cannot take refuge in classifying the measure as a zoning
ordinance. A zoning ordinance, although a valid exercise of police power, which
limits a wholesome property to a use which can not reasonably be made of it
constitutes the taking of such property without just compensation. Private
property which is not noxious nor intended for noxious purposes may not, by
zoning, be destroyed without compensation. Such principle finds no support in
the principles of justice as we know them. The police powers of local
government units which have always received broad and liberal interpretation
cannot be stretched to cover this particular taking.
Further, the Ordinance fails to set up any standard to guide or limit the
petitioners actions. It in no way controls or guides the discretion vested in
them. It provides no definition of the establishments covered by it and it fails
to set forth the conditions when the establishments come within its ambit of
prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted
power to close down establishments. Ordinances such as this, which make
possible abuses in its execution, depending upon no conditions or
qualifications whatsoever other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested, are
unreasonable and invalid. The Ordinance should have established a rule by
which its impartial enforcement could be secured.
Ordinances placing restrictions upon the lawful use of property must, in
order to be valid and constitutional, specify the rules and conditions to be
observed and conduct to avoid; and must not admit of the exercise, or of an
opportunity for the exercise, of unbridled discretion by the law enforcers in
carrying out its provisions.[92]
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business.
The foregoing premises show that the Ordinance is an unwarranted and
unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the guise
of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. Similar subjects, in other words, should not be treated differently, so
as to give undue favor to some and unjustly discriminate against others. [98] The
guarantee means that no person or class of persons shall be denied the same
protection of laws which is enjoyed by other persons or other classes in like
circumstances.[99] The equal protection of the laws is a pledge of the protection
of equal laws.[100] It limits governmental discrimination. The equal protection
clause extends to artificial persons but only insofar as their property is
concerned.[101]
Legislative bodies are allowed to classify the subjects of legislation. If the
classification is reasonable, the law may operate only on some and not all of
the people without violating the equal protection clause. [103] The classification
must, as an indispensable requisite, not be arbitrary. To be valid, it must
conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class. [104]
In the Courts view, there are no substantial distinctions between motels,
inns, pension houses, hotels, lodging houses or other similar establishments.
By definition, all are commercial establishments providing lodging and usually
meals and other services for the public. No reason exists for prohibiting motels
and inns but not pension houses, hotels, lodging houses or other similar
establishments. The classification in the instant case is invalid as similar
subjects are not similarly treated, both as to rights conferred and obligations
imposed. It is arbitrary as it does not rest on substantial distinctions bearing a
just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and
operation of motels in the Ermita-Malate area but not outside of this area. A
noxious establishment does not become any less noxious if located outside the
area.
Failing the test of constitutionality, the Ordinance likewise failed to pass
the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the
establishment, operation, and maintenance of motels, hotels and other similar
establishments is found in Section 458 (a) 4 (iv).
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments, the
only power of the City Council to legislate relative thereto is to regulate them
to promote the general welfare. The Code still withholds from cities the power
to suppress and prohibit altogether the establishment, operation and
maintenance of such establishments.
The rule is that the City Council has only such powers as are expressly
granted to it and those which are necessarily implied or incidental to the
exercise thereof. By reason of its limited powers and the nature thereof, said
powers are to be construed strictissimi juris and any doubt or ambiguity arising
out of the terms used in granting said powers must be construed against the
City Council.[113] Moreover, it is a general rule in statutory construction that the
express mention of one person, thing, or consequence is tantamount to an
express exclusion of all others. Expressio unius est exclusio alterium. This
maxim is based upon the rules of logic and the natural workings of human
mind. It is particularly applicable in the construction of such statutes as create
new rights or remedies, impose penalties or punishments, or otherwise come
under the rule of strict construction.[114]
The Ordinance now vainly attempts to lump these establishments with
houses of ill-repute and expand the City Councils powers in the second and
third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its
prohibitory powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
 Not only does the Ordinance contravene the Code, it likewise runs
counter to the provisions of P.D. 499. As correctly argued by MTDC, the statute
had already converted the residential Ermita-Malate area into a commercial
area. The decree allowed the establishment and operation of all kinds of
commercial establishments except warehouse or open storage depot, dump or
yard, motor repair shop, gasoline service station, light industry with any
machinery or funeral establishment. The rule is that for an ordinance to be
valid and to have force and effect, it must not only be within the powers of the
council to enact but the same must not be in conflict with or repugnant to the
general law.
Petitioners contend that the Ordinance enjoys the presumption of
validity. While this may be the rule, it has already been held that although the
presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of the land, or
an act of the legislature, or unless it is against public policy or is unreasonable,
oppressive, partial, discriminating or in derogation of a common right. [124]
Conclusion
All considered, the Ordinance invades fundamental personal and property
rights and impairs personal privileges. It is constitutionally infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable in
its operation; it is not sufficiently detailed and explicit that abuses may attend
the enforcement of its sanctions. And not to be forgotten, the City Council
under the Code had no power to enact the Ordinance and is therefore ultra
vires, null and void.
Social Justice Society v. Jose L. Atienza
Facts:
On November 20, 2001, the Sangguniang Panlungsod of Manila enacted
Ordinance No. 8027.2 Respondent mayor approved the ordinance on
November 28, 2001. It became effective on December 28, 2001, after its
publication.
Ordinance No. 8027 was enacted pursuant to the police power delegated to
local government units, a principle described as the power inherent in a
government to enact laws, within constitutional limits, to promote the order,
safety, health, morals and general welfare of the society.
Ordinance No. 8027 reclassified the area described therein from industrial to
commercial and directed the owners and operators of businesses disallowed
under Section 1 to cease and desist from operating their businesses within six
months from the date of effectivity of the ordinance. Among the businesses
situated in the area are the so-called "Pandacan Terminals" of the oil
companies Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell
Petroleum Corporation.
However, on June 26, 2002, the City of Manila and the Department of Energy
(DOE) entered into a memorandum of understanding (MOU) with the oil
companies in which they agreed that "the scaling down of the Pandacan
Terminals [was] the most viable and practicable option." Under the MOU, the
oil companies agreed to perform the following:
Section 1. - Consistent with the objectives stated above, the OIL
COMPANIES shall, upon signing of this MOU, undertake a program to
scale down the Pandacan Terminals which shall include, among others,
the immediate removal/decommissioning process of TWENTY EIGHT
(28) tanks starting with the LPG spheres and the commencing of works
for the creation of safety buffer and green zones surrounding the
Pandacan Terminals. xxx
Section 2. – Consistent with the scale-down program mentioned above,
the OIL COMPANIES shall establish joint operations and management,
including the operation of common, integrated and/or shared facilities,
consistent with international and domestic technical, safety,
environmental and economic considerations and standards.
Consequently, the joint operations of the OIL COMPANIES in the
Pandacan Terminals shall be limited to the common and integrated
 areas/facilities. A separate agreement covering the commercial and
operational terms and conditions of the joint operations, shall be
entered into by the OIL COMPANIES.
Section 3. - The development and maintenance of the safety and green
buffer zones mentioned therein, which shall be taken from the
properties of the OIL COMPANIES and not from the surrounding
communities, shall be the sole responsibility of the OIL COMPANIES.
The City of Manila and the DOE, on the other hand, committed to do the
following:
Section 1. - The City Mayor shall endorse to the City Council this MOU
for its appropriate action with the view of implementing the spirit and
intent thereof.
Section 2. - The City Mayor and the DOE shall, consistent with the spirit
and intent of this MOU, enable the OIL COMPANIES to continuously
operate in compliance with legal requirements, within the limited area
resulting from the joint operations and the scale down program.
Section 3. - The DOE and the City Mayor shall monitor the OIL
COMPANIES’ compliance with the provisions of this MOU.
Section 4. - The CITY OF MANILA and the national government shall
protect the safety buffer and green zones and shall exert all efforts at
preventing future occupation or encroachment into these areas by
illegal settlers and other unauthorized parties.
The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the
same resolution, the Sanggunian declared that the MOU was effective only for
a period of six months starting July 25, 2002. Thereafter, on January 30, 2003,
the Sanggunian adopted Resolution No. 139 extending the validity of
Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue
special business permits to the oil companies. Resolution No. 13, s. 2003 also
called for a reassessment of the ordinance.
Meanwhile, petitioners filed this original action for mandamus on December 4,
2002 praying that Mayor Atienza be compelled to enforce Ordinance No. 8027
and order the immediate removal of the terminals of the oil companies.
Petitioners contend that respondent has the mandatory legal duty, under
Section 455 (b) (2) of the Local Government Code (RA 7160), to enforce
Ordinance No. 8027 and order the removal of the Pandacan Terminals of the
oil companies. Instead, he has allowed them to stay.
Respondent’s defense is that Ordinance No. 8027 has been superseded by the
MOU and the resolutions. However, he also confusingly argues that the
ordinance and MOU are not inconsistent with each other and that the latter
has not amended the former. He insists that the ordinance remains valid and in
full force and effect and that the MOU did not in any way prevent him from
enforcing and implementing it. He maintains that the MOU should be
considered as a mere guideline for its full implementation.
Issue: Whether or not Petition for Mandamus must be granted
Held: Yes.
the Local Government Code imposes upon respondent the duty, as city mayor,
to "enforce all laws and ordinances relative to the governance of the city." One
of these is Ordinance No. 8027. As the chief executive of the city, he has the
duty to enforce Ordinance No. 8027 as long as it has not been repealed by the
Sanggunian or annulled by the courts. He has no other choice. It is his
ministerial duty to do so. In Dimaporo v. Mitra, Jr., we stated the reason for
this:
These officers cannot refuse to perform their duty on the ground of an alleged
invalidity of the statute imposing the duty. The reason for this is obvious. It
might seriously hinder the transaction of public business if these officers were
to be permitted in all cases to question the constitutionality of statutes and
ordinances imposing duties upon them and which have not judicially been
declared unconstitutional. Officers of the government from the highest to the
lowest are creatures of the law and are bound to obey it.
(Wala sa case yung issue na validity ng statute)

IV. LOCAL OFFICIALS
Practice of Profession
Republic v. Rambuyong
G.R. No. 167810
October 4, 2010
DOCTRINE:
A Sanggunian Member cannot engage in his legal profession if the
adverse party is an instrumentality of the Government.
FACTS:
Alfredo Chu filed a case for collection against the National
Power Corporation (NPC). Appearing as counsel for Chu is Atty. Richard
Rambuyong who was then the incumbent Vice-Mayor. NPC then filed a
motion for inhibition of Rambuyong arguing that he is prohibited under
Section 90 (b)(1) of the Local Government Code.
The Regional Trial Court ruled in favor of Rambuyong where it argued
that government-owned or controlled corporations are not included in
the prohibition. Should the framers intended so, it must have explicitly
stated therein. In appeal, the Court of Appeals dismissed the petition
for lack of merit.
ISSUE:
Whether or not Rambuyong can represent NPC as counsel despite
being a Vice Mayor.
RULING:
The Court ruled in favor of the Petitioner.
Section 90 (b)(1) of the Local Government Code provides that
Sanggunian Members may practice their profession or engage in any
occupation or teach in schools except during session hours, provided
when the Member is also a member of the Bar, he shall not appear as
counsel before any court in any civil case where the local government
unit or any office, agency or instrumentality of the government is the
adverse party. Then, the Court quoted Section 2 (10) of the Revised
Administrative Code which defined “instrumentality” shall include
regulatory agencies, chartered institutions and government-owned or
controlled corporations.
With the foregoing provisions, it is clear without any ambiguity that
NPC is a government instrumentality tasked in undertaking
development hydroelectric generation of power and production of
electricity from other sources. Further, being the Vice-Mayor,
Rambuyong is deemed a Sanggunian Member because Section 446 of
the LGC provided that the sangguniang bayan shall be composed of the
municipal vice mayor as the presiding officer. As such, Rambuyong
cannot represent himself as counsel for Chu when NPC is an adverse
party, pursuant to the above-mentioned laws.
CATU V. RELLOSA 2. Whether or not respondent should have asked for authorization to
practice his legal profession.
FACTS:
HELD:
Petitioner Wilfredo M. Catu is a co-owner of a lot and building
located in Malate, Manila. His mother and brother, Regina Catu and
1. No.
Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu and
Rule 6.03 of the CPR ( A lawyer shall not, after leaving
Antonio Pastor of one of the units in the building. The latter ignored the
government service, accept engagement or employment in connection
demands for them to vacate the premises. Thus, they initiated a
with any matter in which he intervened while in said service). Said rule
complaint against them in the Lupon Tagapamayapa where the parties
cannot apply to respondent’s case because it only prohibits former
reside.
government lawyers from accepting engagement or employment in
Respondent, as punong barangay, summoned the parties to
connection with matter in which they had intervened while in said
conciliation meetings. When the parties failed to arrive ata an amicable
service. Respondent was an incumbent punong barangay at the time he
settlement, respondent issued a certification for the filing of the
committed the act complained of. Therefore, he was not covered by
appropriate action in court.
that provision.
Thereafter, petitioner’s mother and brother filed a complaint
Sec. 7(b)(2) of RA 6713 prohibits public officials and employees,
for ejectment against Elizabeth and Pastor in the MTC of Manila.
during their incumbency from engaging in the private practice of their
Respondent appeared as counsel for the defendants in that case.
profession unless authorized by the Constitution or law, provided that
Because of this, complainant filed an administrative complaint, claiming
such practice will not conflict or tend to conflict with their official
that respondent committed an act of impropriety as a lawyer and as a
functions.
public officer when he stood as counsel for the defendants despite the
For elective local government officials, Sec. 90 of RA 7160
fact that the presided over the conciliation proceedings between the
governs:
litigants as punong barangay.
In his defense, respondent claimed that one of his duties as SEC. 90. Practice of Profession. (a) All
punong barangay was to hear complaints referred to the barangay’s governors, city and municipal mayors are prohibited
Lupong Tagapamayapa. As head of the Lupon, he performed his task from practicing their profession or engaging in any
with utmost objectivity, without bias or partiality towards any of the occupation other than the exercise of their functions
parties. The parties, however, were not able to amicably settle their as local chief executives.
dispute and Regina and Antonio filed the ejectment case. It was then (b) Sanggunian members may practice their
that Elizabeth sought his legal assistance. He acceded to her request. He professions, engage in any occupation, or
handled her case for free because she was financially distressed and he teach in schools except during session
wanted to prevent the commission of a patent injustice against her. hours: Provided, That sanggunian members
who are members of the Bar shall not:
ISSUE:
1. Whether or not respondent cannot practice his legal profession (1) Appear as counsel before any court
during his term as punong barangay. in any civil case wherein a local government
 unit or any office, agency, or instrumentality of
the government is the adverse party;
(2) Appear as counsel in any criminal
case wherein an officer or employee of the
national or local government is accused of an
offense committed in relation to his office;
(3) Collect any fee for their appearance
in administrative proceedings involving the
local government unit of which he is an
official; and
(4) Use property and personnel of the
Government except when
the sanggunian member concerned is
defending the interest of the Government.
(c) Doctors of medicine may practice their
profession even during official hours of work
only on occasions of emergency: Provided,
That the officials concerned do not derive
monetary compensation therefrom.
Under RA 7160, elective local officials of provinces, cities,
municipalities and barangays are the following: the governor, the vice
governor and members of the sangguniang panlalawigan for provinces;
the city mayor, the city vice mayor and the members of
the sangguniang panlungsod for cities; the municipal mayor, the
municipal vice mayor and the members of the sangguniang bayan for
municipalities and the punong barangay, the members of
the sangguniang barangay and the members of the sangguniang
kabataan for barangays.
Of these elective local officials, governors, city mayors and
municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as
local chief executives. This is because they are required to render full
time service. They should therefore devote all their time and attention
to the performance of their official duties.
On the other hand, members of the sangguniang
panlalawigan, sangguniang panlungsod or sangguniang bayan may
practice their professions, engage in any occupation, or teach in schools
except during session hours. In other words, they may practice their
professions, engage in any occupation, or teach in schools outside their
session hours. Unlike governors, city mayors and municipal
mayors, members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayanare required to hold regular sessions
only at least once a week. Since the law itself grants them the authority
to practice their professions, engage in any occupation or teach in
schools outside session hours, there is no longer any need for them to
secure prior permission or authorization from any other person or
office for any of these purposes.
While, as already discussed, certain local elective officials (like
governors, mayors, provincial board members and councilors) are
expressly subjected to a total or partial proscription to practice their
profession or engage in any occupation, no such interdiction is made on
the punong barangay and the members of the sangguniang
barangay. Expressio unius est exclusio alterius. Since they are excluded
from any prohibition, the presumption is that they are allowed to
practice their profession. And this stands to reason because they are
not mandated to serve full time. In fact, the sangguniang barangay is
supposed to hold regular sessions only twice a month.
Accordingly, as punong barangay, respondent was not
forbidden to practice his profession.
2. Yes. Even though respondent was not forbidden to practice
his profession, he should have procured prior permission or
authorization from the head of his Department, as required by civil
service regulations. Section 12, Rule XVIII of the Revised Civil Service
Rules provides:
 Sec. 12. No officer or employee shall engage
directly in any private business, vocation,
or profession or be connected with any commercial,
credit, agricultural, or industrial undertaking without a
written permission from the head of the
Department: Provided, That this prohibition will be
absolute in the case of those officers and employees
whose duties and responsibilities require that their
entire time be at the disposal of the
Government; Provided, further, That if an employee is
granted permission to engage in outside activities,
time so devoted outside of office hours should be
fixed by the agency to the end that it will not impair in
any way the efficiency of the officer or employee:
And provided, finally, that no permission is necessary
in the case of investments, made by an officer or
employee, which do not involve real or apparent
conflict between his private interests and public
duties, or in any way influence him in the discharge of
his duties, and he shall not take part in the
management of the enterprise or become an officer of
the board of directors. (emphasis supplied)
As punong barangay, respondent should have therefore
obtained the prior written permission of the Secretary of Interior and
Local Government before he entered his appearance as counsel for
Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII
of the Revised Civil Service Rules constitutes a violation of his oath as a
lawyer: to obey the laws. Lawyers are servants of the law, vires legis,
men of the law. Their paramount duty to society is to obey the law and
promote respect for it. To underscore the primacy and importance of
this duty, it is enshrined as the first canon of the Code of Professional
Responsibility.
In acting as counsel for a party without first securing the
required written permission, respondent not only engaged in the
unauthorized practice of law but also violated civil service rules which is
a breach of Rule 1.01 of the Code of Professional Responsibility:
Rule 1.01 A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (emphasis supplied)
For not living up to his oath as well as for not complying with
the exacting ethical standards of the legal profession, respondent failed
to comply with Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis
supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so
doing, he disregards legal ethics and disgraces the dignity of the legal
profession.
Public confidence in the law and in lawyers may be eroded by
the irresponsible and improper conduct of a member of the bar. Every
lawyer should act and comport himself in a manner that promotes
public confidence in the integrity of the legal profession.
A member of the bar may be disbarred or suspended from his
office as an attorney for violation of the lawyers oath and/or for breach
of the ethics of the legal profession as embodied in the Code of
Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby
found GUILTY of professional misconduct for violating his oath as a
lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional
Responsibility. He is therefore SUSPENDED from the practice of law for
a period of six months effective from his receipt of this resolution. He is
sternly WARNED that any repetition of similar acts shall be dealt with
more severely.

Respondent is strongly advised to look up and take to heart the
meaning of the word delicadeza.
PROHIBITION AGAINST APPOINTMENT
FLORES VS DRILON
FACTS:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known
as the "Bases Conversion and Development Act of 1992," under which
respondent Mayor Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to
prevent useless and unnecessary expenditures of public funds by way of
salaries and other operational expenses attached to the office . . . ."
Paragraph (d) reads —
(d) Chairman administrator — The President shall appoint a
professional manager as administrator of the Subic Authority with a
compensation to be determined by the Board subject to the approval of
the Secretary of Budget, who shall be the ex oficio chairman of the
Board and who shall serve as the chief executive officer of the Subic
Authority: Provided, however, That for the first year of its operations
from the effectivity of this Act, the mayor of the City of Olongapo shall
be appointed as the chairman and chief executive officer of the Subic
Authority.
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at
the Subic, Zambales, and officers and members of the Filipino Civilian
Employees Association in U.S. Facilities in the Philippines, maintain that
the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes
on the following constitutional and statutory provisions:
(a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o
elective official shall be eligible for appointment or designation in any
capacity to any public officer or position during his tenure," because
the City Mayor of Olongapo City is an elective official and the subject
posts are public offices;
(b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he
President shall . . . . appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint", since it was Congress through
the questioned proviso and not the President who appointed the Mayor
to the subject posts; 5 and,
(c) Sec. 261, par. (g), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. — The following shall be guilty of an
election offense: . . .
(g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. — During the period of forty-five
days before a regular election and thirty days before a special election,
(1) any head, official or appointing officer of a government office,
agency or instrumentality, whether national or local, including
government-owned or controlled corporations, who appoints or hires
any new employee, whether provisional, temporary or casual, or
creates and fills any new position, except upon prior authority of the
Commission. The Commission shall not grant the authority sought
unless it is satisfied that the position to be filled is essential to the
proper functioning of the office or agency concerned, and that the
position shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be
appointed in case of urgent need: Provided, however, That notice of the
appointment shall be given to the Commission within three days from
the date of the appointment. Any appointment or hiring in violation of
this provision shall be null and void. (2) Any government official who
promotes, or gives any increase of salary or remuneration or privilege
to any government official or employee, including those in government-
owned or controlled corporations…
for the reason that the appointment of respondent Gordon to the
subject posts made by respondent Executive Secretary on 3 April 1992
was within the prohibited 45-day period prior to the 11 May 1992
Elections.
ISSUE:
WON the proviso in Sec. 13, par. (d), of R.A. 7227 which states,
"Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of the Subic
Authority," violates the constitutional proscription against appointment
or designation of elective officials to other government posts.
RULING:
YES.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
“No elective official shall be eligible for appointment or designation in
any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.”
The section expresses the policy against the concentration of several
public positions in one person, so that a public officer or employee may
serve full-time with dedication and thus be efficient in the delivery of
public services. It is an affirmation that a public office is a full-time job.
Hence, a public officer or employee, like the head of an executive
department described in Civil Liberties Union v. Executive Secretary,
G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip
Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . .
should be allowed to attend to his duties and responsibilities without
the distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result in
haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea
really is to prevent a situation where a local elective official will work for
his appointment in an executive position in government, and thus
neglect his constituents.
In the case before us, the subject proviso directs the President to
appoint an elective official, i.e., the Mayor of Olongapo City, to other
government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional
proscription seeks to prevent, it needs no stretching of the imagination
to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of
the Constitution.
It is argued that Sec. 94 of the Local Government Code (LGC) permits
the appointment of a local elective official to another post if so allowed
by law or by the primary functions of his office. But, the contention is
fallacious. Section 94 of the LGC is not determinative of the
constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act
can prevail over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is that
section sought to be declared unconstitutional, we need not rule on its
validity. Neither can we invoke a practice otherwise unconstitutional as
authority for its validity.
In any case, the view that an elective official may be appointed to
another post if allowed by law or by the primary functions of his office,
ignores the clear-cut difference in the wording of the two (2)
paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second
paragraph authorizes holding of multiple offices by an appointive
official when allowed by law or by the primary functions of his position,
the first paragraph appears to be more stringent by not providing any
exception to the rule against appointment or designation of an elective
official to the government post, except as are particularly recognized in
the Constitution itself, e.g., the President as head of the economic and
planning agency; the Vice-President, who may be appointed Member
of the Cabinet; and, a member of Congress who may be designated ex
officio member of the Judicial and Bar Council.
The distinction between the first and second paragraphs of Sec. 7, Art.
IX-B, was not accidental when drawn, and not without reason. It was
purposely sought by the drafters of the Constitution as shown in their
deliberation. The distinction being clear, the exemption allowed to
appointive officials in the second paragraph cannot be extended to
elective officials who are governed by the first paragraph.
B. ELECTIVE LOCAL OFFICIALS
1. Qualifications/disqualifications
Jalosjos VS Comelec
Facts: Both Dominador Jalosjos and Agapito 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.
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.
 It was only after a lapse of several years or more specifically on June 17, 1985
that Jalosjos filed a Petition for Probation before the RTC Branch 18 of Cebu
City which was granted by the court. But then, on motion filed by his Probation
Officer, Jalosjos’ probation was revoked by the RTC Cebu City on March 19,
1987 and the corresponding warrant for his arrest was issued. Surprisingly, on
December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod
issued a Certification attesting that respondent Jalosjos, Jr., had already
fulfilled the terms and conditions of his probation. This Certification was the
one used by respondent Jalosjos to secure the dismissal of the disqualification
case filed against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the decision
of the Sandiganbayan dated September 29, 2008 finding Gregorio F. Bacolod,
former Administrator of the Parole and Probation Administration, guilty of
violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on
December 19, 2003 attesting to the fact that respondent Jalosjos had fully
complied with the terms and conditions of his probation. A portion of the
decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave probationer
Dominador Jalosjos, Jr., unwarranted benefits and advantage because the
subject certification, which was issued by the accused without adequate or
official support, was subsequently utilized by the said probationer as basis of
the Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he
filed with the Regional Trial Court of Cebu City, which prompted the said court
to issue the Order dated February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU,
declaring that said probationer has complied with the order of probation and
setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest;
and that said Certification was also used by the said probationer and became
the basis for the Commission on Elections to deny in its Resolution of August 2,
2004 the petition or [sic] private complainant James Adasa for the
disqualification of the probationer from running for re-election as Mayor of
Dapitan City in the National and Local Elections of 2004.
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."
Issue: Whether or not jalosjos should be disqualified
Held: yes. The perpetual special disqualification against Jalosjos arising from
his criminal conviction by final judgment is a material fact involving eligibility
which is a proper ground for a petition under Section 78 of the Omnibus
Election Code. Jalosjos’ certificate of candidacy was void from the start since
he was not eligible to run for any public office at the time he filed his certificate
of candidacy. Jalosjos was never a candidate at any time, and all votes for
Jalosjos were stray votes. As a result of Jalosjos’ certificate of candidacy being
void ab initio, Cardino, as the only qualified candidate, actually garnered the
highest number of votes for the position of Mayor.
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.
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 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
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)
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
Conviction for robbery by final judgment with the penalty of prisión mayor, to
which perpetual special disqualification attaches by operation of law, is not a
ground for a petition under Section 68 because robbery is not one of the
offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68
refers only to election offenses under the Omnibus Election Code and not to
crimes under the Revised Penal Code. For ready reference, we quote again
Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest in
which he is a party is declared by final decision by a competent court guilty of,
or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his
election campaign an amount in excess of that allowed by this Code; (d)
solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office.
Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or immigrant
of a foreign country in accordance with the residence requirement provided for
in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify
including the crime of robbery as one of the offenses enumerated in this
Section. All the offenses enumerated in Section 68 refer to offenses under the
Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs
when it holds that Jalosjos’ conviction for the crime of robbery under the
Revised Penal Code is a ground for "a petition for disqualification under Section
68 of the OEC and not for cancellation of COC under Section 78 thereof." This
Court has already ruled that offenses punished in laws other than in the
Omnibus Election Code cannot be a ground for a petition under Section 68. In
Codilla, Sr. v. de Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those
enumerated in Section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction.They are criminal and
not administrative in nature. (Emphasis supplied)
What is indisputably clear is that the false material representation of Jalosjos is
a ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prisión mayor, a petition under
Section 12 of the Omnibus Election Code or Section 40 of the Local
Government Code can also be properly filed. The petitioner has a choice
whether to anchor his petition on Section 12 or Section 78 of the Omnibus
Election Code, or on Section 40 of the Local Government Code. The law
expressly provides multiple remedies and the choice of which remedy to adopt
belongs to the petitioner.
The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void
certificate of candidacy on the ground of ineligibility that existed at the time of
the filing of the certificate of candidacy can never give rise to a valid candidacy,
and much less to valid votes.21 Jalosjos’ certificate of candidacy was cancelled
because he was ineligible from the start to run for Mayor. Whether his
certificate of candidacy is cancelled before or after the elections is immaterial
because the cancellation on such ground means he was never a valid candidate
from the very beginning, his certificate of candidacy being void ab initio.
Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and
the cancellation of his certificate of candidacy retroacted to the day he filed it.
Thus, Cardino ran unopposed. There was only one qualified candidate for
Mayor in the May 2010 elections – Cardino – who received the highest number
of votes.
Decisions of this Court holding that the second-placer cannot be proclaimed
winner if the first-placer is disqualified or declared ineligible 22 should be limited
to situations where the certificate of candidacy of the first-placer was valid at
the time of filing but subsequently had to be cancelled because of a violation
of law that took place, or a legal impediment that took effect, after the filing of
the certificate of candidacy. If the certificate of candidacy is void ab initio, then
legally the person who filed such void certificate of candidacy was never a
candidate in the elections at any time. All votes for such non-candidate are
stray votes and should not be counted. Thus, such non-candidate can never be
a first-placer in the elections. If a certificate of candidacy void ab initio is
cancelled on the day, or before the day, of the election, prevailing
jurisprudence holds that all votes for that candidate are stray votes. 23 If a
certificate of candidacy void ab initio is cancelled one day or more after the
elections, all votes for such candidate should also be stray votes because the
certificate of candidacy is void from the very beginning. This is the more
equitable and logical approach on the effect of the cancellation of a certificate
of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab
initio can operate to defeat one or more valid certificates of candidacy for the
same position.
Even without a petition under either Section 12 or Section 78 of the Omnibus
Election Code, or under Section 40 of the Local Government Code, the
COMELEC is under a legal duty to cancel the certificate of candidacy of anyone
suffering from the accessory penalty of perpetual special disqualification to run
for public office by virtue of a final judgment of conviction. The final judgment
of conviction is notice to the COMELEC of the disqualification of the convict
from running for public office. The law itself bars the convict from running for
public office, and the disqualification is part of the final judgment of conviction.
The final judgment of the court is addressed not only to the Executive branch,
but also to other government agencies tasked to implement the final judgment
under the law.
JALOSJOS v. COMELEC (June 18, 2013)
FACTS:
 16 November 2001 – Petitioner was convicted of statutory
rape and acts of lasciviousness. He was sentenced to suffer
the principal penalties of reclusion perpetua and reclusion
temporal, which carried the accessory penalty of perpetual
absolute disqualification pursuant to Art. 41 of the RPC.
 30 April 2007 – Pres. Arroyo issued an order commuting his
prison term to 16 years, 3 months and 3 days. After serving
the same, he was issued a certificate of Discharge from Prison
on 18 March 2009.
 26 April 2012 – petitioner applied to register as a voter in
Zamboanga City, but was denied by the Election Registration
Board due to his previous conviction. He then filed a Petition
for Inclusion in the Permanent List of Voters (petition for
inclusion) before the MTCC.
 Pending the resolution, he field a Certificate of Candidacy
(COC) to run as mayor for Zamboanga City in the upcoming
May 2013 Elections.
 Five petitions were lodged before the COMELEC praying for
the cancellation of petitioner’s COC.
 Petitioner contends that Art. 30 of the RPC was partially
amended by Sec. 40(a) of the LGC and thus, his perpetual
absolute disqualification had already been removed.
ISSUE: Whether or not Sec. 40(a) of the LGC partially amended
Art. 30 of the RPC.
HELD: NO.
 Local Government Code: Sec. 40. Disqualifications: The
following persons are disqualified from running for any
elective local position.
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable
by one year or more imprisonment, within two years
after serving the sentence.
 RPC, Sec. 30. Effects of the penalties of perpetual or
temporary absolute disqualification:
(2) The deprivation of the right to vote in any election for
any popular office or to be elected to such office.
 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 law26 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.
 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 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.
ARATEA vs. COMELEC
G.R. No. 195229, October 9, 2012
Lonzanida and Antipolo ran for Mayor of San Antonio, Zambales in
2010. Rodolfo filed a petition under Section 78 of the Omnibus Election
Code (OEC) to disqualify Lonzanida and to deny due course or to cancel
Lonzanida’s certificate of candidacy on the ground that Lonzanida was
elected, and had served, as mayor of San Antonio, Zambales for four (4)
consecutive terms. The COMELEC Second Division cancelled Lonzanida’s
certificate of candidacy. Lonzanida’s motion for reconsideration before
the COMELEC En Banc remained pending during said elections.
Lonzanida and Aratea garnered the highest number of votes and were
proclaimed Mayor and Vice-Mayor, respectively. Vice-Mayor elect
Aratea took his oath of office as Acting Mayor. Subsequently, the
COMELEC En Banc disqualified Lonzanida from running for Mayor based
on two grounds: (1), Lonzanida had served as Mayor for more than
three consecutive terms without interruption; and (2) Lonzanida had
been convicted by final judgment of ten counts of falsification under
the Revised Penal Code (RPC). Second-placer Antipolo intervened and
claimed her right to be proclaimed as Mayor because Lonzanida ceased
to be a candidate when the COMELEC Division ordered the cancellation
of his certificate of candidacy and the striking out of his name from the
list of official candidates. Aratea asserted that Antipolo could not be
proclaimed as the winning candidate. He reasoned that since
Lonzanida’s disqualification was not yet final during election day, the
votes cast in his favor could not be declared stray. Lonzanida’s
subsequent disqualification resulted in a permanent vacancy in the
Office of Mayor, and Aratea, as the duly-elected Vice-Mayor was
mandated to succeed as Mayor.
Issue: Whether Lonzanida was disqualified under Section 68 of the OEC,
or made a false material representation under Section 78 of the
OEC that resulted in his certificate of candidacy being void ab initio.
Whether the second-placer or the Vice-Mayor elect should succeed as
Mayor in this case.
Held: The Court ruled that Lonzanida was disqualified under Sec. 78 of
the OEC. It also held that Antipolo, the "second placer," should be
proclaimed Mayor because Lonzanida’s certificate of candidacy was
void ab initio. In short, Lonzanida was never a candidate at all. All votes
for Lonzanida were stray votes. Thus, Antipolo actually garnered the
highest number of votes for the position. Qualifications and
Disqualifications The qualifications and disqualifications are laid by
Sections 39 and 40 of the Local Government Code. Section 40 expressly
provides, among others:
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;
xxx
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense
for which he was sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
xxx
False Material Representation
Section 78 of the OEC states that a certificate of candidacy may be
denied or cancelled when there is false material representation of the
contents of the certificate of candidacy. Section 74 of the OEC
details the contents of the certificate of candidacy. This included among
others a statement that the person filing it is eligible for said office. The
conviction of Lonzanida by final judgment, with the penalty of prision
mayor, disqualifies him perpetually from holding any public office, or
from being elected to any public office. This perpetual disqualification
took effect upon the finality of the judgment of conviction, before
Lonzanida filed his certificate of candidacy. The penalty of prision
mayor automatically carries with it, by operation of law, the accessory
penalties of temporary absolute disqualification and perpetual special
disqualification. Under Article 30 of the RPC, temporary absolute
disqualification produces the effect of "deprivation of the right to vote
in any election for any popular elective office or to be elected to such
office. The duration of temporary absolute disqualification is the same
as that of the principal penalty of prision mayor.
On the other hand, under Article 32 of the RPC, 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.
Lonzanida became ineligible perpetually to hold, or to run for, any
elective public office from the time the judgment of conviction against
him became final. The judgment of conviction was promulgated on 20
July 2009 and became final on 23 October 2009, before Lonzanida filed
his certificate of candidacy on 1 December 2009. Perpetual special
disqualification is a ground for a petition under Section 78 of the OEC
because this accessory penalty is an ineligibility, which means that the
convict is not eligible to run for public office, contrary to the statement
that Section 74 requires him to state under oath in his certificate of
candidacy.
As this Court held in Fermin v. Commission on Elections, 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. The dissenting opinions place
the violation of the three-term limit rule as a disqualification under
Section 68 as the violation allegedly is "a status, circumstance or
condition which bars him from running for public office despite the
possession of all the qualifications under Section 39 of the LGC." In so
holding the dissenting opinions write in the law what is not found in the
law. Legal Duty of COMELEC to Enforce Perpetual Special
Disqualification Even without a petition, the COMELEC is under a legal
duty to cancel the certificate of candidacy of anyone suffering from
perpetual special disqualification to run for public office by virtue of a
final judgment of conviction. The final judgment of conviction is judicial
notice to the COMELEC of the disqualification of the convict from
running for public office. Effect of a Void Certificate of Candidacy A
cancelled certificate of candidacy void ab initio cannot give rise to a
valid candidacy, and much less to valid votes. Lonzanida’s
disqualification is two-pronged: first, he violated the constitutional fiat
on the three-term limit; and second, he is known to have been
convicted by final judgment for ten (10) counts of Falsification. In other
words, on election day, respondent Lonzanida’s disqualification is
notoriously known in fact and in law. Ergo, since respondent Lonzanida
was never a candidate for the position, the votes cast for him should be
considered stray votes. Consequently, Intervenor Antipolo should now
be proclaimed as the duly elected Mayor.
DISSENTING OPINION REYES: The violation of the three-term
limit cannot be a ground for cancellation of COC. To emphasize, this
remedy can only be pursued in cases of material misrepresentation in
the CoC, which are limited to the details that must be stated therein.
Antipolo’s contention that Lonzanida should be deemed to have made a
misrepresentation in his COC when he stated that he was eligible to run
when in fact he was not is inconsistent with the basic rule in statutory
construction that provisions of a law should be construed as a whole
and not as a series of disconnected articles and phrases. Considering
that the number of terms for which a local candidate had served is not
required to be stated in the CoC, it cannot be a ground for a petition to
cancel a CoC. The petition filed by Dra. Rodolfo against Lonzanida
should be considered a petition for disqualification and not a petition to
cancel a CoC. In the event that a vacancy is created in the office of the
mayor, it is the duly-elected vice-mayor, petitioner Aratea in this case,
who shall succeed as mayor.

DISSENTING OPINION BRION: The violation of the three-term

limit rule cannot be a ground for the cancellation of a CoC. It is an
appropriate ground for disqualification; thus, Dr. Rodolfo should be
deemed to have filed a petition for disqualification, not a petition for
the cancellation of Lonzanida’s CoC. A resulting disqualification based
on a violation of the three-term limit rule cannot begin to operate
until after the elections, where the three-term official emerged as
victorious. The prohibition against Lonzanida only took place after his
election for his fourth consecutive term. With Lonzanida ineligible to
assume office, the Vice-Mayor takes over by succession.
Japzon v. Comelec (G.R. No. 180088. 19 January
2009)
FACTS:
Both petitioner Manuel B. Japzon (Japzon) and private
respondent Jaime S. Ty (Ty) were candidates for the Office of
Mayor of the Municipality of General Macarthur, Eastern Samar,
in the local elections held on 14 May 2007. On 15 June 2007,
Japzon instituted SPA No. 07-568 by filing before the COMELEC a
Petition to disqualify and/or cancel Tys Certificate of Candidacy
on the ground of material misrepresentation.
Japzon averred in his Petition, the following:
 That Ty was a former natural-born Filipino, having been
born on 9 October 1943 in what was then Pambujan Sur,
Hernani Eastern Samar (now the Municipality of General
Macarthur, Easter Samar) with a Chinese father and a
Filipino Mother.
 Ty eventually migrated to the United States of America
(USA) and became a citizen thereof. Ty had been residing
in the USA for the last 25 years.
 When Ty filed his Certificate of Candidacy on 28 March
2007, he falsely represented therein that he was a
resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for one year before 14 May 2007, and was
not a permanent resident or immigrant of any foreign
country.
 While Ty may have applied for the reacquisition of his
Philippine citizenship, he never actually resided in
Barangay 6, Poblacion, General Macarthur, Eastern Samar,
for a period of one year immediately preceding the date
of election as required under Section 39 of Republic Act
No. 7160, otherwise known as the Local Government
Code of 1991.
 In fact, even after filing his application for reacquisition of
his Philippine citizenship, Ty continued to make trips to
the USA, the most recent of which was on 31 October
2006 lasting until 20 January 2007.
 Moreover, although Ty already took his Oath of Allegiance
to the Republic of the Philippines, he continued to
comport himself as an American citizen as proven by his
travel records.
 He had also failed to renounce his foreign citizenship as
required by Republic Act No. 9225, otherwise known as
the Citizenship Retention and Reacquisition Act of 2003,
or related laws.
In his Answer, Ty admitted the following:
that he was a natural-born Filipino who went to the USA to work
and subsequently became a naturalized American citizen. That
prior to filing his Certificate of Candidacy for the Office of Mayor
of the Municipality of General Macarthur, Eastern Samar, on 28
March 2007, he already performed the following acts:
(1) with the enactment of Republic Act No. 9225, granting dual
citizenship to natural-born Filipinos, Ty filed with the Philippine
Consulate General in Los Angeles, California, USA, an application
for the reacquisition of his Philippine citizenship;
(2) on 2 October 2005, Ty executed an Oath of Allegiance to the
Republic of the Philippines before Noemi T. Diaz, Vice Consul of
the Philippine Consulate General in Los Angeles, California, USA;
(3) Ty applied for a Philippine passport indicating in his
application that his residence in the Philippines was at A. Mabini
St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Tys
application was approved and he was issued on 26 October 2005
a Philippine passport;
(4) on 8 March 2006, Ty personally secured and signed his
Community Tax Certificate (CTC) from the Municipality of General
Macarthur, in which he stated that his address was at Barangay 6,
Poblacion, General Macarthur, Eastern Samar;
(5) thereafter, on 17 July 2006, Ty was registered as a voter in
Precinct 0013A, Barangay 6, Poblacion, General Macarthur,
Eastern Samar;
(6) Ty secured another CTC dated 4 January 2007 again stating
therein his address as Barangay 6, Poblacion, General Macarthur,
Eastern Samar; and
(7) finally, Ty executed on 19 March 2007 a duly notarized
Renunciation of Foreign Citizenship.
Given the aforementioned facts, Ty argued that he had reacquired
his Philippine citizenship and renounced his American citizenship,
and he had been a resident of the Municipality of General
Macarthur, Eastern Samar, for more than one year prior to the 14
May 2007 elections.
The COMELEC First Division found that Ty complied with
the requirements of Sections 3 and 5 of Republic Act No. 9225
and reacquired his Philippine citizenship. And it also held that Ty
did not commit material misrepresentation in stating in his
Certificate of Candidacy that he was a resident of Barangay 6,
Poblacion, General Macarthur, Eastern Samar, for at least one
year before the elections on 14 May 2007. It reasoned that:
Although [Ty] has lost his domicile in [the] Philippines when he was
naturalized as U.S. citizen in 1969, the reacquisition of his Philippine citizenship
and subsequent acts thereof proved that he has been a resident of Barangay 6,
Poblacion, General Macarthur, Eastern Samar for at least one (1) year before
the elections held on 14 May 2007 as he represented in his certificate of
candidacy[.]
As held in Coquilla vs. Comelec:
The term residence is to be understood not in its common
acceptation as referring to dwelling or habitation, but rather to
domicile or legal residence, that is, the place where a party actually or
constructively has his permanent home, where he, no matter where
he may be found at any given time, eventually intends to return and
remain (animus manendi). A domicile of origin is acquired by every
person at birth. It is usually the place where the childs parents reside
and continues until the same is abandoned by acquisition of new
domicile (domicile of choice).
ISSUE:
THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY
DISREGARDED THE PARAMETERS SET BY LAW AND
JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF
CHOICE AND RESIDENCE.
RULING:
The Court finds no merit in the Petition at bar.
There is no dispute that Ty was a natural-born Filipino. He
was born and raised in the Municipality of General Macarthur,
Eastern Samar, Philippines. However, he left to work in the USA
and eventually became an American citizen. On 2 October 2005,
Ty reacquired his Philippine citizenship by taking his Oath of
Allegiance to the Republic of the Philippines before Noemi T. Diaz,
Vice Consul of the Philippine Consulate General in Los Angeles,
California, USA, in accordance with the provisions of Republic Act
No. 9225.
At this point, Ty still held dual citizenship, i.e., American
and Philippine. It was only on 19 March 2007 that Ty renounced
his American citizenship before a notary public and, resultantly,
became a pure Philippine citizen again.
It bears to point out that Republic Act No. 9225 governs
the manner in which a natural-born Filipino may reacquire or
retain his Philippine citizenship despite acquiring a foreign
citizenship, and provides for his rights and liabilities under such
circumstances. A close scrutiny of said statute would reveal that it
does not at all touch on the matter of residence of the natural-
born Filipino taking advantage of its provisions. Republic Act No.
9225 imposes no residency requirement for the reacquisition or
retention of Philippine citizenship; nor does it mention any effect
of such reacquisition or retention of Philippine citizenship on the
current residence of the concerned natural-born Filipino. Clearly,
Republic Act No. 9225 treats citizenship independently of
residence. This is only logical and consistent with the general
intent of the law to allow for dual citizenship. Since a natural-born
Filipino may hold, at the same time, both Philippine and foreign
citizenships, he may establish residence either in the Philippines
or in the foreign country of which he is also a citizen.
For a natural born Filipino, who reacquired or retained his
Philippine citizenship under Republic Act No. 9225, to run for
public office, he must:
(1) meet the qualifications for holding such public office as
required by the Constitution and existing laws; and
(2) make a personal and sworn renunciation of any and all
foreign citizenships before any public officer authorized to
administer an oath.
That Ty complied with the second requirement is beyond
question. On 19 March 2007, he personally executed a
Renunciation of Foreign Citizenship before a notary public. By the
time he filed his Certificate of Candidacy for the Office of Mayor
of the Municipality of General Macarthur, Eastern Samar, on 28
March 2007, he had already effectively renounced his American
citizenship, keeping solely his Philippine citizenship.
The other requirement of Section 5(2) of Republic Act No.
9225 pertains to the qualifications required by the Constitution
and existing laws.
Congress enacted Republic Act No. 7160, the Local
Government Code of 1991, Section 39 of which lays down the
following qualifications for local elective officials:
SEC. 39. Qualifications. (a) An elective local official must
be a citizen of the Philippines; a registered voter in the
barangay, municipality, city or province or, in the case of a
member of the sangguniang panlalawigan, sangguniang
panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one
(1) year immediately preceding the day of the election;
and able to read and write Filipino or any other local
language or dialect.
xxxx
(c) Candidates for the position of mayor or vice mayor of
independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of
age on election day.
The term residence is to be understood not in its common
acceptation as referring to dwelling or habitation, but rather to
domicile or legal residence, that is, the place where a party
actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually
intends to return and remain (animus manendi). A domicile of
origin is acquired by every person at birth. It is usually the place
where the childs parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).
As has already been previously discussed by this Court
herein, Tys reacquisition of his Philippine citizenship under
Republic Act No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA,
and he did not necessarily regain his domicile in the Municipality
of General Macarthur, Eastern Samar, Philippines. Ty merely had
the option to again establish his domicile in the Municipality of
General Macarthur, Eastern Samar, Philippines, said place
becoming his new domicile of choice. The length of his residence
therein shall be determined from the time he made it his domicile
of choice, and it shall not retroact to the time of his birth.
Tys intent to establish a new domicile of choice in the
Municipality of General Macarthur, Eastern Samar, Philippines,
became apparent when, immediately after reacquiring his
Philippine citizenship on 2 October 2005, he applied for a
Philippine passport indicating in his application that his residence
in the Philippines was at A. Mabini St., Barangay 6, Poblacion,
General Macarthur, Eastern Samar. For the years 2006 and 2007,
Ty voluntarily submitted himself to the local tax jurisdiction of the
Municipality of General Macarthur, Eastern Samar, by paying
community tax and securing CTCs from the said municipality
stating therein his address as A. Mabini St., Barangay 6, Poblacion,
General Macarthur, Eastern Samar. Thereafter, Ty applied for and
was registered as a voter on 17 July 2006 in Precinct 0013A,
Barangay 6, Poblacion, General Macarthur, Eastern Samar.
There is no basis for this Court to require Ty to stay in and
never leave at all the Municipality of General Macarthur, Eastern
Samar, for the full one-year period prior to the 14 May 2007 local
elections so that he could be considered a resident thereof. To the
contrary, the Court has previously ruled that absence from
residence to pursue studies or practice a profession or
registration as a voter other than in the place where one is
elected, does not constitute loss of residence. The Court also
notes, that even with his trips to other countries, Ty was actually
present in the Municipality of General Macarthur, Eastern Samar,
Philippines, for at least nine of the 12 months preceding the 14
May 2007 local elections. Even if length of actual stay in a place is
not necessarily determinative of the fact of residence therein, it
does strongly support and is only consistent with Tys avowed
intent in the instant case to establish residence/domicile in the
Municipality of General Macarthur, Eastern Samar.
Sobejana-Condon v COMELEC
Failure to renounce foreign citizenship in accordance with the exact tenor of
Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to
run for and thus hold any elective public office.
Facts:
The petitioner is a natural-born Filipino citizen having been born of Filipino
parents on August 8, 1944. On December 13, 1984, she became a naturalized
Australian citizen owing to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine
citizenship before the Philippine Embassy in Canberra, Australia pursuant to
Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and
Re-Acquisition Act of 2003."5 The application was approved and the petitioner
took her oath of allegiance to the Republic of the Philippines on December 5,
2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of
Renunciation of Australian Citizenship before the Department of Immigration
and Indigenous Affairs, Canberra, Australia, which in turn issued the Order
dated September 27, 2006 certifying that she has ceased to be an Australian
citizen.6
The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007
elections. She lost in her bid. She again sought elective office during the May
10, 2010 elections this time for the position of Vice-Mayor. She obtained the
highest numbers of votes and was proclaimed as the winning candidate. She
took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan 7 and
Luis M. Bautista,8 (private respondents) all registered voters of Caba, La Union,
filed separate petitions for quo warranto questioning the petitioner’s eligibility
before the RTC. The petitions similarly sought the petitioner’s disqualification
from holding her elective post on the ground that she is a dual citizen and that
she failed to execute a "personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath" as
imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that since September
27, 2006, she ceased to be an Australian citizen. She claimed that the
Declaration of Renunciation of Australian Citizenship she executed in Australia
sufficiently complied with Section 5(2), R.A. No. 9225 and that her act of
running for public office is a clear abandonment of her Australian citizenship.
The petitioner contends that since she ceased to be an Australian citizen on
September 27, 2006, she no longer held dual citizenship and was only a Filipino
citizen when she filed her certificate of candidacy as early as the 2007
elections. Hence, the "personal and sworn renunciation of foreign citizenship"
imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office
does not apply to her.
She further argues that a sworn renunciation is a mere formal and not a
mandatory requirement. In support thereof, she cites portions of the Journal of
the House of Representatives dated June 2 to 5, 2003 containing the
sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No.
9225.
She claims that the private respondents are estopped from questioning her
eligibility since they failed to do so when she filed certificates of candidacy for
the 2007 and 2010 elections.
Issue:
whether or not the "sworn renunciation of foreign citizenship" in Section 5(2)
of R.A. No. 9225 is a mere pro-forma requirement.
Held:
No. Petitioner is disqualified from running for elective office for failure to
renounce her Australian citizenship in accordance with Section 5(2) of R.A. No.
9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for
natural-born citizens who have lost their Philippine citizenship 18 by taking an
oath of allegiance to the Republic, thus:
Natural-born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship
upon taking the aforesaid oath.
The law categorically requires persons seeking elective public office, who
either retained their Philippine citizenship or those who reacquired it, to make
a personal and sworn renunciation of any and all foreign citizenship before a
public officer authorized to administer an oath simultaneous with or before the
filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos,
who have been naturalized as citizens of a foreign country, but who reacquired
or retained their Philippine citizenship (1) to take the oath of allegiance under
Section 3 of Republic Act No. 9225, and (2) for those seeking elective public
offices in the Philippines, to additionally execute a personal and sworn
renunciation of any and all foreign citizenship before an authorized public
officer prior or simultaneous to the filing of their certificates of candidacy, to
qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and
sworn renunciation of any and all foreign citizenship) requires of the Filipinos
availing themselves of the benefits under the said Act to accomplish an
undertaking other than that which they have presumably complied with under
Section 3 thereof (oath of allegiance to the Republic of the Philippines).
The intent of the legislators was not only for Filipinos reacquiring or retaining
their Philippine citizenship under Republic Act No. 9225 to take their oath of
allegiance to the Republic of the Philippines, but also to explicitly renounce
their foreign citizenship if they wish to run for elective posts in the
Philippines. To qualify as a candidate in Philippine elections, Filipinos must only
have one citizenship, namely, Philippine citizenship
To hold the oath to be a mere pro forma requirement is to say that it is only for
ceremonial purposes; it would also accommodate a mere qualified or
temporary allegiance from government officers when the Constitution and the
legislature clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which
she is already deemed to have lost her citizenship, is entitled to judicial notice.
We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must
be alleged and proven.29 To prove a foreign law, the party invoking it must
present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the
Revised Rules of Court which reads:
Sec. 24. Proof of official record. – The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice- consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office. (Emphasis ours)
Sec. 25. What attestation of copy must state. – Whenever a copy of a
document or record is attested for the purpose of the evidence, the attestation
must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the
existence of a foreign law may also be established through: (1) a testimony
under oath of an expert witness such as an attorney-at-law in the country
where the foreign law operates wherein he quotes verbatim a section of the
law and states that the same was in force at the time material to the facts at
hand; and (2) likewise, in several naturalization cases, it was held by the Court
that evidence of the law of a foreign country on reciprocity regarding the
acquisition of citizenship, although not meeting the prescribed rule of practice,
may be allowed and used as basis for favorable action, if, in the light of all the
circumstances, the Court is "satisfied of the authenticity of the written proof
offered." Thus, in a number of decisions, mere authentication of the Chinese
Naturalization Law by the Chinese Consulate General of Manila was held to be
a competent proof of that law.30
The petitioner failed to prove the Australian Citizenship Act of 1948 through
any of the above methods. As uniformly observed by the RTC and COMELEC,
the petitioner failed to show proof of the existence of the law during trial. Also,
the letter issued by the Australian government showing that petitioner already
renounced her Australian citizenship was unauthenticated hence, the courts a
quo acted judiciously in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as
competent evidence the said letter in view of the photocopy of a Certificate of
Authentication issued by Consular Section of the Philippine Embassy in
Canberra, Australia attached to the petitioner’s motion for reconsideration.
The petitioner’s act of running for public office does not suffice to serve as an
effective renunciation of her Australian citizenship. While this Court has
previously declared that the filing by a person with dual citizenship of a
certificate of candidacy is already considered a renunciation of foreign
citizenship,33 such ruling was already adjudged superseded by the enactment
of R.A. No. 9225 on August 29, 2003 which provides for the additional
condition of a personal and sworn renunciation of foreign citizenship. 34
The fact that petitioner won the elections can not cure the defect of her
candidacy. Garnering the most number of votes does not validate the election
of a disqualified candidate because the application of the constitutional and
statutory provisions on disqualification is not a matter of popularity. 35
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-
acquire their citizenship and seek elective office, to execute a personal and
sworn renunciation of any and all foreign citizenships before an authorized
public officer prior to or simultaneous to the filing of their certificates of
candidacy, to qualify as candidates in Philippine elections. 36 The rule applies to
all those who have re-acquired their Filipino citizenship, like petitioner, without
regard as to whether they are still dual citizens or not. It is a pre-requisite
imposed for the exercise of the right to run for public office.
Stated differently, it is an additional qualification for elective office specific only
to Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No.
9225. It is the operative act that restores their right to run for public office. The
petitioner's failure to comply therewith in accordance with the exact tenor of
the law, rendered ineffectual the Declaration of Renunciation of Australian
Citizenship she executed on September 18, 2006. As such, she is yet to regain
her political right to seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible to run for and hold
any elective office in the Philippines.
Gaudencio Cordora v. COMELEC and Gustavo
Tambunting
Facts:
In his complaint affidavit filed before the COMELEC Law Department, Cordora
asserted that Tambunting made false assertions in the following items:
That he is a Natural Born/Filipino Citizen, that " No. 9 – No. of years of
Residence before May 14, 2001, 36 in the Philippines and 25 in the
Constituency where I seek to be elected; No. 12 – I am ELIGIBLE for the office I
seek to be elected." Cordora stated that Tambunting was not eligible to run for
local public office because Tambunting lacked the required citizenship and
residency requirements.
To disprove Tambunting’s claim of being a natural-born Filipino citizen, Cordora
presented a certification from the Bureau of Immigration which stated that, in
two instances, Tambunting claimed that he is an American: upon arrival in the
Philippines on 16 December 2000 and upon departure from the Philippines on
17 June 2001. According to Cordora, these travel dates confirmed that
Tambunting acquired American citizenship through naturalization in Honolulu,
Hawaii on 2 December 2000.
Tambunting, on the other hand, maintained that he did not make any
misrepresentation in his certificates of candidacy. To refute Cordora’s claim
that Tambunting is not a natural-born Filipino, Tambunting presented a copy of
his birth certificate which showed that he was born of a Filipino mother and an
American father. Tambunting further denied that he was naturalized as an
American citizen. The certificate of citizenship conferred by the US government
after Tambunting’s father petitioned him through INS Form I-130 (Petition for
Relative) merely confirmed Tambunting’s citizenship which he acquired at
birth. Tambunting’s possession of an American passport did not mean that
Tambunting is not a Filipino citizen. Tambunting also took an oath of allegiance
on 18 November 2003 pursuant to Republic Act No. 9225 (R.A. No. 9225), or
the Citizenship Retention and Reacquisition Act of 2003.
Tambunting further stated that he has resided in the Philippines since birth.
Tambunting has imbibed the Filipino culture, has spoken the Filipino language,
and has been educated in Filipino schools. Tambunting maintained that proof
of his loyalty and devotion to the Philippines was shown by his service as
councilor of Parañaque.
To refute Cordora’s claim that the number of years of residency stated in
Tambunting’s certificates of candidacy is false because Tambunting lost his
residency because of his naturalization as an American citizen, Tambunting
contended that the residency requirement is not the same as citizenship.
The COMELEC Law Department recommended the dismissal of Cordora’s
complaint against Tambunting because Cordora failed to substantiate his
charges against Tambunting. Cordora’s reliance on the certification of the
Bureau of Immigration that Tambunting traveled on an American passport is
not sufficient to prove that Tambunting is an American citizen.
The COMELEC En Banc affirmed the findings and the resolution of the
COMELEC Law Department. The COMELEC En Banc was convinced that Cordora
failed to support his accusation against Tambunting by sufficient and
convincing evidence. They DISMISSED for insufficiency of evidence to establish
probable cause.
Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate
opinion which concurred with the findings of the En Banc Resolution.
Commissioner Sarmiento pointed out that Tambunting could be considered a
dual citizen. Moreover, Tambunting effectively renounced his American
citizenship when he filed his certificates of candidacy in 2001 and 2004 and ran
for public office.
Cordora filed a motion for reconsideration which raised the same grounds and
the same arguments in his complaint. In its Resolution promulgated on 20
February 2007, the COMELEC En Banc dismissed Cordora’s motion for
reconsideration for lack of merit.
Issue: Whether or not Tambunting is qualified to run for office
Held:
OUI!
Because of the circumstances of his birth, it was no longer necessary for
Tambunting to undergo the naturalization process to acquire American
citizenship. The process involved in INS Form I-130 only served to confirm the
American citizenship which Tambunting acquired at birth. The certification
from the Bureau of Immigration which Cordora presented contained two trips
where Tambunting claimed that he is an American. However, the same
certification showed nine other trips where Tambunting claimed that he is
Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his
certificate of candidacy before the 2001 elections. The fact that Tambunting
had dual citizenship did not disqualify him from running for public office.
We deem it necessary to reiterate our previous ruling in Mercado v. Manzano,
wherein we ruled that dual citizenship is not a ground for disqualification from
running for any elective local position.
While dual citizenship is involuntary, dual allegiance is the result of an
individual’s volition.
RESIDENCY ISSUE:
Cordora concluded that Tambunting failed to meet the residency requirement
because of Tambunting’s naturalization as an American. Cordora’s reasoning
fails because Tambunting is not a naturalized American. Moreover, residency,
for the purpose of election laws, includes the twin elements of the fact of
residing in a fixed place and the intention to return there permanently, and is
not dependent upon citizenship.

To begin with, dual citizenship is different from dual allegiance. The former In view of the above, we hold that Cordora failed to establish that Tambunting
arises when, as a result of the concurrent application of the different laws of indeed willfully made false entries in his certificates of candidacy. On the
two or more states, a person is simultaneously considered a national by the contrary, Tambunting sufficiently proved his innocence of the charge filed
said states. For instance, such a situation may arise when a person whose against him. Tambunting is eligible for the office which he sought to be elected
parents are citizens of a state which adheres to the principle of jus sanguinis is and fulfilled the citizenship and residency requirements prescribed by law.
born in a state which follows the doctrine of jus soli. Such a person, ipso facto
and without any voluntary act on his part, is concurrently considered a citizen
of both states. Considering the citizenship clause (Art. IV) of our Constitution, it
is possible for the following classes of citizens of the Philippines to possess dual
citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which
follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the
laws of their fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may,

without performing any act, be also a citizen of another state; but the above
cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states.

2. MANNER AND DATE OF ELECTION
KIDA VS SENATE OF THE PHILIPPINES
FACTS:
The State, through Sections 15 to 22, Article X of the 1987 Constitution,
mandated the creation of autonomous regions in Muslim Mindanao
and the Cordilleras. Section 18 of the Article, on the other hand,
directed Congress to enact an organic act for these autonomous regions
to concretely carry into effect the granted autonomy.
On August 1, 1989 or two years after the effectivity of the 1987
Constitution, Congress acted through Republic Act (RA) No. 6734
entitled An Act Providing for an Organic Act for the Autonomous Region
in Muslim Mindanao.
A plebiscite was held on November 6, 1990 as required by Section
18(2), Article X of RA No. 6734, thus fully establishing the Autonomous
Region of Muslim Mindanao (ARMM). The initially assenting provinces
were Lanao del Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734
scheduled the first regular elections for the regional officials of the
ARMM on a date not earlier than 60 days nor later than 90 days after its
ratification.
RA No. 9054 (entitled An Act to Strengthen and Expand the Organic Act
for the Autonomous Region in Muslim Mindanao, Amending for the
Purpose Republic Act No. 6734, entitled An Act Providing for the
Autonomous Region in Muslim Mindanao, as Amended) was the next
legislative act passed. This law provided further refinement in the basic
ARMM structure first defined in the original organic act, and reset the
regular elections for the ARMM regional officials to the second Monday
of September 2001.
Congress passed the next law affecting ARMM RA No. 9140[1] - on June
22, 2001. This law reset the first regular elections originally scheduled
under RA No. 9054, to November 26, 2001. It likewise set the plebiscite
to ratify RA No. 9054 to not later than August 15, 2001.
RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The
province of Basilan and Marawi City voted to join ARMM on the same
date.
RA No. 9333[2] was subsequently passed by Congress to reset the
ARMM regional elections to the 2nd Monday of August 2005, and on
the same date every 3 years thereafter. Unlike RA No. 6734 and RA No.
9054, RA No. 9333 was not ratified in a plebiscite.
Pursuant to RA No. 9333, the next ARMM regional elections should
have been held on August 8, 2011. COMELEC had begun preparations
for these elections and had accepted certificates of candidacies for the
various regional offices to be elected. But on June 30, 2011, RA No.
10153 was enacted, resetting the ARMM elections to May 2013, to
coincide with the regular national and local elections of the country.
RA No. 10153 originated in the House of Representatives as House Bill
(HB) No. 4146, seeking the postponement of the ARMM elections
scheduled on August 8, 2011. On March 22, 2011, the House of
Representatives passed HB No. 4146, with one hundred ninety one
(191) Members voting in its favor.
After the Senate received HB No. 4146, it adopted its own version,
Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13)
Senators voted favorably for its passage. On June 7, 2011, the House of
Representative concurred with the Senate amendments, and on June
30, 2011, the President signed RA No. 10153 into law.
 As mentioned, the early challenge to RA No. 10153 came through a
petition filed with this Court G.R. No. 196271- assailing the
constitutionality of both HB No. 4146 and SB No. 2756, and challenging
the validity of RA No. 9333 as well for non-compliance with the
constitutional plebiscite requirement. Thereafter, petitioner Basari
Mapupuno in G.R. No. 196305 filed another petition also assailing the
validity of RA No. 9333.
With the enactment into law of RA No. 10153, the COMELEC stopped
its preparations for the ARMM election.
In these consolidated petitions filed directly with the Supreme Court,
the petitioners assailed the constitutionality of RA No. 10153.
On September 13, 2011, the Court issued a temporary restraining order
enjoining the implementation of RA No. 10153 and ordering the
incumbent elective officials of ARMM to continue to perform their
functions should these cases not be decided by the end of their term on
September 30, 2011.
ISSUE:
WON the 1987 Constitution mandates the synchronization of elections.
RULING:
YES. The respondent Office of the Solicitor General (OSG) argues that
the Constitution mandates synchronization, and in support of this
position, cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of
the 1987 Constitution, which provides:
“Section 1. The first elections of Members of the Congress under this
Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the
President, which may be simultaneous with the election of the
Members of the Congress. It shall include the election of all Members
of the city or municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives and
the local officials first elected under this Constitution shall serve until
noon of June 30, 1992.
Of the Senators elected in the election in 1992, the first twelve
obtaining the highest number of votes shall serve for six year and the
remaining twelve for three years.”
xxx
Section 5. The six-year term of the incumbent President and Vice
President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.”
The Court agrees with this position.
While the Constitution does not expressly state that Congress has to
synchronize national and local elections, the clear intent towards this
objective can be gleaned from the Transitory Provisions (Article XVIII) of
the Constitution, which show the extent to which the Constitutional
Commission, by deliberately making adjustments to the terms of the
incumbent officials, sought to attain synchronization of elections.
The objective behind setting a common termination date for all elective
officials, done among others through the shortening the terms of the
twelve winning senators with the least number of votes, is to
synchronize the holding of all future elections whether national or local
to once every three years. This intention finds full support in the
discussions during the Constitutional Commission deliberations.
These Constitutional Commission exchanges, read with the provisions
of the Transitory Provisions of the Constitution, all serve as patent
indicators of the constitutional mandate to hold synchronized national
and local elections, starting the second Monday of May, 1992 and for all
the following elections.
This Court was not left behind in recognizing the synchronization of the
national and local elections as a constitutional mandate. In Osmea v.
Commission on Elections, we explained:
“It is clear from the aforequoted provisions of the 1987 Constitution
that the terms of office of Senators, Members of the House of
Representatives, the local officials, the President and the Vice-President
have been synchronized to end on the same hour, date and year noon
of June 30, 1992.”
It is likewise evident from the wording of the above-mentioned Sections
that the term of synchronization is used synonymously as the phrase
holding simultaneously since this is the precise intent in terminating
their Office Tenure on the same day or occasion. This common
termination date will synchronize future elections to once every three
years (Bernas, the Constitution of the Republic of the Philippines, Vol. II,
p. 605).
That the election for Senators, Members of the House of
Representatives and the local officials (under Sec. 2, Art. XVIII) will have
to be synchronized with the election for President and Vice President
(under Sec. 5, Art. XVIII) is likewise evident from the x x x records of the
proceedings in the Constitutional Commission.
Although called regional elections, the ARMM elections should be
included among the elections to be synchronized as it is a local election
based on the wording and structure of the Constitution.
A basic rule in constitutional construction is that the words used should
be understood in the sense that they have in common use and given
their ordinary meaning, except when technical terms are employed, in
which case the significance thus attached to them prevails.
Understood in its ordinary sense, the word local refers to something
that primarily serves the needs of a particular limited district, often a
community or minor political subdivision. Regional elections in the
ARMM for the positions of governor, vice-governor and regional
assembly representatives obviously fall within this classification, since
they pertain to the elected officials who will serve within the limited
region of ARMM.
From the perspective of the Constitution, autonomous regions are
considered one of the forms of local governments, as evident from
Article X of the Constitution entitled Local Government. Autonomous
regions are established and discussed under Sections 15 to 21 of this
Article the article wholly devoted to Local Government. That an
autonomous region is considered a form of local government is also
reflected in Section 1, Article X of the Constitution, which provides:
“Section 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao, and the
Cordilleras as hereinafter provided.”
Thus, we find the contention that the synchronization mandated by the
Constitution does not include the regional elections of the ARMM
unmeritorious.

3. TERM OF OFFICE
Abundo VS Comelec
Facts: 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 candidacy 3 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 Resolution 5 finding for
Abundo, who in the meantime bested Torres by 219 votes 6 and was accordingly
proclaimed 2010 mayor-elect of Viga, Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve the
adverted disqualification case Torres initiated against Abundo, herein private
respondent Ernesto R. Vega (Vega) commenced a quo warranto 7 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 RTC declared Abundo ineligible to serve as municipal mayor. 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.
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 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.
Issue: Whether or not Abundo is deemed to have served three consecutive
terms
Held: No. 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.
The intention behind the three-term limit rule was not only to abrogate the
"monopolization of political power" and prevent elected officials from breeding
"proprietary interest in their position"60 but also to "enhance the people’s
freedom of choice."61 In the words of Justice Vicente V. Mendoza, "while
people should be protected from the evils that a monopoly of power may bring
about, care should be taken that their freedom of choice is not unduly
curtailed."62
In the present case, the Court finds Abundo’s case meritorious and declares
that the two-year period during which his opponent, Torres, was serving as
mayor should be considered as an interruption, which effectively removed
Abundo’s case from the ambit of the three-term limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for the
term starting July 1, 2004 to June 30, 2007, was the duly elected mayor.
Otherwise how explain his victory in his election protest against Torres and his
consequent proclamation as duly elected mayor. Accordingly, the first requisite
for the application of the disqualification rule based on the three-term limit
that the official has been elected is satisfied.
This thus brings us to the second requisite of whether or not Abundo had
served for "three consecutive terms," as the phrase is juridically understood, as
mayor of Viga, Catanduanes immediately before the 2010 national and local
elections. Subsumed to this issue is of course the question of whether or not
there was an effective involuntary interruption during the three three-year
periods, resulting in the disruption of the continuity of Abundo’s mayoralty.
The facts of the case clearly point to an involuntary interruption during the July
2004-June 2007 term.
There can be no quibbling that, during the term 2004-2007, and with the
enforcement of the decision of the election protest in his favor, Abundo
assumed the mayoralty post only on May 9, 2006 and served the term until
June 30, 2007 or for a period of a little over one year and one month.
Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot
be said that Mayor Abundo was able to serve fully the entire 2004-2007 term
to which he was otherwise entitled.
A "term," as defined in Appari v. Court of Appeals, 63 means, in a legal sense, "a
fixed and definite period of time which the law describes that an officer may
hold an office."64 It also means the "time during which the officer may claim to
hold office as a matter of right, and fixes the interval after which the several
incumbents shall succeed one another."65 It is the period of time during which
a duly elected official has title to and can serve the functions of an elective
office. From paragraph (a) of Sec. 43, RA 7160,66 the term for local elected
officials is three (3) years starting from noon of June 30 of the first year of said
term.
In the present case, during the period of one year and ten months, or from
June 30, 2004 until May 8, 2006, Abundo cannot plausibly claim, even if he
wanted to, that he could hold office of the mayor as a matter of right. Neither
can he assert title to the same nor serve the functions of the said elective
office. The reason is simple: during that period, title to hold such office and the
corresponding right to assume the functions thereof still belonged to his
opponent, as proclaimed election winner. Accordingly, Abundo actually held
the office and exercised the functions as mayor only upon his declaration,
following the resolution of the protest, as duly elected candidate in the May
2004 elections or for only a little over one year and one month. Consequently,
since the legally contemplated full term for local elected officials is three (3)
years, it cannot be said that Abundo fully served the term 2004-2007. The
reality on the ground is that Abundo actually served less.
Needless to stress, the almost two-year period during which Abundo’s
opponent actually served as Mayor is and ought to be considered an
involuntary interruption of Abundo’s continuity of service. An involuntary
interrupted term, cannot, in the context of the disqualification rule, be
considered as one term for purposes of counting the three-term threshold. 67
The notion of full service of three consecutive terms is related to the concepts
of interruption of service and voluntary renunciation of service. The word
interruption means temporary cessation, intermission or suspension. 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.
BORJA v. COMELEC
FACTS:
On 18 January 1988 rivate Respondent Jose Capco, Jr. was
elected vice-mayor of Pateros for a term ending June 30, 1992. By
operation of law, he became mayor on 2 September 1989 upon
the death of the incumbent, Cesar Borja. On 11 May 1992, he ran
and was elected for mayor for a term of three years which ended
on June 30, 1995. On 8 May 1995, he was reelected mayor for
another term of three years ending 30 June 1998.
On 27 March 1998, Capco filed a COC for mayor of Pateros
relative to the May 1998 elections. Petitioner Benjamin Borja, Jr.,
who was also running for mayor, filed a petition with COMELEC
for the former’s disqualification on the theory that he would have
already served as mayor for three consecutive terms by June 30,
1998 and would therefore be ineligible to serve another term
after that.
On 30 April 1998, the Second Division of COMELEC ruled
in favor of petitioner and declared private respondent Capco
disqualified from running for reelection as mayor of Pateros.
However, on motion of private respondent, COMELEC en banc
reversed the decision and declared Capco eligible to run for
mayor in May 1998 elections.
Petitioner contends that private respondent Capcos
service as mayor from September 2, 1989 to June 30, 992 should
be considered as service for full one term, and since he thereafter
served from 1992 to 1998 two more terms as mayor, he should be
considered to have served three consecutive terms within the
contemplation of Art. X, 8 of the Constitution and 43(b) of the
Local Government Code. Petitioner stresses the fact that, upon
the death of Mayor Cesar Borja on September 2, 1989, private
respondent became the mayor and thereafter served the
remainder of the term. Petitioner argues that it is irrelevant that
private respondent became mayor by succession because the
purpose of the constitutional provision in limiting the number of
terms elective local officials may serve is to prevent a
monopolization of political power.
ISSUE: Whether or not petitioner’s contention is correct:
HELD: No.
Art. X, Sec. 8 of the Constitution: 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 years. 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.
A fundamental tenet of representative democracy is that
the people should be allowed to choose whom they please to
govern them. To bar the election of a local official because she
has already served three terms, although the first as a result of
succession by operation of law rather than election, would
therefore be to violate this principle.
Also, textual analysis of Art. X Seec 8 contemplates
service by local officials for three consecutive terms as a result of
election. The first sentence speaks of the term of office
of elective local officials and bars such official[s] from serving for
more than three consecutive terms. The second sentence, in
explaining when an elective local official may be deemed to have Adormeo v. Comelec (G.R. No. 147927, 04 February
served his full term of office, states that voluntary renunciation of
2002)
the office for any length of time shall not be considered as an
FACTS:
interruption in the continuity of his service for the full term for
Petitioner and private respondent were the only candidates who
which he was elected. The term served must therefore be one for
filed their certificates of candidacy for mayor of Lucena City in the
which [the official concerned] was elected. The purpose of this
May 14, 2001 elections. Private respondent was then the
provision is to prevent a circumvention of the limitation on the
incumbent mayor.
number of terms an elective official may serve. Conversely, if he is
Private respondent Talaga, Jr. was elected mayor in May 1992. He
not serving a term for which he was elected because he is simply
served the full term. Again, he was re-elected in 1995-1998. In
continuing the service of the official he succeeds, such official
the election of 1998, he lost to Bernard G. Tagarao. In the recall
cannot be considered to have fully served the term now
election of May 12, 2000, he again won and served the unexpired
withstanding his voluntary renunciation of office prior to its
term of Tagarao until June 30, 2001.
expiration.
On March 2, 2001, petitioner filed with the Office of the
Provincial Election Supervisor, Lucena City a Petition to Deny Due
There is a difference, however, between the case of a vice-
Course to or Cancel Certificate of Candidacy and/or
mayor and that of a member of the House of Representatives
Disqualification of Ramon Y. Talaga, Jr., on the ground that the
who succeeds another who dies, resigns, becomes incapacitated,
latter was elected and had served as city mayor for three (3)
or is removed from office. The vice-mayor succeeds to the
consecutive terms as follows:
mayorship by operation of law.[14] On the other hand, the
(1) in the election of May 1992, where he served the full
Representative is elected to fill the vacancy.[15] In a real sense,
term;
therefore, such Representative serves a term for which he was
(2) in the election of May 1995, where he again served the
elected. As the purpose of the constitutional provision is to limit
full term; and,
the right to be elected and to serve in Congress, his service of the
(3) in the recall election of May 12, 2000, where he served
unexpired term is rightly counted as his first term. Rather than
only the unexpired term of Tagarao after having lost to
refute what we believe to be the intendment of Art. X, 8 with
Tagarao in the 1998 election.
regard to elective local officials, the case of a Representative who
The private respondent responded that he was not
succeeds another confirms the theory.
elected City Mayor for three (3) consecutive terms but only for
two (2) consecutive terms. He pointed to his defeat in the 1998
election by Tagarao. Because of his defeat the consecutiveness of
his years as mayor was interrupted, and thus his mayorship was
not for three consecutive terms of three years each. Respondent
added that his service from May 12, 2001 until June 30, 2001 for
13 months and eighteen (18) days was not a full term, in the
contemplation of the law and the Constitution.
On April 20, 2001, the COMELEC, through the First
Division, found private respondent Ramon Y. Talaga, Jr.
disqualified for the position of city mayor on the ground that he
had already served three (3) consecutive terms, and his
Certificate of Candidacy was ordered withdrawn and/or
cancelled. On April 27, 2001, private respondent filed a motion
for reconsideration.
On May 9, 2001, the COMELEC en banc ruled in favor of
private respondent Ramon Y. Talaga, Jr.. It reversed the First
Divisions ruling.
ISSUE
Whether or not the private respondent is disqualified to run for
mayor of Lucena City in the May 14, 2001 elections
RULING
In Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we
held,
To recapitulate, the term limit for elective local officials
must be taken to refer to the right to be elected as well as
the right to serve in the same elective position.
Consequently, it is not enough that an individual has
served three consecutive terms in an elective local office,
he must also have been elected to the same position for
the same number of times before the disqualification can
apply
Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602,
611 (1999), we said,
This Court held that the two conditions for the application
of the disqualification must concur: a) that the official
concerned has been elected for three consecutive terms
in the same local government post and 2) that he has fully
served three consecutive terms.
Accordingly, COMELECs ruling that private respondent was
not elected for three (3) consecutive terms should be upheld. For
nearly two years he was a private citizen. The continuity of his
mayorship was disrupted by his defeat in the 1998 elections.
Socrates v COMELEC
Facts:
On July 2, 2002, 312 out of 528 members of the then incumbent barangay
officials of the Puerto Princesa convened themselves into a Preparatory Recall
Assembly (PRA for brevity) at the Gymnasium of Barangay San Jose from 9:00
a.m. to 12:00 noon. The PRA was convened to initiate the recall [2] of Victorino
Dennis M. Socrates (Socrates for brevity) who assumed office as Puerto
Princesas mayor on June 30, 2001. The members of the PRA designated Mark
David M. Hagedorn, president of the Association of Barangay Captains, as
interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 (Recall
Resolution for brevity) which declared its loss of confidence in Socrates and
called for his recall. The PRA requested the COMELEC to schedule the recall
election for mayor within 30 days from receipt of the Recall Resolution.
On August 23, 2002, Edward M. Hagedorn (Hagedorn for brevity) filed his
certificate of candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo (Adovo for brevity) and Merly E.
Gilo (Gilo for brevity) filed a petition before the COMELEC, docketed as SPA No.
02-492, to disqualify Hagedorn from running in the recall election and to
cancel his certificate of candidacy. On August 30, 2002, a certain Bienvenido
Ollave, Sr. (Ollave for brevity) filed a petition-in-intervention in SPA No. 02-492
also seeking to disqualify Hagedorn. On the same date, a certain Genaro V.
Manaay filed another petition, docketed as SPA No. 02-539, against Hagedorn
alleging substantially the same facts and involving the same issues. The
petitions were all anchored on the ground that Hagedorn is disqualified from
running for a fourth consecutive term, having been elected and having served
as mayor of the city for three (3) consecutive full terms immediately prior to
the instant recall election for the same post. Subsequently, SPA Nos. 02-492
and 02-539 were consolidated.
 In a resolution promulgated on September 20, 2002, the COMELECs First
Division[4] dismissed for lack of merit SPA Nos. 02-492 and 02-539. The
COMELEC declared Hagedorn qualified to run in the recall election. The
COMELEC also reset the recall election from September 7, 2002 to September
24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a resolution
denying the motion for reconsideration of Adovo and Gilo. The COMELEC
affirmed the resolution declaring Hagedorn qualified to run in the recall
election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution
dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course to the
Recall Resolution and scheduled the recall election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in
upholding the Recall Resolution. Socrates cites the following circumstances as
legal infirmities attending the convening of the PRA and its issuance of the
Recall Resolution: (1) not all members of the PRA were notified of the meeting
to adopt the resolution; (2) the proof of service of notice was palpably and
legally deficient; (3) the members of the PRA were themselves seeking a new
electoral mandate from their respective constituents; (4) the adoption of the
resolution was exercised with grave abuse of authority; and (5) the PRA
proceedings were conducted in a manner that violated his and the publics
constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No.
5673 dated August 21, 2002 insofar as it fixed the recall election on September
7, 2002, giving the candidates only a ten-day campaign period. He prayed that
the COMELEC be enjoined from holding the recall election on September 7,
2002 and that a new date be fixed giving the candidates at least an additional
15 days to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued
Resolution No. 5708 giving the candidates an additional 15 days from
September 7, 2002 within which to campaign. Thus, the COMELEC reset the
recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELECs resolutions dated
September 20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539
declaring Hagedorn qualified to run for mayor in the recall election. They
likewise prayed for the issuance of a temporary restraining order to enjoin the
proclamation of the winning candidate in the recall election.
Petitioners argue that the COMELEC gravely abused its discretion in
upholding Hagedorns qualification to run for mayor in the recall election
despite the constitutional and statutory prohibitions against a fourth
consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court ordered the
COMELEC to desist from proclaiming any winning candidate in the recall
election until further orders from the Court. Petitioners were required to post
a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an
attached petition for intervention seeking the same reliefs as those sought by
Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in the
recall election with 20,238 votes. Rival candidates Socrates and Sandoval
obtained 17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from
proclaiming the winning candidate and to allow him to assume office to give
effect to the will of the electorate.
Issue:
Whether or not Hagedorn is qualified to run for mayor in the recall
election of Puerto Princesa on September 24, 2002.
Held:
Yes.
The three-term limit rule for elective local officials is found in Section 8,
Article X of the Constitution, which states:
Section 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
 such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160,
otherwise known as the Local Government Code, which provides:
Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in
the continuity of service for the full term for which the elective official
was elected.
These constitutional and statutory provisions have two parts. The first
part provides that an elective local official cannot serve for more than three
consecutive terms. The clear intent is that only consecutive terms count in
determining the three-term limit rule. The second part states that voluntary
renunciation of office for any length of time does not interrupt the continuity
of service. The clear intent is that involuntary severance from office for any
length of time interrupts continuity of service and prevents the service before
and after the interruption from being joined together to form a continuous
service or consecutive terms.
After three consecutive terms, an elective local official cannot
seek immediate reelection for a fourth term. The prohibited election refers to
the next regular election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall election, is no longer
covered by the prohibition for two reasons. First, a subsequent election like a
recall election is no longer an immediate reelection after three consecutive
terms. Second, the intervening period constitutes an involuntary interruption
in the continuity of service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would be no
further election after three terms, or whether there would be no immediate
reelection after three terms.
Clearly, what the Constitution prohibits is an immediate reelection for a
fourth term following three consecutive terms. The Constitution, however,
does not prohibit a subsequent reelection for a fourth term as long as the
reelection is not immediately after the end of the third consecutive term. A
recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking
immediate reelection to run in any other subsequent election involving the
same term of office. What the Constitution prohibits is a consecutive fourth
term. The debates in the Constitutional Commission evidently show that the
prohibited election referred to by the framers of the Constitution is
the immediate reelection after the third term, not any other subsequent
election.
If the prohibition on elective local officials is applied to any election
within the three-year full term following the three-term limit, then Senators
should also be prohibited from running in any election within the six-year full
term following their two-term limit. The constitutional provision on the term
limit of Senators is worded exactly like the term limit of elective local officials.
The framers of the Constitution thus clarified that a Senator can run after only
three years[15] following his completion of two terms. The framers expressly
acknowledged that the prohibited election refers only to
the immediate reelection, and not to any subsequent election, during the six-
year period following the two term limit. The framers of the Constitution did
not intend the period of rest of an elective official who has reached his term
limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on September
24, 2002 is not an immediate reelection after his third consecutive term which
ended on June 30, 2001.The immediate reelection that the Constitution barred
Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did
not seek reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and
1998 elections and served in full his three consecutive terms as mayor of
Puerto Princesa. Under the Constitution and the Local Government Code,
Hagedorn could no longer run for mayor in the 2001 elections. The
Constitution and the Local Government Code disqualified Hagedorn, who had
reached the maximum three-term limit, from running for a fourth consecutive
term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections.
[16]
Socrates ran and won as mayor of Puerto Princesa in the 2001
elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a
private citizen until the recall election of September 24, 2002 when he won by
3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the
mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was
simply a private citizen.This period is clearly an interruption in the continuity of
Hagedorns service as mayor, not because of his voluntary renunciation, but
because of a legal prohibition. Hagedorns three consecutive terms ended on
June 30, 2001. Hagedorns new recall term from September 24, 2002 to June
30, 2004 is not a seamless continuation of his previous three consecutive terms
as mayor. One cannot stitch together Hagedorns previous three-terms with his
new recall term to make the recall term a fourth consecutive term because
factually it is not. An involuntary interruption occurred from June 30, 2001 to
September 24, 2002 which broke the continuity or consecutive character of
Hagedorns service as mayor.
In the same manner, Hagedorns recall term does not retroact to include
the tenure in office of Socrates. Hagedorn can only be disqualified to run in the
September 24, 2002 recall election if the recall term is made to retroact to
June 30, 2001, for only then can the recall term constitute a fourth consecutive
term. But to consider Hagedorns recall term as a full term of three years,
retroacting to June 30, 2001, despite the fact that he won his recall term only
last September 24, 2002, is to ignore reality. This Court cannot declare as
consecutive or successive terms of office which historically and factually are
not.
Although the discussion referred to special elections for Senators and
Representatives of the House, the same principle applies to a recall election of
local officials. Otherwise, an elective local official who serves a recall term can
serve for more than nine consecutive years comprising of the recall term plus
the regular three full terms. A local official who serves a recall term should
know that the recall term is in itself one term although less than three
years. This is the inherent limitation he takes by running and winning in the
recall election.
In summary, we hold that Hagedorn is qualified to run in the September
24, 2002 recall election for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his
three consecutive terms as mayor which ended on June 30,
2001;
2. Hagedorns continuity of service as mayor was involuntarily
interrupted from June 30, 2001 to September 24, 2002 during
which time he was a private citizen;
3. Hagedorns recall term from September 24, 2002 to June 30, 2004
cannot be made to retroact to June 30, 2001 to make a fourth
consecutive term because factually the recall term is not a fourth
consecutive term; and
4. Term limits should be construed strictly to give the fullest possible
effect to the right of the electorate to choose their leaders.
Arsenio A. Latasa v. COMELEC, Romeo Sunga
Facts:
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos,
Davao del Sur in the elections of 1992, 1995, and 1998. During petitioners third
term, the Municipality of Digos was declared a component city, to be known as
the City of Digos. A plebiscite conducted on September 8, 2000 ratified
Republic Act No. 8798 entitled, An Act Converting the Municipality of Digos,
Davao del Sur Province into a Component City to be known as the City of Digos
or the Charter of the City of Digos. This event also marked the end of
petitioners tenure as mayor of the Municipality of Digos. However, under
Section 53, Article IX of the Charter, petitioner was mandated to serve in a
hold-over capacity as mayor of the new City of Digos. Hence, he took his oath
as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city
mayor for the May 14, 2001 elections. He stated therein that he is eligible
therefor, and likewise disclosed that he had already served for three
consecutive terms as mayor of the Municipality of Digos and is now running for
the first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for
city mayor in the said elections, filed before the COMELEC a Petition to Deny
Due Course, Cancel Certificate of Candidacy and/ or For Disqualification against
petitioner Latasa. Respondent Sunga alleged therein that petitioner falsely
represented in his certificate of candidacy that he is eligible to run as mayor of
Digos City since petitioner had already been elected and served for three
consecutive terms as mayor from 1992 to 2001.

On March 5, 2001, petitioner Latasa filed his Answer, arguing that he did not
make any false representation in his certificate of candidacy since he fully
disclosed therein that he had served as mayor of the Municipality of Digos for
three consecutive terms. Moreover, he argued that this fact does not bar him
from filing a certificate of candidacy for the May 14, 2001 elections since this
will be the first time that he will be running for the post of city mayor.
Both parties submitted their position papers on March 19, 2001.
On April 27, 2001, respondent COMELECs First Division issued a Resolution, the
dispositive portion of which reads, as follows:
Wherefore, premises considered, the respondents certificate of candidacy
should be cancelled for being a violation of the three (3)-term rule proscribed
by the 1987 Constitution and the Local Government Code of 1991.
Petitioner filed his Motion for Reconsideration dated May 4, 2001, which
remained unacted upon until the day of the elections, May 14, 2001. On May
16, 2001, private respondent Sunga filed an Ex Parte Motion for Issuance of
Temporary Restraining Order Enjoining the City Board of Canvassers From
Canvassing or Tabulating Respondents Votes, and From Proclaiming Him as the
Duly Elected Mayor if He Wins the Elections. Despite this, however, petitioner
Latasa was still proclaimed winner on May 17, 2001, having garnered the most
number of votes. Consequently, private respondent Sunga filed, on May 27,
2001, a Supplemental Motion which essentially sought the annulment of
petitioners proclamation and the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as the newly
elected mayor of Digos City. It was only on August 27, 2002 that the COMELEC
en banc issued a Resolution denying petitioners Motion for Reconsideration.
Hence, this petition.
Issue: Whether or not Latasa may run as City Mayor despite being Municipal
Mayor for 3 terms aleady.
Held:
An examination of the historical background of the subject Constitutional
provision reveals that the members of the Constitutional Commission were as
much concerned with preserving the freedom of choice of the people as they
were with preventing the monopolization of political power. In fact, they
rejected a proposal set forth by Commissioner Edmundo Garcia that after
serving three consecutive terms or nine years, there should be no further re-
election for local and legislative officials.[11] The members, instead, adopted
the alternative proposal of Commissioner Christian Monsod that such officials
be simply barred from running for the same position in the succeeding election
following the expiration of the third consecutive term
The framers of the Constitution, by including this exception, wanted to
establish some safeguards against the excessive accumulation of power as a
result of consecutive terms. As Commissioner Blas Ople stated during the
deliberations:
x x x I think we want to prevent future situations where, as a result of
continuous service and frequent re-elections, officials from the President down
to the municipal mayor tend to develop a proprietary interest in their positions
and to accumulate these powers and perquisites that permit them to stay on
indefinitely or to transfer these posts to members of their families in a
subsequent election. x x x
An elective local official, therefore, is not barred from running again in for
same local government post, unless two conditions concur: 1.) that the official
concerned has been elected for three consecutive terms to the same local
government post, and 2.) that he has fully served three consecutive terms.
this Court notes that the delineation of the metes and bounds of the City of
Digos did not change even by an inch the land area previously covered by the
Municipality of Digos. This Court also notes that the elective officials of the
Municipality of Digos continued to exercise their powers and functions until
elections were held for the new city officials.
True, the new city acquired a new corporate existence separate and distinct
from that of the municipality. This does not mean, however, that for the
purpose of applying the subject Constitutional provision, the office of the
municipal mayor would now be construed as a different local government post
as that of the office of the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digos is the same as that of the municipality.
Consequently, the inhabitants of the municipality are the same as those in the
city. These inhabitants are the same group of voters who elected petitioner
Latasa to be their municipal mayor for three consecutive terms. These are also
the same inhabitants over whom he held power and authority as their chief
executive for nine years.
In the present case, petitioner Latasa was, without a doubt, duly elected as
mayor in the May 1998 elections. Can he then be construed as having
involuntarily relinquished his office by reason of the conversion of Digos from
municipality to city? This Court believes that he 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.
This Court reiterates that the framers of the Constitution specifically included
an exception to the peoples freedom to choose those who will govern them in
order to avoid the evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged stay in the same
office. To allow petitioner Latasa to vie for the position of city mayor after
having served for three consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when they wrote this
exception. Should he be allowed another three consecutive terms as mayor of
the City of Digos, petitioner would then be possibly holding office as chief
executive over the same territorial jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario sought to be avoided by
the Constitution, if not abhorred by it.
ONG VS ALEGRE
FACTS:
Private respondent Joseph Stanley Alegre (Alegre) and petitioner
Francis Ong (Francis) were candidates who filed certificates of
candidacy for mayor of San Vicente, Camarines Norte in the May 10,
2004 elections. Francis was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a
Petition to Disqualify, Deny Due Course and Cancel Certificate of
Candidacy of Francis. Docketed as SPA Case No. 04-048, the petition to
disqualify was predicated on the three-consecutive term rule, Francis
having, according to Alegre, ran in the May 1995, May 1998, and May
2001 mayoralty elections and have assumed office as mayor and
discharged the duties thereof for 3 consecutive full terms
corresponding to those elections.
To digress a bit, the May 1998 elections saw both Alegre and Francis
opposing each other for the office of mayor of San Vicente, Camarines
Norte, with the latter being subsequently proclaimed by COMELEC
winner in that contest. Alegre subsequently filed an election protest,
docketed as Election Case No. 6850 before the Regional Trial Court
(RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the
duly elected mayor in that 1998 mayoralty contest, albeit the decision
came out only on July 4, 2001, when Francis had fully served the 1998-
2001 mayoralty term and was in fact already starting to serve the 2001-
2004 term as mayor-elect of the municipality of San Vicente.
Acting on Alegres petition to disqualify and to cancel Francis certificate
of candidacy for the May 10, 2004 elections, the First Division of the
COMELEC rendered a resolution dismissing the said petition of Alegre.
On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a
resolution reversing the resolution of the COMELEC’s First Division and
thereby (a) declaring Francis as disqualified to run for mayor of San
Vicente, Camarines Norte in the May 10, 2004; (b) ordering the deletion
of Francis name from the official list of candidates; and (c) directing the
concerned board of election inspectors not to count the votes cast in
his favor.
The following day, May 8, Francis received a fax machine copy of the
aforecited May 7, 2004 resolution, sending him posthaste to seek the
assistance of his political party, the Nationalist Peoples Coalition, which
immediately nominated his older brother, Rommel Ong (Rommel), as
substitute candidate. At about 5:05 p.m. of the very same day - which is
past the deadline for filing a certificate of candidacy, Rommel filed his
own certificate of candidacy for the position of mayor, as substitute
candidate for his brother Francis.
On May 12, 2004, Francis filed before the Court a petition for certiorari,
presently docketed as G.R. No. 163295. His brother Rommels petition in
G.R. No. 163354 followed barely a week after.
In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R.
No. 163354 were consolidated.
Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing
private respondent Alegres Petition to Deny Due Course to or Cancel
Certificate of Candidacy of Rommel Ong, for being moot and academic.
ISSUE:
WON petitioner Francis’s assumption of office for the mayoralty term
1998 to 2001 should be considered as full service for the purpose of the
three-term limit rule.
RULING:
YES. The three-term limit rule for elective local officials is found in
Section 8, Article X of the 1987 Constitution, which provides:
“Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full
term for which he was elected.”
Section 43 (b) of the Local Government Code restates the same rule as
follows:
“Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three consecutive
years in the same position. Voluntary renunciation of the office for any
length of time shall not be considered an interruption in the continuity
of service for the full term for which the elective official concerned was
elected.”
For the three-term limit for elective local government officials to apply,
two conditions or requisites must concur, to wit: (1) that the official
concerned has been elected for three (3) consecutive terms in the same
local government post, and (2) that he has fully served three (3)
consecutive terms.
With the view we take of the case, the disqualifying requisites are
present herein, thus effectively barring petitioner Francis from running
for mayor of San Vicente, Camarines Norte in the May 10, 2004
elections. There can be no dispute about petitioner Francis Ong having
been duly elected mayor of that municipality in the May 1995 and again
in the May 2001 elections and serving the July 1, 1995- June 30, 1998
and the July 1, 2001-June 30, 2004 terms in full. The herein controversy
revolves around the 1998-2001 mayoral term, albeit there can also be
no quibbling that Francis ran for mayor of the same municipality in the
May 1998 elections and actually served the 1998-2001 mayoral term by
virtue of a proclamation initially declaring him mayor-elect of the
municipality of San Vicente. The question that begs to be addressed,
therefore, is whether or not Franciss assumption of office as Mayor of
San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may
be considered as one full term service in the context of the consecutive
three-term limit rule.
We hold that such assumption of office constitutes, for Francis, service
for the full term, and should be counted as a full term served in
contemplation of the three-term limit prescribed by the constitutional
and statutory provisions, supra, barring local elective officials from
being elected and serving for more than three consecutive term for the
same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest
Case No. 6850,[17] that it was Francis opponent (Alegre) who won in
the 1998 mayoralty race and, therefore, was the legally elected mayor
of San Vicente. However, that disposition, it must be stressed, was
without practical and legal use and value, having been promulgated
after the term of the contested office has expired. Petitioner Francis
contention that he was only a presumptive winner in the 1998
mayoralty derby as his proclamation was under protest did not make
him less than a duly elected mayor. His proclamation by the Municipal
Board of Canvassers of San Vicente as the duly elected mayor in the
1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the
term, should legally be taken as service for a full term in contemplation
of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard
to discern. Such contrary view would mean that Alegre would under the
three-term rule - be considered as having served a term by virtue of a
veritably meaningless electoral protest ruling, when another actually
served such term pursuant to a proclamation made in due course after
an election.
Petitioner cites, but, to our mind, cannot seek refuge from the Courts
ruling in, Lonzanida vs. Comelec, citing Borja vs. Comelec. In Lonzanida,
petitioner Lonzanida was elected and served for two consecutive terms
as mayor of San Antonio, Zambales prior to the May 8, 1995 elections.
He then ran again for the same position in the May 1995 elections, won
and discharged his duties as Mayor. However, his opponent contested
his proclamation and filed an election protest before the RTC of
Zambales, which, in a decision dated January 9, 1997, ruled that there
was a failure of elections and declared the position vacant. The
COMELEC affirmed this ruling and petitioner Lonzanida acceded to the
order to vacate the post. Lonzanida assumed the office and performed
his duties up to March 1998 only. Now, during the May 1998 elections,
Lonzanida again ran for mayor of the same town. A petition to
disqualify, under the three-term rule, was filed and was eventually
granted. There, the Court held that Lonzanida cannot be considered as
having been duly elected to the post in the May 1995 election, and that
he did not fully serve the 1995-1998 mayoralty term by reason of
involuntary relinquishment of office. As the Court pointedly observed,
Lonzanida cannot be deemed to have served the May 1995 to 1998
term because he was ordered to vacate [and in fact vacated] his post
before the expiration of the term.
The difference between the case at bench and Lonzanida is at once
apparent. For one, in Lonzanida, the result of the mayoralty election
was declared a nullity for the stated reason of failure of election, and,
as a consequence thereof, the proclamation of Lonzanida as mayor-
elect was nullified, followed by an order for him to vacate the office of
mayor. For another, Lonzanida did not fully serve the 1995-1998
mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of
the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the
present case. But more importantly, here, there was actually no
interruption or break in the continuity of Francis service respecting the
1998-2001 term. Unlike Lonzanida, Francis was never unseated during
the term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the entire
period covering the 1998-2001 term.
Mendoza VS Comelec
Facts: Petitioners would seek the disqualification of respondent Leonardo B.
Roman on the ground of his having transgressed the three-term limit under
Section 8, Article X, of the 1987 Constitution and Section 43 of Republic Act No.
7160 (Local Government Code)
Respondent Leonardo B. Roman held the post of Governor of Bataan province
a number of times; viz:chanrob1es virtual 1aw library
TERMS MANNER OF ASSUMPTION a) 1986–1988 Appointed OIC Governor of
Bataan by former President Corazon Aquino and served up to 1988. b) 1988–
1992 Elected Governor and served up to 1992. c) 1994–1995 Elected Governor
during the RECALL election in 1993, assumed office on 28 June 1994 and
served up to 1995. d) 1995–1998 Elected Governor and served up to 1998. e)
1998–2001 Elected Governor and served up to 2001.
On 22 February 2001, private respondent Roman again filed a certificate of
candidacy for the same post in the 14th May 2001 regular elections. On 16
May 2001, Leonardo Roman was proclaimed by the Provincial Board of
Canvassers of Bataan.
Issue: whether or not private respondent Roman exceeded the three-term
limit for elective local officials, expressed in the Constitution and the Local
Government Code, when he again ran for the position of Governor in the 14th
May 2001 elections
Held: No. In order that the three-consecutive term limit can apply, two
conditions must concur, i.e., (1) that the elective local official concerned has
been elected for three consecutive terms to the same local government
position, and (2) that he has served three consecutive full terms, albeit a
voluntary renunciation of the office for any length of time shall not be deemed
to be an interruption in the continuity of the service for the full term for which
he is elected. The constitutional provision does not appear to be all that
imprecise for and in its application. Section 8, Article X, of the Constitution is
explicit that the "term of office of elective local officials . . . shall be three
years" which phrase is forthwith followed by its mandate that "no such official
shall serve for more than three consecutive terms," and that" (v)oluntary
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 (is)
elected." The law evidently contemplates a continuous full three-year term
before the proscription can apply.
The Constitutional Commission, in its deliberations, referred to a full nine (9)
years of service for each elective local government official in the application of
the prohibition, envisioning at the same time a continuous and uninterrupted
period of nine years by providing for only one exception, i.e., when an
incumbent voluntarily gives up the office.
After due deliberation, the Court voted 8 to 7 to DISMISS the petition.
VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He
contended that as revealed by the records of the Constitutional Commission,
the Constitution envisions a continuous and an uninterrupted service for three
full terms before the proscription applies. Therefore, not being a full term, a
recall term should not be counted or used as a basis for the disqualification
whether served prior (as in this case) or subsequent (as in the Socrates case) to
the nine-year, full three-term limit.
MENDOZA, J., in whose opinion QUISUMBING, J. joined, voted to dismiss the
petition on the ground that, in accordance with the ruling in Borja, Jr. v.
COMELEC, 295 SCRA 157 (1998); Arcos v. COMELEC, G.R. No. 133639, Oct. 6,
1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 (1999); and Adormeo v.
COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which succession to a
local elective office takes place or a recall election is held should not be
counted in determining whether an elective local official has served more than
three consecutive terms. He argued that the Constitution does not prohibit
elective local officials from serving for more than three consecutive terms
because, in fact, it excludes from the three-term limit interruptions in the
continuity of service, so long as such interruptions are not due to the voluntary
renunciation of the office by an incumbent. Hence, the period from June 28,
1994 to June 30, 1995, during which respondent Leonardo B. Roman served as
governor of Bataan by virtue of a recall election held in 1993, should not be
counted. Since on May 14, 2001 respondent had previously served as governor
of Bataan for only two consecutive terms (1995–1998 and 1998–2001), his
election on that day was actually only his third term for the same position.
PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He
argued that a recall term should not be considered as one full term, because a
contrary interpretation would in effect cut short the elected official’s service to
less than nine years and shortchange his constituents. The desire to prevent
monopoly of political power should be balanced against the need to uphold
the voters’ obvious preference who, in the present case, is Roman who
received 97 percent of the votes cast. He explained that, in Socrates, he also
voted to affirm the clear choice of the electorate, because in a democracy the
people should, as much as legally possible, be governed by leaders freely
chosen by them in credible elections. He concluded that, in election cases,
when two conflicting legal positions are of almost equal weight, the scales of
justice should be tilted in favor of the people’s overwhelming choice.
AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is
clear from the constitutional provision that the disqualification applies only if
the terms are consecutive and the service is full and continuous. Hence,
service for less than a term, except only in case of voluntary renunciation,
should not count to disqualify an elective local official from running for the
same position. This case is different from Socrates, where the full three
consecutive terms had been continuously served so that disqualification had
clearly attached.
On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and
AUSTRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the view
that the recall term served by respondent Roman, comprising the period June
28, 1994 to June 30, 1995, should be considered as one term. Since he
thereafter served for two consecutive terms from 1995 to 1998 and from 1998
to 2001, his election on May 14, 2001 was actually his fourth term and
contravenes Art. X, §8 of the Constitution. For this reason, she voted to grant
the petition and to declare respondent’s election on May 14, 2001 as null and
void.
CARPIO, J., joined by CARPIO-MORALES, J., also dissented and voted to grant
the petition. He held that a recall term constitutes one term and that to totally
ignore a recall term in determining the three-term limit would allow local
officials to serve for more than nine consecutive years contrary to the manifest
intent of the framers of the Constitution. He contended that respondent
Roman’s election in 2001 cannot exempt him from the three-term limit
imposed by the Constitution.
RIVERA III v. COMELEC
FACTS:
Private respondent Marino Boing Morales ran and won as
the elected mayor of Mabalacat for the term commencing July 1,
2004 to June 30, 2007. Prior to the 2004 elections, a petition was
filed by Attorneys Venancio Q. Rivera and Normandick De
Guzman before the Second Division of COMELEC against Morales
on the ground that he was elected and had served three previous
consecutive terms as mayor of Mabalacat. As such, his candidacy
would be violating the Constitution and the Local Government
Code.
In reply, Morales admits that he was elected mayor of
Mabalacat for three terms, but claims that he served the second
term from July 1, 1998 to June 30, 2001 only as a caretaker of the
office or as a de facto officer because: (1) he was not validly
elected for the second term since his proclamation as mayor was
declared void by the RTC, which became final and executory on
August 6, 2001; and (2) he was preventively suspended by the
Ombudsman in an anti-graft case from January 16, 1999 to July
15, 1999.
On 14 March 2005, COMELEC En Banc issued a Resolution
granting respondent Morales motion for reconsideration and
setting aside that of the Second Division. The COMELEC En
Banc held that since the Decision in EPC No. 98-131 of the RTC,
Branch 57, Angeles City declared respondent Morales
proclamation void, his discharge of the duties in the Office of the
Mayor in Mabalacat is that of a de facto officer or a de
facto mayor. Therefore, his continuous service for three
consecutive terms has been severed.
After respondent was proclaimed the mayor of Mabalacat for the
term July 1, 2004 to June 30, 2007, petitioner Anthony Dee, who
also ran for mayor, filed with the RTC a petition for quo warranto.
He alleged the same contentions as that raised by the other
petition. However, RTC dismissed the petition on the ground that
Morales did not serve the 3-term limit since he was not the duly
elected mayor of Mabalacat, but petitioner Dee in the May 1998
elections for the term 1998 to 2001.
According to the RTC, Respondent, Marino Morales, was
not the duly elected mayor of Mabalacat, Pampanga in the May
1998 elections for the term 1998 to 2001 because although he
was proclaimed as the elected mayor of Mabalacat, Pampanga by
the Municipal Board of Canvassers, had assumed office and
discharged the duties of mayor, his close rival, the herein
petitioner, Anthony D. Dee, was declared the duly elected Mayor
of Mabalacat, Pampanga in the Decision promulgated on April 2,
2001 in Election Protest EPC No. 98-131 filed by Anthony Dee
against herein respondent, Marino Morales, and decided by RTC,
Br. 57, Angeles City. x x x.
As a defense to all the petitions filed against him,
respondent Morales argued that COMELEC held that 1 July 2003
and 30 July 2007 term is not his fourth term because his second
term, 1 July 1998 to 30 June 2001 to which he was elected and
which he served, may not be counted since his proclamation was
declared void by the RTC, Branch 57 of Angeles City.
ISSUE: Whether or not respondent’s contention is correct.
HELD: No.
 For the 3-term limit for elective local government officials
to apply, two conditions or requisites must concur: (1) that the
official concerned has been elected for three consecutive terms in
the same local government post, and (2) that the has fully served
three consecutive terms.
It is undisputed that respondent Morales was elected to the
position of mayor of Mabalacat for the following consecutive
terms:
a) 1 July 1995 to 30 June 1998
b) 1 July 1998 to 30 June 2001
c) 1 July 2001 to 30 June 2004
d) 1 July 2004 to 30 June 2007
It is true that RTC Branch 57 ruled in the election protest
that his second term was void, but since he was proclaimed as the
elected mayor by the Municipal Board of Canvassers, had
assumed office and discharged the duties of mayor, his second
term (1 July 1998 to 30 June 2001), which he did not finish,
should be counted as a full term served in contemplation of the
3-term limit prescribed b the constitutional and statutory
provisions, barring local elective officials from being elected and
serving for more than 3 consecutive terms for the same position.
The ruling applied in this case is similar to Ong v. Alegre. It
bears stressing that in Ong v. Alegre cited above, Francis Ong was
elected and assumed the duties of the mayor of San Vicente,
Camarines Norte for three consecutive terms. But his
proclamation as mayor in the May 1998 election was declared
void by the RTC of Daet, Camarines Norte in its Decision
dated July 4, 2001.As ruled by this Court, his service for the term
1998 to 2001 is for the full term. Clearly, the three-term limit rule
applies to him. Indeed, there is no reason why this ruling should
not also apply to respondent Morales who is similarly situated.
DIZON vs. COMELEC
G.R. No. 182088, January 30, 2009
Roberto L. Dizon, a resident and taxpayer of Mabalacat, Pampanga, filed
a case with the COMELEC to disqualify Marino P. Morales, the
incumbent mayor of Mabalacat on the ground that the latter was
elected and had fully served three previous consecutive terms in
violation of Section 43 of the Local Government Code. Dizon alleged
that Morales was municipal mayor in 1995, 1998, 2001 and 2004. Thus,
Morales should not have been allowed to have filed his Certificate of
Candidacy on March 2007 for the same position and same municipality.
Morales, on the other hand, contended that he is still eligible and
qualified to run as mayor of Mabalacat because he was not elected for
the said position in the 1998 elections. He averred that the COMELEC
en banc affirmed the decision of the RTC declaring Anthony D. Dee as
the duly elected Mayor of Mabalacat in the 1998 elections. Thus, he
was not elected for the said position in the 1998 elections. His term
should be reckoned from 2001. He added that his election in 2004 is
only for his second term.
COMELEC Second Division ruled in favor of Morales and denied the
petition. It took judicial notice of SC’s ruling in the Rivera case
promulgated on May 9, 2007 where it was held that Morales was
elected as mayor of Mabalacat in 1995, 1998 and 2001
(notwithstanding the RTC Decision in an electoral protest case that the
then proclamation of Morales was void). The SC ruled in that case that
Morales violated the three-term limit under Section 43 of the LGC.
Hence, Morales was considered not a candidate in the 2004 elections,
and this failure to qualify for the 2004 elections is a gap and allows him
to run again for the same position in 2007 elections.
Dizon filed a motion for reconsideration before the COMELEC En Banc.
COMELEC En Banc: affirmed. The three-term limit is not applicable here
for: 1) Morales was not the duly-elected mayor of Mabalacat for the
July 1, 2004 to June 30, 2007 term primordially because he was not
even considered a candidate thereat; and 2) Morales has failed to serve
the entire duration of the term of office because he has already
relinquished the disputed office on May 16, 2007 which is more than a
month prior to the end of his supposed term.
Issues:
1. Whether or not the period served by Morales in the 2004-2007 term
(although he was ousted from his office as Mayor on May16, 2007)
should be considered his fourth term.
2. Whether or not the 2007-2010 term of Morales is his 5th term.
Held:
1. NO. In our decision promulgated on 9 May 2007, this Court unseated
Morales during his fourth term. We cancelled his Certificate of
Candidacy dated 30 December 2003. This cancellation disqualified
Morales from being a candidate in the May 2004 elections. The votes
cast for Morales were considered stray votes.
Both Article X, Section 8 of the Constitution and Section 43(b) of the
Local Government Code state that the term of office of elective local
officials, except barangay officials, 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.
There should be a concurrence of two conditions for the application of
the disqualification: (1) that the official concerned has been elected for
three consecutive terms in the same local government post and (2) that
he has fully served three consecutive terms.
In the Rivera case, we found that Morales was elected as mayor of
Mabalacat for four consecutive terms: 1 July 1995 to 30 June 1998, 1
July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004
to 30 June 2007. We disqualified Morales from his candidacy in the May
2004 elections because of the three-term limit. Although the trial court
previously ruled that Morales’ proclamation for the 1998-2001 term
was void, there was no interruption of the continuity of Morales’
service with respect to the 1998-2001 term because the trial court’s
ruling was promulgated only on 4 July 2001, or after the expiry of the
1998-2001 term.
Our ruling in the Rivera case served as Morales’ involuntary severance
from office with respect to the 2004-2007 term. Involuntary severance
from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. Our decision in the
Rivera case was promulgated on 9 May 2007 and was effective
immediately. The next day, Morales notified the vice mayor’s office of
our decision. The vice mayor assumed the office of the mayor from 17
May 2007 up to 30 June 2007. The assumption by the vice mayor of the
office of the mayor, no matter how short it may seem to Dizon,
interrupted Morales’ continuity of service. Thus, Morales did not hold
office for the full term of 1 July 2004 to 30 June 2007. (4th term)
2. Dizon claims that the 2007-2010 term is Morales’ fifth term in office.
NO. Morales occupied the position of mayor of Mabalacat for the
following periods:
1 July 1995 to 30 June 1998
1 July 1998 to 30 June 2001
1 July 2001 to 30 June 2004, and
1 July 2004 to 16 May 2007.
However, because of his disqualification, Morales was not the duly
elected mayor for the 2004-2007 term. Neither did Morales hold the
position of mayor of Mabalacat for the full term. Morales cannot be
deemed to have served the full term of 2004-2007 because he was
ordered to vacate his post before the expiration of the term. Morales’
occupancy of the position of mayor of Mabalacat from 1 July 2004 to 16
May 2007 cannot be counted as a term for purposes of computing the
three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007
served as a gap for purposes of the three-term limit rule. Thus, the
present 1 July 2007 to 30 June 2010 term is effectively Morales’ first
term for purposes of the three-term limit rule.
● Dizon alleges that Morales "was able to serve his fourth term as
mayor through lengthy litigations. In other words, he was violating the
rule on three-term limit with impunity by the sheer length of litigation
and profit from it even more by raising the technicalities arising
therefrom." To this, we quote our ruling in Lonzanida v. COMELEC:
“The respondents harp on the delay in resolving the election protest
between petitioner and his then opponent Alvez which took roughly
about three years and resultantly extended the petitioner’s incumbency
in an office to which he was not lawfully elected. We note that such
delay cannot be imputed to the petitioner. There is neither specific
allegation nor proof that the delay was due to any political
maneuvering on his part to prolong his stay in office. Moreover,
protestant Alvez, was not without legal recourse to move for the early
resolution of the election protest while it was pending before the
regional trial court or to file a motion for the execution of the regional
trial court’s decision declaring the position of mayor vacant and
ordering the vice-mayor to assume office while the appeal was pending
with the COMELEC. Such delay which is not here shown to have been
intentionally sought by the petitioner to prolong his stay in office
cannot serve as basis to bar his right to be elected and to serve his
chosen local government post in the succeeding mayoral
election.” (Dizon v. Comelec, G.R. No. 182088, January 30, 2009)
Bolos, Jr. v. Comelec (G.R. No. 184082, 17 March
2009)
FACTS:
For three consecutive terms, petitioner was elected to the
position of Punong Barangay of Barangay Biking, Dauis, Bohol in
the Barangay Elections held in 1994, 1997 and 2002.
In May 2004, while sitting as the incumbent Punong
Barangay of Barangay Biking, petitioner ran for Municipal
Councilor of Dauis, Bohol and won. He assumed office as
Municipal Councilor on July 1, 2004, leaving his post as Punong
Barangay. He served the full term of the Sangguniang Bayan
position, which was until June 30, 2007.
Thereafter, petitioner filed his Certificate of Candidacy for
Punong Barangay of Barangay Biking, Dauis, Bohol in the October
29, 2007 Barangay and Sangguniang Kabataan Elections.
Respondent Rey Angeles Cinconiegue, the incumbent Punong
Barangay and candidate for the same office, filed before the
COMELEC a petition for the disqualification of petitioner as
candidate on the ground that he had already served the three-
term limit.
Cinconiegue contended that petitioners relinquishment of
the position of Punong Barangay in July 2004 was voluntary on his
part, as it could be presumed that it was his personal decision to
run as municipal councilor in the May 14, 2004 National and Local
Elections.
 In his Answer, petitioner admitted that he was elected as
Punong Barangay of Barangay Biking, Dauis, Bohol in the last
three consecutive elections of 1994, 1997 and 2002. However, he
countered that in the May 14, 2004 National and Local Elections,
he ran and won as Municipal Councilor of Dauis, Bohol. By reason
of his assumption of office as Sangguniang Bayan member, his
remaining term of office as Punong Barangay, which would have
ended in 2007, was left unserved. He argued that his election and
assumption of office as Sangguniang Bayan member was by
operation of law; hence, it must be considered as an involuntary
interruption in the continuity of his last term of service.
The First Division of the COMELEC ruled that petitioners
relinquishment of the office of Punong Barangay of Biking, Dauis,
Bohol, as a consequence of his assumption of office as
Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, was
a voluntary renunciation of the Office of Punong Barangay.
ISSUE
Whether or not there was voluntary renunciation of the Office of
Punong Barangay by petitioner when he assumed office as
Municipal Councilor so that he is deemed to have fully served his
third term as Punong Barangay
RULING
Yes. The three-term limit for elective local officials is contained in
Section 8, Article X of the 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.
David v. Commission on Elections elucidates that the
Constitution did not expressly prohibit Congress from fixing any
term of office for barangay officials, thereby leaving to the
lawmakers full discretion to fix such term in accordance with the
exigencies of public service. The discussions in the Constitutional
Commission showed that the term of office of barangay officials
would be [a]s may be determined by law, and more precisely, [a]s
provided for in the Local Government Code.
Section 43(b) of the Local Government Code provides that
barangay officials are covered by the three-term limit, while
Section 43(c) thereof states that the term of office of barangay
officials shall be five (5) years. The cited provisions read, thus:
Sec. 43. Term of Office.
xxx
(b) No local elective official shall serve for more than three
(3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of
service for the full term for which the elective official
concerned was elected.
(c) The term of barangay officials and members of the
sangguniang kabataan shall be for five (5) years, which
shall begin after the regular election of barangay officials
on the second Monday of May 1997: Provided, That the
sangguniang kabataan members who were elected in the
May 1996 elections shall serve until the next regular
election of barangay officials.
Socrates v. Commission on Elections held that the rule on the
three-term limit, embodied in the Constitution and the Local
Government Code, has two parts:
x x x The first part provides that an elective local official
cannot serve for more than three consecutive terms. The
clear intent is that only consecutive terms count in
determining the three-term limit rule. The second part
states that voluntary renunciation of office for any length
of time does not interrupt the continuity of service. The
clear intent is that involuntary severance from office for
any length of time interrupts continuity of service and
prevents the service before and after the interruption
from being joined together to form a continuous service
or consecutive terms.
In Lonzanida v. Commission on Elections, the Court stated that
the second part of the rule on the three-term limit shows the
clear intent of the framers of the Constitution to bar any attempt
to circumvent the three-term limit by a voluntary renunciation of
office and at the same time respect the peoples choice and grant
their elected official full service of a term. The Court held that
two conditions for the application of the disqualification must
concur: (1) that the official concerned has been elected for three
consecutive terms in the same government post; and (2) that he
has fully served three consecutive terms.
In this case, it is undisputed that petitioner was elected as
Punong Barangay for three consecutive terms, satisfying the first
condition for disqualification. The Court agrees with the
COMELEC that there was voluntary renunciation by petitioner of
his position as Punong Barangay.
Indeed, petitioner was serving his third term as Punong Barangay
when he ran for Sangguniang Bayan member and, upon winning,
assumed the position of Sangguniang Bayan member, thus,
voluntarily relinquishing his office as Punong Barangay which the
Court deems as a voluntary renunciation of said office.
COMELEC v Cruz
Facts:
Before the October 29, 2007
Synchronized Barangay and Sangguniang Kabataan (SK) Elections, some of the
then incumbent officials of several barangays of Caloocan City[2] filed with the
RTC a petition for declaratory relief to challenge the constitutionality of the
above-highlighted proviso, based on the following arguments:
I. The term limit of Barangay officials
should be applied prospectively and not retroactively.
II. Implementation of paragraph 2 Section 2
of RA No. 9164 would be a violation of the equal protection
of the law.
III. Barangay officials have always been
apolitical.
The RTC agreed with the respondents contention that the challenged
proviso retroactively applied the three-term limit for barangay officials under
the following reasoning:
When the Local Government Code of 1991 took
effect abrogating all other laws inconsistent therewith, a
different term was ordained. Here, this Court agrees with the
position of the petitioners that Section 43 of the Code
specifically exempted barangay elective officials from the
coverage of the three (3) consecutive term limit rule
considering that the provision applicable to these (sic) class
of elective officials was significantly separated from the
provisions of paragraphs (a) and (b) thereof. Paragraph (b) is
indeed intended to qualify paragraph (a) of Section 43 as
regards to (sic) all local elective officials
 except barangay officials. Had the intention of the framers of
the Code is (sic) to include barangay elective officials, then no
excepting proviso should have been expressly made in
paragraph (a) thereof or, by implication, the contents of
paragraph (c) should have been stated ahead of the contents
of paragraph (b).
xxxx
Clearly, the intent of the framers of the constitution (sic) is to exempt
the barangay officials from the three (3) term limits (sic) which are
otherwise applicable to other elected public officials from the
Members of the House of Representatives down to the members of
the sangguniang bayan/panlungsod. It is up for the Congress whether
the three (3) term limit should be applied by enacting a law for the
purpose.
The amendment introduced by R.A. No. 8524 merely increased the
term of office of barangay elective officials from three (3) years to five
(5) years. Like the Local Government Code, it can be noted that no
consecutive term limit for the election of barangay elective officials
was fixed therein.
The advent of R.A. 9164 marked the revival of the consecutive term
limit for the election of barangay elective officials after the Local
Government Code took effect. Under the assailed provision of this
Act, the term of office of barangay elective officials reverted back to
three (3) years from five (5) years, and, this time, the legislators
expressly declared that nobarangay elective official shall serve for
more than three (3) consecutive terms in the same position. The
petitioners are very clear that they are not assailing the validity of
such provision fixing the three (3) consecutive term limit rule for the
election of barangay elective officials to the same position. The
particular provision the constitutionality of which is under attack is
that portion providing for the reckoning of the three (3) consecutive
term limit of barangay elective officials beginning from the
1994 barangay elections.
Section 2, paragraph 2 of R.A. 9164 is not a mere restatement of
Section 43(c) of the Local Government Code. As discussed above,
Section 43(c) of the Local Government Code does not provide for the
consecutive term limit rule of barangay elective officials. Such specific
provision of the Code has in fact amended the previous enactments
(R.A. 6653 and R.A. 6679) providing for the consecutive term limit rule
of barangay elective officials. But, such specific provision of the Local
Government Code was amended by R.A. 9164, which reverted back to
the previous policy of fixing consecutive term limits
of barangay elective officials. [3]
In declaring this retroactive application unconstitutional, the RTC explained
that:
By giving a retroactive reckoning of the three (3) consecutive term
limit rule for barangay officials to the 1994 barangay elections,
Congress has violated not only the principle of prospective application
of statutes but also the equal protection clause of the Constitution
inasmuch as the barangay elective officials were singled out that their
consecutive term limit shall be counted retroactively. There is no
rhyme or reason why the consecutive limit for these barangay officials
shall be counted retroactively while the consecutive limit for other
local and national elective officials are counted prospectively. For if
the purpose of Congress is [sic] to classify elective barangay officials as
belonging to the same class of public officers whose term of office are
limited to three (3) consecutive terms, then to discriminate them by
applying the proviso retroactively violates the constitutionally
enshrined principle of equal protection of the laws.
Although the Constitution grants Congress the power to determine
such successive term limit of barangay elective officials, the exercise
of the authority granted shall not otherwise transgress other
constitutional and statutory privileges.
The COMELEC takes the position that the assailed law is valid and
constitutional. RA No. 9164 is an amendatory law to RA No. 7160 (the Local
Government Code of 1991 or LGC) and is not a penal law; hence, it cannot be
considered an ex post facto law. The three-term limit, according to the
COMELEC, has been specifically provided in RA No. 7160, and RA No. 9164
merely restated the three-term limitation. It further asserts that laws which are
not penal in character may be applied retroactively when expressly so provided
and when it does not impair vested rights. As there is no vested right to public
office, much less to an elective post, there can be no valid objection to the
alleged retroactive application of RA No. 9164.
The COMELEC also argues that the RTCs invalidation of RA No. 9164 essentially
involves the wisdom of the law the aspect of the law that the RTC has no right
to inquire into under the constitutional separation of powers principle. The
COMELEC lastly argues that there is no violation of the one subject-one title
rule, as the matters covered by RA No. 9164 are related; the assailed provision
is actually embraced within the title of the law.
Issue: Whether or not the challenged proviso is unconstitutional
Held:
No.
The 1987 Philippine Constitution extended constitutional recognition
to barangays under Article X, Section 1 by specifying barangays as one
of the territorial and political subdivisions of the country
The Constitutional Commissions deliberations on Section 8 show that the
authority of Congress to legislate relates not only to the fixing of the term of
office of barangayofficials, but also to the application of the three-term limit.
As reflected in the above-quoted deliberations of the 1987 Constitution,
Congress has plenary authority under the Constitution to determine by
legislation not only the duration of the term of barangay officials, but also the
application to them of a consecutive term limit. Congress invariably exercised
this authority when it enacted no less than six (6) barangay-related laws since
1987.
Through all these statutory changes, Congress had determined at its discretion
both the length of the term of office of barangay officials and their term
limitation. Given the textually demonstrable commitment by the 1987
Constitution to Congress of the authority to determine the term duration
and limition of barangay officials under the Constitution, we consider it
established that whatever Congress, in its wisdom, decides on these matters
are political questions beyond the pale of judicial scrutiny,[11]subject only to
the certiorari jurisdiction of the courts provided under Section 1, Article VIII of
the Constitution and to the judicial authority to invalidate any law contrary to
the Constitution.[12]
Political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government; it is concerned with issues
dependent upon the wisdom, not legality of a particular measure
Thus, we can inquire into a congressional enactment despite the political
question doctrine, although the window provided us is narrow; the challenge
must show grave abuse of discretion to justify our intervention.
Other than the Section 1, Article VIII route, courts can declare a law
invalid when it is contrary to any provision of the Constitution. This requires
the appraisal of the challenged law against the legal standards provided by the
Constitution, not on the basis of the wisdom of the enactment. To justify its
nullification, the breach of the Constitution must be clear and unequivocal, not
a doubtful or equivocal one, as every law enjoys a strong presumption of
constitutionality.[15] These are the hurdles that those challenging the
constitutional validity of a law must overcome.
The present case, as framed by the respondents, poses no challenge
on the issue of grave abuse of discretion. The legal issues posed relate strictly
to compliance with constitutional standards. It is from this prism that we shall
therefore resolve this case.
The Retroactive
Application Issue
a. Interpretative / Historical Consideration
The respondents first objection to the challenged provisos
constitutionality is its purported retroactive application of the three-term limit
when it set the 1994barangay elections as a reckoning point in the application
of the three-term limit.
The first law that provided a term limitation for barangay officials
was RA No. 6653 (1988); it imposed a two-consecutive term limit. After only six
months, Congress, under RA No. 6679 (1988), changed the two-term limit by
providing for a three-consecutive term limit. This consistent imposition of the
term limit gives no hint of any equivocation in the congressional intent to All these inevitably lead to the conclusion that the challenged proviso has been
provide a term limitation. Thereafter, RA No. 7160 the LGC followed, bringing there all along and does not simply retroact the application of the three-term
with it the issue of whether it provided, as originally worded, for a three-term limit to thebarangay elections of 1994. Congress merely integrated the past
limit for barangay officials. statutory changes into a seamless whole by coming up with the challenged
proviso.
Section 43 is a provision under Title II of the LGC on Elective Officials.
These Title II provisions are intended to apply to all local elective With this conclusion, the respondents constitutional challenge to the
officials, unless the contrary is clearly provided. A contrary application is proviso based on retroactivity must fail.
provided with respect to the length of the term of office under Section 43(a);
while it applies to all local elective officials, it does not apply
to barangay officials whose length of term is specifically provided by Section
43(c). In contrast to this clear case of an exception to a general rule, the three-
term limit under Section 43(b) does not contain any exception; it applies to all
local elective officials who must perforce include barangay officials.

From a historical perspective of the law, the inclusion of Section 43(c) in the
LGC is an absolute necessity to clarify the length of term
of barangay officials. Recall that under RA No. 6679, the term of office
of barangay officials was five (5) years. The real concern was how Section 43
would interface with RA No. 6679. Without a categorical statement on the
length of the term of office of barangay officials, a general three-year term for
all local elective officials under Section 43(a), standing alone, may not readily
and completely erase doubts on the intended abrogation of the 5-year term
for barangay officials under RA No. 6679. Thus, Congress added Section 43(c)
which provided a categorical three-year term for these officials.

Section 43(c) should therefore be understood in this context and not in the
sense that it intended to provide the complete rule for the election
of barangay officials, so that in the absence of any term limitation proviso
under this subsection, no term limitation applies to barangay officials. That
Congress had the LGCs three-term limit in mind when it enacted RA No. 9164 is
clear from the following deliberations in the House of Representatives (House)
on House Bill No. 4456 which later became RA No. 9164

The House therefore clearly operated on the premise that the LGC imposed a
three-term limit for barangay officials, and the challenged proviso is its way of
addressing any confusion that may arise from the numerous changes in the
law.

4. RULES OF SUCCESSION
Talaga v. COMELEC
Facts:
On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and
Philip M. Castillo (Castillo) respectively filed their certificates of candidacy
(CoCs) for the position of Mayor of Lucena City to be contested in the
scheduled May 10, 2010 national and local elections.
Ramon, the official candidate of the Lakas-Kampi-CMD, declared in his CoC that
he was eligible for the office he was seeking to be elected to. Four days later, or
on December 5, 2009, Castillo filed with the COMELEC a petition denominated
as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of
Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served Three (3)
Consecutive Terms as a City Mayor of Lucena, which was docketed as SPA 09-
029 (DC).4 He alleged
therein that Ramon, despite knowing that he had been elected and had served
three consecutive terms as Mayor of Lucena City, still filed his CoC for Mayor of
Lucena City in the May 10, 2010 national and local elections.
The petition prayed for the following reliefs, to wit:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate
of Candidacy filed by the respondent be denied due course to or cancel the
same and that he be declared as a disqualified candidate under the existing
Election Laws and by the provisions of the New Local Government Code.
Ramon countered that the Sandiganbayan had preventively suspended him
from office during his second and third terms; and that the three-term limit
rule did not then apply to him pursuant to the prevailing jurisprudence to the
effect that an involuntary separation from office amounted to an interruption
of continuity of service for purposes of the application of the three-term limit
rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in
Aldovino, Jr. v. Commission on Elections, holding that preventive suspension,
being a mere temporary incapacity, was not a valid ground for avoiding the
effect of the three-term limit rule. Thus, on December 30, 2009, Ramon filed in
the COMELEC a Manifestation with Motion to Resolve, taking into account the
intervening ruling in Aldovino.
Notwithstanding his express recognition of his disqualification to run as Mayor
of Lucena City in the May 10, 2010 national and local elections, Ramon did not
withdraw his CoC. Acting on Ramon’s Manifestation with Motion to Resolve,
the COMELEC First Division issued a Resolution on April 19, 2010 disqualifying
said Mayor form running again.
Initially, Ramon filed his Verified Motion for Reconsideration against the April
19, 2010 Resolution of the COMELEC First Division. Later on, however, he filed
an Ex-parte Manifestation of Withdrawal of the Pending Motion for
Reconsideration.12 At 4:30 p.m. on the same date, Barbara Ruby filed her own
CoC for Mayor of Lucena City in substitution of Ramon, attaching thereto the
Certificate of Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD,
the party that had nominated Ramon.
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte
Manifestation of Withdrawal, declared the COMELEC First Division’s Resolution
dated April 19, 2010 final and executory.
On election day on May 10, 2010, the name of Ramon remained printed on the
ballots but the votes cast in his favor were counted in favor of Barbara Ruby as
his substitute candidate, resulting in Barbara Ruby being ultimately credited
with 44,099 votes as against Castillo’s 39,615 votes.
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking
the suspension of Barbara Ruby’s proclamation.
It was only on May 13, 2010 when the COMELEC En Banc, upon the
recommendation of its Law Department, gave due course to Barbara Ruby’s
CoC and CONA through Resolution No. 8917, thereby including her in the
certified list of candidates.18 Consequently, the CBOC proclaimed Barbara
Ruby as the newly-elected Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with
the COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could
not substitute Ramon because his CoC had been cancelled and denied due
course; and Barbara Ruby could not be considered a candidate because the
COMELEC En Banc had approved her substitution three days after the
elections; hence, the votes cast for Ramon should be considered stray.
In her Comment on the Petition for Annulment of Proclamation, Barbara Ruby
maintained the validity of her substitution. She countered that the COMELEC
En Banc did not deny due course to or cancel Ramon’s COC, despite a
declaration of his disqualification, because there was no finding that he had
committed misrepresentation, the ground for the denial of due course to or
cancellation of his COC. She prayed that with her valid substitution, Section 12
of Republic Act No. 900622 applied, based on which the votes cast for Ramon
were properly counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of
Lucena City, sought to intervene, positing that he should assume the post of
Mayor because Barbara Ruby’s substitution had been invalid and Castillo had
clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s
petition and Alcala’s petition-in-intervention, holding that in the present case,
Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis for
the proclamation of Ruby on that date. He, however, failed to file any action
within the prescribed period either in the Commission or the Supreme Court
assailing the said resolution. Thus, the said resolution has become final and
executory. It cannot anymore be altered or reversed. A close perusal of the
petition filed by Castillo in SPA 10-029 (Dc) shows that it was actually for the
disqualification of Ramon for having served three consecutive terms, which is a
ground for his disqualification under the Constitution in relation to Section
4(b)3 of Resolution 8696. There was no mention therein that Ramon has
committed material representation that would be a ground for the cancellation
or denial of due course to the CoC of Ramon under Section 78 of the Omnibus
Election Code. The First Division, in fact, treated the petition as one for
disqualification as gleaned from the body of the resolution and its dispositive
portion quoted above. This treatment of the First Division of the petition as
one for disqualification only is affirmed by the fact that its members signed
Resolution No. 8917 where it was clearly stated that the First Division only
disqualified Ramon. Having been disqualified only, the doctrine laid down in
Miranda v. Abaya is not applicable. Ramon was rightly substituted by Ruby. As
such, the votes for Ramon cannot be considered as stray votes but should be
counted in favor of Ruby since the substituted and the substitute carry the
same surname – Talaga, as provided in Section 12 of Republic Act No. 9006.
Moreover, there is no provision in the Omnibus Election Code or any election
laws for that matter which requires that the substitution and the Certificate of
Candidacy of the substitute should be approved and given due course first by
the Commission or the Law Department before it can be considered as
effective. All that Section 77 of the Omnibus Election Code as implemented by
Section 13 of Resolution No. 8678 requires is that it should be filed with the
proper office. The respondent is correct when she argued that in fact even the
BEI can receive a CoC of a substitute candidate in case the cause for the
substitution happened between the day before the election and mid-day of
election day. Thus, even if the approval of the substitution was made after the
election, the substitution became effective on the date of the filing of the CoC
with the Certificate of Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate
for mayor of Lucena City, the counting of the votes of Ramon in favor of Ruby is
proper. The proclamation, thus, of Ruby as mayor elect of Lucena City is in
order. Hence, we find no cogent reason to annul the proclamation of
respondent Barbara Ruby C. Talaga as the duly elected Mayor of the City of
Lucena after the elections conducted on May 10, 2010.
Acting on Castillo and Alcala’s respective motions for reconsideration, the
COMELEC En Banc issued the assailed Resolution dated May 20, 2011 reversing
the COMELEC Second Division’s ruling.
Pointing out that: (a) Resolution No. 8917 did not attain finality for being
issued without a hearing as a mere incident of the COMELEC’s ministerial duty
to receive the COCs of substitute candidates; (b) Resolution No. 8917 was
based on the wrong facts; and (c) Ramon’s disqualification was resolved with
finality only on May 5, 2010, the COMELEC En Banc concluded that Barbara
Ruby could not have properly substituted Ramon but had simply become an
additional candidate who had filed her COC out of time; and held that Vice
Mayor Alcala should succeed to the position pursuant to Section 44 of the
Local Government Code (LGC).
Issue: Whether or not Talaga may run for office and if the substitution was
valid
Held:
No. The filing of a CoC within the period provided by law is a mandatory
requirement for any person to be considered a candidate in a national or local
election. The evident purposes of the requirement for the filing of CoCs and in
fixing the time limit for filing them are, namely: (a) to enable the voters to
know, at least 60 days prior to the regular election, the candidates from among
whom they are to make the choice; and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. If the law does not confine to
the duly-registered candidates the choice by the voters, there may be as many
persons voted for as there are voters, and votes may be cast even for unknown
or fictitious persons as a mark to identify the votes in favor of a candidate for
another office in the same election.
There are two remedies available to prevent a candidate from running in an
electoral race. One is through a petition for disqualification and the other
through a petition to deny due course to or cancel a certificate of candidacy.
nasmuch as the grounds for disqualification under Section 68 of the Omnibus
Election Code (i.e., prohibited acts of candidates, and the fact of a candidate’s
permanent residency in another country when that fact affects the residency
requirement of a candidate) are separate and distinct from the grounds for the
cancellation of or denying due course to a COC (i.e., nuisance candidates under
Section 69 of the Omnibus Election Code; and material misrepresentation
under Section 78 of the Omnibus Election Code), the Court has recognized in
Miranda v. Abaya32 that the following circumstances may result from the
granting of the petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a
valid CoC;
(2) A candidate may not be qualified and at the same time may not have filed a
valid CoC; and
(3) A candidate may be qualified but his CoC may be denied due course or
cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or
withdraws his CoC before the elections, Section 77 of the Omnibus Election
Code provides the option of substitution, to wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — 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. The substitute candidate nominated by the political party
concerned may file his certificate of candidacy for the office affected in
accordance with the preceding sections not later than mid-day of the day of
the election. If the death, withdrawal or disqualification should occur between
the day before the election and mid-day of election day, said certificate may be
filed with any board of election inspectors in the political subdivision where he
is a candidate, or, in the case of candidates to be voted for by the entire
electorate of the country, with the Commission.
Nonetheless, whether the ground for substitution is death, withdrawal or
disqualification of a candidate, Section 77 of the Omnibus Election Code
unequivocally states that only an official candidate of a registered or accredited
party may be substituted.
Considering that a cancelled CoC does not give rise to a valid candidacy,33
there can be no valid substitution of the candidate under Section 77 of the
Omnibus Election Code. It should be clear, too, that a candidate who does not
file a valid CoC may not be validly substituted, because a person without a valid
CoC is not considered a candidate in much the same way as any person who
has not filed a CoC is not at all a candidate.34
Likewise, a candidate who has not withdrawn his CoC in accordance with
Section 73 of the Omnibus Election Code may not be substituted. A withdrawal
of candidacy can only give effect to a substitution if the substitute candidate
submits prior to the election a sworn CoC as required by Section 73 of the
Omnibus Election Code
All told, a disqualified candidate may only be substituted if he had a valid
certificate of candidacy in the first place because, if the disqualified candidate
did not have a valid and seasonably filed certificate of candidacy, he is and was
not a candidate at all. If a person was not a candidate, he cannot be
substituted under Section 77 of the Code. Besides, if we were to allow the so-
called "substitute" to file a "new" and "original" certificate of candidacy
beyond the period for the filing thereof, it would be a crystalline case of
unequal protection of the law, an act abhorred by our Constitution.
WITH RESPECT TO WHO SHOULD SIT AS MAYOR
The only time that a second placer is allowed to take the place of a disqualified
winning candidate is when two requisites concur, namely: (a) the candidate
who obtained the highest number of votes is disqualified; and (b) the
electorate was fully aware in fact and in law of that candidate’s disqualification
as to bring such awareness within the realm of notoriety but the electorate still
cast the plurality of the votes in favor of the ineligible candidate.64 Under this
sole exception, the electorate may be said to have waived the validity and
efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case the eligible candidate with the second highest
number of votes may be deemed elected.65 But the exception did not apply in
favor of Castillo simply because the second element was absent. The electorate
of Lucena City were not the least aware of the fact of Barbara Ruby’s
ineligibility as the substitute. In fact, the COMELEC En Banc issued the
Resolution finding her substitution invalid only on May 20, 2011, or a full year
after the decisions.
On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby
from assuming the position of Mayor of Lucena City. To begin with, there was
no valid candidate for her to substitute due to Ramon’s ineligibility. Also,
Ramon did not voluntarily withdraw his CoC before the elections in accordance
with Section 73 of the Omnibus Election Code. Lastly, she was not an additional
candidate for the position of Mayor of Lucena City because her filing of her
CoC on May 4, 2010 was beyond the period fixed by law. Indeed, she was not,
in law and in fact, a candidate.66
A permanent vacancy in the office of Mayor of Lucena City thus resulted, and
such vacancy should be filled pursuant to the law on succession defined in
Section 44 of the LGC, to wit:67
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. – If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-mayor concerned shall become
the governor or mayor. x x x
GAMBOA VS AGUIRRE
FACTS:
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa,
Jr. and respondents Marcelo Aguirre, Jr., and Juan Y. Araneta were
elected Negros Occidental Governor, Vice-Governor and SP members,
respectively.
Sometime in August of 1995, the governor designated petitioner as
Acting Governor for the duration of the formers official trip abroad until
his return. When the SP held its regular session on September 6, 1995,
respondents questioned the authority of petitioner to preside therein in
view of his designation as Acting Governor and asked him to vacate the
Chair. The latter, however, refused to do so.
In another session, seven (7) members of the SP voted to allow
petitioner to continue presiding while four (4) others voted against with
one (1) abstention. On September 22, 1995, respondents filed before
the lower court a petition for declaratory relief and prohibition. In the
meantime, on October 2, 1995, the Governor re-assumed his office.
Later, the trial court rendered a decision and declared petitioner as
temporarily legally incapacitated to preside over the sessions of the SP
during the period that he is the Acting Governor. Aggrieved, petitioner
filed a petition for review raising the issue earlier mentioned.
Although this case is dismissible for having become moot and academic
considering the expiration in 1998 of the terms of office of the local
officials involved herein, the Court nonetheless proceeds to resolve this
common controversy but novel issue under the existing laws on local
government.
ISSUE:
WON Gamboa, an incumbent Vice-Governor, while concurrently the
Acting Governor, continue to preside over the sessions of the
Sangguniang Panlalawigan (SP)
RULING:
NO. Sections 49(a) and 466(a)(1) of Republic Act (R.A.) No. 7160
otherwise known as the Local Government Code of 1991, provide that
the Vice-Governor shall be the presiding officer of the SP. In addition to
such function, he become(s) the Governor and assume(s) the higher
office for the unexpired term of his predecessor, in case of permanent
vacancy therein.
When the vacancy, however, is merely temporary, the Vice-Governor
shall automatically exercise the powers (subject to certain limitations)
and perform the duties and functions of the Governor. It may be noted
that the Code provides only for modes of succession in case of
permanent vacancy in the office of the Governor and the Vice-Governor
(whether single or simultaneously) as well as in case of a temporary
vacancy in the office of the Governor. But, no such contingency is
provided in case of temporary vacancy in the office of the Vice-
Governor, just like the 1983 Local Government Code.
It is correct that when the Vice-Governor exercises the powers and
duties of the Office of the Governor, he does not assume the latter
office. He only acts as the Governor but does not become the Governor.
His assumption of the powers, duties and functions of the provincial
Chief Executive does not create a permanent vacuum or vacancy in his
position as the Vice-Governor. Necessarily, he does not relinquish nor
abandon his position and title as Vice-Governor by merely becoming an
Acting Governor, (not Governor) or by merely exercising the powers and
duties of the higher office. But the problem is, while in such capacity,
does he temporarily relinquish the powers, functions, duties and
responsibilities of the Vice-Governor, including the power to preside
over the sessions of the SP?
Sad to say the new Local Government Code is silent on this matter, yet
this query should be answered in the positive. A Vice-Governor who is
concurrently an Acting Governor is actually a quasi-Governor. This
means, that for purposes of exercising his legislative prerogatives and
powers, he is deemed as a non-member of the SP for the time being. By
tradition, the offices of the provincial Governor and Vice-Governor are
essentially executive in nature, whereas plain members of the provincial
board perform functions partaking of a legislative character. This is
because the authority vested by law in the provincial boards involves
primarily a delegation of some legislative powers of Congress.
Unlike under the old Code, where the Governor is not only the
provincial Chief Executive, but also the presiding officer of the local
legislative body, the new Code delineated the union of the executive-
legislative powers in the provincial, city and municipal levels except in
the Barangay.
Under R.A. 7160, the Governor was deprived of the power to preside
over the SP and is no longer considered a member thereof. This is clear
from the law, when it provides that local legislative power shall be
vested in the SP, which is the legislative body of the province, and
enumerates therein its membership consisting of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral representatives, and
4.) those ex-officio members, namely:
a.) president of the provincial chapter of the liga ng mga barangay,
b.) president of the panlalawigang pederasyon ng mga sangguniang
kabataan,
c.) president of the provincial federation of sanggunian members of
municipalities and component cities.
Not being included in the enumeration, the Governor is deemed
excluded applying the rule in legal hermeneutics that when the law
enumerates, the law necessarily excludes. On the contrary, local
executive power in the province is vested alone in the Governor.
Consequently, the union of legislative-executive powers in the office of
the local chief executive under the former Code has been disbanded, so
that either department now comprises different and non-intermingling
official personalities with the end in view of ensuring a better delivery
of public service and provide a system of check and balance between
the two.
It has been held that if a Mayor who is out of the country is considered
effectively absent, the Vice-Mayor should discharge the duties of the
mayor during the latters absence. This doctrine should equally apply to
the Vice-Governor since he is similarly situated as the Vice-Mayor.
Although it is difficult to lay down a definite rule as to what constitutes
absence, yet this term should be reasonably construed to mean
effective absence, that is, one that renders the officer concerned
powerless, for the time being, to discharge the powers and prerogatives
of his office. There is no vacancy whenever the office is occupied by a
legally qualified incumbent. A sensu contrario, there is a vacancy when
there is no person lawfully authorized to assume and exercise at
present the duties of the office.
By virtue of the foregoing definition, it can be said that the designation,
appointment or assumption of the Vice-Governor as the Acting
Governor creates a corresponding temporary vacancy in the office of
the Vice-Governor during such contingency. Considering the silence of
the law on the matter, the mode of succession provided for permanent
vacancies, under the new Code, in the office of the Vice-Governor may
likewise be observed in the event of temporary vacancy occurring in the
same office. This is so because in the eyes of the law, the office to which
he was elected was left barren of a legally qualified person to exercise
the duties of the office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to
simultaneously exercise the duties of the latter office, since the nature
of the duties of the provincial Governor call for a full-time occupant to
discharge them. Such is not only consistent with but also appears to be
the clear rationale of the new Code wherein the policy of performing
dual functions in both offices has already been abandoned. To repeat,
the creation of a temporary vacancy in the office of the Governor
creates a corresponding temporary vacancy in the office of the Vice-
Governor whenever the latter acts as Governor by virtue of such
temporary vacancy.
This event constitutes an inability on the part of the regular presiding
officer (Vice Governor) to preside during the SP sessions, which thus
calls for the operation of the remedy set in Article 49(b) of the Local
Government Code concerning the election of a temporary presiding
officer. The continuity of the Acting Governors (Vice-Governor) powers
as presiding officer of the SP is suspended so long as he is in such
capacity. Under Section 49(b), (i)n the event of the inability of the
regular presiding officer to preside at the sanggunian session, the
members present and constituting a quorum shall elect from among
themselves a temporary presiding officer.

DISCIPLINARY ACTIONS
A. ELECTIVE LOCAL OFFICIALS
Ganzon VS CA
Facts: The petitions of Mayor Ganzon originated from a series of administrative
complaints, ten in number, filed against him by various city officials sometime
in 1988, on various charges, among them, abuse of authority, oppression,
grave misconduct, disgraceful and immoral conduct, intimidation, culpable
violation of the Constitution, and arbitrary detention.
Amidst the two successive suspensions, Mayor Ganzon instituted an action for
prohibition against the respondent Secretary of Local Government (now,
Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining
a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417,
an action for prohibition, in the respondent Court of Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order,
preventively suspending Mayor Ganzon for another sixty days, the third time in
twenty months, and designating meantime Vice-Mayor Mansueto Malabor as
acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of
the Court of Appeals, a petition for prohibition,
On September 7, 1989, the Court of Appeals rendered judgment, dismissing
CA-G.R. SP No. 16417. On July 5, 1990, it likewise promulgated a decision,
dismissing CA-G.R. SP No. 20736. In a Resolution dated January 24, 1990, it
issued a Resolution certifying the petition of Mary Ann Artieda, who had been
similary charged by the respondent Secretary, to this Court.
On June 26,1990, we issued a Temporary Restraining Order, barring the
respondent Secretary from implementing the suspension orders, and
restraining the enforcement of the Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we consolidated all three cases. In
our Resolutions of January 15, 1991, we gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of
Local Government in hearing the ten cases against him, had denied him due
process of law and that the respondent Secretary had been "biased, prejudicial
and hostile" towards him 7 arising from his (Mayor Ganzon's) alleged refusal to
join the Laban ng Demokratikong Pilipino party 8 and the running political
rivalry they maintained in the last congressional and local elections; 9and his
alleged refusal to operate a lottery in Iloilo City. 10 He also alleges that he
requested the Secretary to lift his suspension since it had come ninety days
prior to an election (the barangay elections of November 14,
1988), 11notwithstanding which, the latter proceeded with the hearing and
meted out two more suspension orders of the aforementioned cases. 12 He
likewise contends that he sought to bring the cases to Iloilo City (they were
held in Manila) in order to reduce the costs of proceeding, but the Secretary
rejected his request. 13 He states that he asked for postponement on "valid and
justifiable" 14 grounds, among them, that he was suffering from a heart ailment
which required confinement; that his "vital" 15 witness was also
hospitalized 16 but that the latter unduly denied his request.
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the
Secretary of Local Government is devoid, in any event, of any authority to
suspend and remove local officials, an argument reiterated by the petitioner
Mary Ann Rivera Artieda
It is the petitioners' argument that the 1987 Constitution 20 no longer allows
the President, as the 1935 and 1973 Constitutions did, to exercise the power of
suspension and/or removal over local officials. According to both petitioners,
the Constitution is meant, first, to strengthen self-rule by local government
units and second, by deleting the phrase 21 as may be provided by law to strip
the President of the power of control over local governments. It is a view, so
they contend, that finds support in the debates of the Constitutional
Commission. The provision in question reads as follows:
Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect
to component cities and municipalities, and cities and
municipalities with respect to component barangays shall
ensure that the acts of their component units are within the
scope of their prescribed powers and functions. 22
It modifies a counterpart provision appearing in the 1935 Constitution, which
we quote:
Sec. 10. The President shall have control of all the executive
departments, bureaus, or offices, exercise general
supervision over all Local governments as may be provided
by law, and take care that the laws be faithfully executed. 23
The petitioners submit that the deletion (of "as may be provided by law") is
significant, as their argument goes, since: (1) the power of the President is
"provided by law" and (2) hence, no law may provide for it any longer.
Issue: Whether or not the Secretary of Local Government, as the President's
alter ego, can suspend and/or remove local officials.
Held:Yes. It is the considered opinion of the Court that notwithstanding the
change in the constitutional language, the charter did not intend to divest the
legislature of its right or the President of her prerogative as conferred by
existing legislation to provide administrative sanctions against local officials. It
is our opinion that the omission (of "as may be provided by law") signifies
nothing more than to underscore local governments' autonomy from congress
and to break Congress' "control" over local government affairs. The
Constitution did not, however, intend, for the sake of local autonomy, to
deprive the legislature of all authority over municipal corporations, in
particular, concerning discipline.
Autonomy does not, after all, contemplate making mini-states out of local
government units, as in the federal governments of the United States of
America (or Brazil or Germany), although Jefferson is said to have compared
municipal corporations euphemistically to "small republics." 26 Autonomy, in
the constitutional sense, is subject to the guiding star, though not control, of
the legislature, albeit the legislative responsibility under the Constitution and
as the "supervision clause" itself suggest-is to wean local government units
from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-
executing, but subject to, among other things, the passage of a local
government code, 27 a local tax law, 28 income distribution legislation, 29 and a
national representation law, 30 and measures 31 designed to realize autonomy at
the local level. It is also noteworthy that in spite of autonomy, the Constitution
places the local government under the general supervision of the Executive. It
is noteworthy finally, that the Charter allows Congress to include in the local
government code provisions for removal of local officials, which suggest that
Congress may exercise removal powers, and as the existing Local Government
Code has done, delegate its exercise to the President.
As hereinabove indicated, the deletion of "as may be provided by law" was
meant to stress, sub silencio, the objective of the framers to strengthen local
autonomy by severing congressional control of its affairs, as observed by the
Court of Appeals, like the power of local legislation. 33 The Constitution did
nothing more, however, and insofar as existing legislation authorizes the
President (through the Secretary of Local Government) to proceed against local
officials administratively, the Constitution contains no prohibition.
The petitioners are under the impression that the Constitution has left the
President mere supervisory powers, which supposedly excludes the power of
investigation, and denied her control, which allegedly embraces disciplinary
authority. It is a mistaken impression because legally, "supervision" is not
incompatible with disciplinary authority
"Control" has been defined as "the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had done in the performance of
his duties and to substitute the judgment of the former for test of the
latter." 36 "Supervision" on the other hand means "overseeing or the power or
authority of an officer to see that subordinate officers perform their duties.
The Court does not believe that the petitioners can rightfully point to the
debates of the Constitutional Commission to defeat the President's powers.
The Court believes that the deliberations are by themselves inconclusive,
because although Commissioner Jose Nolledo would exclude the power of
removal from the President, 50 Commissioner Blas Ople would not. 51
The Court is consequently reluctant to say that the new Constitution has
repealed the Local Government Code, Batas Blg. 37. As we said, "supervision"
and "removal" are not incompatible terms and one may stand with the other
notwithstanding the stronger expression of local autonomy under the new
Charter. We have indeed held that in spite of the approval of the Charter, Batas
Blg. 337 is still in force and effect. 52
As the Constitution itself declares, local autonomy means "a more responsive
and accountable local government structure instituted through a system of
decentralization." 53 The Constitution as we observed, does nothing more than
to break up the monopoly of the national government over the affairs of local
governments and as put by political adherents, to "liberate the local
governments from the imperialism of Manila." Autonomy, however, is not
meant to end the relation of partnership and inter-dependence between the
central administration and local government units, or otherwise, to user in a
regime of federalism. The Charter has not taken such a radical step. Local
governments, under the Constitution, are subject to regulation, however
limited, and for no other purpose than precisely, albeit paradoxically, to
enhance self- government.
The plain truth is that this Court has been ill at ease with suspensions, for the
above reasons, 58 and so also, because it is out of the ordinary to have a
vacancy in local government. The sole objective of a suspension, as we have
held, 59 is simply "to prevent the accused from hampering the normal cause of
the investigation with his influence and authority over possible witnesses" 60 or
to keep him off "the records and other evidence. 61
It is a means, and no more, to assist prosecutors in firming up a case, if any,
against an erring local official. Under the Local Government Code, it can not
exceed sixty days, 62 which is to say that it need not be exactly sixty days long if
a shorter period is otherwise sufficient, and which is also to say that it ought to
be lifted if prosecutors have achieved their purpose in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which
the accused is held to insure his presence at the trial. In both cases, the
accused (the respondent) enjoys a presumption of innocence unless and until
found guilty.
Suspension finally is temporary and as the Local Government Code provides, it
may be imposed for no more than sixty days. As we held, 63 a longer
suspension is unjust and unreasonable, and we might add, nothing less than
tyranny.
As we observed earlier, imposing 600 days of suspension which is not a remote
possibility Mayor Ganzon is to all intents and purposes, to make him spend the
rest of his term in inactivity. It is also to make, to all intents and purposes, his
suspension permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's
guilt has not been proven. Worse, any absolution will be for naught because
needless to say, the length of his suspension would have, by the time he is
reinstated, wiped out his tenure considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent
Secretary to see that justice is done in Iloilo City, yet it is hardly any argument
to inflict on Mayor Ganzon successive suspensions when apparently, the
respondent Secretary has had sufficient time to gather the necessary evidence
to build a case against the Mayor without suspending him a day longer. What is
intriguing is that the respondent Secretary has been cracking down, so to
speak, on the Mayor piecemeal apparently, to pin him down ten times the
pain, when he, the respondent Secretary, could have pursued a consolidated
effort.
We reiterate that we are not precluding the President, through the Secretary of
Interior from exercising a legal power, yet we are of the opinion that the
Secretary of Interior is exercising that power oppressively, and needless to say,
with a grave abuse of discretion.
The Court is aware that only the third suspension is under questions, and that
any talk of future suspensions is in fact premature. The fact remains, however,
that Mayor Ganzon has been made to serve a total of 120 days of suspension
and the possibility of sixty days more is arguably around the corner (which
amounts to a violation of the Local Government Code which brings to light a
pattern of suspensions intended to suspend the Mayor the rest of his natural
tenure. The Court is simply foreclosing what appears to us as a concerted effort
of the State to perpetuate an arbitrary act.
In resume the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of
administration, not of power, in which local officials remain accountable to the
central government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to the supervision
clause) was meant but to deny legislative control over local governments; it did
not exempt the latter from legislative regulations provided regulation is
consistent with the fundamental premise of autonomy;
4. Since local governments remain accountable to the national authority, the
latter may, by law, and in the manner set forth therein, impose disciplinary
action against local officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation"
does not signify "control" (which the President does not have);
6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far
ordered, but may no longer be suspended for the offenses he was charged
originally; provided:
a) that delays in the investigation of those
charges "due to his fault, neglect or
request, (the time of the delay) shall not be
counted in computing the time of
suspension. [Supra, sec. 63(3)]
b) that if during, or after the expiration of, his preventive suspension, the
petitioner commits another or other crimes and abuses for which proper
charges are filed against him by the aggrieved party or parties, his previous
suspension shall not be a bar to his being preventively suspended again, if
warranted under subpar. (2), Section 63 of the Local Government Code
JOSON v. TORRES
FACTS:
On 17 September 1996, private respondents filed with the
Office of the President a letter-complaint dated 13 September
1996 charging petitioner with grave misconduct and abuse of
authority. They alleged that during their scheduled Sangguniang
Panlalawigan (SP) session, petitioner belligerently barged into the
hall and angrily kicked the door and chairs and uttered
threatening words at them; petitioner was with several men with
long and short firearms who encircles the area.
Private respondents claim that this incident was an
offshoot of their resistance to a pending legislative measure
supported by petitioner that the province of Nueva Ecija obtain a
loan of Php 150 million from PNB. The former opposed the loan
because the province had an unliquidated obligation of more
than Php 70 million incurred without prior authorization from the
SP. The private respondents believed that the petitioner’s act was
in order to intimidate them and force them to enter into the loan.
According to them, petitioner’s act was a serious insult to the
integrity and independence of the SP and the presence of his
private army posed grave danger to private respondents’ lives and
safety. Private respondents prayed for the suspension or removal
of petitioner; for an emergency audit of the provincial treasury of
Nueva Ecija; and for the review of the proposed loan in light of
the financial condition of the province.
Upon receiving the letter, Pres. Ramos immediately sent to
the Secretary of the Interior and Local Governments (SILG) Robert
Barbers Go to take appropriate preemptive and investigative
actions, but to break not the peace.
 Senator Barbers then proceeded to Nueva Ecija and
summoned petitioner and private respondents to a conference to
settle the controversy. The parties entered into an agreement
whereby petitioner promised to maintain peace and order in the
province while private respondents promised to refrain from filing
cases. However, the agreement did not last.
Petitioner received a copy of his order to answer the
petition against him on 13 November 1996. On the same day, he
requested for an extension of thirty days to submit his answer
because he was “trying to secure the services of legal counsel
experienced in administrative law practice.” DILG granted the
motion.
Petitioner then moved for another extension of thirty days
to file his answer, which DILG once gain granted.
After granting several motion for extensions and failing to
file an answer, the DILG then issued an order declaring petitioner
in default and have waived his right to present evidence.
On 8 January 1998, the Executive Secretary, by authority
of the President, adopted the findings of the DILG Secretary. He
imposed on petitioner the penalty of suspension from office for
six months without pay.
In the case at bar, petitioner alleges that the rules of
procedure were not followed and he was deprived of his right in
court; and that the decision of suspension was imposed on him
by the Secretary of DILG, not the President, which is a clear
violation of law.
ISSUES:
1. W/N the DILG Secretary has jurisdiction and authority over his
case.
2. W/N the DILG erred in declaring him in default for filing a
motion to dismiss.
3. W/N the 8 January 1998 Resolution of the Executive Secretary
was valid.
HELD
FIRST ISSUE:
petitioner questions the jurisdiction and authority of the
DILG Secretary over the case. He contends that under the law, it is
the Office of the President that has jurisdiction over the letter-
complaint and that the Court of Appeals erred in applying the
alter-ego principle because the power to discipline elective local
officials lies with the President, not with the DILG Secretary.
Jurisdiction over administrative disciplinary actions against
elective local officials is lodged in two authorities: the Disciplining
Authority and the Investigating Authority. This is explicit from A.O.
No. 23, to wit:
"Sec. 2. Disciplining Authority. All administrative complaints, duly
verified, against elective local officials mentioned in the preceding
Section shall be acted upon by the President. The President, who
may act through the Executive Secretary, shall hereinafter be
referred to as the Disciplining Authority."
Sec. 3. Investigating Authority. The Secretary of the Interior and
Local Government is hereby designated as the Investigating
Authority. He may constitute an Investigating Committee in the
Department of the Interior and Local Government for the
purpose.
The Disciplining Authority may, however, in the interest of the
service, constitute a Special Investigating Committee in lieu of the
Secretary of the Interior and Local Government." [46]
Pursuant to these provisions, the Disciplining Authority is the
President of the Philippines, whether acting by himself or through
the Executive Secretary. The Secretary of the Interior and Local
Government is the Investigating Authority, who may act by
himself or constitute an Investigating Committee. The Secretary
of the DILG, however, is not the exclusive Investigating
Authority. In lieu of the DILG Secretary, the Disciplining Authority
may designate a Special Investigating Committee.
The power of the President over administrative disciplinary cases
against elective local officials is derived from his power of general
supervision over local governments.Section 4, Article X of the
1987 Constitution provides:
"Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities
with respect to component barangays shall ensure that the acts
of their component units are within the scope of their prescribed
powers and functions."
The power of supervision means "overseeing or the authority of
an officer to see that the subordinate officers perform their
duties." If the subordinate officers fail or neglect to fulfill their
duties, the official may take such action or step as prescribed by
law to make them perform their duties.The President's power of
general supervision means no more than the power of ensuring
that laws are faithfully executed, or that subordinate officers act
within the law. Supervision is not incompatible with discipline.
And the power to discipline and ensure that the laws be faithfully
executed must be construed to authorize the President to order
an investigation of the act or conduct of local officials when in his
opinion the good of the public service so requires. Thus:
"Independently of any statutory provision authorizing the
President to conduct an investigation of the nature involved in
this proceeding, and in view of the nature and character of the
executive authority with which the President of the Philippines is
invested, the constitutional grant to him of power to exercise
general supervision over all local governments and to take care
that the laws be faithfully executed must be construed to
authorize him to order an investigation of the act or conduct of
the petitioner herein. Supervision is not a meaningless thing. It is
an active power. It is certainly not without limitation, but it at
least implies authority to inquire into facts and conditions in
order to render the power real and effective. If supervision is to
be conscientious and rational, and not automatic and brutal, it
must be founded upon a knowledge of actual facts and conditions
disclosed after careful study and investigation."
The power to discipline evidently includes the power to
investigate. As the Disciplining Authority, the President has the
power derived from the Constitution itself to investigate
complaints against local government officials. A. O. No. 23,
however, delegates the power to investigate to the DILG or a
Special Investigating Committee, as may be constituted by the
Disciplining Authority. This is not undue delegation, contrary to
petitioner Joson's claim. The President remains the Disciplining
Authority. What is delegated is the power to investigate, not the
power to discipline.[
Moreover, the power of the DILG to investigate administrative
complaints is based on the alter-ego principle or the doctrine of
qualified political agency. Thus:
"Under this doctrine, which recognizes the establishment of a
single executive, all executive and administrative organizations
are adjuncts of the Executive Department, the heads of the
various executive departments are assistants and agents of the
Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive
departments, and the acts of the Secretaries of such
departments, performed and promulgated in the regular course
of business, are, unless disapproved or reprobated by the Chief
Executive presumptively the acts of the Chief Executive."
This doctrine is corollary to the control power of the
President. The power of control is provided in the Constitution,
thus:
"Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed."
Control is said to be the very heart of the power of the
presidency. As head of the Executive Department, the President,
however, may delegate some of his powers to the Cabinet
members except when he is required by the Constitution to act in
person or the exigencies of the situation demand that he acts
personally. The members of Cabinet may act for and in behalf of
the President in certain matters because the President cannot be
expected to exercise his control (and supervisory) powers
personally all the time.Each head of a department is, and must
be, the President's alter ego in the matters of that department
where the President is required by law to exercise authority.
The procedure how the Disciplining and Investigating Authorities
should exercise their powers is distinctly set forth in the Local
Government Code and A.O. No. 23. Section 62 of the Code
provides:
"Sec. 62. Notice of Hearing.-- (a) Within seven (7) days after the
administrative complaint is filed, the Office of the President or
the sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within fifteen (15) days
from receipt thereof, and commence investigation of the case
within ten (10) days after receipt of such answer of the
respondent.
xxx."
Sections 1 and 3, Rule 5[61] of A.O. No. 23 provide:
"Sec. 1. Commencement. Within forty-eight (48) hours from
receipt of the answer, the Disciplining Authority shall refer the
complaint and answer, together with their attachments and other
relevant papers, to the Investigating Authority who shall
commence the investigation of the case within ten (10) days from
receipt of the same.
"x x x
"Sec. 3. Evaluation. Within twenty (20) days from receipt of the
complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of
formal administrative proceedings."
When an administrative complaint is therefore filed, the
Disciplining Authority shall issue an order requiring the
respondent to submit his verified answer within fifteen (15) days
from notice. Upon filing of the answer, the Disciplining Authority
shall refer the case to the Investigating Authority for investigation.
In the case at bar, petitioner claims that the DILG Secretary
usurped the power of the President when he required petitioner
to answer the complaint. Undisputably, the letter-complaint was
filed with the Office of the President but it was the DILG Secretary
who ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not
comply with the provisions of A.O. No. 23. The Office should have
first required petitioner to file his answer.Thereafter, the
complaint and the answer should have been referred to the
Investigating Authority for further proceedings. Be that as it may,
this procedural lapse is not fatal.The filing of the answer is
necessary merely to enable the President to make a preliminary
assessment of the case. The President found the complaint
sufficient in form and substance to warrant its further
investigation. The judgment of the President on the matter is
entitled to respect in the absence of grave abuse of discretion.
SECOND ISSUE:
Petitioner also claims that the DILG erred in declaring him
in default for filing a motion to dismiss. He alleges that a motion
to dismiss is not a pleading prohibited by the law or the rules and
therefore the DILG Secretary should have considered it and given
him time to file his answer.
It is true that a motion to dismiss is not a pleading
prohibited under the Local Government Code of 1991 nor in A.O.
No. 23. Petitioner, however, was instructed not to file a motion to
dismiss in the order to file answer. Thrice, he requested for
extension of time to file his answer citing as reasons the search
for competent counsel and the demands of his official duties. And
thrice, his requests were granted. Even the order of default was
reconsidered and petitioner was given additional time to file
answer. After all the requests and seven months later, he filed a
motion to dismiss!
Petitioner should know that the formal investigation of
the case is required by law to be finished within one hundred
twenty (120) days from the time of formal notice to the
respondent. The extensions petitioner requested consumed fifty-
five (55) days of this period. Petitioner, in fact, filed his answer
nine (9) months after the first notice. Indeed, this was more than
sufficient time for petitioner to comply with the order to file
answer.
The speedy disposition of administrative complaints is
required by public service. The efficiency of officials under
investigation is impaired when a case hangs over their
heads. Officials deserve to be cleared expeditiously if they are
innocent, also expeditiously if guilty, so that the business of
government will not be prejudiced.[
THIRD ISSUE:
Petitioner's right to a formal investigation was not satisfied
when the complaint against him was decided on the basis of
position papers. There is nothing in the Local Government Code
and its Implementing Rules and Regulations nor in A.O. No. 23
that provide that administrative cases against elective local
officials can be decided on the basis of position papers. A.O. No.
23 states that the Investigating Authority may require the parties
to submit their respective memoranda but this is only after
formal investigation and hearing. A.O. No. 23 does not authorize
the Investigating Authority to dispense with a hearing especially
in cases involving allegations of fact which are not only in contrast
but contradictory to each other. These contradictions are best
settled by allowing the examination and cross-examination of
witnesses. Position papers are often-times prepared with the
assistance of lawyers and their artful preparation can make the
discovery of truth difficult. The jurisprudence cited by the DILG in
its order denying petitioner's motion for a formal investigation
applies to appointive officials and employees. Administrative
disciplinary proceedings against elective government officials are
not exactly similar to those against appointive officials. In fact,
the provisions that apply to elective local officials are separate
and distinct from appointive government officers and
employees. This can be gleaned from the Local Government Code
itself.
In the Local Government Code, the entire Title II of Book I of the
Code is devoted to elective officials. It provides for their
qualifications and election, vacancies and succession, local
legislation,[75] disciplinary actions,[76] and recall.
[77]
Appointive officers and employees are covered in Title III of
Book I of the Code entitled "Human Resources and
Development." All matters pertinent to human resources and
development in local government units are regulated by "the civil
service law and such rules and regulations and other issuances
promulgated thereto, unless otherwise provided in the
Code."[78] The "investigation and adjudication of administrative
complaints against appointive local officials and employees as
well as their suspension and removal" are "in accordance with the
civil service law and rules and other pertinent laws," the results of
which "shall be reported to the Civil Service Commission." [79]
It is the Administrative Code of 1987, specifically Book V on the
Civil Service, that primarily governs appointive officials and
employees. Their qualifications are set forth in the Omnibus Rules
Implementing Book V of the said Code. The grounds for
administrative disciplinary action in Book V are much more in
number and are specific than those enumerated in the Local
Government Code against elective local officials.[80] The
disciplining authority in such actions is the Civil Service
Commission[81] although the Secretaries and heads of agencies
and instrumentalities, provinces, cities and municipalities are also
given the power to investigate and decide disciplinary actions
against officers and employees under their jurisdiction.[82] When a
complaint is filed and the respondent answers, he must "indicate
whether or not he elects a formal investigation if his answer is not
considered satisfactory."[83] If the officer or employee elects a
formal investigation, the direct evidence for the complainant and
the respondent "consist[s] of the sworn statement and
documents submitted in support of the complaint and answer, as
the case may be, without prejudice to the presentation of
additional evidence deemed necessary x x x, upon which the
cross-examination by respondent and the complainant,
respectively, is based."[84] The investigation is conducted without
adhering to the technical rules applicable in judicial
proceedings."[85] Moreover, the appointive official or employee
may be removed or dismissed summarily if (1) the charge is
serious and the evidence of guilt is strong; (2) when the
respondent is a recidivist; and (3) when the respondent is
notoriously undesirable
The term limit for local elective officials must be taken to refer to
the right to be elected as well as the right to serve in the same
elective position. Consequently, it is not enough that an individual
has served three consecutive terms in an elective office, he must
also have been elected to the same position for the same number
of times before the disqualification can apply.
SALALIMA vs. GUINGONA
257 SCRA 55
This Supreme Court case involves four administrative complaints filed
against Albay Governor Salalima and the members of the Sangguniang
Panlalawigan of Albay. The complaints seek to hold the petitioners
liable for a) wanton disregard of law amounting to abuse of authority in
OP (Office of the President) case 5470; b) grave abuse of authority
under Section 60 (e) of the Local Government Code in OP case 5649; c)
oppression and abuse of authority under Section 60 (c) and (e) of the
Local Government Code in OP case 5471 and d) abuse of authority and
negligence in OP case 5450. Relevant to our discussion on whether or
not LGUs can hire private lawyers in cases filed against it is OP case
5469.
The Province of Albay imposed real property tax against the National
Power Corporation. The latter, claiming that it is tax exempt, refused to
pay the said tax liability. Due to its refusal to pay, the Province of Albay
took over the properties of NPC and sold them in an auction sale. The
Province was the sole bidder. Upon the failure of NPC to redeem the
property, the Province sought the issuance of a writ of possession from
the Regional Trial Court. The NPC challenged this in a petition filed with
the Supreme Court. The Province, through its legal office Atty. Ricaforte,
filed its comment on the said petition on May 17, 1989.
On June 2, 1989, the Sangguniang Panlalawigan issued Resolution No.
129-89, authorizing Salalima to engage the services of a Manila-based
law firm to handle the case. As such, on August 25, 1989, Atty. Jesus
Carnago entered his appearance with the SC as a collaborating counsel.
On November 14, 1989, Atty. Antonio Jose Cortes of Cortes and Reyna
Law Firm sent a letter to Salalima, informing him that Atty. Carnago had
filed a memorandum in the SC. He then proposed that his law firm and
that of Atty. Carnago enter into a retainer agreement with the Province
in connection with the case. He charged 50, 000 as acceptance fee and
a contingency fee of 18%. In response to this, the Sangguniang
Panlalawigan passed Resolution No. 01-90 authorizing Salalima to sign a
retainer contract with Cortes and Reyna Law Firm.
On June 4, 1990, the Supreme Court ruled in favor of the Province. The
latter then paid the lawyers amounting to around 7 million. However,
on May 31, 1993, the Provincial Auditor informed the Province that COA
had disallowed the payments for lack of prior written conformity of the
Solicitor General and a written concurrence of COA. An administrative
complaint was later on filed against the petitioners with the Office of
the President.
The OP found that the petitioners incurred administrative liability in
hiring private lawyers to defend it in the NPC case.
OP’s RATIO: Section 481 of the LGC states that the legal officer of the
province has the duty to represent the LGU in all civil actions and
special proceedings wherein the LGU or any official thereof, in his
official capacity, is a party.
In the case Municipality of Bocaue v. Manotok, the Supreme Court
ruled that the LGU cannot be represented by private lawyers and it is
solely the Provincial legal officer or provincial fiscal who can represent
it. A private lawyer has no standing in such a case.
Sec. 481 and Municipality of Bocaue v. Manotok are applicable in this
case. In hiring the private lawyers, the petitioners violated the LGC and
the doctrine laid down by the Supreme Court.
Moreover, the transaction was also full of irregularities.
The disbursement of 7M as payment was disallowed by COA for failure
to comply with the prerequisite conformity from the OSG and the COA.
Resolution 01-90 authorized Salalima to contract with Cortes and Reyna
Law Firm and NOT with Atty. Carnago. Salalima exceeded the authority
given to him in doing so.
Only Atty. Carnago appeared as counsel in the NPC case. It appears that
Cortes and Reyna did not render any form of legal service in relation
thereto.
The provincial legal officer had already filed a comment in the SC. What
Carnago filed was merely a memorandum. The total attorney’s fees of
38 Million is clearly unconscionable.
Because of these findings, the OP imposed the penalty of suspension
for 6 months against Gov. Salalima and Vice governor Azana, while the
members of the SP were suspended for 4 months. The petitioners
appealed the case to the SC. In the meantime, the 1992 elections took
place wherein the petitioners were reelected.
Issue: Whether or not the petitioners incurred administrative liabilities
in hiring private lawyers to represent the Province.
Held: Whether or not they incurred liabilities, they can no longer be
held to answer for these in view of the fact that they have already been
reelected. Their reelection operates as condonation of any misconduct
committed in their prior term.
In Pascual v. Pascual, the SC ruled that offenses committed or acts done
in a previous term are generally held not to furnish a cause for removal
in the current term of office. This is because each term is separate from
other terms and that the reelection operates as a condonation of the
officer’s previous misconduct to the extent of cutting off the right to
remove him therefore. Such a rule is founded on the theory that an
official’s reelection expresses the sovereign will of the electorate to
forgive or condone any act or omission constituting a ground for
administrative discipline which was committed during the previous
term. Also, sound policy dictates such a rule. A contrary rule would
open the floodgates to exacerbating endless partisan contests between
reelected officials and their political enemies who may not stop to
hound the former during his new term with administrative cases for
acts alleged to have been committed during his previous term.
Berces v. Executive Secretary (241 SCRA 539)
FACTS:
Petitioner filed two administrative cases against
respondent Naomi C. Corral, the incumbent Mayor of Tiwi, Albay
with the Sangguniang Panlalawigan of Albay, to wit:
(1) Administrative Case No. 02-92 for abuse of authority
and/or oppression for non-payment of accrued leave
benefits due the petitioner amounting to P36,779.02.
(2) Administrative Case No. 05-92 for dishonesty and
abuse of authority for installing a water pipeline which is
being operated, maintained and paid for by the
municipality to service respondent's private residence and
medical clinic.
On July 1, 1993, the Sangguniang Panlalawigan disposed the two
Administrative cases in the following manner:
(1)ACCORDINGLY, respondent Mayor Naomi C. Corral of
Tiwi, Albay, is hereby ordered to pay Achilles Costo Berces,
Sr. the sum of (P36,779.02) plus legal interest due thereon
from the time it was approved in audit up to final
payment, it being legally due the Complainant
representing the money value of his leave credits accruing
for services rendered in the municipality from 1988 to
1992 as a duly elected Municipal Councilor. IN ADDITION,
respondent Mayor NAOMI C. CORRAL is hereby ordered
SUSPENDED from office as Municipal Mayor of Tiwi, Albay,
for a period of two (2) months, effective upon receipt
hereof for her blatant abuse of authority coupled with
oppression as a public example to deter others similarly
inclined from using public office as a tool for personal
vengeance, vindictiveness and oppression at the expense
of the Taxpayer.
(2) WHEREFORE, premises considered, respondent Mayor
NAOMI C. CORRAL of Tiwi, Albay, is hereby sentenced to
 suffer the penalty of SUSPENSION from office as
Municipal Mayor thereof for a period of THREE (3)
MONTHS beginning after her service of the first penalty of
suspension ordered in Administrative Case No. 02-92. She
is likewise ordered to reimburse the Municipality of Tiwi
One-half of the amount the latter have paid for electric
and water bills from July to December 1992, inclusive
The respondent Mayor appealed to the Office of the
President questioning the decision and at the same time prayed
for the stay of execution thereof.
the Office of the President issued an Order on July 28,
1993, the pertinent portions of which read as follows:
xxx xxx xxx
The stay of the execution is governed by Section 68 of R.A.
No. 7160 and Section 6 of Administrative Order No. 18
dated 12 February 1987, quoted below:
Sec. 68. Execution Pending Appeal. — An appeal shall not
prevent a decision from becoming final or executory. The
respondent shall be considered as having been placed
under preventive suspension during the pendency of an
appeal in the events he wins such appeal. In the event the
appeal results in an exoneration, he shall be paid his salary
and such other emoluments during the pendency of the
appeal (R.A. No. 7160).
Sec. 6 Except as otherwise provided by special laws, the
execution of the decision/resolution/order appealed from
is stayed upon filing of the appeal within the period
prescribed herein. However, in all cases, at any time
during the pendency of the appeal, the Office of the
President may direct or stay the execution of the
decision/resolution/order appealed from upon such terms
and conditions as it may deem just and reasonable (Adm.
Order No. 18).
xxx xxx xxx
After due consideration, and in the light of the Petition for
Review filed before this Office, we find that a stay of
execution pending appeal would be just and reasonable to
prevent undue prejudice to public interest.
WHEREFORE, premises considered, this Office hereby
orders the suspension/stay of execution of:
a) the Decision of the Sangguniang Panlalawigan of
Albay in Administrative Case No. 02- 92 dated 1
July 1993 suspending Mayor Naomi C. Corral from
office for a period of two (2) months, and
b) the Resolution of the Sangguniang Panlalawigan
of Albay in Administrative Case. No. 05-92 dated 5
July 1993 suspending Mayor Naomi C. Corral from
office for a period of three (3) months
ISSUE:
Whether or not administrative Order No. 18 dated
February 12, 1987, authorizing the President to stay the execution
of the appealed decision at any time during the pendency of the
appeal, was repealed by R.A. No. 7160, which took effect on
January 1, 1991
RULING:
No. Section 530 (f), R.A. No. 7160, provides:
All general and special laws, acts, city charters, decrees,
executive orders, administrative regulations, part or parts
thereof, which are incosistent with any of the provisions of
this Code, are hereby repealed or modified accordingly
The aforementioned clause is not an express repeal of Section 6
of Administrative Order No. 18 because it failed to identify or
designate the laws or executive orders that are intended to be
repealed.
If there is any repeal of Administrative Order No. 18 by R.A. No.
7160, it is through implication though such kind of repeal is not
favored. There is even a presumption against implied repeal.
 An implied repeal predicates the intended repeal upon the
condition that a substantial conflict must be found between the
new and prior laws. In the absence of an express repeal, a
subsequent law cannot be construed as repealing a prior law
unless an irreconcible inconsistency and repugnancy exists in the
terms of the new and old laws. The two laws must be absolutely
incompatible. There must be such a repugnancy between the
laws that they cannot be made to stand together.
We find that the provisions of Section 68 of R.A. No. 7160
and Section 6 of Administrative Order No. 18 are not
irreconcillably inconsistent and repugnant and the two laws must
in fact be read together.
The first sentence of Section 68 merely provides that an
"appeal shall not prevent a decision from becoming final or
executory." As worded, there is room to construe said provision
as giving discretion to the reviewing officials to stay the execution
of the appealed decision. There is nothing to infer therefrom that
the reviewing officials are deprived of the authority to order a
stay of the appealed order. If the intention of Congress was to
repeal Section 6 of Administrative Order No. 18, it could have
used more direct language expressive of such intention.
The execution of decisions pending appeal is procedural and in
the absence of a clear legislative intent to remove from the
reviewing officials the authority to order a stay of execution, such
authority can provided in the rules and regulations governing the
appeals of elective officials in administrative cases.
Malinao v Reyes
Facts:
Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz,
Marinduque. Respondent Mayor filed a case against her in the Office of the
Ombudsman for gross neglect of duty, inefficiency and incompetence. While
the case was pending, he appointed a replacement for petitioner.
On February 24, 1994 petitioner filed an administrative case, docketed as
Administrative Case No. 93-03, against respondent Mayor in the Sangguniang
Panlalawigan of Marinduque, charging him with abuse of authority and denial
of due process.
On August 12, 1994, the case was taken up in executive session of the
Sanggunian. The transcript of stenographic notes of the session [1] shows that
the Sanggunian, by the vote of 5 to 3 of its members, found respondent Mayor
guilty of the charge and imposed on him the penalty of one-month suspension,
On September 14, 1994, respondent Mayor filed a manifestation [3] before
the Sanggunian, questioning the Decision on the ground that it was signed by
Sotto alone, apparently acting in his capacity and designated as Presiding
Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. He contended
that because of this the decision could only be considered as a
recommendation of the Blue Ribbon Committee and he was not bound
thereby.
On September 13, 1994, respondent Mayor sought the opinion of the
Secretary of the Department of the Interior and Local Government regarding
the validity of the Decision.
In his letter dated September 14, 1994,[4] DILG Secretary Rafael M. Alunan
III opined that the decision alluded to does not appear to be in accordance
with Section 66 of the Local Government Code of 1991 and settled
jurisprudence since in the instant case, the purported decision of the Blue
Ribbon Committee should have been submitted to, approved and/or adopted
by the Sangguniang Panlalawigan as a collegial body inasmuch as the
Sangguniang Panlalawigan has the administrative jurisdiction to take
cognizance thereof in conformity with Section 61 and Section 66 of the Code. It
is not for the said committee to decide on the merits thereof, more so to
impose the suspension, as its duty and function is purely recommendatory. If it
were at all the intention of the Sangguniang Panlalawigan to adopt entirely the
recommendation of the Blue Ribbon Committee, it should have so stated and
the members of the Sangguniang Panlalawigan, who may have affirmatively
voted thereon or participated in its deliberations, should have affixed their
respective signatures on whatever decision that could have been arrived at. . . .
 On the other hand petitioner sent a letter[5] on October 14, 1994 to
respondent Governor Reyes, demanding that the Decision suspending
respondent Mayor from office be implemented without further delay.
In his letter dated October 20, 1994,[6] respondent Governor informed the
Sanggunian that he agreed with the opinion of the DILG for which reason he
could not implement the Decision in question.
On October 21, 1994,[7] the Sanggunian, voting 7 to 2, acquitted
respondent Mayor of the charges against him. The vote was embodied in a
Decision of the same date, which was signed by all members who had thus
voted.[8]
Hence this petition.
Issue: Whether or not the Decision of September 5, 1994 had become
final and executory, for failure of respondent Mayor to appeal, it was beyond
the power of the Sanggunian to render another decision on October 21,
1994 which in effect reversed the first decision.
Held:
No. These contentions are without merit. What petitioner claims to be
the September 5, 1994 Decision of the Sangguniang Panlalawigan bore the
signature of only one member (Rodrigo V. Sotto) who signed the Decision as
Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.
Petitioner claims that at its session on August 12, 1994, the Sanggunian by the
vote of five members against three found respondent Mayor guilty of having
removed petitioner as Human Resources Officer III without due process and
that this fact is shown in the minutes of the session of the Sanggunian.
Contrary to petitioners claim, what the minutes only show is that on
August 12, 1994 the Sanggunian took a vote on the administrative case of
respondent Mayor and not that it then rendered a decision as required
by 66(a) of the Local Government Code (R.A. No. 7160) which provides as
follows:
66. Form and Notice of Decision. - (a) The investigation of the case shall be
terminated within ninety (90) days from the start thereof. Within thirty (30)
days after the end of the investigation, the Office of the President or the
sanggunian concerned shall render a decision in writing stating clearly and
distinctly the facts and the reasons for such decision. Copies of said decision
shall immediately be furnished the respondent and all interested parties.
In order to render a decision in administrative cases involving elective local
officials, the decision of the Sanggunian must thus be in writing stating clearly
and distinctly the facts and the reasons for such decision. What the
Sanggunian, therefore, did on August 12, 1994 was not to render a decision.
Neither may the so-called Decision prepared by Sanggunian Member
Rodrigo V. Sotto on September 5, 1994 be regarded as the decision of the
Sanggunian for lack of the signatures of the requisite majority. Like the
procedure in the Supreme Court, the voting following the deliberation of the
members of the Sanggunian did not necessarily constitute their decision unless
this was embodied in an opinion prepared by one of them and concurred in by
the others, in the same way that the voting following the deliberation on a case
in the Supreme Court becomes its decision only after the opinion prepared by
a Justice is concurred in by others composing the majority. Until they have
signed the opinion and the decision is promulgated, the Justices are free to
change their votes.[9]
Member Sotto admits that the draft decision he prepared had only his
signature due to the reluctance of some Kagawads to affix their signatures.
Consequently the draft never became a decision. It is noteworthy that the draft
was signed by Member Sotto in his capacity as Presiding Chairman of the Blue
Ribbon Committee of the Sangguniang Panlalawigan and that it did not provide
spaces for the signatures of other members of the Sanggunian had it been
intended that it be signed by them.This fact led the DILG to conclude that the
draft was simply the report and recommendation of the Blue Ribbon
Committee to the Sanggunian.
Now, as already stated, the Sanggunian, at its session on October 21,
1994, took another vote and, 7 to 2, decided to dismiss the case against
respondent Mayor. This time its decision was made in writing, stating the facts
and the law on which it was based, and it was signed by the members taking
part in the decision. This, and not the so-called decision ofSeptember 5, 1994,
is the decision of the Sanggunian.
Petitioner complains that no notice of the session by the Sanggunian
on October 21, 1994 was given to her. None was really required to be given to
her. The deliberation of the Sanggunian was an internal matter.
 II. Petitioner brought this case by way of Petition for certiorari and
mandamus. A prime specification of the writ of certiorari, however, is that
there is no appeal nor any plain, speedy and adequate remedy in the ordinary
course of law available to petitioner. But, in the case at bar, petitioner could
have appealed the decision of the Sanggunian to the Office of the President as
provided in 67(b) of the Local Government Code.
III. At all events, this case is now moot and academic as a result of the
expiration of respondents term during which the act complained of was
allegedly committed, and further proceedings against respondent Mayor are
barred by his reelection on May 8, 1995.
Pursuant to 66(b) of the Code, the penalty of suspension cannot exceed
the unexpired term of the respondent or a period of six (6) months for every
administrative offense. On the other hand, any administrative disciplinary
proceeding against respondent is abated if in the meantime he is reelected,
because his reelection results in a condonation of whatever misconduct he
might have committed during his previous term. [11]
LINGATING VS COMELEC
FACTS:
On May 3, 2001, petitioner filed with the Provincial Election Supervisor
in Pagadian City a petition for the disqualification of respondent Sulong,
pursuant to 40(b) of Republic Act No. 7160 (Local Government Code),
which disqualifies from running for any elective local position those
removed from office as a result of an administrative case.
It appears that respondent Sulong had previously won as mayor of
Lapuyan on January 18, 1988. In the May 11, 1992, and again in the
May 8, 1995 elections, he was reelected. In a petition for
disqualification, petitioner alleged that in 1991, during his first term as
mayor of Lapuyan, respondent Sulong, along with a municipal councilor
of Lapuyan and several other individuals, was administratively charged
with various offenses, and that, on February 4, 1992, the Sangguniang
Panlalawigan of Zamboanga del Sur found him guilty of the charges and
ordered his removal from office.
Petitioner claimed that this decision had become final and executory,
and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took
his oath as mayor vice respondent Sulong on March 3, 1992.
Respondent Sulong denied that the decision in AC No. 12-91 had
become final and executory. He averred that after receiving a copy of
the decision on February 17, 1992, he filed a motion for reconsideration
and/or notice of appeal thereof on February 18, 1992; that on February
27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the
complainant in AC No. 12-91, to comment on respondent Sulongs
motion for reconsideration and/or notice of appeal; that the said
complainant had not yet complied therewith and his (respondent
Sulongs) motion had consequently remained pending. Respondent
Sulong denied he had been removed from office by virtue of the
decision in AC No. 12-91.
After the parties had filed their memoranda, the case was submitted for
resolution. Because the COMELEC was unable to render judgment
before the elections of May 14, 2001, respondent Sulong was voted for
in the elections, receiving 4,882 votes as against the 3,611 votes for
petitioner. On May 16, 2001, respondent Sulong was proclaimed by the
Municipal Board of Canvassers of Lapuyan as the duly elected mayor of
that municipality.
In a resolution dated August 1, 2001, the COMELECs First Division
declared respondent Cesar B. Sulong disqualified.
Respondent Sulong filed a motion for reconsideration citing a
certification, dated August 7, 2001, of Provincial Secretary of
Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC
No. 12-91 has not become final and executory as the final disposition
thereof was overtaken by the local elections of May 1992. He reiterated
his claim that at no time had he been removed by virtue of the said
decision.
Petitioner filed an opposition contending, among other things, that the
fact that Zamboanga del Sur Governor Ariosa had ordered the
enforcement of the decision signified that respondent Sulongs motion
for reconsideration and/or notice of appeal had not been given due
course by the Sangguniang Panlalawigan; and that respondent Sulongs
claim that he had not been removed from office was belied by the fact
that he (respondent Sulong) brought charges against Vicente Imbing for
Usurpation of Official Functions (I.S. No. 92-35), in support of which
respondent Sulong attested under oath that Imbing had succeeded him
as mayor of Lapuyan.
In a separate motion, petitioner prayed that the resolution of August 1,
2001 be executed and that he be installed as mayor of Lapuyan in view
of private respondent’s disqualification. On August 30, 2001, the
COMELECs First Division denied petitioners motion for execution on the
ground that the disqualification of an elected candidate does not entitle
the candidate who obtained the second highest number of votes to
occupy the office vacated. Petitioner then filed a motion for
reconsideration of this order.
On April 4, 2002, the COMELEC en banc issued its resolution subject of
the petition in this case, reversing the resolution, dated August 1, 2001,
of its First Division insofar as it found respondent Sulong disqualified
from running as mayor.
The COMELEC en banc also ruled that, in any event, respondent Sulong
was not entitled to occupy the office thus vacated. Hence, this petition
by Lingating.
ISSUE:
WON COMELEC en banc erred in applying the ruling in Aguinaldo v.
Commission on Elections in holding that the reelection of respondent
Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of
condoning the misconduct for which he was ordered dismissed by the
Sangguniang Panlalawigan of Zamboanga del Sur
RULING:
NO.
Petitioner cites Reyes v. Commission on Elections in which we held that
an elective local executive officer, who is removed before the expiration
of the term for which he was elected, is disqualified from being a
candidate for a local elective position under 40(b) of the Local
Government Code.
However, Reyes cannot be applied to this case because it appears that
the 1992 decision of the Sangguniang Panlalawigan, finding respondent
Sulong guilty of dishonesty, falsification and malversation of public
funds, has not until now become final. The records of this case show
that the Sangguniang Panlalawigan of Zamboanga del Sur rendered
judgment in AC No. 12-91 on February 4, 1992, a copy of which was
received by respondent Sulong on February 17, 1992; that on February
18, 1992, he filed a motion for reconsideration and/or notice of appeal;
that on February 27, 1992, the Sangguniang Panlalawigan, required Jim
Lingating, the complainant in AC No. 12-91, to comment; and that the
complainant in AC No. 12-91 has not filed a comment nor has the
Sangguniang Panlalawigan resolved respondents motion. The filing of
his motion for reconsideration prevented the decision of Sangguniang
Panlalawigan from becoming final.
While R.A. No. 7160 on disciplinary actions is silent on the filing of a
motion for reconsideration, the same cannot be interpreted as a
prohibition against the filing of a motion for reconsideration. Thus, it
was held that a party in a disbarment proceeding under Rule 139-B,
12(c) can move for a reconsideration of a resolution of the Integrated
Bar of the Philippines although Rule 139-B does not so provide:
Although Rule 139-B, 12(c) makes no mention of a motion for
reconsideration, nothing in its text or history suggests that such motion
is prohibited. It may therefore be filed . . . . Indeed, the filing of such
motion should be encouraged before [an appeal is] resort[ed] to . . . as
a matter of exhaustion of administrative remedies, to afford the agency
rendering the judgment [an] opportunity to correct any error it may
have committed through a misapprehension of facts or misappreciation
of evidence.
as having become moot and academic because it was overtaken by the
local elections of May [11,]1992.
Neither can the succession of the then vice-mayor of Lapuyan, Vicente
Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo
Tan, to the offices of mayor and vice-mayor, respectively, be considered
proof that the decision in AC No. 12-91 had become final because it
appears to have been made pursuant to 68[16] of the Local
Government Code, which makes decisions in administrative cases
immediately executory.
Indeed, considering the failure of the Sangguniang Panlalawigan to
resolve respondent’s motion, it is unfair to the electorate to be told
after they have voted for respondent Sulong that after all he is
disqualified, especially since, at the time of the elections on May 14,
2001, the decision of the Sangguniang Panlalawigan had been rendered
nearly ten years ago.
Having come to the conclusion that respondent Sulong is not
disqualified from holding the position of mayor of Lapuyan, it is
unnecessary to pass upon petitioner’s contention that, as the candidate
who obtained the second highest number of votes, he is entitled to be
installed as mayor because the votes cast in favor of respondent Sulong
were void.

There is thus no decision finding respondent guilty to speak of. As

Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca
attested, the Sangguniang Panlalawigan simply considered the matter
Hagad VS Gozo- Dadole
Facts: The controversy stemmed from the filing of criminal and administrative
complaints, on 22 July 1992, against herein respondents Mayor Alfredo Ouano,
Vice-Mayor Paterno Cañete and Sangguniang Panlungsod Member Rafael
Mayol, all public officials of Mandaue City, by Mandaue City Councilors Magno
B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy
Ombudsman for the Visayas. The respondents were charged with having
violated R.A. No. 3019, as amended, 5 Articles 170 6 and 171 7 of the Revised
Penal Code; and R.A. No. 6713. 8Councilors Dionson and Bercede averred that
respondent officials, acting in conspiracy, had caused the alteration and/or
falsification of Ordinance No. 018/92 by increasing the allocated appropriation
therein from P3,494,364.57 to P7,000,000.00 without authority from the
Sangguniang Panlungsod of Mandaue City. The complaints were separately
docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative Case No.
OMB-VIS-ADM-92-015.
A day after the filing of the complaints, or on 23 July 1992, a sworn statement
was executed by Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in
support of the accusations against respondent officials. The next day,
petitioner ordered respondents, including Acting Mandaue City Treasurer Justo
G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their
counter-affidavits within ten (10) days from receipt of the order. Forthwith,
Councilors Dionson and Bercede moved for the preventive suspension of
respondent officials in the separately docketed administrative case.
Aside from opposing the motion for preventive suspension, respondent
officials, on 05 August 1992, prayed for the dismissal of the complaint on the
ground that the Ombudsman supposedly was bereft of jurisdiction to try, hear
and decide the administrative case filed against them since, under Section 63
of the Local Government Code of 1991, the power to investigate and impose
administrative sanctions against said local officials, as well as to effect their
preventive suspension, had now been vested with the Office of the President.
In their opposition, filed on 10 August 1992, Dionson and Bercede argued that
the Local Government Code of 1991 could not have repealed, abrogated or
otherwise modified the pertinent provisions of the Constitution granting to the
Ombudsman the power to investigate cases against all public officials and that,
in any case, the power of the Ombudsman to investigate local officials under
the Ombudsman Act had remained unaffected by the provisions of the Local
Government Code of 1991.
During the hearing on the motion for preventive suspension, the parties were
directed by the Deputy Ombudsman to file their respective memoranda.
In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63
of the Local Government Code of 1991, the Office of the President, not the
Office of the Ombudsman, could lawfully take cognizance of administrative
complaints against any elective official of a province, a highly urbanized city or
an independent component city and to impose disciplinary sanctions, including
preventive suspensions, and that there was nothing in the provision of the
Constitution giving to the Office of the Ombudsman superior powers than
those of the President over elective officials of local governments.
Issue: whether the Ombudsman under Republic Act ("R.A.") No.
6770, 1 otherwise known as the Ombudsman Act of 1989, has been divested of
his authority to conduct administrative investigations over local elective
officials by virtue of the subsequent enactment of R.A. No. 7160, 2 otherwise
known as the Local Government Code of 1991, is the pivotal issue before the
Court in this petition.
Held: No. there is nothing in the Local Government Code to indicate that it has
repealed, whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in question are not
so inconsistent, let alone irreconcilable, as to compel us to only uphold one
and strike down the other . Well settled is the rule that repeals of laws by
implication are not favored, 16 and that courts must generally assume their
congruent application. 17 The two laws must be absolutely incompatible, 18 and
a clear finding thereof must surface, before the inference of implied repeal
may be drawn. 19 The rule is expressed in the maxim, interpretare et
concordare legibus est optimus interpretendi, i.e., every statute must be so
interpreted and brought into accord with other laws as to form a uniform
system of jurisprudence. 20 The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have
enacted conflicting statutes. 21 Hence, all doubts must be resolved against any
implied repeal, 22and all efforts should be exerted in order to harmonize and
give effect to all laws on the subject. 23
Certainly, Congress would not have intended to do injustice to the very reason
that underlies the creation of the Ombudsman in the 1987 Constitution which
"is to insulate said office from the long tentacles of officialdom." 24
Quite interestingly, Sections 61 and 63 of the present Local Government Code
run almost parallel with the provisions then existing under the old code.
Section 61 and Section 63 of the precursor local Government Code of
1983, 25 under the heading of "Suspension and Removal
The authority to conduct administrative investigation and to impose
preventive suspension over elective provincial or city officials was at
that time entrusted to the Minister of Local Government until it
became concurrent with the Ombudsman upon the enactment of R.A.
No. 6770, specifically under Sections 21 and 24 thereof, to the extent
of the common grant. The Local Government Code of 1991 (R.A. No.
7160), in fine, did not effect a change from what already prevailed,
the modification being only in the substitution of the Secretary (the
Minister) of Local Government by the Office of the President.
Respondent local officials contend that the 6-month preventive suspension
without pay under Section 24 of the Ombudsman Act is much too repugnant to
the 60-day preventive suspension provided by Section 63 of the Local
Government Code to even now maintain its application. The two provisions
govern differently. In order to justify the preventive suspension of a public
official under Section 24 of R.A. No. 6770, the evidence of guilt should be
strong, and (a) the charge against the officer or employee should involve
dishonesty, oppression or grave misconduct or neglect in the performance of
duty; (b) the charges should warrant removal from the service; or (c) the
respondent's continued stay in office would prejudice the case filed against
him. The Ombudsman can impose the 6-month preventive suspension to all
public officials, whether elective or appointive, who are under investigation.
Upon the other hand, in imposing the shorter period of sixty (60) days of
preventive suspension prescribed in the Local Government Code of 1991 on an
elective local official (at any time after the issues are joined), it would be
enough that (a) there is reasonable ground to believe that the respondent has
committed the act or acts complained of, (b) the evidence of culpability is
strong, (c) the gravity of the offense so warrants, or (d) the continuance in
office of the respondent could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence.
OFFICE OF THE OMBUDSMAN v. RODRIGUEZ
FACTS:
On 26 August 2003, the Ombudsman in Visayas received a
complaint for abuse of authority, dishonest, oppression,
misconduct in office, and neglect of duty against respondent
Rolson Rodriguez, punong barangay in Brgy. Sto. Rosario
Binalbagan, Negros Occidental. On 1 September 2003, the
sangguniang bayan of Binalbagan, Negros Occidental, through
vice-mayor Jose G. Yulo, received the same complaint against
Rodriguez.
Rodriguez first filed a motion to dismiss the case filed in
the sangguniang bayan on the ground that the allegations in the
complaint were without factual basis and did not constitute any
violation of law. While said case was ongoing, the Ombudsman
required Rodriguez to file his answer through its 10 September
2003 order. Rodriguez filed a motion to dismiss the case filed in
the Ombudsman on the grounds of litis pendentia and forum
shopping. He alleged that the sangguniang bayan had already
acquired jurisdiction over his person.
In its 21 September 2004 Decision, the Ombudsman found
Rodriguez guilty of dishonest and oppression. It imposed on
Rodriguez the penalty of dismissal from the service with
forfeiture of all benefits, disqualification to hold office, and
forfeiture of civil service eligibilities. In its 12 January 2005 Order,
the Ombudsman denied the motion for reconsideration. In its 8
March 2005 Order, the Ombudsman directed the mayor of
Binalbagan, Negros Occidental to implement the penalty of
dismissal against Rodriguez.
When brought to the CA, the Ombudsman decision was
reversed and the sangguniang bayan was directed to proceed
with the hearing on the administrative case. The appellate court
reasoned that the sangguniang bayan had acquired primary
jurisdiction over the person of Rodriguez to the exclusion of the
Ombudsman. The appellate court noted that the sangguniang
bayan served on Rodriguez a notice, requiring the latter to file an
answer, on 8 September 2003 while the Ombudsman did so two
days later or on 10 September 2003.
ISSUE: Whether or not the Ombudsman has jurisdiction over the
case.
HELD: Yes.
Par. 1, Sec. 13 provides that the Ombudsman shall have the
power to investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
The primary jurisdiction of the Ombudsman to investigate
any act or omission of a public officer or employee applies only in
cases cognizable by the Sandiganbayan. In cases cognizable by
regular courts, the Ombudsman has concurrent jurisdiction with
other investigative agencies of government. The Sandiganbayan
has no jurisdiction over private respondent who as punong
barangay, is occupying a position corresponding to a salary grade
14.
Nonetheless, the Ombudsman has concurrent jurisdiction
over respondent. Under RA no. 7160, the sangguniang
panlungsod or sangguniang bayan has disciplinary authority over
any elective barangay official. In such a situation where there two
administrative complaints filed in both the Ombudsman and the
sp, the rule against forum shopping cannot be applied because it
is only applicable to judicial cases, not administrative cases.
In administrative cases involving the concurrent
jurisdiction of two or more disciplining authorities, the body in
which the complaint is filed first, and which opts to take
cognizance of the case, acquires jurisdiction to the exclusion of
other tribunals exercising concurrent jurisdiction.[31] In this case,
since the complaint was filed first in the Ombudsman, and the
Ombudsman opted to assume jurisdiction over the complaint, the
Ombudsmans exercise of jurisdiction is to the exclusion of
the sangguniang bayan exercising concurrent jurisdiction.
It is a hornbook rule that jurisdiction is a matter of law.
Jurisdiction, once acquired, is not lost upon the instance of the
parties but continues until the case is terminated.[32] When herein
complainants first filed the complaint in the Ombudsman,
jurisdiction was already vested on the latter. Jurisdiction could no
longer be transferred to the sangguniang bayan by virtue of a
subsequent complaint filed by the same complainants.
TALAGA JR. vs. SANDIGANBAYAN
G.R. No. 169888, November 11, 2008
Elan Recreation, Inc. filed criminal and administrative complaints
against Mayor Ramon Talaga Jr. The complaints "alleged that petitioner,
in his capacity as mayor of the City of Lucena, had unlawfully granted
favors to a third party with respect to the operation of bingo games in
the city, to the damage and prejudice of the complainants".
The administrative case was dismissed but the criminal charges were
retained and filed by the Office of the Special Prosecutor. Three
informations were filed against Talaga Jr. in violation of the Anti-Graft
and Corrupt Practices Act or R.A. 3019. Later, only one of the
informations was retained which alleges that Talaga Jr. gave
"unwarranted benefits to Jose Sy Bang by approving an ordinance
granting to Sy Bang a local franchise to operate bingo games in the
city". The prosecution moved for the petitioner's preventive suspension
for ninety (90) days in accordance with Section 13 of R.A. No. 3019. The
Sandiganbayan granted the motion. The petitioner, then, filed the
present Petition for Certiorari with an urgent application for the
issuance of a temporary restraining order and/or preliminary injunction
under Rule 65 of the Rules of Court.
Petitioner contends, among other things, that the information do not
constitute an offense. He claims that under R.A. No. 3019, the law
which he allegedly violated, the information must allege that the acts in
question "caused injury to any party, whether the government or
private party."
Issue: Whether or not the information filed against the petitioner is
complete and constitutes the offense to which he is being charged of.
Held: Yes. Section 3(e) of R.A. No. 3019, under which petitioner is
charged, provides:
Section 3. Corrupt practices of public officers. - In
addition to acts or omissions of public officers already penalized
by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including
the Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall
apply to officers and employees charged with the grant
of licenses or permits or other concessions.
Contrary to the argument of petitioner, the law does not require that
the information must allege that the acts in question "caused injury to
any party, whether the government or private party." The presence of
the word "or" clearly shows that there are two acts which can be
prosecuted under Section 3: First, causing any undue injury to any
party, including the government, and, Second, giving any private party
any unwarranted benefits, advantages or preference. Moreover, in
Quibal v. Sandiganbayan, the Court ruled that violation of Section 3 (e)
of R.A. No. 3019 requires proof of the following facts:
His action caused undue injury to the Government or any private party,
or gave any party any unwarranted benefit, advantage or preference to
such parties.
Section 9, Rule 110, Rules of Court provides the guideline for the
determination of the validity or sufficiency of allegations in an
information, to wit:
SECTION 9. Cause of the Accusation. - The acts or
omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a
 person of common understanding to know what offense is
being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.
The test is whether the crime is described in intelligible terms with such
particularity as to appraise the accused, with reasonable certainty, of
the offense charged. The raison d'etre of the rule is to enable the
accused to suitably prepare his defense.
Based on the foregoing test, the Information sufficiently apprises
petitioner of the charges against him. The Information charged the
petitioner of evident bad faith and manifest partiality when as Mayor of
Lucena City, petitioner, in conspiracy with the City Council, gave
unwarranted benefits to Jose Sy Bang. Moreover, it states the specific
act which constituted the giving of unwarranted benefits, namely,
granting unto the said Jose Sy Bang a local franchise to operate a bingo
business in Lucena City in violation of existing laws. These allegations
are clear enough for a layman to understand.
F. DOCTRINE OF CONDONATION
Aguinaldo v. Santos (G.R. No. 94115, 21 August
1992)
FACTS:
Petitioner was the duly elected Governor of the province
of Cagayan, having been elected to said position during the local
elections held on January 17, 1988, to serve a term of four (4)
years therefrom. He took his oath sometimes around March
1988.
Shortly after December 1989 coup d'etat was crushed,
respondent Secretary of Local Government sent a telegram and a
letter, both dated December 4, 1989, to petitioner requiring him
to show cause why should not be suspended or remove from
office for disloyalty to the Republic, within forty-eight (48) hours
from receipt thereof.
On December 7, 1989, a sworn complaint for disloyalty to
the Republic and culpable violation of the Constitution was filed
by Veronico Agatep, Manuel Mamba and Orlino Agatep,
respectively the mayors of the municipalities of Gattaran, Tuao
and Lasam, all in Cagayan, against petitioner for acts the latter
committed during the coup. Petitioner was required to file a
verified answer to the complaint.
In his letter, petitioner denied being privy to the planning
of the coup or actively participating in its execution, though he
admitted that he was sympathetic to the cause of the rebel
soldiers.
On the basis thereof, respondent Secretary suspended
petitioner from office for sixty (60) days from notice, pending the
outcome of the formal investigation into the charges against him.
Thereafter, respondent Secretary rendered the questioned
decision finding petitioner guilty as charged and ordering his
removal from office.
While this case was pending before this Court, petitioner
filed his certificate of candidacy for the position of Governor of
Cagayan for the May 11, 1992 elections. Three separate petitions
for his disqualification were then filed against him, all based on
the ground that he had been removed from office by virtue of the
March 19, 1990 resolution of respondent Secretary. The
commission on Elections granted the petitions by way of a
resolution dated May 9, 1992. On the same day, acting upon a
"Motion to Clarify" filed by petitioner, the Commission ruled that
inasmuch as the resolutions of the Commission becomes final and
executory only after five (5) days from promulgation, petitioner
may still be voted upon as a candidate for governor pending the
final outcome of the disqualification cases with his Court.
On June 9, 1992, a resolution was issued in the
aforementioned case granting petition and annulling the May 9,
1992 resolution of the Commission on the ground that the
decision of respondent Secretary has not yet attained finality and
is still pending review with this Court. As petitioner won by a
landslide margin in the elections, the resolution paved the way
for his eventual proclamation as Governor of Cagayan.
ISSUE
Whether or not doctrine of condonation applies
RULING
Yes. Petitioner's re-election to the position of Governor of
Cagayan has rendered the administration case pending before us
moot and academic. It appears that after the canvassing of votes,
petitioner garnered the most number of votes among the
candidates for governor of Cagayan province.
As held by this Court in Aguinaldo v. Comelec et al.,supra,:
. . . [T]he certified true xerox copy of the "CERTITICATE OF
VOTES OF CANDIDATES", attached to the "VERY URGENT
MOTION FOR THE MODIFICATION OF THE RESOLUTION
DATED MAY 14, 1992["] filed by petitioner shows that he
received 170,382 votes while the other candidates for the
same position received the following total number of
votes:
(1) Patricio T. Antonio — 54,412,
(2) Paquito F. Castillo — 2,198; and
(3) Florencio L. Vargas — 48,129.
Considering the fact narrated, the expiration of
petitioner's term of office during which the acts charged
were allegedly committed, and his subsequent reelection,
the petitioner must be dismissed for the reason that the
issue has become academic.
In Pascual v. Provincial Board of Nueva Ecija, L-11959,
October 31, 1959, this Court has ruled:
The weight of authority, however, seems to incline
to the ruled denying the right to remove from
office because of misconduct during a prior term
to which we fully subscribe.
Offenses committed, or acts done, during a previous term
are generally held not to furnish cause for removal and
this is especially true were the Constitution provides that
the penalty in proceeding for removal shall not extend
beyond the removal from office, and disqualification from
holding office for a term for which the officer was elected
or appointed.
The underlying theory is that each term is separate from
other terms, and that the reelection to office operates as a
condonation of the officer's misconduct to the extent of
cutting off the right to remove him therefor.
The Court should ever 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 a 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
fault or misconduct, if he had been guilty of any. It is not
for the court, by reason of such fault or misconduct, to
practically overrule the will of the people
Clear then, the rule is that a public official cannot be removed for
administrative misconduct committed during a prior term, since
his re-election to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to
remove him therefor. The foregoing rule, however, finds no
application to criminal cases pending against petitioner for acts
he may have committed during the failed coup.
Salumbides Jr v Office of the Ombudsman
Facts:
Facts:
Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the
urgent need to construct a two-classroom building with fence (the projects) for
the Tagkawayan Municipal High School [2] (TMHS) since the public school in the
poblacion area would no longer admit high school freshmen starting school
year 2002-2003.
On how to solve the classroom shortage, the mayor consulted Salumbides who
suggested that the construction of the two-classroom building be charged to
the account of the Maintenance and Other Operating Expenses/ Repair and
Maintenance of Facilities (MOOE/RMF) and implemented by administration, as
had been done in a previous classroom building project of the former mayor.
Upon consultation, Glenda advised Salumbides in December 2001, that there
were no more available funds that could be taken from the MOOE/RMF, but
the savings of the municipal government were adequate to fund the
projects. She added, however, that the approval by the Sangguniang Bayan of a
proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having already gone on recess for the
Christmas holidays, Glenda and Salumbides advised the mayor to source the
funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal
Annual Budget for 2002.[3]
The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino
(Aquino) to proceed with the construction of the projects based on the
program of work and bill of materials he (Aquino) prepared with a total cost
estimate of P222,000.
Upon advice of Municipal Planning and Development Officer Hernan Jason
(Jason), the mayor included the projects in the list of local government projects
scheduled for bidding on January 25, 2002 which, together with the January
31, 2002 public bidding, failed.
The construction of the projects commenced without any approved
appropriation and ahead of the public bidding. Salumbides was of the opinion
that the projects were regular and legal, based on an earlier project that was
implemented in the same manner, using the same source of fund and for the
same reason of urgency which was allowed because the building was
considered merely temporary as the TMHS is set to be transferred to an 8-
hectare lot which the municipal government is presently negotiating to buy. [5]
Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption
of model guidelines in the implementation of infrastructure projects to be
executed by administration, while Councilor Coleta Sandro (Coleta) sponsored
a Resolution to ratify the projects and to authorize the mayor to enter into a
negotiated procurement. Both actions did not merit the approval of
the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon, Ramon
Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of
the Sangguniang Bayan of Tagkawayan, filed with the Office of the
Ombudsman a complaint[6] against Salumbides and Glenda (hereafter
petitioners), the mayor, Coleta, Jason and Aquino.
The administrative aspect of the case, docketed as Case No. OMB-L-A-
02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross
Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and
violation of the Commission on Audit (COA) Rules and the Local Government
Code.
 On October 17, 2005, the Office of the Ombudsman approved the September
9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners
guilty of Simple Neglect of Duty, for which they were meted the penalty of
suspension from office for a maximum period of six months with a stern
warning against a similar repetition. It also approved on November 2,
2006 the March 27, 2006 Order[7] denying the motion for reconsideration.
Issue:
Whether or not the doctrine of condonation extends to cover coterminous
appointive officials who were administratively charged along with the
reelected official/appointing authority with infractions allegedly committed
during their preceding term
Held:
No.
Contrary to petitioners asseveration, the non-application of the condonation
doctrine to appointive officials does not violate the right to equal protection of
the law.
In the recent case of Quinto v. Commission on Elections,[32] the Court applied
the four-fold test in an equal protection challenge [33] against the resign-to-run
provision, wherein it discussed the material and substantive distinctions
between elective and appointive officials that could well apply to the doctrine
of condonation:
Substantial distinctions clearly exist between elective officials and
appointive officials. The former occupy their office by virtue of the
mandate of the electorate. They are elected to an office for a definite
term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the
appointing authority.
An election is the embodiment of the popular will, perhaps the purest
expression of the sovereign power of the people. It involves the choice
or selection of candidates to public office by popular vote. Considering
that elected officials are put in office by their constituents for a definite
term, x x x complete deference is accorded to the will of the electorate
that they be served by such officials until the end of the term for which
they were elected. In contrast, there is no such expectation insofar as
appointed officials are concerned. (emphasis and underscoring
supplied)
The electorates condonation of the previous administrative infractions of the
reelected official cannot be extended to that of the reappointed coterminous
employees, the underlying basis of the rule being to uphold the will of the
people expressed through the ballot. In other words, there is neither
subversion of the sovereign will nor disenfranchisement of the electorate to
speak of, in the case of reappointed coterminous employees.
It is the will of the populace, not the whim of one person who happens to be
the appointing authority, that could extinguish an administrative liability. Since
petitioners hold appointive positions, they cannot claim the mandate of the
electorate. The people cannot be charged with the presumption of full
knowledge of the life and character of each and every probable appointee of
the elective official ahead of the latters actual reelection.
Moreover, the unwarranted expansion of the Pascual doctrine would set a
dangerous precedent as it would, as respondents posit, provide civil servants,
particularly local government employees, with blanket immunity from
administrative liability that would spawn and breed abuse in the bureaucracy.
Moreover, as correctly observed by respondents, the lack of conspiracy cannot
be appreciated in favor of petitioners who were found guilty of simple neglect
of duty, for if they conspired to act negligently, their infraction becomes
intentional.[35] There can hardly be conspiracy to commit negligence.[36]
Simple neglect of duty is defined as the failure to give proper attention to a
task expected from an employee resulting from either carelessness or
indifference.[37] In the present case, petitioners fell short of the reasonable
diligence required of them, for failing to exercise due care and prudence in
ascertaining the legal requirements and fiscal soundness of the projects before
stamping their imprimatur and giving their advice to their superior.
The appellate court correctly ruled that as municipal legal officer, petitioner
Salumbides failed to uphold the law and provide a sound legal assistance and
support to the mayor in carrying out the delivery of basic services and
provisions of adequate facilities when he advised [the mayor] to proceed with
the construction of the subject projects without prior competitive bidding.
[38]
As pointed out by the Office of the Solicitor General, to absolve Salumbides
is tantamount to allowing with impunity the giving of erroneous or illegal
advice, when by law he is precisely tasked to advise the mayor on matters
related to upholding the rule of law. [39] Indeed, a legal officer who renders a
legal opinion on a course of action without any legal basis becomes no
different from a lay person who may approve the same because it appears
justified.
As regards petitioner Glenda, the appellate court held that the improper use of
government funds upon the direction of the mayor and prior advice by the
municipal legal officer did not relieve her of liability for willingly cooperating
rather than registering her written objection [40] as municipal budget officer.
Carpio Morales v. CA and Binay
On July 22, 2014, a complaint/affidavit 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 Plunder and violation of Republic Act No.
(RA) 3019, 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).
On September 9, 2014, the Ombudsman constituted a Special Panel of
Investigators to conduct a fact-finding investigation, submit an investigation
report, and file the necessary complaint, if warranted (1st Special Panel).
Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st Special
Panel filed a complaint (OMB Complaint) against Binay, Jr., et al, charging them
with six (6) administrative cases for Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service, and six (6) criminal
cases for violation of Section 3 (e) of RA 3019, Malversation of Public Funds,
and Falsification of Public Documents (OMB Cases).
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)
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award for Phase III of
the Makati Parking Building project to Hilmarc's Construction Corporation
(Hilmarc's), and consequently, executed the corresponding contract on
September 28, 2010, without the required publication and the lack of
architectural design, 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;
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award for Phase IV of the
Makati Parking Building project to Hilmarc's, and consequently, executed the
corresponding contract32 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;
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award for Phase V of
the Makati Parking Building project to Hilmarc's, and consequently, executed
the corresponding contract on September 13, 2012, without the required
publication and the lack of architectural design, and approved the release of
the funds therefor in the amounts of P32,398,220.0544 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 contract 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.
On March 6, 2015, the Ombudsman created another Special Panel of
Investigators to conduct a preliminary investigation and administrative
adjudication on the OMB Cases (2nd Special Panel). Thereafter, on March 9,
2015, the 2nd Special Panel issued separate orders for each of the OMB Cases,
requiring Binay, Jr., et al. to file their respective counter-affidavits.
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. The Ombudsman ruled that the requisites for the
preventive suspension of a public officer are present, 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.
The Proceedings Before the CA
On even date, Binay, Jr. filed a petition for certiorari before the CA, seeking the
nullification of the preventive suspension order, and praying for the issuance of
a TRO and/or WPI to enjoin its implementation. Primarily, 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. In 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. 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.
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 (dated March 16, 2015),
granting Binay, Jr.'s prayer for a TRO, notwithstanding Pena, Jr.'s assumption of
duties as Acting Mayor earlier that day. Citing the case of Governor Garcia, Jr. v.
CA, 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. The CA then directed the
Ombudsman to comment on Binay, Jr.'s petition for certiorari.
On March 17, 2015, the Ombudsman manifested 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.
On the same day, Binay, Jr. filed a petition for contempt, 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. 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 contempt (petition for contempt) on March 19,
2015. 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.
In a Resolution dated March 20, 2015, the CA ordered the consolidation of the
two cases, and, without necessarily giving due course to Binay, Jr.'s petition for
contempt, directed the Ombudsman to file her comment thereto. The cases
were set for hearing of oral arguments on March 30 and 31, 2015.
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. 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 comment 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. Binay, Jr. posits that
it was incumbent upon the Ombudsman to 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. 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
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.
(IMPORTANT PARAGRAPH NA TO)Meanwhile, the CA issued a Resolution dated
April 6, 2015, after the oral arguments before it were held, 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. 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, 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.,
and Mayor Garcia v. Mojica 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. 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.
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.
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. In compliance thereto, the Ombudsman filed her Memorandum1
on May 20, 2015, while Binay, Jr. submitted his Memorandum the following
day.
Pursuant to a Resolution 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.106 Meanwhile, on July 16, 2015, the OSG filed its Manifestation
In Lieu of Comment, 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 this Court abandon the condonation doctrine. In view of the
foregoing, the case was deemed submitted for resolution.
Issue: Whether or not Condonation Doctrine Applies
Held:
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
question of whether the subsequent election or appointment condones the
prior misconduct.
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.
"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.
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 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)
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 Trenton304
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 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.
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.
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.
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 contempt317 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)
Thus, even if the Ombudsman accedes to the CA's directive by filing a
comment, wherein she may 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
(b) The condonation doctrine is ABANDONED, but the abandonment is
PROSPECTIVE in effect;
(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.
C. APPOINTIVE LOCAL OFFICIALS
DISCIPLINE
DE RAMA VS CA
FACTS:
Upon his assumption to the position of Mayor of Pagbilao, Quezon,
petitioner Conrado L. de Rama wrote a letter dated July 13, 1995 to the
Civil Service Commission (or CSC), seeking the recall of the
appointments of fourteen (14) municipal employees.
Petitioner de Rama justified his recall request on the allegation that the
appointments of the said employees were midnight appointments of
the former mayor, Ma. Evelyn S. Abeja, done in violation of Article VII,
Section 15 of the 1987 Constitution, which provides:
“Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting President
shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice
public service or endanger public safety.”
While the matter was pending before the CSC, three of the above-
named employees, namely: Elsa Marino, Morell Ayala, and Flordeliza
Oriazel, filed with the CSC a claim for payment of their salaries, alleging
that although their appointments were declared permanent by Conrado
Gulim, Director II of the CSC Field Office based in Quezon, petitioner de
Rama withheld the payment of their salaries and benefits pursuant to
Office Order No. 95-01, which was issued on June 30, 1995, wherein the
appointments of the said fourteen (14) employees were recalled.
On April 30, 1996, the CSC denied petitioners request for the recall of
the appointments of the fourteen employees, for lack of merit. The CSC
also cited Rule V, Sections 9 and 10 of the Omnibus Rules, and declared
that the appointments of the said employees were issued in accordance
with pertinent laws. Thus, the same were effective immediately, and
cannot be withdrawn or revoked by the appointing authority until
disapproved by the CSC. The CSC also dismissed petitioners allegation
that these were midnight appointments, pointing out that the
Constitutional provision relied upon by petitioner prohibits only those
appointments made by an outgoing President and cannot be made to
apply to local elective officials. Thus, the CSC opined, the appointing
authority can validly issue appointments until his term has expired, as
long as the appointee meets the qualification standards for the
position.
The CSC upheld the validity of the appointments on the ground that
they had already been approved by the Head of the CSC Field Office in
Lucena City, and for petitioner’s failure to present evidence that would
warrant the revocation or recall of the said appointments.
Petitioner moved for the reconsideration of the CSCs Resolution, as well
as the Order of the CSC Legal and Quasi-Judicial Division, averring that
the CSC was without jurisdiction: (1) to refuse to revoke the subject
appointments; and (2) to uphold the validity of said appointments, even
assuming that there was failure to present evidence that would prove
that these appointments contravened existing laws or rules. He also
posited that the CSC erred in finding the appointments valid despite the
existence of circumstances showing that the same were fraudulently
issued and processed.
On November 21, 1996, the CSC denied petitioners motion for
reconsideration. Consequently, petitioner filed a petition for review
before the Court of Appeals, arguing that the CSC arrived at the
erroneous conclusion after it ignored his supplement to the
consolidated appeal and motion for reconsideration wherein he laid out
evidence showing that the subject appointments were obtained
through fraud.
After reviewing the facts and issues raised by petitioner, the Court of
Appeals issued a Resolution dated May 16, 1997 which held that there
was no abuse of the power of appointment on the part of the outgoing
mayor.
The Court of Appeals further held that the fact that the appointments
of Marino, Ayala, Ramos, Mendoza and Glory were made more than
four (4) months after the publication of the vacancies to which they
were appointed is of no moment. Setting aside petitioners suppositions,
the Court of Appeals ruled that Republic Act No. 7041 does not provide
that every appointment to the local government service must be made
within four (4) months from publication of the vacancies.
Petitioner filed a motion for reconsideration arguing that the appellate
court erred in upholding the CSCs resolutions despite the defects. In a
Resolution dated October 20, 1997, the Court of Appeals denied the
motion for reconsideration. Hence, the instant petition for review on
certiorari.
ISSUE:
WON PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND
SERIOUSLY ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION
WAS CORRECT IN NOT UPHOLDING THE PETITIONERS RECALL OF THE
APPOINTMENTS OF PRIVATE RESPONDENTS IN THE FACE OF FRAUD
AND VIOLATION OF RULES AND LAWS ON ISSUANCE OF
APPOINTMENTS.
RULING:
NO.
A thorough perusal of the records reveal that the CSCs ruling is
supported by the evidence and the law. The fourteen (14) employees
were duly appointed following two meetings of the Personnel Selection
Board held on May 31 and June 26, 1995. There is no showing that any
of the private respondents were not qualified for the positions they
were appointed to. Moreover, their appointments were duly attested to
by the Head of the CSC field office at Lucena City. By virtue thereof, they
had already assumed their appointive positions even before petitioner
himself assumed his elected position as town mayor. Consequently,
their appointments took effect immediately and cannot be unilaterally
revoked or recalled by petitioner.
It has been held that upon the issuance of an appointment and the
appointees assumption of the position in the civil service, he acquires a
legal right which cannot be taken away either by revocation of the
appointment or by removal except for cause and with previous notice
and hearing. Moreover, it is well-settled that the person assuming a
position in the civil service under a completed appointment acquires a
legal, not just an equitable, right to the position. This right is protected
not only by statute, but by the Constitution as well, which right cannot
be taken away by either revocation of the appointment, or by removal,
unless there is valid cause to do so, provided that there is previous
notice and hearing.
Petitioner admits that his very first official act upon assuming the
position of town mayor was to issue Office Order No. 95-01 which
recalled the appointments of the private respondents. There was no
previous notice, much less a hearing accorded to the latter. Clearly, it
was petitioner who acted in undue haste to remove the private
respondents without regard for the simple requirements of due process
of law. In doing so, he overstepped the bounds of his authority. While
he argues that the appointing power has the sole authority to revoke
said appointments, there is no debate that he does not have blanket
authority to do so. Neither can he question the CSCs jurisdiction to
affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the
Revised Administrative Code specifically provides that an appointment
accepted by the appointee cannot be withdrawn or revoked by the
appointing authority and shall remain in force and in effect until
disapproved by the Commission. Thus, it is the CSC that is authorized to
recall an appointment initially approved, but only when such
appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations.
Moreover, Section 10 of the same rule provides:
“Sec. 10. An appointment issued in accordance with pertinent laws and
rules shall take effect immediately upon its issuance by the appointing
authority, and if the appointee has assumed the duties of the position,
he shall be entitled to receive his salary at once without awaiting the
approval of his appointment by the Commission. The appointment shall
remain effective until disapproved by the Commission. In no case shall
an appointment take effect earlier than the date of its issuance.”
Section 20 of Rule VI also provides:
“Sec. 20. Notwithstanding the initial approval of an appointment, the
same may be recalled on any of the following grounds:
(a) Non-compliance with the procedures/criteria provided in the
agency’s Merit Promotion Plan;
(b) Failure to pass through the agency’s Selection/Promotion Board;
(c) Violation of the existing collective agreement between management
and employees relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations.”
Accordingly, the appointments of the private respondents may only be
recalled on the above-cited grounds. And yet, the only reason advanced
by the petitioner to justify the recall was that these were midnight
appointments. The CSC correctly ruled, however, that the constitutional
prohibition on so-called midnight appointments, specifically those
made within two (2) months immediately prior to the next presidential
elections, applies only to the President or Acting President.
Plaza VS CA
Facts: A few months after his assumption as Governor of Agusan del Sur in
1992, petitioner Democrito O. Plaza received separate administrative
complaints against the following: Gil Pol Tan, Provincial Budget Officer,
Emmanuel S. Quismundo, Provincial Planning and Development Coordinator,
for inappropriate disbursements of the 20% Development Funds thereby
constituting technical malversation and other violations based on existing
guidelines, Elisa O. Gilsano, Provincial Accountant, for neglect in the
performance of duty.
Pursuant to Book I, Title Three, Section 86 of Republic Act (R.A.) No. 7160,
otherwise known as the Local Government Code (LGC) of 1991, Plaza issued
Executive Order No. 01, Series of 1992, [6] creating a Provincial Investigating
Committee (PIC) composed of the following petitioners:
Chairperson Atty. Danilo Samson, Provincial Legal Officer. Secretary - Ms. Fe
Tan-Cebrian, Acting Provincial Personnel Officer. Member - Hon. Virginia
M. Getes SP Member
On various dates in October 1992, petitioner Samson, acting as Chairperson of
the Administrative Investigating Committee, notified private respondents of
the administrative complaints. Tan allegedly committed a conduct prejudicial
to the best interest of the service,[8] Gilsano was charged with neglect in the
performance of duty,[9] and Quismundo was allegedly liable for
technical malversation, an act prejudicial to the best interest of the service.
[10]
Private respondents were required to answer in writing under oath within
72 hours from receipt together with the affidavits of their witnesses, if any, and
to state whether they would opt for a formal investigation or would waive such
right.
Instead of filing their answers, private respondents filed separate Motions to
Inhibit/Dismiss[11] seeking to inhibit Samson on the ground that he had no
authority under the law to conduct the administrative investigations because
his appointment as Provincial Legal Officer had not been acted upon by
the Sangguniang Panlalawigan of Agusan del Sur, which concurrence is of
utmost necessity to confer upon his appointment by the Provincial Governor
the imprimatur of legality and validity. Another issue raised by private
respondents was that they could not expect to be given due process and the
cold neutrality of an impartial committee.
On October 26, 1992, Samson issued an Omnibus Order [12] denying private
respondents motions to dismiss/inhibit.
On November 9, 1992, Plaza issued Memorandum Order Nos. 131-92 to 133-
92[14] ordering the preventive suspension of private respondents for a period of
60 days effective upon receipt of the orders.
On December 3, 1992, private respondents filed before the Regional Trial Court
(RTC) of Prosperidad, Agusan del Sur, Branch VI, a Petition for Certiorari,
Prohibition, Injunction, with Preliminary Injunction and/or Restraining Order,
docketed as Civil Case No. 897, seeking to annul the preventive suspension
imposed by Plaza, as well as the October 26, 1992 Omnibus Order denying
their motions to inhibit/dismiss.
In an Order[15] dated December 8, 1992, the trial court issued a temporary
restraining order and ordered Plaza to refrain from further continuing with the
investigation and/or conducting further proceedings on the subject
administrative charge and from enforcing the assailed orders and/or the effects
thereof until further orders from the court
Meantime, Resolution No. 11, Series of 1993 [21] was issued by
the Sangguniang Panlalawigan of Agusan del Sur on February 11,
1993 reiterating the rejection of the appointment of Samson as Provincial Legal
Officer of the province for lack of the required 5-year law practice.
The RTC reasoned that private respondents failed to exhaust the
available administrative remedies since the proper forum to decide the dispute
is the Civil Service Commission (CSC) pursuant to Section 87 of R.A. No. 7160.
The trial court later denied private respondents motion for
reconsideration in an Order[23] dated November 19, 1993.
 Feeling aggrieved, private respondents immediately filed a notice of
appeal to the CA.
The CA opined that Samsons authority as chairman of the PIC is not Issue: whether the private respondents are entitled to backwages during the
invalidated by the lack of concurrence of the SangguniangPanlalawigan in his entire period of their suspension and, concomitantly, whether the CA erred in
appointment as the Provincial Legal Officer. ruling that the preventive suspension was unjustified.
Meanwhile, a series of events occurred during the pendency of the
appeal and even after the promulgation of the appellate courts decision. Held: No. The Court rules that private respondents claim for back
On August 5, 1993, the members of salaries is untenable because their suspension was authorized by law and they
the Sangguniang Panlalawigan of Agusan del Sur discovered the existence of have not been absolved of the administrative charges filed against them.
[38]
CSC Resolution No. 93-1765 dated May 17, 1993, designating petitioner Fe Tan- In Gloria v. Court of Appeals,[39] this Court had the occasion to clarify that
Cebrian as substitute Provincial Government Department Head of the Office of the payment of salaries corresponding to the period when an employee is not
the Provincial Planning and Development Coordinator. The members of allowed to work may be decreed if he is found innocent of the charges which
the sanggunian then filed a petition[26] before the CSC seeking to set aside the caused his suspension and when the suspension is unjustified.
aforesaid resolution and to order the immediate reinstatement
of Quismundo and the payment of his backwages. Similar petitions were also
Stated otherwise, the preventive suspension of the private
filed by the members of the sanggunian praying for the immediate
respondents is authorized by R.A. No. 7160. Section 85 (a) of the LGC of 1991
reinstatement of private respondents Tan and Gilsano with payment of back
states:
salaries.
SEC. 85. Preventive Suspension of Appointive Local
On January 28, 1997, the CSC issued Resolution No.
Officials and Employees. (a) The local chief executives may
970686[27] directing the incumbent Governor of Agusan del Sur to immediately
preventively suspend for a period not exceeding sixty (60)
reinstate private respondents to their former positions without prejudice to
days any subordinate official or employee under his
the continuance of the administrative cases against them. A motion for
authority pending investigation if the charge against such
reconsideration was filed by the Governor of Agusan del Sur but the same was
official or employee involves dishonesty, oppression or
denied in CSC Resolution No. 974065[28] dated October 14, 1997.
grave misconduct or neglect in the performance of duty, or
Undaunted, the provincial governor filed before the CA a petition for review
if there is reason to believe that the respondent is guilty of
with temporary restraining order and injunction
the charges which would warrant his removal from the
By virtue of CSC Resolution No. 974065, private respondents
service.
[29]
wrote the incumbent governor informing the latter that they are assuming
office on December 1, 1997. However, then Provincial Governor Alex
Clearly, the law provides for the preventive suspension of appointive
G. Bascug issued Office Order No. 016-97, Series of 1997 [30] dated December 1,
local officials and employees pending investigation of the charges against
1997 detailing private respondents to the Agusan del Sur Economic and
them. The suspension given to private respondents cannot, therefore, be
Business Assistance Center (ASERBAC). On December 29, 1997, counsel for
considered unjustified for it is one of those sacrifices which holding a public
private respondents informed Governor Bascug through a letter[31] that he has
office requires for the public good.[40] To be entitled to back salaries, private
advised his clients to cease and desist from reporting to work as the detail to
respondents must not only be found innocent of the charges, but their
ASERBAC was in reckless and wanton contravention of the order of the CA
suspension must likewise be unjustified.
dated February 13, 1997.

Petitioners now seek relief from this Court via a petition for review ATIENZA v. VILLAROSA
on certiorari.
FACTS:
Petitioner Atienza and respondent Villarosa were the Vice-
Governor and Governor, respectively, of the Province of
Occidental Mindoro. Respondent Governor Villarosa issued a
memorandum dated 25 June 2002, stating that “all Purchase
Orders issued in connection with the procurement of supplies,
materials and equipment[s] including fuel, repairs and
maintenance needed in the transaction of public business or in
the pursuit of any undertaking, project or activity of the
Sangguniang Panlalawigan, this province, shall be approved by
the undersigned in his capacity as the local chief executive of the
province.”
Petitioner replied to the above memorandum, stating that
“the purchase orders for supplies, materials and equipment are
included under those as authorized for signature by the Vice-chief
executive of the Sanggunian and that the approval of the
Governor is no longer necessary.”
Unimpressed, respondent Governor issued Memorandum
dated 1 July 2002, which terminated all existing contract of
employment casual/job order basis and reappointment of the
recommendees entered into by Vice-Governor Atienza.
In his Letter dated July 9, 2002, the petitioner Vice-Governor
invoked the principle of separation of powers as applied to the
local government units, i.e., the respondent, as the Governor, the
head of the executive branch, and the petitioner, as the Vice-
Governor, the head of the legislative branch, which is
the Sangguniang Panlalawigan. The petitioner Vice-Governor
reiterated his request for the respondent to make a deeper study
on the matter before implementing his memoranda. The request,
however, went unheeded as the respondent Governor insisted on
obliging the department heads of the provincial government to
comply with the memoranda.
The petitioner Vice-Governor thus filed with the Court of
Appeals the petition for prohibition assailing as having been
issued with grave abuse of discretion the respondent Governors
Memoranda dated June 25, 2002 and July 1, 2002. The petitioner
Vice-Governor claimed that these memoranda excluded him from
the use and enjoyment of his office in violation of the pertinent
provisions of Republic Act No. 7160, or the Local Government
Code of 1991, and its implementing rules and regulations. It was
prayed that the respondent Governor be enjoined from
implementing the assailed memoranda.
The CA, in its Decision dated 28 November 2003,
dismissed the petition for prohibition and upheld the authority of
respondent Governor to issue the Memorandum date 25 June
2002 as it recognized his authority to approve the purchase
orders. The said provision provides in part that approval of the
disbursement voucher by the local chief executive himself shall be
required whenever local funds are disbursed.
Hence this petition.
ISSUES:
1. W/N petitioner has the authority to approve purchase
orders in connection with matters related to the Sangguniang
Panlalawigan.
2. W/N respondent Governor has the power to appoint
members and employees of the SP.
HELD:
FIRST ISSUE:
It is the Vice-Governor who has the authority to approve
purchase orders issued in connection with the procurement of
supplies, materials, equipment, including fuel, repairs and
maintenance of the Sangguniang Panlalawigan (SP).
Under RA No. 7160, the Sangguniang Panlalawigan
exercises local legislative power for the province, with the Vice-
Governor as its presiding officers. While the SP enacts ordinances,
resolutions and appropriates funds for the general welfare of the
province in accordance with the provisions of said law, the same
statute vests upon the Vice-Governor the power to: “(1) Be the
presiding officer of the sangguniang panlalawigan and sign all
warrants drawn on the provincial treasury for all expenditures
appropriate for the operation of the SP.”
The CA ruling is misplaced when it believed that it is the
Governor has the authority to approve purchase orders for the
supplies, materials or equipment for the operation of the SP. The
Vice-Governor, as the presiding officer of the SP, has
administrative control of the funds of the said body. Accordingly,
it is the Vice-Governor who has the authority to approve
disbursement vouchers for expenditures appropriated for the
operation of the SP. On this point, Section 39 of the Manual on
the New Government Accounting System for Local Government
Units, prepared by the Commission on Audit (COA), is
instructive: “…Disbursement vouchers for expenditures
appropriated for the operation of the Sanggunian shall be
approved by the provincial Vice Governor, the city Vice-Mayor or
the municipal Vice-Mayor, as the case may be. “
Indeed, the authority granted to the Vice-Governor to sign
all warrants drawn on the provincial treasury for all expenditures
appropriated for the operation of the Sangguniang
Panlalawigan as well as to approve disbursement vouchers
relating thereto is greater and includes the authority to approve
purchase orders for the procurement of the supplies, materials
and equipment necessary for the operation of the Sangguniang
Panlalawigan.
SECOND ISSUE:
The Governor, with respect to the appointment of officials
and employees of the SP, has no such authority.
Under Sec. 465 of RA No. 7160, the Governor has the
power to appoint “all officials and employees whose slaries and
wages are wholly or mainly paid out of provincial funds and
whose appointments are not otherwise provided for in this Code,
as well as those who may be authorized by law to appoint.” On
the other hand, Sec. 466 vests on the Governor the power to,
among others: “subject to civil service law, rules and regulations,
appoint all officials and employees of the SP, except those whose
manner of appointment is specifically provided in this Code.
Thus, while the Governor has the authority to appoint
officials and employees whose salaries are paid out of the
provincial funds, this does not extend to the officials and
employees of the Sangguniang Panlalawigan because such
authority is lodged with the Vice-Governor. In the same manner,
the authority to appoint casual and job order employees of
the Sangguniang Panlalawigan belongs to the Vice-Governor.
The authority of the Vice-Governor to appoint the officials
and employees of the Sangguniang Panlalawigan is anchored on
the fact that the salaries of these employees are derived from the
appropriation specifically for the said local legislative body.
Indeed, the budget source of their salaries is what sets the
employees and officials of the Sangguniang Panlalawigan apart
from the other employees and officials of the province.
Accordingly, the appointing power of the Vice-Governor is limited
to those employees of the Sangguniang Panlalawigan, as well as
those of the Office of the Vice-Governor, whose salaries are paid
out of the funds appropriated for the Sangguniang Panlalawigan.
As a corollary, if the salary of an employee or official is charged
against the provincial funds, even if this employee reports to the
Vice-Governor or is assigned to his office, the Governor retains
the authority to appoint the said employee pursuant to Section
465(b)(v) of Rep. Act No. 7160.
However, in this case, it does not appear whether the
contractual/job order employees, whose appointments were
terminated or cancelled by the Memorandum dated July 1, 2002
issued by the respondent Governor, were paid out of the
provincial funds or the funds of the Sangguniang Panlalawigan.
Nonetheless, the validity of the said memorandum cannot be
upheld because it absolutely prohibited the respondent Vice-
Governor from exercising his authority to appoint the employees,
whether regular or contractual/job order, of the Sangguniang
Panlalawigan and restricted such authority to one of
recommendatory nature only.[26] This clearly constituted an
encroachment on the appointment power of the respondent
Vice- Governor under Section 466(a)(2) of Rep. Act No. 7160.
PEOPLE vs. SANDIGANBAYAN
G.R. No. 164185, July 23, 2008
During the May 11, 1998 elections, Villapando ran for Municipal Mayor
of San Vicente, Palawan. Orlando M. Tiape, a relative of Villapando’s
wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte.
Villapando won while Tiape lost. Thereafter, on July 1, 1998, Villapando
designated Tiape as Municipal Administrator of the Municipality of San
Vicente, Palawan.
On February 2000, Solomon B. Maagad and Renato M. Fernandez
charged Villapando and Tiape for violation of Article 244 of the Revised
Penal Code before the Office of the Deputy Ombudsman for Luzon. The
complaint was resolved against Villapando and Tiape and the two were
charged for violation of Article 244 of the Revised Penal Code with the
Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not
guilty. Meanwhile, the case against Tiape was dismissed after the
prosecution proved his death which occurred on July 26, 2000.
Villapando filed his Demurrer to Evidence the Sandiganbayan found
with merit and acquitted him of the crime charged.
The Ombudsman filed a petition through the Office of the Special
Prosecutor.
Issue: Whether or not Villapando can be prosecuted despite of his
acquittal before the Sandiganbayan.
Held: Yes, because the Sandiganbayan acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Although this Court held that once a court grants the demurrer to
evidence, such order amounts to an acquittal and any further
prosecution of the accused would violate the constitutional
proscription on double jeopardy, this Court held in the same case that
such ruling on the matter shall not be disturbed in the absence of a
grave abuse of discretion.
The Office of the Ombudsman argues that the Sandiganbayan, Fourth
Division acted with grave abuse of discretion amounting to lack or
excess of jurisdiction because its interpretation of Article 244 of the
Revised Penal Code does not complement the provision on the one-
year prohibition found in the 1987 Constitution and the Local
Government Code, particularly Section 6, Article IX of the 1987
Constitution which states no candidate who has lost in any election
shall, within one year after such election, be appointed to any office in
the government or any government-owned or controlled corporation or
in any of their subsidiaries. Section 94(b) of the Local Government Code
of 1991, for its part, states that except for losing candidates in barangay
elections, no candidate who lost in any election shall, within one year
after such election, be appointed to any office in the government or any
government-owned or controlled corporation or in any of their
subsidiaries. Petitioner argues that the court erred when it ruled that
temporary prohibition is not synonymous with the absence of lack of
legal qualification.
The Sandiganbayan, Fourth Division held that the qualifications for a
position are provided by law and that it may well be that one who
possesses the required legal qualification for a position may be
temporarily disqualified for appointment to a public position by reason
of the one-year prohibition imposed on losing candidates. However,
there is no violation of Article 244 of the Revised Penal Code should a
person suffering from temporary disqualification be appointed so long
as the appointee possesses all the qualifications stated in the law.
In this case, the Sandiganbayan, Fourth Division, in disregarding basic
rules of statutory construction, acted with grave abuse of discretion. Its
interpretation of the term legal disqualification in Article 244 of the
Revised Penal Code defies legal cogency. Legal disqualification cannot
be read as excluding temporary disqualification in order to exempt
therefrom the legal prohibitions under the 1987 Constitution and the
Local Government Code of 1991.
Grave abuse of discretion generally refers to capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse
of discretion must be patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or
to 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.
Sales v. Carreon (G.R. No. 160791, 13 February
2007)
FACTS
During the May 2001 elections, then Mayor Joseph Cedrick O.
Ruiz of Dapitan City, running for re-election, was defeated by
respondent Rodolfo H. Carreon, Jr.
On June 1, 18 and 27, 2001, his last month in office, then Dapitan
City Mayor Ruiz issued 83 appointments, including those of
herein petitioners.
On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr.,
herein respondent, assumed office.
On July 2, 2001, respondent issued Memorandum Orders Nos. 1
and 2 revoking the 83 appointments signed by his predecessor on
the ground that the latter violated Civil Service Commission (CSC)
Resolution No. 01-988 in relation to CSC Memorandum Circular
No. 7, Series of 2001, imposing a ban on issuing appointments in
the civil service during the election period. Thereupon,
respondent prohibited the release of the salaries and benefits of
the 83 appointees.
On August 17, 2001, the CSC Regional Office No. IX issued an
Omnibus Order, the dispositive portion of which reads:
WHEREFORE, all premises considered:
1. The eighty-three (83) appointments issued by then
Mayor Joseph Cedrick O. Ruiz, including those issued
by the herein requesting parties, are, therefore not
considered "mass appointments," as defined under
CSC Resolution No. 01-0988 and are thus, VALID and
EFFECTIVE.
 2. Memorandum Orders Nos. 1 and 2, Series of 2001, administration and shown to have been made through hurried
issued by Mayor Rodolfo H. Carreon, Jr., are hereby maneuvers and under circumstances departing from good faith,
declared NULL and VOID, and accordingly, morality, and propriety that this Court has struck down
3. The LGU-Dapitan is hereby directed to pay the salaries "midnight" appointments.
and other emoluments to which the 83 appointments It is State policy that "opportunities for government
are entitled to pursuant to the appointments issued to employment shall be open to all qualified citizens" and
them. "employees shall be selected on the basis of fitness to perform
the duties and assume the responsibilities of the positions."6 It
On appeal by respondent, the CSC En Banc, on June 17, was precisely in order to ensure transparency and equal
2002, issued Resolution No. 020828 reversing the assailed opportunity in the recruitment and hiring of government
Omnibus Order of the CSC Regional Office No. IX. personnel,
The CSC En Banc held that the positions in question were
published and declared vacant prior to the existence of any
vacancy.
ISSUE
Whether or not the appointments are valid
RULING
No. For being in violation of Section 2, R.A. No. 7041, CSC
Memorandum Circular No. 18, as amended, and Section 20, Rule
VI of the Omnibus Rules Implementing Book V-A of the
Administrative Code of 1987, the appointments of the above-
named petitioners are declared void.
This case is a typical example of the practice of outgoing local
chief executives to issue "midnight" appointments, especially
after their successors have been proclaimed. It does not only
cause animosities between the outgoing and the incoming
officials, but also affects efficiency in local governance. Those
appointed tend to devote their time and energy in defending
their appointments instead of attending to their functions.
However, not all "midnight" appointments are invalid. Each
appointment must be judged on the basis of the nature,
character, and merits of the individual appointment and the
circumstances surrounding the same. It is only when the
appointments were made en masse by the outgoing
Quirog v. Aumentado
Facts:
On May 28, 2001, Bohol Provincial Governor Rene L. Relampagos permanently
appointed Liza M. Quirog as Provincial Government Department Head of the
Office of the Bohol Provincial Agriculture (PGDH-OPA). The appointment was
confirmed by the Sangguniang Panlalawigan in Resolution No. 2001-199 on
June 1, 2001. On even date, Quirog took her oath of office.
Before the issuance of the permanent appointment, the Personnel Selection
Board (PSB) of the Human Resource Management and Development Office of
Bohol issued a certification that Quirog was one of two candidates qualified for
the position of PGDH-OPA.
A copy of the Monthly Report on Personnel Actions (ROPA) covering the
months of May and June 2001 of the provincial government was submitted to
the Civil Service Commission Regional Office No. VII (CSCROVII), Cebu City.
In the Order dated June 28, 2001, the Director of CSCROVII invalidated Quirogs
appointment as PGDH-OPA upon finding that the same was part of the bulk
appointments issued by then Governor Relampagos after the May 14, 2001
elections allegedly in violation of Item No. 3(d) of CSC Resolution No. 010988
dated June 4, 2001. The Order pointed out that the prohibition against the
issuance of midnight appointments was already laid down as early as February
29, 2000 in CSC Resolution No. 000550.
Both Relampagos and Quirog moved for reconsideration of the CSCROVII
Order, alleging that when the latter took her oath of office on June 1, 2001, CSC
Resolution No. 010988 was not yet effective as it took effect only on June 4,
2001. They argued that the subject appointment cannot be considered a
midnight appointment because it was made days before the expiration of
Relampagos term, and that Quirog was already the acting Provincial
Agriculturist a year prior to said appointment or since June 19, 2000. Besides,
so they asserted, since Quirog had already taken her oath of office, assumed
her duties and collected her salary for the month of June, 2001, she had
already acquired a legal, not merely equitable, right to the position in question,
which cannot be taken away from her either by revocation of the appointment
or by removal except for cause and with previous notice and hearing.
In a decision dated July 23, 2001, the CSCROVII denied Quirogs and
Relampagos motion for reconsideration for lack of legal personality to file such
pleading on the ground that The CSCROVII explains that only the appointing
officer may request reconsideration of the disapproval of an appointment by
the Civil Service Commission. Even if Relampagos was the one who appointed
Quirog, he could not file a motion for reconsideration because his term as
governor had already expired.
Aggrieved, the petitioners in G.R. No. 163443 appealed to the Civil Service
Commission (CSC)
On November 20, 2001, the CSC issued Resolution No. 011812, which granted
the said joint appeal and set aside the order and decision of the CSCROVII.
According to the CSC, since Relampagos had ceased to be the appointing
authority upon the expiration of his term as governor and incumbent Governor
Erico B. Aumentado was not the official who made the subject appointment,
equity dictates that the appointee Quirog be allowed to question the decision
to obviate possible damage or injury to the delivery of public service. The CSC
also declared that the appointment of Quirog was not a midnight appointment
as it was not hurriedly issued nor did it subvert the policies of the incoming
administration. The CSC relaxed the application of Item 3(a)[13] in CSC
Resolution 01-0988 requiring that appointments should have gone through the
regular screening by the PSB before the election ban or the prohibited period
from March 30, 2001 to May 14, 2001. After noting that the selection board
only deliberated upon Quirogs qualifications on May 24, 2001, or after the
election ban, the CSC ratiocinated that the spirit, rather than the letter of the
said rule should prevail as long as the case did not involve a midnight
appointment proscribed by Aytona v. Castillo, et al. Lastly, the CSC justified
Quirogs appointment even though such was included among post-election
appointments because of the need to immediately fill up in a permanent
capacity the vacant position of Provincial Agriculturist and the fact that
Governor Aumentado expressly declared his trust and confidence in Quirog in
his Memorandum No. 1 dated July 2, 2001.
On December 10, 2001, incumbent Bohol Governor Erico B. Aumentado filed
an amended Motion for Reconsideration of the CSC Resolution No. 011812. He
insisted that Quirog and Relampagos had no legal personality to file a motion
for reconsideration of the disapproved appointment or to appeal the same. He
insisted that Quirogs appointment was a midnight appointment. Aumentado
added that the selection board which screened Quirogs qualifications was not
validly constituted and that the subject appointment was made more than six
months from the time it was published on July 23, 2000 in violation of CSC
Resolution No. 010114 dated January 10, 2001. Aumentado insisted that
Relampagos made 97, not 46, mass appointments on the eve of his term, 95 of
which were invalidated by the CSC Bohol Field Office and two, including that of
Quirog, by the CSCROVII.
In Resolution No. 020271 dated February 22, 2002, the CSC denied
Aumentados motion for reconsideration. Aumentado then filed a petition for
review under Rule 43 of the Rules of Court with the CA where it was docketed
as CA-G.R. SP No. 70255.
On March 31, 2003, the CA rendered the herein challenged Decision, granting
Aumentados petition. The CA reversed and set aside CSC Resolution No.
011812 and ruled that Quirogs appeal should have been dismissed outright for
lack of legal personality. On April 12, 2004, the CA rendered the second
assailed Resolution, denying Quirog and Relampagos motion for
reconsideration.
From the adverse decision of the CA, the CSC as well as Relampagos and
Quirog interposed separate petitions for review on certiorari. Relampagos and
Quirogs petition filed on June 25, 2004, was docketed as G.R. No. 163443,
while the CSCs petition filed on July 8, 2004, was docketed as G.R. No. 163568.
In the Resolution dated July 13, 2004, the Court ordered the consolidation of
the two petitions.
The consolidated petitions present the following issues for the Courts
resolution: (1) whether or not petitioners Relampagos and Quirog have the
legal standing to file a motion for reconsideration of, or appeal from, the
disapproval of the latters appointment by the Civil Service Commission, (2)
whether or not Quirogs appointment violated Item 3 of CSC Resolution No.
010988 dated June 4, 2001, and 3) whether or not the subject appointment
was a midnight appointment.
In the herein challenged decision, the CA held that only the appointing
authority could challenge the CSCs disapproval of an appointment. In arriving
at such a conclusion, the CA relied solely on Section 2 of Rule VI of CSC
Memorandum Circular (MC) No. 40, series of 1998[25] which provides:
Sec. 2. Requests for reconsideration of, or appeal from, the disapproval of an
appointment may be made by the appointing authority and submitted to the
Commission within fifteen (15) days from receipt of the disapproved
appointment.
The petitioners share the view that the word may in the afore-quoted provision
simply means that a request for reconsideration or appeal from a disapproved
appointment is not vested exclusively in the appointing authority and that
Quirogs appeal should have been given due course because she was the real
party-in-interest, being the one aggrieved by the disapproval of the
appointment.
Petitioners Quirog and Relampagos contend that their appeal before the CA
should not have been dismissed on a mere technicality such as lack of legal
personality. They argued that litigants must be afforded full opportunity for the
adjudication of their case on the merits.
The CSC for its part, pointed out that in previously decided cases, the CSC
allowed the appointees to take relief from the disapproval of their
appointments as an exception to the rule on legal standing.
Upon the other hand, respondent Aumentado maintains that the controlling
rule on the matter of legal standing is the afore-cited Section 2, Rule VI, CSC
MC No. 40, series of 1998. He anchors his argument in Mathay, Jr. v. Civil
Service Commission,[26] where the Court laid down the ruling that only the
appointing authority can request for reconsideration of a CSC-disapproved
appointment.
Issue: Whether or not Quirog's appointment is valid and whether they have
legal standing
Held:
In the recent case of Abella, Jr. v. Civil Service Commission, the Court declared
that both the appointing authority and the appointee are equally real parties in
interest who have the requisite legal standing to bring an action challenging a
CSC disapproval of an appointment.
As to the validity of Quirogs appointment, the CSCROVII disapproved Quirogs
appointment for non-compliance with Item No. 3 of CSC Resolution No.
010988 dated June 4, 2001. Item No. 3 refers to the disapproval of
appointments unless certain requisites are complied with. Item No. 3 reads:
3. All appointments, whether original, transfer, reemployment, reappointment,
promotion or demotion, x x x which are issued AFTER the elections, regardless
of their dates of effectivity and/or date of receipt by the Commission, x x x shall
be disapproved unless the following requisites concur relative to their
issuance:
a) The appointment has gone through the regular screening by the Personnel
Selection Board (PSB) before the prohibited period on the issuance of
appointments as shown by the PSB report or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order not to prejudice
public service and/or endanger public safety;
d) That the appointment is not one of those mass appointments issued after
the elections.
The CSC ruled that the promotional appointment extended to Quirog by
Governor Relampagos was not violative of the aforesaid CSC Resolution. This
interpretation by the CSC of its own rules should be given great weight and
consideration for after all, it is the agency tasked with interpreting or applying
the same.
Records disclose that on May 28, 2001, the PSB of the Human Resource
Management and Development Office of Bohol, issued a certification that
Quirog was one of two candidates qualified for the position of PGDH-OPA. On
the same day, Quirog was appointed by then Governor Relampagos and on
June 1, 2001, she took her oath of office. CSC Resolution No. 010988 was
issued three days later, or on June 4, 2001. Evidently, the CSCROVII should not
have subjected Quirogs appointment to the requirements under said
resolution, as its application is against the prospective application of laws.
Having no provision regarding its retroactive application to appointments made
prior to its effectivity, CSC Resolution No. 010988 must be taken to be of
prospective application. As we have held time and again:
Since the retroactive application of a law usually divests rights that have
already become vested, the rule in statutory construction is that all statutes
are to be construed as having only a prospective operation unless the purpose
and intention of the legislature to give them a retrospective effect is expressly
declared or is necessarily implied from the language used.
Prescinding therefrom, it cannot be said that Quirogs appointment violated
CSC Resolution No. 010988, the said Resolution having taken effect after the
questioned appointment was extended.
It cannot also be said that Quirogs appointment was a midnight appointment.
The constitutional prohibition on so-called midnight appointments, specifically,
those made within two (2) months immediately prior to the next presidential
elections, applies only to the President or Acting President.
We, however, hasten to add that the aforementioned ruling does not mean
that the raison d etre behind the prohibition against midnight appointments
may not be applied to those made by chief executives of local government
units, as here. Indeed, the prohibition is precisely designed to discourage, nay,
even preclude, losing candidates from issuing appointments merely for
partisan purposes thereby depriving the incoming administration of the
opportunity to make the corresponding appointments in line with its new
policies.
The appointment of Quirog cannot be categorized as a midnight appointment.
For it is beyond dispute that Quirog had been discharging and performing the
duties concomitant with the subject position for a year prior to her permanent
appointment thereto. Surely, the fact that she was only permanently appointed
to the position of PGDH-OPA after a year of being the Acting Provincial
Agriculturist more than adequately shows that the filling up of the position
resulted from deliberate action and a careful consideration of the need for the
appointment and the appointee's qualifications. The fact that Quirog had been
the Acting Provincial Agriculturist since June 2000 all the more highlights the
public need for said position to be permanently filled up.
In any event, respondent Governor Aumentado, in a Memorandum dated
March 4, 2003, has reinstated Quirog to the permanent position of PGDH-OPA.
Such act of respondent bespeaks of his acceptance of the validity of Quirogs
appointment and recognition that indeed, the latter is qualified for the subject Petitioner moved for reconsideration. Before resolving the motion, CSCRO No.
position. VIII invited Marcelo C. Maceda, Jr., incumbent SB Secretary, to appear and
bring with him any document showing that petitioner's appointment as
Montuerto v. Ty Municipal Budget Officer had been submitted to the SB for concurrence. In
reply, Maceda issued a Certification on June 10, 2002, which reads:
Facts:
This is to certify that as per records kept on file by this office, there is no record
On March 17, 1992, petitioner was issued an appointment as Municipal Budget
that would show that the appointment of Mrs. Melanie P. Montuerto, as
Officer by the then Mayor Supremo T. Sabitsana of the Municipality of Almeria,
Municipal Budget Officer of Almeria, Biliran was submitted to the Sangguniang
Biliran. On March 24, 1992, her appointment was approved as permanent by
Bayan for concurrence from June 1992 up to the present.
Gerardo Corder, Acting Civil Service Commission Field Officer.
However, the SB minutes of the March 2, 1992 regular session pointed out the
On January 14, 2002, the Sangguniang Bayan of Almeria, Biliran passed
presence of a budget officer who explained fully the details of the 1992
Sangguniang Bayan (SB) Resolution No. 01-S-2002 entitled "A Resolution
Municipal Annual Budget of Almeria, Biliran.
Requesting the Civil Service Commission Regional Office, to Revoke the
Appointment of Mrs. Melanie P. Montuerto, Municipal Budget Officer of the
Likewise, Maceda submitted a copy of the SB Minutes of the regular session
Municipality of Almeria, Biliran for Failure to Secure the Required Concurrence
held on March 2, 1992.
from the Sangguniang Bayan."
On July 9, 2002, CSCRO No. VIII denied petitioner's motion for reconsideration.
Consequently, the Municipality of Almeria, Biliran submitted the 201 file of
Aggrieved, petitioner appealed to the CSC Central Office. After due
petitioner to Civil Service Commission Regional Office No. VIII (CSCRO No. VIII)
consideration of the pleadings and documents presented, the latter issued CSC
which showed that petitioner's appointment lacked the required concurrence
Resolution No. 040728 dated July 1, 2004, disposing of petitioner's appeal in
of the local sanggunian. On the other hand, petitioner submitted to the same
this wise:
office a Joint-Affidavit4 executed on March 6, 2002, by the majority of the then
members of the Sangguniang Bayan of Almeria, Biliran, the pertinent portion
WHEREFORE, the instant appeal of Melanie P. Montuerto is hereby DISMISSED.
of which reads:
Accordingly, the appealed Order dated March 11, 2002 of the Civil Service
Commission-Regional Office No. VIII, Palo, Leyte, recalling the initial approval
4. Since the regular session focused on the deliberations regarding the
of the appointment of Montuerto as Municipal Budget Officer of Almeria,
municipal budget, the concurrence on the appointment of Municipal Budget
Biliran, for lack of the required concurrence by the majority of all the members
Officer Melanie P. Montuerto was not highlighted and the concurrence was
of Sangguniang Bayan, is hereby AFFIRMED.
inadvertently omitted in the Minutes of the Regular Session for 2 March 1992.
But, we can still fully recall that there was really a verbal concurrence on the
Petitioner filed a motion for reconsideration which was denied in CSC
appointment of Municipal Budget Officer Melanie P. Montuerto x x x.
Resolution No. 050756 dated June 7, 2005. Meanwhile, on July 30, 2004, the
Municipal Mayor of Almeria, Biliran issued Office Order No. 15 which directed
On March 11, 2002, CSCRO No. VIII issued an Order decreeing:
the indefinite detail of the petitioner to the Cooperative Development Project.
In the same office order, the commutable representation and transportation
WHEREFORE, foregoing premises considered, the approval on the appointment
allowance of petitioner was removed. On July 11, 2005, the Municipal Mayor
of Melanie P. Montuerto as Municipal Budget Officer of LGU-Almeria, Leyte xxx
issued a Memorandum terminating the services of petitioner as Municipal
is hereby RECALLED on the ground that it lacks the required concurrence of the
Budget Officer pursuant to CSC Resolution No. 050756.
majority of all the members of the Sangguniang Bayan of LGU-Almeria, Biliran.
Petitioner filed a Petition for Review under Rule 43 of the Rules of Civil
Procedure before the CA, which denied it for lack of merit.
Hence, the instant Petition
Issue: Whether the appointment of petitioner as Municipal Budget Officer,
without the written concurrence of the Sanggunian, but duly approved by the
CSC and after the appointee had served as such for almost ten years without
interruption, can still be revoked by the Commission.
Held:
Yes, they may revoke. The law is clear. Under Section 443(a) and (d) of Republic
Act (R.A.) No. 71605 or the Local Government Code, the head of a department
or office in the municipal government, such as the Municipal Budget Officer,
shall be appointed by the mayor with the concurrence of the majority of all
Sangguniang Bayan members6 subject to civil service law, rules and
regulations. Per records, the appointment of petitioner was never submitted to
the Sangguniang Bayan for its concurrence or, even if so submitted, no such
concurrence was obtained. Such factual finding of quasi-judicial agencies,
especially if adopted and affirmed by the CA, is deemed final and conclusive
and may not be reviewed on appeal by this Court. This Court is not a trier of
facts and generally, does not weigh anew evidence already passed upon by the
CA. Absent a showing that this case falls under any of the exceptions to this
general rule, this Court will refrain from disturbing the findings of fact of the
tribunals below.
Moreover, we agree with the ruling of the CA that the verbal concurrence
allegedly given by the Sanggunian, as postulated by the petitioner, is not the
concurrence required and envisioned under R.A. No. 7160. The Sanggunian, as
a body, acts through a resolution or an ordinance. Absent such resolution of
concurrence, the appointment of petitioner failed to comply with the
mandatory requirement of Section 443(a) and (d) of R.A. No. 7160. Without a
valid appointment, petitioner acquired no legal title to the Office of Municipal
Budget Officer, even if she had served as such for ten years.
Accordingly, the CSC has the authority to recall the appointment of the
petitioner.
All told, we find no reversible error on the part of the CA.
PROVINCIAL GOVERNMENT OF AURORA v. MARCO
Facts:
Five days before the end of her term as Governor of the
Province of Aurora, Gov. Ramoncita Ong permanently appointed
private respondent Marco as Cooperative Development Specialist
II on 25 June 2004. Marco’s appointment, along with 25 other
appointments, was submitted to the CSC Field Office Aurora (the
Field Office). Annexed to Marco’s appointment papers was a
certification from the Provincial Budget Office and Provincial
Accountant that there were available funds to cover the position.
On 30 June 2004, newly elected Governor Bellaflor
Angara-Castillo assumed office. The next day, she called an
executive meeting where all deparment heads of the Province
were invited. During the executive meeting, Provincial Budget
Officer Clemente allegedly manifested that the Province had no
funds available to pay for the salaries of Governor Ong’s 26
appointees.9 She subsequently issued a Letter recalling the
previously issued certification of the availability of funds
Due to the recall of certification, the CSC Field Office
Disapproved Marco’s appointment. The Province, through Human
Resource Management Officer Liwayway G. Victorio, served a
copy of the letter and advised him to refrain from reporting to
work beginning 8 July 2004, the day he received notice of the
disapproval of his appointment.
Marco wrote the CSC Regional Office for the
reconsideration of the disapproval of his appointment. However,
the Regional Office denied reconsideration and affirmed the
disapproval of Marco’s appointment.
 Through the Letter dated May 17, 2005, Marco appealed
before the Civil Service Commission.18 The Province, through its
Human Resource Management Office, received a copy of Marco’s
Letter on May 23, 2005.19 However, it failed to comment on the
appeal within 10 days from receipt as required by Section 73 of
the Uniform Rules on Administrative Cases in the Civil Service.20
In the Resolution21 dated April 14, 2008, the Civil Service
Commission granted Marco’s appeal and set aside the Regional
Office’s Decision dated April 6, 2005. It ruled that Marco’s
appointment was valid since it was accompanied by a certification
of availability of funds.22 As to the Letter withdrawing the
certification, the Civil Service Commission ruled that it did not
affect the validity of Marco’s appointment because the Province
"failed to submit documentary evidence to support its claim [that
it had no funds to pay for the services of Governor Ong’s
appointees]."23
Petitioner then filed before the CSC a Petition for relief on
the ground that CSC deprived the Province an opportunity to be
heard when it failed to implead the Province as an indispensable
party. However, CSC denied such petition.
ISSUES:
1. W/N the withdrawal of the certification of
sufficiency of funds voided Marco’s
appointment
2. W/N Marco’s appointment was void on the
ground that he was a midnight appointee.
HELD:
1. No. Under Rule IV, Section 1 of Civil Service Commission
Memorandum Circular No. 40-98, an appointment takes effect
immediately upon issuance by the appointing authority. Once
the appointee has assumed the duties of the position, he or
she is entitled to receive the salaries corresponding with the
position though the Civil Service Commission has not yet
approved the appointment.
Should the appointment be initially disapproved, it
nevertheless remains effective if a motion for reconsideration
or an appeal of the disapproval is seasonably filed with the
proper office.108 Therefore, during the pendency of the motion
for reconsideration, the appointee remains entitled to his or
her salaries until the appointment is finally disapproved by
the Civil Service Commission.109
Marco’s appointment immediately took effect on June 25,
2004 when Governor Ong appointed him as Cooperative
Development Specialist II. Although his appointment was
initially disapproved by the Field Office, Marco seasonably
filed a Motion for Reconsideration before the Civil Service
Commission. Thus, Marco’s appointment remained effective
during the pendency of the Motion for Reconsideration.
Because the Civil Service Commission granted his Motion for
Reconsideration and set aside the disapproval of his
appointment, Marco remained entitled to his position. The
necessary consequence of granting reconsideration is his
reinstatement as Cooperative Development Specialist II.
The Civil Service Commission correctly implemented the April
14, 2008 Resolution by ordering Marco’s reinstatement and
the payment of his back salaries and other benefits.
That the Province suddenly had no funds to pay for Marco’s
salaries despite its earlier certification that funds were
available under its 2004 Annual Budget does not affect his
appointment.
None of the grounds for disapproval of an appointment under
Rule V, Section 7110 of the Omnibus Rules Implementing the
Civil Service Law exists in this case. The appointment remains
effective, and the local government unit remains liable for the
salaries of the appointee
Moreover, the earlier certification, if proven false, constitutes
intentional misrepresentation of a material fact concerning a
civil service matter. This is an offense punishable by fine, or
imprisonment, or both as provided under Section 67 of the
Civil Service Law:
SEC. 67. Penal Provision. — Whoever makes any appointment
or employs any person in violation of any provision of this
Title or the rules made thereunder or whoever commits
fraud, deceit or intentional misrepresentation of material
facts concerning other civil service matters, or whoever
violates, refuses or neglects to comply with any of such
provisions or rules, shall upon conviction be punished by a
fine not exceeding one thousand pesos or by imprisonment
not exceeding six (6) months, or both such fine and
imprisonment in the discretion of the court.
We, therefore, agree with the Civil Service Commission in
ordering the Regional Office to commence appropriate
administrative proceedings against Provincial Budget Officer
Norma R. Clemente and Provincial Accountant Wilfredo C.
Saturno for issuing the certification of availability of funds:
The Commission disapproves of the conduct of the officials of
the Provincial Government of Aurora in issuing a certification
dated June 25, 2004 that funds are available in the 2004
Annual Budget to support the appointments issued by
outgoing Governor Ong and then later [withdrawing] the
same when a new governor assumes office. As such, the
CSCRO No. IV is directed to conduct the appropriate
administrative proceedings to determine whether Norma R.
Clemente (Provincial Budget Officer) and Wilfredo C. Saturno
(Provincial Accountant) violated Civil Service Law, rules and
regulations
2. No.
A midnight appointment "refers to those appointments made
within two months immediately prior to the next presidential
election." Midnight appointments are prohibited under Article VII,
Section 15 of the Constitution:
SECTION 15. Two months immediately before the next
presidential elections and up to the end of his term, a President
or Acting President shall not make appointments, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety.
Midnight appointments are prohibited because an outgoing
President is "duty bound to prepare for the orderly transfer of
authority to the incoming President, and he [or she] should not
do acts which he [or she] ought to know, would embarrass or
obstruct the policies of his [or her] successor." An outgoing
President should not "deprive the new administration of an
opportunity to make the corresponding appointments."
However, the constitutional prohibition on midnight
appointments only applies to presidential appointments. It does
not apply to appointments made by local chief executives.
In De Rama v. Court of Appeals, Mayor Conrado L. de Rama
(Mayor de Rama) of Pagbilao, Quezon sought to recall 14
appointments made by former Mayor Ma. Evelyn S. Abeja on the
sole ground that they were midnight appointments. The Civil
Service Commission denied Mayor de Rama’s request, ruling that
the prohibition on midnight appointments only applies to
outgoing Presidents.On appeal, the Court of Appeals affirmed the
Civil Service Commission’s decision.
This court agreed with the Civil Service Commission and the Court
of Appeals. In denying Mayor de Rama’s petition for review on
certiorari, this court said that the prohibition on midnight
appointments "applies only to presidential appointments." This
court noted that "there is no law that prohibits local elective
officials from making appointments during the last days of his or
her tenure."
Nonetheless, the Civil Service Commission, as the central
personnel agency of the Government, may "establish rules and
regulations to promote efficiency and professionalism in the civil
service."Although it conceded that no law prohibits local elective
officials from making appointments during the last days of their
tenure, this court in Nazareno upheld Civil Service Commission
Resolution No. 010988, which prohibited local elective officials
from making appointments immediately before and after
elections.In addition, Resolution No. 010988 prohibited "mass
appointments," or those "issued in bulk or in large number after
the elections by an outgoing local chief executive and there is no
apparent need for their immediate issuance."
V. INTERGOVERNMENTAL RELATIONS
A. With the National Government and
its agencies
MMDA v. Viron Transportation Co., Inc. (G.R. No.
170656, 15 August 2007)
FACTS:
President Gloria Macapagal Arroyo issued the E.O. on February
10, 2003, PROVIDING FOR THE ESTABLISHMENT OF GREATER
MANILA MASS TRANSPORT SYSTEM, the pertinent portions of
which read:
xxx
WHEREAS, the MMDA has recommended a plan to decongest
traffic by eliminating the bus terminals now located along major
Metro Manila thoroughfares and providing more convenient
access to the mass transport system to the commuting public
through the provision of mass transport terminal facilities that
would integrate the existing transport modes, namely the buses,
the rail-based systems of the LRT, MRT and PNR and to facilitate
and ensure efficient travel through the improved connectivity of
the different transport modes;
WHEREAS, the national government must provide the necessary
funding requirements to immediately implement and render
operational these projects; and extent to MMDA such other
assistance as may be warranted to ensure their expeditious
prosecution.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of
the Philippines, by virtue of the powers vested in me by law, do
hereby order:
Section 1. THE PROJECT. The project shall be identified as
GREATER MANILA TRANSPORT SYSTEM Project.
Section 2. PROJECT OBJECTIVES. In accordance with the
plan proposed by MMDA, the project aims to develop four
(4) interim intermodal mass transport terminals to
integrate the different transport modes, aswell as those
that shall hereafter be developed, to serve the commuting
public in the northwest, north, east, south, and southwest
of Metro Manila. Initially, the project shall concentrate on
immediately establishing the mass transport terminals for
the north and south Metro Manila commuters as
hereinafter described.
Section 3. PROJECT IMPLEMENTING AGENCY. The
Metropolitan Manila Development Authority (MMDA), is
hereby designated as the implementing Agency for the
project. xxx
The MMDA had recommended a plan to decongest traffic
by eliminating the bus terminals now located along major Metro
Manila thoroughfares and providing more and convenient access
to the mass transport system to the commuting public through
the provision of mass transport terminal facilities which plan is
referred to under the E.O. as the Greater Manila Mass Transport
System Project (the Project).
Pursuant to the E.O., the Metro Manila Council (MMC),
the governing board and policymaking body of the MMDA, issued
Resolution No. 03-07 series of 2003 expressing full support of the
Project.
On February 24, 2003, Viron Transport Co., Inc. (Viron), a
domestic corporation engaged in the business of public
transportation with a provincial bus operation, filed a petition for
declaratory relief before the RTC of Manila.
Viron alleged that the MMDA, through Chairman
Fernando, was poised to issue a Circular, Memorandum or Order
closing, or tantamount to closing, all provincial bus terminals
along EDSA and in the whole of the Metropolis under the pretext
of traffic regulation. This impending move, it stressed, would
mean the closure of its bus terminal in Sampaloc, Manila and two
others in Quezon City.
Mencorp Transportation System, Inc. (Mencorp), another
provincial bus operator, later filed a similar petition for
declaratory relief against Executive Secretary Alberto G. Romulo
and MMDA Chairman Fernando. Mencorp asked the court to
declare the E.O. unconstitutional and illegal for transgressing the
possessory rights of owners and operators of public land
transportation units over their respective terminals.
By Decision of January 24, 2005, the trial court sustained
the constitutionality and legality of the E.O. pursuant to R.A. No.
7924, which empowered the MMDA to administer Metro Manilas
basic services including those of transport and traffic
management. The trial court held that the E.O. was a valid
exercise of the police power of the State as it satisfied the two
tests of lawful subject matter and lawful means, hence, Virons
and Mencorps property rights must yield to police power.
On the separate motions for reconsideration of Viron and
Mencorp, the trial court, by Order of September 8, 2005,
reversed its Decision, this time holding that the E.O. was an
unreasonable exercise of police power; that the authority of the
MMDA under Section (5)(e) of R.A. No. 7924 does not include the
power to order the closure of Virons and Mencorps existing bus
terminals; and that the E.O. is inconsistent with the provisions of
the Public Service Act.
ISSUE:
Whether or not the designation of the MMDA as the
implementing agency for the Project can be sustained
RULING:
E.O. No. 125, which former President Corazon Aquino issued in
the exercise of legislative powers, reorganized the then Ministry
(now Department) of Transportation and Communications.
Sections 4, 5, 6 and 22 of E.O. 125, as amended by E.O. 125-A.
It is apparent from the said provisions of E.O. No. 125, as
amended, that the President, then possessed of and exercising
legislative powers, mandated the DOTC to be the primary policy,
planning, programming, coordinating, implementing, regulating
and administrative entity to promote, develop and regulate
networks of transportation and communications. The grant of
authority to the DOTC includes the power to establish and
administer comprehensive and integrated programs for
transportation and communications.
As may be seen further, the Minister (now Secretary) of
the DOTC is vested with the authority and responsibility to
exercise the mandate given to the department. Accordingly, the
DOTC Secretary is authorized to issue such orders, rules,
regulations and other issuances as may be necessary to ensure
the effective implementation of the law.
Such authority springs from the Presidents power of
control over all executive departments as well as the obligation
for the faithful execution of the laws under Article VII, Section 17
of the Constitution which provides:
SECTION 17. The President shall have control of all the
executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
This constitutional provision is echoed in Section 1, Book III of the
Administrative Code of 1987. Notably, Section 38, Chapter 37,
Book IV of the same Code defines the Presidents power of
supervision and control over the executive departments, viz:
SECTION 38. Definition of Administrative Relationships.
Unless otherwise expressly stated in the Code or in other
laws defining the special relationships of particular
agencies, administrative relationships shall be categorized
and defined as follows:
(1) Supervision and Control. Supervision and control shall
include authority to act directly whenever a specific
function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the
commission of acts; review, approve, reverse or modify
acts and decisions of subordinate officials or units;
determine priorities in the execution of plans and
programs. Unless a different meaning is explicitly provided
in the specific law governing the relationship of particular
agencies the word "control" shall encompass supervision
and control as defined in this paragraph. x x x
Thus, whenever a specific function is entrusted by law or
regulation to a subordinate, the President may act directly or
merely direct the performance of a duty.
The authority of the President to order the
implementation of the Project notwithstanding, the designation
of the MMDA as the implementing agency for the Project may
NOT BE SUSTAINED. It is ultra vires, there being no legal basis
therefor.
It bears stressing that under the provisions of E.O. No.
125, as amended, it is the DOTC, and not the MMDA, which is
authorized to establish and implement a project such as the one
subject of the cases at bar. Thus, the President, although
authorized to establish or cause the implementation of the
Project, must exercise the authority through the instrumentality
of the DOTC which, by law, is the primary implementing and
administrative entity in the promotion, development and
regulation of networks of transportation, and the one so
authorized to establish and implement a project such as the
Project in question.
By designating the MMDA as the implementing agency of
the Project, the President clearly overstepped the limits of the
authority conferred by law, rendering E.O. No. 179 ultra vires.
In light of the administrative nature of its powers and
functions, the MMDA is devoid of authority to implement the
Project as envisioned by the E.O; hence, it could not have been
validly designated by the President to undertake the Project. It
follows that the MMDA cannot validly order the elimination of
respondents terminals.
Even the MMDAs claimed authority under the police
power must necessarily fail in consonance with the above-quoted
ruling in MMDA v. Bel-Air Village Association, Inc. and this Courts
subsequent ruling in Metropolitan Manila Development Authority
v. Garin that the MMDA is not vested with police power
MMDA v. GARIN
FACTS:
On 5 August 1995, respondent lawyer Dante Garin was
caught by petitioner MMDA illegally parking along Gandara
Street, Binondo, Manila. As a result a traffic violation receipt
(TVR) was issued and Garin’s drivers license was confiscated.
Shortly before the expiration of the TVR’s validity, respondent
addressed a letter to then MMDA Chairman Prosper Oreta
requesting the return of his drivers license.
Receiving no immediate reply, Garin filed the original complaint
with application for preliminary injunction in Branch 260 of the
Regional Trial Court (RTC) of Paraaque, on 12 September 1995,
contending that, in the absence of any implementing rules and
regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA
unbridled discretion to deprive erring motorists of their licenses,
pre-empting a judicial determination of the validity of the
deprivation, thereby violating the due process clause of the
Constitution. The respondent further contended that the
provision violates the constitutional prohibition against undue
delegation of legislative authority, allowing as it does the MMDA
to fix and impose unspecified and therefore unlimited - fines and
other penalties on erring motorists.
On 14 August 1997, the trial court rendered the assailed decision
in favor of herein respondent and held that “the summary
confiscation of a driver’s license without first giving the driver an
opportunity to be heard; depriving him of a property right
without DUE PROCESS; not filling in Court the complaint of
supposed traffic infration, cannot be justified by any legislation
and hence unconstitutional.
ISSUE: Whether or not MMDA hast the power to confiscate
drivers license.
HELD: No.
The petitioner correctly points out that a license to operate a
motor vehicle is not a property right, but a privilege granted by
the state, which may be suspended or revoked by the state in the
exercise of its police power, in the interest of the public safety
and welfare, subject to the procedural due process requirements.
This is consistent with our rulings in Pedro v. Provincial Board of
Rizal[8] on the license to operate a cockpit, Tan v. Director of
Forestry[9] and Oposa v. Factoran[10] on timber licensing
agreements, and Surigao Electric Co., Inc. v. Municipality of
Surigao[11] on a legislative franchise to operate an electric plant.
 HOWEVER, In Metro Manila Development Authority v. Bel-
Air Village Association, Inc.,we categorically stated that Rep. Act
No. 7924 does not grant the MMDA with police power, let alone
legislative power, and that all its functions are administrative in
nature.
Tracing the legislative history of Rep. Act No. 7924
creating the MMDA, we concluded that the MMDA is not a local
government unit or a public corporation endowed with legislative
power, and, unlike its predecessor, the Metro Manila Commission,
it has no power to enact ordinances for the welfare of the
community. Thus, in the absence of an ordinance from the City of
Makati, its own order to open the street was invalid.
We restate here the doctrine in the said decision as it applies to
the case at bar: police power, as an inherent attribute of
sovereignty, is the power vested by the Constitution in the
legislature to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes and ordinances, either
with penalties or without, not repugnant to the Constitution, as
they shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same.
Having been lodged primarily in the National Legislature, it
cannot be exercised by any group or body of individuals not
possessing legislative power. The National Legislature, however,
may delegate this power to the president and administrative
boards as well as the lawmaking bodies of municipal corporations
or local government units (LGUs). Once delegated, the agents can
exercise only such legislative powers as are conferred on them by
the national lawmaking body.
Our Congress delegated police power to the LGUs in the Local
Government Code of 1991.[15] A local government is a political
subdivision of a nation or state which is constituted by law and
has substantial control of local affairs.[16] Local government units
are the provinces, cities, municipalities and barangays, which
exercise police power through their respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several local
government units. With the passage of Rep. Act No. 7924 in 1995,
Metropolitan Manila was declared as a "special development and
administrative region" and the administration of "metro-wide"
basic services affecting the region placed under "a development
authority" referred to as the MMDA. Thus:
. . . [T]he powers of the MMDA are limited to the following acts:
formulation, coordination, regulation, implementation,
preparation, management, monitoring, setting of policies,
installation of a system and administration. There is no syllable in
R. A. No. 7924 that grants the MMDA police power, let alone
legislative power. Even the Metro Manila Council has not been
delegated any legislative power. Unlike the legislative bodies of
the local government units, there is no provision in R. A. No.
7924 that empowers the MMDA or its Council to "enact
ordinances, approve resolutions and appropriate funds for the
general welfare" of the inhabitants of Metro Manila. The MMDA
is, as termed in the charter itself, a "development authority." It is
an agency created for the purpose of laying down policies and
coordinating with the various national government agencies,
people's organizations, non-governmental organizations and the
private sector for the efficient and expeditious delivery of basic
services in the vast metropolitan area. All its functions are
administrative in nature and these are actually summed up in
the charter itself,
Clearly, the MMDA is not a political unit of government. The
power delegated to the MMDA is that given to the Metro Manila
Council to promulgate administrative rules and regulations in the
implementation of the MMDAs functions. There is no grant of
authority to enact ordinances and regulations for the general
welfare of the inhabitants of the metropolis. [17](footnotes
omitted, emphasis supplied)

Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood
by the lower court and by the petitioner to grant the MMDA
the power to confiscate and suspend or revoke drivers
licenses without need of any other legislative enactment, such is
an unauthorized exercise of police power.
Section 5 of Rep. Act No. 7924 enumerates the Functions and
Powers of the Metro Manila Development Authority. The
contested clause in Sec. 5(f) states that the petitioner shall install
and administer a single ticketing system, fix, impose and collect
fines and penalties for all kinds of violations of traffic rules and
regulations, whether moving or nonmoving in nature, and
confiscate and suspend or revoke drivers licenses in the
enforcement of such traffic laws and regulations, the provisions of
Rep. Act No. 4136[18] and P.D. No. 1605 to the contrary
notwithstanding, and that (f)or this purpose, the Authority shall
enforce all traffic laws and regulations in Metro Manila, through
its traffic operation center, and may deputize members of the
PNP, traffic enforcers of local government units, duly licensed
security guards, or members of non-governmental organizations
to whom may be delegated certain authority, subject to such
conditions and requirements as the Authority may impose.
Thus, where there is a traffic law or regulation validly enacted by
the legislature or those agencies to whom legislative powers have
been delegated (the City of Manila in this case), the petitioner is
not precluded and in fact is duty-bound to confiscate and suspend
or revoke drivers licenses in the exercise of its mandate of
transport and traffic management, as well as the administration
and implementation of all traffic enforcement operations, traffic
engineering services and traffic education programs.
This is consistent with our ruling in Bel-Air that the MMDA is a
development authority created for the purpose of laying down
policies and coordinating with the various national government
agencies, peoples organizations, non-governmental organizations
and the private sector, which may enforce, but not enact,
ordinances.
Province of Rizal v. Executive Secretary (G.R. No. 129546, 13
December 2005)
FACTS:
On 17 November 1988, the respondent Secretaries of the
Department of Public Works and Highways (DPWH) and the
Department of Environment and Natural Resources (DENR) and
the Governor of the Metropolitan Manila Commission (MMC)
entered into a Memorandum of Agreement (MOA), which
provides in part:
1. The DENR agrees to immediately allow the utilization by
the Metropolitan Manila Commission of its land property
located at Pintong Bocaue in San Mateo, Rizal as a sanitary
landfill site, subject to whatever restrictions that the
government impact assessment might require.
2. Upon signing of this Agreement, the DPWH shall
commence the construction/development of said
dumpsite.
3. The MMC shall: a) take charge of the relocation of the
families within and around the site; b) oversee the
development of the areas as a sanitary landfill; c)
coordinate/monitor the construction of infrastructure
facilities by the DPWH in the said site; and d) ensure that
the necessary civil works are properly undertaken to
safeguard against any negative environmental impact in
the area.
It turns out that the land subject of the MOA of 17 November
1988 and owned by the DENR was part of the Marikina
Watershed Reservation Area. Thus, on 31 May 1989, forest
officers of the Forest Engineering and Infrastructure Unit of the
Community Environment and Natural Resource
Office, (CENRO) DENR-IV, Rizal Province, submitted a
Memorandum on the On-going Dumping Site Operation of the
MMC inside (the) Upper Portion of Marikina Watershed
Reservation, located at Barangay Pintong Bocaue, San Mateo,
Rizal, and nearby localities.
Said Memorandum reads in part:
Observations:
3.1 The subject area is arable and agricultural in nature;
3.2 Soil type and its topography are favorable for
agricultural and forestry productions;
xxx
3.5 Said Dumping Site is observed to be confined within
the said Watershed Reservation, bearing in the
northeastern part of Lungsod Silangan Townsite
Reservation. Such illegal Dumping Site operation inside
(the) Watershed Reservation is in violation of P.D. 705,
otherwise known as the Revised ForestryCode, as
amended xxx
Recommendations:
5.1 The MMC Dumping Site Inside Marikina Watershed
Reservation, particularly at Brgy. Pintong Bocaue, San
Mateo, Rizal and at Bo. Pinugay, Baras/Antipolo, Rizal
which are the present garbage zones must totally be
stopped and discouraged without any political
intervention and delay in order to save our healthy
ecosystems found therein, to avoid much destruction,
useless efforts and lost of millions of public funds over the
land in question;
On 19 June 1989, the CENRO submitted another Investigation
Report to the Regional Executive Director which states in part
that:
1. About two (2) hectares had been excavated by
bulldozers and garbage dumping operations are going on.
2. The dumping site is without the concurrence of the
Provincial Governor, Rizal Province and without any
permit from DENR who has functional jurisdiction over the
Watershed Reservation; and
3. About 1,192 families residing and cultivating areas
covered by four (4) Barangays surrounding the dumping
site will adversely be affected by the dumping operations
of MMC including their sources of domestic water supply.
xxxx
On 19 February 1990, the DENR Environmental Management
Bureau, through Undersecretary for Environment and Research
Celso R. Roque, granted the Metro Manila Authority (MMA
[formerly MMC]) an Environmental Compliance Certificate (ECC)
for the operation of a two-and-ahalf- hectare garbage dumpsite.
On 31 July 1990, less than six months after the issuance of the
ECC, Undersecretary Roque suspended the ECC in a letter
addressed to the respondent Secretary of DPWH, stating in part
that:
 Upon site investigation conducted by Environmental
Management Bureau staff on development activities at
the San Mateo Landfill Site, it was ascertained that ground
slumping and erosion have resulted from improper
development of the site. We believe that this will
adversely affect the environmental quality in the area if
the proper remedial measures are not instituted in the
design of the landfill site. This is therefore contradictory to
statements made in the Environmental Impact Statement
(EIS) submitted that above occurrences will be properly
mitigated.
On 16 November 1993, DENR Secretary Angel C. Alcala
sent MMA Chairman Ismael A. Mathay, Jr. a letter stating that
after a series of investigations by field officials of the DENR, the
agency realized that the MOA entered into on 17 November 1988
is a very costly error because the area agreed to be a garbage
dumpsite is inside the Marikina Watershed Reservation. He then
strongly recommended that all facilities and infrastructure in the
garbage dumpsite in Pintong Bocaue be dismantled, and the
garbage disposal operations be transferred to another area
outside the Marikina Watershed Reservation to protect the health
and general welfare of the residents of San Mateo in particular
and the residents of Metro Manila in general.
On 21 August 1995, the Sangguniang Bayan of San Mateo
issued a Resolution expressing a strong objection to the planned
expansion of the landfill operation in Pintong Bocaue and
requesting President Ramos to disapprove the draft Presidential
Proclamation segregating 71.6 Hectares from Marikina Watershed
Reservation for the landfill site in Pintong Bocaue, San Mateo,
Rizal.
Despite the various objections and recommendations
raised by the government agencies aforementioned, the Office of
the President, through Executive Secretary Ruben Torres, signed
and issued Proclamation No. 635 on 28 August 1995, Excluding
from the Marikina Watershed Reservation Certain Parcels of
Land Embraced Therein for Use as Sanitary Landfill Sites and
Similar Waste Disposal Under the Administration of the
Metropolitan Manila Development Authority.
On 22 July 1996, the petitioners filed before the Court of Appeals
a civil action for certiorari, prohibition and mandamus with
application for a temporary restraining order/writ of preliminary
injunction. The hearing on the prayer for preliminary injunction
was held on 14 August 1996.
On 13 June 1997, the court a quo rendered a Decision, the
dispositive part of which reads:
WHEREFORE, the petition for certiorari, prohibition and
mandamus with application for a temporary restraining
order/writ of preliminary injunction for lack of cause of
action, is hereby DENIED.
ISSUE:
1. Whether or not The Court Of Appeals erred and abused its
discretion for denying the civil action for certiorari,
prohibition and mandamus with application for a
temporary restraining order/writ of preliminary injunction
of the petitioners.
2. Whether or not the Province of Rizal or the municipality of
San Mateo has the power to control or regulate its use
 since properties of this nature belong to the national, and
not to the local governments.
RULING:
1.Yes. We hold that the San Mateo Landfill will remain
permanently closed. First, the San Mateo site has adversely
affected its environs. The adverse effects of the site were
reported as early as 19 June 1989, when the Investigation Report
of the Community Environment and Natural Resources Officer of
DENR-IV-1 stated that the sources of domestic water supply of
over one thousand families would be adversely affected by the
dumping operations. The succeeding report included the
observation that the use of the areas as dumping site greatly
affected the ecological balance and environmental factors of the
community. Respondent LLDA in fact informed the MMA that the
heavy pollution nand risk of disease generated by dumpsites
rendered the location of a dumpsite within the Marikina
Watershed Reservation incompatible with its program of
upgrading the water quality of the Laguna Lake.
Another Investigation Report submitted by the Regional Technical
Director to the DENR reported respiratory illnesses among pupils
of a primary school located approximately 100 meters from the
site, as well as the constant presence of large flies and windblown
debris all over the schools playground. It further reiterated
reports that the leachate treatment plant had been eroded twice
already, contaminating the nearby creeks that were sources of
potable water for the residents. The contaminated water was also
found to flow to the Wawa Dam and Boso-boso River, which in
turn empties into Laguna de Bay.
Second, sources of water should always be protected.
Water is life, and must be saved at all costs. In Collado v. Court of
Appeals, we had occasion to reaffirm our previous discussion in
Sta. Rosa Realty Development Corporation v. Court of Appeals, on
the primordial importance of watershed areas, thus: The most
important product of a watershed is water, which is one of the
most important human necessities. The protection of watersheds
ensures an adequate supply of water for future generations and
the control of flashfloods that not only damage property but also
cause loss of lives. Protection of watersheds is an
intergenerational responsibility that needs to be answered now.
2. Yes. In Cruz v. Secretary of Environment and Natural
Resources, we had occasion to observe that (o)ne of the fixed and
dominating objectives of the 1935 Constitutional Convention was
the nationalization and conservation of the natural resources of
the country. There was an overwhelming sentiment in the
convention in favor of the principle of state ownership of natural
resources and the adoption of the Regalian doctrine. State
ownership of natural resources was seen as a necessary starting
point to secure recognition of the states power to control their
disposition, exploitation, development, or utilization
It was with this objective in mind that the respondent
DENR was mandated by then President Corazon C. Aquino, under
Section 4 of Executive Order No. 192, otherwise known as The
Reorganization Act of the Department of Environment and
Natural Resources, to be the primary government agency
responsible for the conservation, management, development and
proper use of the countrys environment and natural resources,
specifically forest and grazing lands, mineral resources, including
those in reservation and watershed areas, and lands of the public
domain. It is also responsible for the licensing and regulation of
all natural resources as may be provided for by law in order to
ensure equitable sharing of the benefits derived therefrom for
the welfare of the present and future generations of Filipinos.
We expounded on this matter in the landmark case of
Oposa v. Factoran, where we held that the right to a balanced and
healthful ecology is a fundamental legal right that carries with it
the correlative duty to refrain from impairing the environment.
This right implies, among other things, the judicious management
and conservation of the countrys resources, which duty is
reposed in the DENR under Section 4 of Executive Order No. 192.
In sum, the Administrative Code of 1987 and Executive
Order No. 192 entrust the DENR with the guardianship and
safekeeping of the Marikina Watershed Reservation and our other
natural treasures. However, although the DENR, an agency of the
government, owns the Marikina Reserve and has jurisdiction over
the same, this power is not absolute, but is defined by the
declared policies of the state, and is subject to the law and higher
authority.
Section 2, Title XIV, Book IV of the Administrative Code of
1987, while specifically referring to the mandate of the DENR,
makes particular reference to the agencys being subject to law
and higher authority, thus:
SEC. 2. Mandate. –
(1) The Department of Environment and Natural
Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be
in charge of carrying out the State's constitutional
mandate to control and supervise the exploration,
development, utilization, and conservation of the
country's natural resources.
Closure and Opening of Roads
Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc. (G.R. No.
148339, 23 February 2005)
FACTS:
Respondent, JAC Liner, Inc., a common carrier operating buses
which ply various routes to and from Lucena City, assailed, via a
petition for prohibition and injunction against the City of Lucena,
its Mayor, and the Sangguniang Panlungsod of Lucena before the
Regional Trial Court (RTC) of Lucena City, City Ordinance Nos.
1631 and 1778 as unconstitutional on the ground that, inter alia,
the same constituted an invalid exercise of police power, an
undue taking of private property, and a violation of the
constitutional prohibition against monopolies. The salient
provisions of the ordinances are:
Ordinance No. 1631
AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL,
INC., A FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE
AND MAINTAIN A COMMON BUS-JEEPNEY TERMINAL FACILITY IN THE
CITY OF LUCENA
xxx
SECTION 2. – This franchise shall continue for a period of twenty-five
years, counted from the approval of this Ordinance, and renewable at
the option of the grantee for another period of twenty-five (25) years
upon such expiration.
xxx
SECTION 4. – Responsibilities and Obligations of the City Government
of Lucena. – During the existence of the franchise, the City
Government of Lucena shall have the following responsibilities and
obligations:
xxx
(c) It shall not grant any third party any privilege and/or
concession to operate a bus, mini-bus and/or jeepney
terminal.
xxx
Ordinance No. 17783
AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL
BUSES, MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS
PURPOSE, AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE
NO. 1557, SERIES OF 1995
xxx
SECTION 1. – The entrance to the City of Lucena of all buses, mini-buses and
out-of-town passenger jeepneys is hereby regulated as follows:
(a) All buses, mini-buses and out-of-town passenger jeepneys shall be
prohibited from entering the city and are hereby directed to proceed
to the common terminal, for picking-up and/or dropping of their
passengers.
(b) All temporary terminals in the City of Lucena are hereby declared
inoperable starting from the effectivity of this ordinance.
xxx
SECTION 3. – a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby
amended to read as follows:
xxx
c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read
as follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming
from other municipalities and/or local government units shall utilize
the facilities of the Lucena Grand Central Terminal at Diversion Road,
Brgy. Ilayang Dupay, this City, and no other terminals shall be situated
inside or within the City of Lucena;
e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read
as follows:
The Lucena Grand Central Terminal is the permanent common
terminal as this is the entity which was given the exclusive franchise
by the Sangguniang Panglungsod under Ordinance No. 1631
These ordinances, by granting an exclusive franchise for twenty
five years, renewable for another twenty five years, to one entity
for the construction and operation of one common bus and
jeepney terminal facility in Lucena City, to be located outside the
city proper, were professedly aimed towards alleviating the traffic
congestion alleged to have been caused by the existence of
various bus and jeepney terminals within the city.
By Order of March 31, 1999,7 Branch 54 of the Lucena RTC
rendered judgment, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered,
as follows:
1. Declaring City Ordinance No. 1631 as VALID, having been issued in
the exercise of the police power of the City Government of Lucena
insofar as the grant of franchise to the Lucena Grand Central Terminal,
Inc., to construct, finance, establish, operate and maintain common
bus-jeepney terminal facility in the City of Lucena;
2. But however, declaring the provision of Sec. 4(c) of Ordinance No.
1631 to the effect that the City Government shall not grant any third
party any privilege and/or concession to operate a bus, mini-bus
and/or jeepney terminal, as illegal and ultra vires because it
contravenes the provisions of Republic Act No. 7160, otherwise
known as "The Local Government Code";
3. Declaring City Ordinance No. 1778 as null and void, the same being
also an ultra vires act of the City Government of Lucena arising from
an invalid, oppressive and unreasonable exercise of the police power,
more specifically, declaring illegal [sections 1(b), 3(c) and 3(e)
xxx
By Decision of December 15, 2000,13 the appellate court
dismissed the petition and affirmed the challenged orders of the
trial court.
ISSUE:
Whether or not the City of Lucena properly exercised its police
power when it enacted the subject ordinances.
RULING
No. As with the State, the local government may be considered as
having properly exercised its police power only if the following
requisites are met:
(1) the interests of the public generally, as distinguished
from those of a particular class, require the interference of
the State, and
(2) the means employed are reasonably necessary for the
attainment of the object sought to be accomplished and
not unduly oppressive upon individuals.
Otherwise stated, there must be a concurrence of a lawful subject
and lawful method.
The questioned ordinances having been enacted with the
objective of relieving traffic congestion in the City of
Lucena, they involve public interest warranting the interference of
the State. The first requisite for the proper exercise of police
power is thus present.
With the aim of localizing the source of traffic congestion in the is needed to be done by the respondent is to find out the source of
city to a single location, the subject ordinances prohibit the such leakages and stop it right there.
operation of all bus and jeepney terminals within Lucena, As in De la Cruz and Lupangco, the ordinances assailed
including those already existing, and allow the operation of only herein are characterized by overbreadth. They go beyond what is
one common terminal located outside the city proper, the reasonably necessary to solve the traffic problem. Additionally,
franchise for which was granted to petitioner. The common since the compulsory use of the terminal operated by petitioner
carriers plying routes to and from Lucena City are thus compelled would subject the users thereof to fees, rentals and charges, such
to close down their existing terminals and use the facilities of measure is unduly oppressive, as correctly found by the appellate
petitioner. court. 31 What should have been done was to determine exactly
In De la Cruz v. Paras,25 this Court declared unconstitutional an where the problem lies and then to stop it right there.
ordinance characterized by overbreadth. In that case, the Municipality As for petitioner’s claim that the challenged ordinances
of Bocaue, Bulacan prohibited the operation of all night clubs, have actually been proven effective in easing traffic congestion:
cabarets and dance halls within its jurisdiction for the protection of Whether an ordinance is effective is an issue different from
public morals. Held the Court:
It cannot be said that such a sweeping exercise of a lawmaking power
whether it is reasonably necessary. It is its reasonableness, not its
by Bocaue could qualify under the term reasonable. The objective of effectiveness, which bears upon its constitutionality. If the
fostering public morals, a worthy and desirable end can be attained by constitutionality of a law were measured by its effectiveness,
a measure that does not encompass too wide a field. Certainly the then even tyrannical laws may be justified whenever they happen
ordinance on its face is characterized by overbreadth. The purpose to be effective. The weight of popular opinion, however, must be
sought to be achieved could have been attained by reasonable
restrictions rather than by an absolute prohibition.
balanced with that of an individual’s rights.
Lupangco v. Court of Appeals, this Court, in declaring unconstitutional Elective Local Officials Qualifications/Disqualifications
the resolution subject thereof, advanced a similar consideration. That Term of Office
case involved a resolution issued by the Professional Regulation
Commission which prohibited examinees from attending review
classes and receiving handout materials, tips, and the like three days
before the date of examination in order to preserve the integrity and
purity of the licensure examinations in accountancy. Besides being
unreasonable on its face and violative of academic freedom, the
measure was found to be more sweeping than what was necessary,
viz:
Needless to say, the enforcement of Resolution No. 105 is not a
guarantee that the alleged leakages in the licensure examinations will
be eradicated or at least minimized. Making the examinees suffer by
depriving them of legitimate means of review or preparation on those
last three precious days when they should be refreshing themselves
with all that they have learned in the review classes and preparing
their mental and psychological makeup for the examination day itself
— would be like uprooting the tree to get rid of a rotten branch. What