078 Sison v People

TOPIC: Local Bids and Awards Committee

PONENTE: Justice Corona

AUTHOR: Dann M.
NOTES/QUICKIE FACTS:

FACTS
1. Petitioner Rolando E. Sison was the municipal mayor of Calintaan, Occidental Mindoro, a fourth-class
1
2
municipality, from July 1, 1992 to June 30, 1995, while Rigoberto de Jesus was the municipal treasurer.
2. On July 18, 1994, state auditor Elsa E. Pajayon conducted a post-audit investigation which revealed that during
petitioners incumbency, no public bidding was conducted for the purchase of a Toyota Land Cruiser, 119 bags of
Fortune cement, an electric generator set, certain construction materials, two Desert Dueler tires, and a computer
and its accessories. Pajayon also found out that there were irregularities in the documents supporting the
acquisitions.
3. Thus, on June 4, 1998, petitioner and de Jesus were indicted before the Sandiganbayan in seven separate
3
4
Informations for seven counts of violation of Section 3(e) of Republic Act (RA) 3019.
4. On June 24, 1999, petitioner pleaded not guilty to all the Informations. Accused de Jesus has remained at large.
5. Trial on the merits ensued. Pajayon was the lone witness for the prosecution.
6. When it was the turn of the defense to present evidence, petitioner was called to the witness stand where he
admitted that indeed, no public bidding was conducted insofar as the purchases he was being accused of were
concerned. When asked how the purchases were made, he answered that they were done through personal
canvass. When prodded why personal canvass was the method used, he retorted that no public bidding could be
conducted because all the dealers of the items were based in Manila. It was therefore useless to invite bidders
since nobody would bid anyway. The defense thereafter rested its case and formally offered its exhibits.
5
7. On November 14, 2005, the Sandiganbayan found petitioner guilty as charged.
6
8. Petitioner appealed to this Court, praying for an acquittal because his guilt was allegedly not proven beyond
reasonable doubt.
ISSUE: Whether or not personal canvass is validly made by the petitioner
HELD: No, the requirement were not met.

RATIO:
7

1. RA 7160 explicitly provides that, as a rule, "acquisitions of supplies by local government units shall be through
8
competitive bidding." By way of exception, no bidding is required in the following instances:
(1) personal canvass of responsible merchants;
(2) emergency purchase;
(3) negotiated purchase;
(4) direct purchase from manufacturers or exclusive distributors and
9
(5) purchase from other government entities.
2. Since personal canvass (the method availed of by petitioner) is an exception to the rule requiring public bidding,
Section 367 of RA 7160 provides for limitations on the resort to this mode of procurement:
Sec. 367. Procurement through Personal Canvass.Upon approval by the Committee on Awards,
procurement of supplies may be affected after personal canvass of at least three (3) responsible suppliers
in the locality by a committee of three (3) composed of the local general services officer or the municipal
or barangay treasurer, as the case may be, the local accountant, and the head of office or department for
whose use the supplies are being procured. The award shall be decided by the Committee on Awards.
Purchases under this Section shall not exceed the amounts specified hereunder for all items in any one (1) month
for each local government unit:
xxx
Municipalities
:
One hundred fifty thousand pesos (P150,000.00)

First Class

First Class

Second and

Third Class Forty thousand pesos (P40,000.00)

Fourth Class and Below

Twenty thousand pesos (P20,000.00) (emphasis supplied)

3. In relation thereto, Section 364 of RA 7160 mandates:

Section 364. The Committee on Awards.There shall be in every province, city or municipality a Committee on
Awards to decide the winning bids and questions of awards on procurement and disposal of property.
The Committee on Awards shall be composed of the local chief executive as chairman, the local treasurer, the
local accountant, the local budget officer, the local general services officer, and the head of office or department
for whose use the supplies are being procured, as members. In case a head of office or department would sit
in a dual capacity a member of the sanggunian elected from among its members shall sit as a member.
The Committee on Awards at the barangay level shall be the sangguniang barangay. No national official shall sit
as member of the Committee on Awards. (emphasis supplied)
4. Note that the law repeatedly uses the word "shall" to emphasize the mandatory nature of its provisions.
11
5. Insofar as the purchase of the Toyota Land Cruiser is concerned, the Sandiganbayan found that the personal
canvass was effected solely by petitioner, without the participation of the municipal accountant and petitioners coaccused de Jesus, the municipal treasurer. Worse, there was no showing that that the award was decided by the
Committee on Awards. Only an abstract of canvass supported the award, signed by petitioner and de Jesus,
without the required signatures of the municipal accountant and budget officer.
6. To reiterate, RA 7160 requires that where the head of the office or department requesting the requisition sits in a
dual capacity, the participation of a Sanggunian member (elected from among the members of the Sanggunian) is
necessary.
7. Petitioner clearly disregarded this requirement because, in all the purchases made, he signed in a dual capacity
as chairman and member (representing the head of office for whose use the supplies were being procured). That
is strictly prohibited.
8. None of the regular members of the Committee on Awards may sit in a dual capacity.
9. Where any of the regular members is the requisitioning party, a special member from the Sanggunian is required.
10. The prohibition is meant to check or prevent conflict of interest as well as to protect the use of the procurement
process and the public funds for irregular or unlawful purchases.
12
11. The same flaws attended the procurement of 119 bags of Fortune cement, electric power generator
13
14
15
16
set, various construction materials, two Desert Dueler tires and a computer and its accessories.
12. With the kind of items purchased by petitioner, he also clearly spent more than P20,000or beyond the threshold
amount per month allowed by Section 367 of RA 7160 as far as purchases through personal canvass by fourthclass municipalities (like Calintaan) are concerned.
WHEREFORE, the petition is hereby DENIED.

AUTHOR: Ernest
080 CITIZEN J. ANTONIO M. CARPIO, petitioner, vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
LOCAL GOVERNMENTS, THE SECRETARY OF NATIONAL
DEFENSE and THE NATIONAL TREASURER, respondents.
[G.R. No. 96409 February 14, 1992]
TOPIC: People's Law Enforcement Board, Sec. 43, R.A. 6975
PONENTE: PARAS, J
FACTS:
1. Congress passed Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE
UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER
PURPOSES" as the consolidated version of House Bill No. 23614 and Senate Bill No. 463.
2. Following the said Act's approval by President Corazon C. Aquino on December 13, 1990, it was published on December 17,
1990.
3. Petitioner Antonio Carpio as citizen, taxpayer and member of the Philippine Bar, filed this petition, questioning the
constitutionality of RA 6975 with a prayer for TRO.
MAIN ISSUE: Whether or not RA 6975 is Unconstitutional
HELD: NO. It is Constitutional
Petitioners Argument # 1: RA 6975 emasculated the National Police Commission (NAPOLCOM) by limiting its power
"to administrative control" over the Philippine National Police (PNP), thus, "control" remained with the Department Secretary under
whom both the National Police Commission and the PNP were placed.
HELD: Contention without merit.
The President has control of all executive departments, bureaus, and offices. NAPOLCOM is under the Office of the President.
This presidential power of control over the executive branch of government extends over all executive officers from
Cabinet Secretary to the lowliest clerk. In the landmark case of Mondano vs. Silvosa, the power of control means the power of
the President 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 with that of the latter. It is said to be at the very heart of the meaning of Chief Executive.
"Doctrine of Qualified Political Agency". The President cannot be expected to exercise his control powers all at the same time and in
person, he will have to delegate some of them to his Cabinet members. 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 on 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, unless disapproved or reprobated by
the Chief Executive presumptively the acts of the Chief Executive." "
In Short, the President's power of control is directly exercised by him over the members of the Cabinet who, in turn, and by his
authority, control the bureaus and other offices under their respective jurisdictions in the executive department."
The placing of NAPOLCOM and PNP under the reorganized DILG is merely an administrative realignment that would bolster a
system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public
safety agencies.
Petitioners Argument # 2: (Topic in the syllabus) Petitioner further asserts that in manifest derogation of the power of control of the
NAPOLCOM over the PNP, RA 6975 vested the power to choose the PNP Provincial Director and the Chiefs of Police in the
Governors and Mayors, respectively; the power of "operational supervision and control" over police units in city and municipal
mayors; in the Civil Service Commission, participation in appointments to the positions of Senior Superintendent to Deputy DirectorGeneral as well as the administration of qualifying entrance examinations; disciplinary powers over PNP members in the "People's
Law Enforcement Boards" and in city and municipal mayors.
HELD: Contention without merit
Full control remains with the National Police Commission. There is no usurpation of the power of control of the NAPOLCOM it
is clear that the local executives are only acting as representatives of the NAPOLCOM. . . . As such deputies, they are answerable
to the NAPOLCOM for their actions in the exercise of their functions under that section. Thus, unless countermanded by the
NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM." It is significant to note that the local officials, as
NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the general
qualifications for appointment to the PNP) to be recommended by PNP officials. The same holding is true with respect to the
contention on the operational supervision and control exercised by the local officials. Those officials would simply be acting as
representatives of the Commission.

AS to PLEBs: The grant of disciplinary powers over PNP members to the "People's Law Enforcement Boards" (or the PLEB)
and city and municipal mayors is also not in derogation of the commission's power of control over the PNP. Pursuant to the
Act, the Commission exercises appellate jurisdiction, thru the regional appellate boards, over decisions of both the PLEB and
the said mayors. This is so under Section 20(c). Furthermore, it is the Commission which shall issue the implementing
guidelines and procedures to be adopted by the PLEB for in the conduct of its hearings, and it may assign NAPOLCOM hearing
officers to act as legal consultants of the PLEBs (Section 43-d4, d5).
As a disciplinary board primarily created to hear and decide citizen's complaints against erring officers and members of the PNP, the
establishment of PLEBs in every city, and municipality would all the more help professionalize the police force.
Petitioners Argument #3: Sec. 12 of the act constitutes an "encroachment upon, interference with, and an abdication by the
President of, executive control and commander-in-chief powers."
Sec. 12. Relationship of the Department with the Department of National Defense. During a period of twenty- four (24)
months from the effectivity of this Act, the Armed Forces of the Philippines (AFP) shall continue its present role of preserving
the internal and external security of the State: Provided, that said period may be extended by the President, if he finds it
justifiable, for another period not exceeding twenty-four (24) months, after which, the Department shall automatically take
over from the AFP the primary role of preserving internal security, leaving to the AFP its primary role of preserving external
security.
HELD: NO.
Section 12 does not constitute abdication of commander-in-chief powers. It simply provides for the transition period or process during
which the national police would gradually assume the civilian function of safeguarding the internal security of the State. Under this
instance, the President, to repeat, abdicates nothing of his war powers. It would bear to here state, in reiteration of the preponderant
view, that the President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the
Commander-in-Chief provision "represent only a part of the organic duties imposed upon him. All his other functions are clearly civil
in nature." 31 His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that
"civilian authority is, at all times, supreme over the military." (Article II, Section 3, 1987 Constitution)
DOCTRINES:
CONSTI Article XVI, Section 6:
The State shall establish and maintain one police force, which stall be national in scope and civilian in character, to be
administered and controlled by a national police commission. The authority of local executives over the police units in their
jurisdiction shall be provided by law.
DISPOSITIVE: WHEREFORE, having in view all of the foregoing holdings, the instant petition is hereby DISMISSED for lack of
merit.SO ORDERED.

[81] SPO1 LEONITO ACUZAR, Petitioner,

- versus -APRONIANO JOROLAN and HON.
EDUARDO A APRESA, PEOPLES LAW
ENFORCEENT BOARD (PLEB) Chairman,
Respondents.

TOPIC: Local Special Bodies

PONENTE: Villarama, Jr. J.

AUTHOR: John Jeffrey Ramirez

NOTES/QUICKIE FACTS:
MIAA is being required by the City of
Government of Paranaque to pay real estate
taxes over its Airport Lands and Buildings.
MIAA alleged they are not subject to real
estate tax. But City of Government of
Paranaque argued otherwise.

FACTS
Respondent Aproniano Jorolan filed Administrative Case against petitioner before the PLEB charging the latter
of Grave Misconduct for allegedly having an illicit relationship with respondents minor daughter. Respondent
also instituted a criminal case against petitioner before the MTC for Violation of Republic Act No. 7610,
otherwise known as the Child Abuse Act.
Petitioner filed his Counter-Affidavit before the PLEB vehemently denying all the accusations leveled against
him. In support thereof, petitioner attached the affidavit of complainants daughter, Rigma A. Jorolan, who
denied having any relationship with the petitioner or having kissed him despite knowing him to be a married
person.
PLEB issued a decision founding that Acuzar guilty of Grave Misconduct.
Petitioner:
Petitioner filed a Petition for Certiorari with Prayer for Preliminary Mandatory Injunction and Temporary
Restraining Order[7] with the RTC of Tagum City, Branch 31, docketed as Special Civil Case No. 384. Petitioner
alleged that the subject decision was issued without giving him an opportunity to be heard. He likewise averred
that the respondent Board acted without jurisdiction in proceeding with the case without the petitioner having been
first convicted in the criminal case before the regular court. Petitioner pointed out that under the PLEB Rules of
Procedure, prior conviction was required before the Board may act on the administrative case considering that the
charge was actually for violation of law, although denominated as one (1) for grave misconduct
Petitioner contends that the petition he filed before the trial court was appropriate because the instant case falls
under the exceptions to the rule on exhaustion of administrative remedies, the decision being patently illegal.
Petitioner maintains that a conviction should have been first obtained in the criminal case filed against him for
child abuse before the PLEB can acquire jurisdiction over his administrative case. He also maintains that the
Boards decision was reached without giving him an opportunity to be heard and his right to due process was
violated. The Boards decision having been rendered without jurisdiction, appeal was not an appropriate remedy
Respondent:
CA found merit in respondents argument that the petition for certiorari filed by petitioner before the RTC was
not the proper remedy because (1) appeal was available and (2) the issues raised were not pure questions of law
but both questions of law and fact. According to the CA, the existence and availability of the right of appeal
proscribes resort to certiorari because one (1) of the requirements for its availment is the absence of the remedy
of appeal or any other plain, speedy or adequate remedy. The CA ruled that petitioner should have appealed the
decision of the PLEB to the regional appellate board of the PNP before resorting to certiorari before the court.
The CA added that while it is true that there are instances where the extraordinary remedy of certiorari may be
resorted to despite the availability of an appeal, petitioner, however, failed to demonstrate any ground to warrant
immediate resort to it. Thus, it held that the trial court erred in giving due course to the petition.

ISSUE:
Whether or not the CA erred in ruling that petitioners resort to certiorari was not warranted as the remedy of
appeal from the decision of the PLEB was available to him?
HELD: No
RATIO:
The contention however is untenable. A careful perusal of respondents affidavit-complaint against petitioner
would show that petitioner was charged with grave misconduct for engaging in an illicit affair with respondents
minor daughter, he being a married man, and not for violation of law, as petitioner would like to convince this
Court. Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated,
obstinate or intentional purpose.[10] It usually refers to transgression of some established and definite rule of
action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption or
criminal intention but implies wrongful intention and not to mere error of judgment. [11] On the other hand,
violation of law presupposes final conviction in court of any crime or offense penalized under the Revised
Penal Code or any special law or ordinance.[12] The settled rule is that criminal and administrative cases are
separate and distinct from each other.[13] In criminal cases, proof beyond reasonable doubt is needed whereas in
administrative proceedings, only substantial evidence is required. Verily, administrative cases may proceed
independently of criminal proceedings.[14] The PLEB, being the administrative disciplinary body tasked to hear
complaints against erring members of the PNP, has jurisdiction over the case.
Since appeal was available, filing a petition for certiorari was inapt. The existence and availability of the right
of appeal are antithetical to the availment of the special civil action of certiorari.[16] Corollarily, the principle of
exhaustion of administrative remedies requires that before a party is allowed to seek the intervention of the
court, it is a precondition that he should have availed of the means of administrative processes afforded to
him. If a remedy is available within the administrative machinery of the administrative agency, then this
alternative should first be utilized before resort can be made to the courts. This is to enable such body to review
and correct any mistakes without the intervention of the court.
Moreover, for a special civil action for certiorari to prosper, the following requisites must concur: (1) it
must be directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (2) the
tribunal, board or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction; and (3) there is no appeal nor any plain, speedy and adequate remedy
in the ordinary course of law.[17] For sure, petitioners bare allegation that appeal from the judgment of the Board
may not be adequate does not justify immediate resort to certiorari. Moreover, the extraordinary writ of certiorari
may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an
evasion of positive duty or to 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 or personal
hostility.[18] Here, not only was an appeal available to petitioner as a remedy from the decision of the PLEB,
petitioner also failed to sufficiently show any grave abuse of discretion of the Board which would justify his
immediate resort to certiorari in lieu of an appeal.
Contrary to petitioners claim that he has not been afforded all the opportunity to present his side, our own
review of the records of the proceedings before the PLEB reveals otherwise.
In administrative proceedings, procedural due process has been recognized to include the following: (1)
the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal
rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and
evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so
constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as
impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the parties affected.[20]
In the instant case, petitioner was notified of the complaint against him and in fact, he had submitted his
counter-affidavit and the affidavits of his witnesses. He attended the hearings together with his counsel and even

asked for several postponements. Petitioner therefore cannot claim that he had been denied of due process. Due
process in an administrative context does not require trial-type proceedings similar to those in courts of justice.
Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial
of due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy. In other words, it is not legally objectionable for being violative of due
process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary
evidence submitted by the parties as affidavits of witnesses may take the place of direct testimony. Here, we
note that petitioner had more than enough opportunity to present his side and adduce evidence in support of his
defense; thus, he cannot claim that his right to due process has been violated.

DISPOSITIVE:
WHEREFORE, the petition is DENIED. The Decision dated March 23, 2007 of the Court of Appeals in CAG.R. SP No. 77110 is hereby AFFIRMED.

082 ROBERTO IGNACIO, petitioner,

vs.
LEONCIO BANATE, JR., HON. AQUILINO PIMENTEL, in his
capacity as Minister of Local Governments and Community
Development and the CITY TREASURER OF ROXAS
CITY, respondents.
TOPIC:
PONENTE: GUTIERREZ, JR., J.

AUTHOR: Jelena
NOTES/QUICKIE FACTS:
Ignacio was elected as Barangay Captain then President of the
Association Barangay Councils, which led to his appointment as a
member of the City Council of Roxas By The president.
Banate Jr. was appointed as his replacement. Petitioner seeks to
nullify this contending that he is not qualified for the position.

PARTIES:
ROBERTO IGNACIO, petitioner,
vs.
LEONCIO BANATE, JR., HON. AQUILINO PIMENTEL, in his capacity as Minister of Local Governments and Community Development
and the CITY TREASURER OF ROXAS CITY, respondents.
NATURE:
Petition for quo warranto and prohibition with prayer for preliminary and temporary restraining order seeking to nullify the
appointment or designation of private respondent Leoncio Banate, Jr., as a member of the Sangguniang Panlungsod of the City of
Roxas.
FACTS:
1. [PETITIONER WAS ELECTED] The petitioner was elected Barangay Captain of Barangay Tanza, Roxas City on May 17, 1982, for a
term of six years which commenced on June 7,1982.
2. [SUBSEQUENTLY ELECTED] President of the Association of Barangay Councils or Katipunang Panlungsod Ng Mga Barangay in
Roxas City, in accordance with the Local Government Code and the implementing rules and regulations of the Katipunan.
3. [BECAUSE OF THAT POSITION] he was appointed a member of the Sangguniang Panlungsod or City Council of the Roxas City by
then President Marcos.
a. As such member, he took his oath of office on June 24, 1982.
4. [May 9, 1986][APPOINTMENT OF REPLACEMENT] respondent Minister Aquilino Pimentel designated Leoncio Banate, Jr., as
member of the Sangguniang Panlungsod of Roxas City, to replace the petitioner.
5. *PETITIONERS CONTENTIONS]
a. respondent Banate is not qualified to be a member of the Sangguniang Panlungsod and to replace him as the
representative of the Katipunan Ng Mga Barangay of Roxas City because his membership in the city council as Katipunan
President is governed by the Local Government Code (BP Blg. 337), particularly Sec. 173 which provides that:
i. Sec. 173. Composition and Compensation. (l) sangguniang panlungsod as the legislative body of the city,
shall be composed of the vice-mayor, as presiding officer, the elected sangguniang panlungsod members, and
the members who may be appointed by the President of the Philippines consisting of the presidents of
the katipunan panlungsod ng mga barangay and the kabataang barangay city federation.
b. His appointment as member of the Sangguniang Panlungsod was by virtue of his having been elected by the Katipunang
Panlungsod Ng Mga Barangay of said city as president thereof in accordance with BP Blg. 337 while respondent Banate
is not an officer, much less President of the Katipunang Panlungsod Ng Mga Barangay of Roxas City and has not been
duly elected for any of said positions.
c. The appointment of respondent Banate by Minister Pimentel is invalid considering that under Sec. 173 of the Local
Government Code, it is the President of the Philippines and not the Minister of Local Governments who has the power
and authority to appoint the President of the Katipunang Panlungsod Ng Mga Barangay as member of the Sangguniang
Panlungsod. He claims that this appointment power cannot be delegated to said minister for this is a strictly personal
act which the Constitution and the laws specifically ordain to be performed by the President alone.
6. [Solicitor General COUNTER ARGUMENTS]
a. Under the Local Government Code (BP Blg. 337), the terms of office of local government officials commenced on the
first Monday of March 1980 and ended on March 28, 1986. The period was extended to June 30, 1986 by the Omnibus
Election Code of 1985 (BP Blg. 881).
b. The petitioner, as an appointive local government official who assumed office under the 1973 Constitution, is covered
by the provisions of Section 2, Article III of Proclamation No. 3 issued by President Corazon C. Aquino, which provides
that "All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of
their successors, if such is made within a period of one year from February 25, 1986."
c. With respect to the argument of the petitioner that the appointing power of the President of the Philippines cannot be
delegated to Minister Pimentel, the Solicitor General replied that under the provisions of Section 2, Article III of
Proclamation No. 3, dated March 25, 1986, issued by President Corazon C. Aquino, otherwise known as the Provisional
Constitution, the power to delegate or appoint officers-in-charge in replacement of local government officials by then
Minister Aquilino Pimentel, Jr., as alter ego of the President of the Philippines, has been upheld by this Court in several

cases.
ISSUE: Whether of not the appointment of Batante by Pimentel was valid.
HELD: NO.
RATIO:
1. It is true that Minister Pimentel, as cabinet member, is the alter ego of the President in appointing a public officer. His authority
to designate or appoint local officials in an acting capacity has been upheld by this Court.
2. We must stress, however, that the appointee to a Sangguniang Panlungsod who sits there as a representative of the barangays
must meet the qualifications required by law for the position. An unqualified person cannot be appointed a member even in an
acting capacity.
3. It must be noted that the petitioner is an elected barangay captain of Barangay Tanza, Roxas City. As barangay captain, he was
subsequently elected President of the Association of Barangay Councils of Roxas City. It was by reason of his being the president
of the Association of Barangay Councils of Roxas City that the President of the Philippines appointed him as member of the
Sangguniang Panlungsod. This was pursuant to Section 3, paragraph 1 of BP Blg. 51 (An Act Providing for the Elective- or
Appointive Positions in Various Local Governments and for Other Purposes), which provides that:
a. Sec. 3. Cities. There shall be in each city such elective local officials as provided in their respective charters, including
the city mayor, the city vice-mayor, and the elective members of the sangguniangpanlungsod, all of whom shall be
elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang panlungsod
members consisting of the president of the city association of barangay councils, the president of the city federation of
the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be
appointed by the president wherever, as determined by the sangguniang panglungsod, said sectors are of sufficient
number in the city to warrant representative. (Emphasis supplied).
4. The aforequoted provision of law is complemented by Section 173 of the Local Government Code (BP Blg. 337) cited earlier.
5. The private respondent in this case, not being a barangay Captain and never having been elected president of the association
of barangay councils, cannot be appointed a member of the sangguniang panlungsod.
a. He lacks the eligibility and qualification required by law. Subject to constitutional restrictions, the Congress or the
legislative authority may determine the eligibility and qualification of officers and provide the method for filling them.
The lawmaker's mandate has not been complied with.
6. The Authority exercised by the respondent Minister of Local Government must be read, however, in the context of the
constitutional provision upon which it is based.
7. The petitioner, as one who was appointed under the 1973 Constitution continues in office until the appointment and
qualification of his successor. Since the appointment of his successor, respondent Banate, is not valid, the tenure of petitioner
Ignacio could not be terminated on that basis alone.
8. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby GRANTED. The appointment/designation of private respondent
Banate as member of the Sangguniang Panlungsod of the City of Roxas representing the Katipunang Panlungsod Ng Mga
Barangay is DECLARED NULL and VOID. Petitioner ROBERTO IGNACIO is ordered REINSTATED as member of said Sangguniang
Panlungsod.

083 RAUL A. GALAROSA vs HON. EUDARLIO B.

VALENCIA and RODOLFO SALAY
TOPIC: Local Special Bodies; Liga ng mga Barangay
PONENTE: Davide; J.

AUTHOR: Arthur Archie Tiu

NOTES/QUICKIE FACTS:

At the hub of the present controversy is Section 494

of Republic Act No. 7160, otherwise known as the
Local Government Code of 1991, which provides as
follows:
Sec. 494.
Ex
officio
Membership
in
Sanggunians. The duly elected presidents of the
Liga [ng mga Barangay] at the municipal, city and
provincial levels, including the component cities and
municipalities of Metropolitan Manila, shall serve
as ex-officio members of the sanggunian bayan,
sanggunian
panglunsod,
and
sanggunian
panlalawigan, respectively. They shall serve as such
only during their term of office as presidents of the
liga chapters, which in no case shall be beyond the
term of office of the sanggunian concerned.

FACTS
1. Petitioner Galarosa is the incumbent president of the katipunang bayan or Association of Barangay

2.

3.

4.

5.

6.

Councils (ABC) of Sorsogon. (he was appointed as member of the Sanggunian Bayan (SB) per EO
342.
Respondent Lasay (incumbent barangay captain) of Barangay Gimaloto and an aspirant for the
position of president of the ABC of the said municipality, filed with the court a quo against the
public respondent SB of Sorsogon a petition for declaratory relief and injunction with a prayer for
the issuance a temporary restraining order.
Lasay: the term of office of GALAROSA as an ex officio member of the SB of Sorsogon is
coterminous with that, of the said SB which expired on 30 June 1992; hence there was a need for
the new election of an ABC representative. He further alleged that during its session, the SB of
Sorsogon accepted and recognized the participation of GALAROSA over his (LASAY's) protest,
allegedly on the basis of the memorandum of the Department of Interior and Local Government
(DILG) allowing the ABC presidents elected before 30 June 1992 to continue in office until the
election of new ones
SB Sorsogon: LASAY "has no legal right to file the petition or the petition "is based on pure
speculative rights," and (b) the petition is premature since the resolution of the issues raised may
still be the subject of rules and regulations to implement Section 494 of the Code.
Respondent Judge issed a TRO directing the SB of Sorsogon "to desist from recognizing the
participation of the old Ex officio membership of the President of the Association of Barangay
Captains and to hold in abeyance the taking and/or payment of salaries from the Municipal
Government of Sorsogon relative thereto. He later issued a writ of preliminary injunction.
respondent Judge rejected the claim of the SB of Sorsogon that (1) pursuant to DILG Memorandum
Circular No. 92-38 dated 29 June 1992, Section 494 of the Local Government Code was reconciled
with Article 210 (d)(3), Rule XXIX of the Rules and Regulations Implementing the said Code which
provides that incumbent ABC presidents shall continue to serve as ex officio members of their
respective sanggunians unless sooner removed for cause or the new officers shall have been
elected and qualified; (2) LASAY is not the proper party in interest and even if he is, he did not
exhaust all available administrative remedies; and The respondent Judge did not squarely tackle
the issue regarding the locus standi of LASAY, although he described LASAY as "the incumbent
Barangay Captain of Gimaloto . . . a declared aspirant for President of the [ABC] . . . as well as being
a taxpayer claiming direct interest to complain, protest and seek the proper relief."

ISSUE: whether or not GALAROSA can continue to serve as a member of the SB beyond 30 June 1992, the date
when the term of office of the elective members of the SB of Sorsogon expired
HELD: Yes
Dispositive: WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the decision of the
respondent Judge in Civil Case No. 5575 of Branch 52 of the Regional Trial Court of Sorsogon, Sorsogon.
RATIO:
1. Section 494 of the Local Government Code of 1991 provides for the ex officio membership in the respective
sanggunians of the duly elected presidents of the liga at the municipality, city, and provincial levels,
including the component cities and municipalities of Metro Manila. The liga referred to therein is the liga
ng mga barangay. Section 491 of the Code provides for its creation and purpose:
2. Sec. 491.
Purpose of organization. There shall be an organization of all barangays to be known as
the Liga ng mga Barangay for the primary purpose of determining the representation of the liga in the
sanggunians and for ventilating, articulating, and crystallizing issues affecting barangay government
administration and securing, through proper and legal means, solutions thereto.
3. Every barangay is represented in the liga ng mga barangay by the punong barangay, or in his absence or
incapacity, by a sanggunian member duly elected for the purpose among its members. 16 The principal aim
of the liga ng mga barangay is to promote the development of barangays and secure the general welfare of
their inhabitants.
4. The forerunner of the liga ng mga barangay is the katipunan ng mga barangay under Section 108 of B.P.
Blg. 337, which was known as the katipunang bayan in municipalities, katipunang panglungsod in cities,
katipunang panlalawigan in provinces, and katipunan ng mga barangay on the national level. Each
barangay therein was represented by the punong barangay. The katipunang bayan was also referred to as
the Association of Barangay Councils or ABC for short. Pursuant to the first paragraph of Section 146 of
B.P. Blg. 337, the president of the said organization was among the members of the sangguniang bayan
the legislative body of the municipality subject, however, to appointment by the President of the
Philippines. Under Section 110(3) thereof, the term of office of all officers of the katipunang bayan,
including its president, was to be governed by "the by-laws of the organization, without prejudice, however,
to their term of office as member of the sanggunian to which they may be correspondingly appointed."
Section 25 of the By-Laws of the Katipunan ng mga Barangay 18 provides that "the term of office of all
officers of the katipunan at all levels shall be from the date of their elections until the next katipunan
elections following general barangay elections, subject to the limitations of Section 4 and the succeeding
sections hereof."
5. Accordingly, the president of the katipunang bayan became, after an appointment extended by the
President through the Secretary of the Department of Local Government, a member of the first
sangguniang bayan organized under the 1987 Constitution following the local elections held on 18 January
1988. That GALAROSA was extended such appointment is not disputed.
6. There is no indication at all that Section 491 and Section 494 should be given retroactive effect to adversely
affect the presidents of the ABC. They should thus be applied prospectively.
7. The presidents of the katipunang bayan or ABC who were appointed as members of the sangguniang bayan
by the President through the Secretary of Local Government by virtue of E.O. No. 342 were appointed to
the sangguniang bayan whose regular members were elected in the 18 January 1988 local elections and
whose terms expired on 30 June 1992. It is t be presumed that they could not have been appointed for a
term beyond that of the sangguniang bayan.
8. There is, however, no law which prohibits them from holding over as members of the sangguniang bayan.
On the contrary, the aforementioned IRR, prepared and issued by the Oversight Committee upon specific
mandate of Section 533 of the Local Government Code, expressly recognizes and grants that hold-over
authority to ABC presidents. Pertinent portions of paragraphs (d) and (f), Article 210 of the IRR read as
follows:
9.
10. Art. 210 Liga ng mga barangay.
xxx

xxx

xxx

(d)

Ex officio membership in the sanggunian

xxx

xxx

xxx

(3)
The incumbent presidents of the municipal, city, and provincial chapters of the liga shall continue to
serve as ex officio members of the sanggunian concerned until the expiration of their term of office, unless
sooner revoked for cause.
xxx

xxx

xxx

(f)

Organizational structure

(l)
. . . . Pending election of the presidents of the municipal, city, provincial, and metropolitan chapters
of the liga, the incumbent presidents of the association of barangay councils in the municipality, city,
province, and Metropolitan Manila shall continue to act as presidents of the corresponding liga
11. the DILG issued Memorandum Circular No. 92-38 which reads as follows:
In view of the numerous issues and concerns reaching this Department requesting for a clarificatory ruling
regarding the term of office of the incumbent ABC Presidents as ex-officio members of the respective
sanggunian pending the reorganization and election of the new liga chapter, the following guidelines are
hereby promulgated for the guidance and reference of all concerned:
Section 494 Local Government Code of 1991 (RA 7160)
The duly elected presidents of the liga at the municipal, city and provincial levels, including the component
cities and municipalities of Metro Manila, shall serve as ex officio members of the sangguniang bayan,
sangguniang panglunsod [and] sangguniang panlalawigan, respectively. They shall serve as such only
during their term of office as presidents of the liga chapters which in no case shall be beyond the term of
office of the sanggunian concerned.
Article 210 (d) (3), Rule XXIX of the IRR
The incumbent presidents of the municipal, city and provincial chapters of the Liga shall continue to serve
as ex officio members of the sanggunian concerned until the expiration of their term of office, unless sooner
removed for cause.
12. the purpose is to prevent the hiatus in the government pending the time when the successor may be chosen
and inducted into office. 24 Section 494 of the Local Government Code could not have been intended to
allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian.
Since the term of office of the punong barangays elected in the 28 March 1989 election and the term of office
of the presidents of the ABC have not yet expired and taking into account the special role conferred upon
and the broader powers and functions invested in the barangays by the Code as a basic political unit, a
primary planning and implementing unit of government policies in the community, and as forum wherein
the collective views of the people may be expressed and considered and where disputes may be amicably
settled, 25 it would be in harmony with sound logic to infer that the Code never intended to deprive the
barangays of their representation in the sangguniang bayan during the interregnum when the liga has yet to
be formally organized with the election of its officers.
13. We therefore hold that GALAROSA, as president of the ABC of Sorsogon, can legally and validly hold over
as a member of the sangguniang bayan of Sorsogon, Sorsogon, until the election of the first set of officers of
the liga ng mga barangay, unless he is sooner removed for cause.

084
Sangguniang Barangay of Don Mariano Marcos of Bayombing, province of Nueva Viscaya v.
Punong Barangay Severino Martinez
G.R. No. 17026 March 3, 2008
Nature: Petition for Review on Certiorari under Rule 45 assailing the Orders of the trial court ruled that the Sangguniang
Bayan of Bayombong, Neuva Vizcaya (Sangguniang Bayan), exceeded its jurisdiction when it imposed upon respondent
Severino Martinez the administrative penalty of removal from office.
Facts:
Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos, Bayombong, Nueva
Vizcaya, a local government unit created, organized and existing as such under pertinent laws of the Republic of
the Philippines.
Respondent Martinez is the incumbent Punong Barangay of the said local government unit.
Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner through the filing of
a verified complaint before the Sangguniang Bayan as the disciplining authority over elective barangay officials
1[4]
pursuant to Section 61 of Rep. Act No. 7160, otherwise known as the Local Government Code
Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against Martinez on 6
December 2004 for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act
Petitioner alleged that Martinez committed the following acts:
1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste
management project since 2001 particularly the sale of fertilizer derived from composting.
2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken from
garbage collection.
3. Using the garbage truck for other purposes like hauling sand and gravel for private persons
without monetary benefit to the barangay because no income from this source appears in the
year end report even if payments were collected x x x.
4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts of
the garbage truck instead of using the money or income of said truck from the garbage fees
collected as income from its Sold Waste Management Project. x x x.
5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cash
advance was made by the respondent for the said purpose, he, however, did not attend said
seminar because on the dates when he was supposed to be on seminar they saw him in the
barangay. x x x.
6. That several attempts to discuss said problem during sessions were all in vain because respondent
declined to discuss it and would adjourn the session

Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December 2004, Martinez
was declared by the Sangguniang Bayan as in default
Pending the administrative proceedings, Martinez was placed under preventive suspension for 60 days
Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of removal from office.
Municial Mayor Bagasao issued a Memorandum, wherein he stated that the Sanggunaing Bayan is not
empowered to order Martinezs removal from service. However, the Decision remains valid until reversed and
must be executed by him. For the meantime, he ordered the indefinite suspension of Martinez since the period of
appeal had not yet lapsed
Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary
Injunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the
validity of the Decision of the Sangguniang Bayan.
Trial court issued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of Mayor
Bagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective

local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of the
Sangguniang Bayan removing Martinez from service is void.
Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void order.
Although Martinezs term as Punong Baranggay expired upon the holding of the 29 October 2007 Synchronized
Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, the Court
will nevertheless settle a legal question that is capable of repetition yet evading review

Issue:
1. WON the Sangguniang Bayan may remove Martinez, an elective local official, from office. No. The Court
has jurisdiction.
Extra:
2. WON the Court has jurisdiction to determine in an appropriate action the validity of acts of the political
departments. Yes. Clear in the Constitution.
3. WON Martinez is required to exhaust all administrative remedies in this case. No. Exception to the rule.
Held:
1. No - The pertinent legal provisions and cases decided by this Court firmly establish that the Sanggunaing
Bayan is not empowered to do so.
Section 60 of the Local Government Code conferred upon the courts the power to remove elective local
officials from office:
Section 60. Grounds for Disciplinary Actions.An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:
x x x x.
An elective local official may be removed from office on the grounds enumerated above by order
of the proper court. (Emphasis provided.)
2[17]

In Salalima v. Guingona, Jr.,

the Court en banc categorically ruled that the Office of the President is without any power
to remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last
paragraph of Section 60 of the Local Government Code.
It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of
1991, which provided that:
Article 125. Grounds for Disciplinary Actions. x x x.
x x x.
(b) An elective local official may be removed from office on the grounds enumerated in paragraph
(a) of this Article by order of the proper court or the disciplining authority whichever first acquires
jurisdiction to the exclusion of the other.

The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and Regulations of the
Local Government Code exceeded its authority when it granted to the disciplining authority the power to remove elective
officials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, the
Sangguniang Bayan is not vested with the power to remove Martinez.
The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in
whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not
just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage.
Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the
disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to
manipulate the law by usurping the power to remove.

Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing arm of the
Sangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable breach of the doctrine on separation of
powers, thus placing the courts under the orders of the legislative bodies of local governments.
Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court,
where court rules of procedure and evidence can ensure impartiality and fairness and protect against political
maneuverings. Elevating the removal of an elective local official from office from an administrative case to a court case
may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the
electorate of the services of the official for whom they voted.
2. On Authority of the Courts:
The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to
determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms
of duty.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
3. On Exhaustion of administrative remedies:
The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in
the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for
review. Non-observance of the doctrine results in lack of a cause of action, which is one of the grounds allowed by the
Rules of Court for the dismissal of the complaint.
The doctrine of exhaustion of administrative remedies, which is based on sound public policy and practical consideration,
is not inflexible. There are instances when it may be dispensed with and judicial action may be validly resorted to
immediately. Among these exceptions are:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

Where there is estoppel on the part of the party invoking the doctrine;
Where the challenged administrative act is patently illegal, amounting to lack of jurisdiction;
Where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant;
Where the amount involved is relatively small as to make the rule impractical and oppressive;
Where the question raised is purely legal and will ultimately have to be decided by the courts of justice;
Where judicial intervention is urgent;
Where its application may cause great and irreparable damage;
Where the controverted acts violate due process;
When the issue of non-exhaustion of administrative remedies has been rendered moot;
Where there is no other plain, speedy and adequate remedy;
When strong public interest is involved; and
in quo warranto proceedings.

As a general rule, no recourse to courts can be had until all administrative remedies have been exhausted.
However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of
jurisdiction and where the question or questions involved are essentially judicial.
In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailed
Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no
longer required to avail himself of an administrative appeal in order to annul the said Order of the Sangguniang
Bayan.Thus, his direct recourse to regular courts of justice was justified.
In addition, this Court in Castro v. Gloria declared that where the case involves only legal questions, the litigant
need not exhaust all administrative remedies before such judicial relief can be sought. The reason behind providing an
exception to the rule on exhaustion of administrative remedies is that issues of law cannot be resolved with finality by the
administrative officer. Appeal to the administrative officer would only be an exercise in futility. A legal question is properly
addressed to a regular court of justice rather than to an administrative body.
In the present case, Martinez raised before the trial court the sole issue of whether the Sangguniang Bayan has
jurisdiction over a case involving the removal of a local elective official from office. In Martinezs petition before the trial
court, only a legal question was raised, one that will ultimately be resolved by the courts. Hence, appeal to the
administrative officer concerned would only be circuitous and, therefore, should no longer be required before judicial relief
can be sought.

[85] G.R. No. 192280

January 25, 2011

SERGIO G. AMORA, JR., Petitioner,

vs.
COMMISSION ON ELECTIONS and ARNIELO S.
OLANDRIA, Respondents.

AUTHOR: Gabriel Paulo R. Uy

NOTES/QUICKIE FACTS: Olandria petitioned to
disqualify Amora based on the ground other than what was
exclusively enumerated in the Omnibus election code and
Locgov Code. COMELEC erroneously granted.

TOPIC: Disqualifications of elective officials

PONENTE: Nachura
Facts:
Amora submitted her Certificate of Candidady(COC) for Mayor of Candijay, Bohol. At that time, Amora was the
incumbent Mayor of Candijay and had been twice elected to the post.
Olandria filed a petition to disqualify Amora because Amoras COC was not properly sworn contrary to the requirements
of the Omnibus Election Code (OEC) and the 2004 Rules on Notarial Practice. Olandria pointed out that, in executing his
COC, Amora merely presented his Community Tax Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty.
Granada), instead of presenting competent evidence of his identity
COMELEC division disqualified Amora
Amora won in the elections pending decision of the COMELEC en banc
Amora avers:
1. The Petition for Disqualification is actually a Petition to Deny Due Course or cancel a certificate of candidacy.
Effectively, the petition of Olandria is filed out of time;

Section 78 provides that:

"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to
deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground
that any material representation contained therein as required under Section 74 hereof is false. The petition
may be filed atany time not later than twenty-five days from the time of the filing of the certificate of
candidacy
Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to Deny Due Course since the
purported ground for disqualification simply refers to the defective notarization of the COC. Amora is adamant that
Section 73 of the OEC pertains to the substantive qualifications of a candidate or the lack thereof as grounds for
disqualification, specifically, the qualifications and disqualifications of elective local officials under the Local Government
Code (LGC) and the OEC. Thus, Olandrias petition was filed way beyond the reglementary period of twenty-five (25)
days from the date of the filing of the disputed COC.
COMELEC en banc disqualified Amora because in the sworn certificate of candidacy there must be submission of
competent evidence of identity to the notary public. Petitioner only gave a CTC which bears no photograph and is no
longer a valid form of identification for purposes of Notarization of Legal Documents because a competent evidence of
identity must give (a) at least one current identification document issued by an official agency bearing the photograph and
signature of the individual. x x x."
Also, (filed because they thught there are grounds for disqualification).as to amoras contention that it was filed out of

time, The Petition has clearly stated that it was invoking Section 73 of the Election Code, which prescribes the mandatory
requirement of filing a sworn certificate of candidacy. As properly pointed out by [Olandria], he filed a Petition to
Disqualify for Possessing Some Grounds for Disqualification, which, is governed by COMELEC Resolution No. 8696, to
wit:
"B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTION
CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS
FOR DISQUALIFICATION
1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a
candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last
day for filing of certificates of candidacy but not later than the date of proclamation
Issue:
w/n the petition to disqualify should be granted

impropertly sowrn COC isnt a ground for DQ)In this case, it was grave abuse of discretion to uphold Olandrias claim that
an improperly sworn COC is equivalent to possession of a ground for disqualification.
The grounds for disqualification are:
SEC. 68. Disqualifications. Any candidate who, in an action or protest in which he is party is declared by final decision
of a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83,
85, 86, and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he
has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person has waived his status as a permanent
resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws.
and of Section 40 of the LGC, which provides:
SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail
of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.

It is quite obvious that the Olandria petition is not based on any of the grounds for disqualification above. Nowhere therein
does it specify that a defective notarization is a ground for the disqualification of a candidate. Yet, the COMELEC would
uphold that petition upon the outlandish claim that it is a petition to disqualify a candidate "for lack of qualifications or

possessing some grounds for disqualification."

A petition for disqualification relates to the declaration of a candidate as ineligible or lacking in quality or accomplishment
fit for the position of mayor.
a petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC.
On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While a person who is
disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or
denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v.
Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be substituted
under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC has been
denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a candidate.
Non Locgov ruling:
Amora complied with the requirement of a sworn COC. He readily explained that he and Atty. Granada personally knew
each other; they were not just colleagues at the League of Municipal Mayors, Bohol Chapter, but they consider each other
as distant relatives.

Dispositive:
WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on Elections in SPA No. 10-046 (DC)
dated April 29, 2010 and May 17, 2010, respectively, are ANULLED and SET ASIDE.

087 Moreno v. Comelec

G.R. No. 168550, 10 Aug 2006
TOPIC: Elective Officials - Qualifications
PONENTE: Tinga, J.

AUTHOR: Danna Zerrudo

NOTES/QUICKIE FACTS:
Moreno was running for Punong Barangay.
Mejes contends that, based on Sec. 40(a) of the
Local Government Code, Moreno is disqualified
from running because the latter was convicted of the
crime of Arbitary Detention.
Moreno contends that he is actually qualified since
he is a probationer.

Petitioner: Urbano Moreno

Respondents: COMELEC and Norma Mejes
FACTS
1. Moreno was running for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002
Synchronized Barangay and Sangguniang Kabataan Elections.
2. Mejes filed a petition to disqualify Moreno from running.
Private Respondents contention: Moreno was convicted by final judgment of the crime of Arbitrary
Detention and was sentenced to suffer imprisonment of 4 Months and 1 Day to 2 Years and 4 Months by
the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998. Thus, based on Sec. 40(A)
of the Local Government Code, he isnt qualified to run for local elective office.
3. Petitioners contentions: The petition states no cause of action because:
He was already granted probation. Thus, the imposition of the sentence of imprisonment, as well as the
accessory penalties, was already suspended; and
Under Sec. 16 of the Probation Law of 1976, the final discharge of the probation shall operate to restore to
him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any
fine imposed. The order of the trial court dated December 18, 2000 allegedly terminated his probation and
restored to him all the civil rights he lost as a result of his conviction, including the right to vote and be
voted for in the July 15, 2002 elections.
4. The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing.
After due proceedings, the Investigating Officer recommended that Moreno be disqualified. The Comelec First
Division adopted this recommendation.
5. Upon filing a motion for reconsideration, the COMELEC en banc affirmed the COMELEC First Divisions ruling,
holding that Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years
after serving sentence, are disqualified from running for any elective local position. Since Moreno was released
from probation on December 20, 2000, disqualification shall commence on this date and end 2 years thence. The
grant of probation to Moreno merely suspended the execution of his sentence but did not affect his disqualification
from running for an elective local office.
6. Thus, Moreno filed this instant petition.
Petitioners contentions: The disqualification under the Local Government Code applies only to those who
have served their sentence and not to probationers because the latter do not serve the adjudged sentence.
The Probation Law should be read as an exception to the Local Government Code because it is a
special law which applies only to probationers. Further, even assuming that he is disqualified, his
subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous
misconduct.
7. COMELECs contention (through OSG): The disqualification under Sec. 40(a) of the Local Government Code
subsists and remains totally unaffected notwithstanding the grant of probation.
Sec. 40(a) of the Local Government Code reads:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence
ISSUE: Whether or not Moreno is qualified to run for Punong Barangay

HELD: Yes
RATIO:
1. Clearly, the period within which a person is under probation cannot be equated with service of the sentence
adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution
of the sentence. During the period of probation, the probationer does not serve the penalty imposed upon him by
the court but is merely required to comply with all the conditions prescribed in the probation order.
2. It appears then that during the period of probation, the probationer is not even disqualified from running for a
public office because the accessory penalty of suspension from public office is put on hold for the duration of the
probation.
3. Sec. 40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced by
final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after
serving sentence.
4. [T]hose who have not served their sentence by reason of the grant of probation which, we reiterate, should
not be equated with service of sentence, should not likewise be disqualified from running for a local elective
office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does
not even begin to run.
5. It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses
punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite
of this, the provision does not specifically disqualify probationers from running for a local elective office. This
omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct class
of offenders not covered by the disqualification.
6. [W]e agree with Moreno that the Probation Law should be construed as an exception to the Local
Government Code. While the Local Government Code is a later law which sets forth the qualifications and
disqualifications of local elective officials, the Probation Law is a special legislation which applies only to
probationers. It is a canon of statutory construction that a later statute, general in its terms and not expressly
repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute.
7. Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of
Arbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram,
Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief
Justice Artemio Panganiban in Frivaldo v. Comelec where he said that it would be far better to err in favor of
popular sovereignty than to be right in complex but little understood legalisms.

089 ERNESTO S. MERCADO v.

EDUARDO BARRIOS MANZANO and
COMELEC
[G.R. No. 135083 May 26, 1999]
TOPIC: Elective Officials - Qualifications
PONENTE: MENDOZA, J.

AUTHOR: JANNA
The phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No.
7854, 20 must be understood as referring to "dual allegiance." Persons
with mere dual citizenship do not fall under this disqualification. For
candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their
status as persons with dual citizenship

FACTS:
1. MERCADO and MANZANO were both candidates for vice mayor of Makati in the 5-11-98 elections, with DAZA III.
2. A certain Ernesto Mamaril filed a petition for disqualification against MANZANO, alleging that the latter was a US
Citizen and not a Filipino Citizen.
3. MANZANO admitted (4/27/98) that he is registered as a foreigner with the Bureau of Immigration under ACR No. B31632. He also alleged the ff.: (1)He is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino
mother; (2) He was born in the San Francisco, CA, on 9/14/55 and is considered in American citizen under US Laws;
(3) But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship.
4. COMELEC resolution (5/7/98) granted Mamarils petition and ordered cancellation of MANZANOs certificate of
candidacy, declaring him DISQUALIFIED as a candidate for Vice-Mayor of Makati, on the ground of his dual citizenship
and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any
elective position.
5. MANZANO filed a motion for reconsideration on 5/8/98, which remained pending until 5/11/98.
6. The ff. are the election results: (1) MANZANO = 103, 853; (2) MERCADO = 100,894; (3) DAZA III = 54,275
thus, MANZANOs proclamation was suspended, pending said petition.
7. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of
canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner.
8. On 5/19/98, MERCADO sought to intervene in the case for disqualification. MERCADOs motion was opposed by
MANZANO. Motion was not resolved.
9. On 8/31/98 COMELEC en banc rendered its resolution, reversing the ruling of its Second Division and declared private
respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections, Voting 4 to 1, with one
commissioner abstaining.
10. The pertinent portions of the resolution of the COMELEC en banc stated that: (1) MANZANO acquired
citizenship by operation of US Constitution and laws under the principle of jus soli.;(2) He was also a natural born Filipino
citizen by operation of the 1935 Philippine Constitution, his parents being Filipinos at the time of his birth; (3) He was
brought to the Philippines at age 6 using an American passport as travel document, and registered him at the Bureau of
Immigration, and was thus issued an alien certificate of registration; (4) This did not result in the loss of his Philippine
citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States;
(5) When he attained age of majority, he registered himself as a voter and voted in 92, 95, and 98, which effectively
renounced his US citizenship under American law. Under Philippine law, he no longer had U.S. citizenship; (6) At the
time of the 5/11/98 elections, the resolution by the COMELEC 2nd division adopted on 5/7 was not yet final;
(7) MANZANO obtained the highest number of votes among the candidates for vice-mayor; (8) In applying election laws,
it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private
international law which may well be settled before the highest court . (9) WHEREFORE, the Commission en banc hereby
REVERSES the resolution of the Second Division [] and declare MANZANO QUALIFIED as a candidate for the
position of vice-mayor; (10) ACCORDINGLY, directs the Makati City Board of Canvassers, upon proper notice to the
parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate .
11. Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on 8/31/98 proclaimed MANZANO
as vice mayor of the City of Makati. Hence this petition for certiorari seeking to set aside Comelec en banc resolution.
SOLGEN and MERCADO: Invokes the maxim dura lex sed lex, contends that through 40(d) of the Local Government
Code, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local
elective office."

ISSUE(S): Whether MANZANO was qualified to run for the elective position of Vice Mayor for the City of Makati;
Whether MANZANOs dual citizenship is a ground for disqualification.
HELD: NO. WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. MANZANOs filing of his
Certification of Candidacy sufficed as a renunciation of his dual-citizenship.
RATIO:
1. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent
application of the different laws of two or more states, a person is simultaneously considered a national by the said
states. 9 For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the
principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person,ipso facto and without
any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art.
IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father's' 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. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition.
2. In including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual
citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their
naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be
understood as referring to "dual allegiance."
3. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable
consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no
control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether she is
considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship,
such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby
terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship.
5. By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine
citizenship and in effect renounced his American citizenship. Private respondent's certificate of candidacy, filed on
March 27, 1998, contained the following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN
xxx xxx xxx
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR.
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE
PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL
ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION
OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY
OWN PERSONAL KNOWLEDGE.

6. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any
disqualification he might have as a dual citizen. There is, therefore, no merit in petitioner's contention that the oath of
allegiance contained in private respondent's certificate of candidacy is insufficient to constitute renunciation that, to

be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law
requires the election of Philippine citizenship to be made upon majority age.
7. Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in
the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the
United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21,
1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American
nationality before the termination of his American citizenship.
8. To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent
resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and
bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far
as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may
have said before as a dual citizen.
9. On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he
has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past
elections in this country, leaves no doubt of his election of Philippine citizenship.
10. His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he
betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in
appropriate proceedings. In Yu v. Defensor-Santiago, 19 we sustained the denial of entry into the country of petitioner on
the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and
declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken
against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
CASE LAW/ DOCTRINE:
In including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual
citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their
naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be
understood as referring to "dual allegiance."
Persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who
must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual
citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to
terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence
of conflicting laws of different states.

AUTHOR: Jimi R. Arranchado

090 Abella vs COMELEC
G.R. No. 10071 and G.R. No. 100739 September 3, 1991
Caveat: Extraneous facts were omitted.
TOPIC: ELECTIVE OFFICIALS
- Qualifications
PONENTE: GUTIERREZ, JR., J.
PARTIES:
For G.R. No. 100710
Petitioner: BENJAMIN P. ABELLA
Respondents: COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL
For G.R. No. 100739
Petitioner: ADELINA Y. LARRAZABAL
Respondents: COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ
FACTS:
1. The main issue in these consolidated petitions centers on who is the rightful governor of the province of Leyte:
A) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the local elections of
February 1, 1988 and was proclaimed as the duly elected governor but who was later declared by the Commission on
Elections (COMELEC) "... to lack both residence and registration qualifications for the position of Governor of Leyte;
B) petitioner Benjamin Abella (G.R. No. 100710), who obtained the second highest number of votes for the position of
governor but was not allowed by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or
C) Leopoldo E. Petilla, the vice-governor of the province of. Leyte.
2. Silvestre dela Cruz (Benjamin Abella was allowed to intervene) filed a petition with the COMELEC to
disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence
in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her
husband who was earlier disqualified from running for the same office.
3. The COMELEC granted the petition. However, when the Commission granted the decision, Larrazabal was already
proclaimed the Governor, hence, when she was disqualified, Abella, who gathered the second highest votes in the said
area, sought to take his oath as governor of Kananga, Leyte.
4. The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of
the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of
Governor of Leyte.
5. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of
INTENTION, the animus revertendi rather than anything else." In this regard, she states that ... "her subsequent physical
transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence,
for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning
there in the course of the years, although she had physically resided at Ormoc City."
The Petitioners Case

1. The petitioner avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to
rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines
that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION,
the animus revertendi rather than anything else."
2. The petitioner insists that she is is a registered voter of Kananga, Leyte, based on the following antecedents: 1) She
cancelled her registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to Kananga,
Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (February 1, 1988) in Kananga,

Leyte.
3. Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative
position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor
of the province of Leyte.
4. The petitioner submits that while a Component City whose charter prohibits its voters from participating in the elections
for provincial office, is indeed independent of the province, such independence cannot be equated with a highly urbanized
city; rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said
voters are likewise prohibited from running for the provincial offices. She cites Section 4, Article X of the Constitution to
bolster her claim: [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.]
ISSUES:
1. Whether or not the petitioner is a registered voter of Kananga, Leyte .
2. Whether or not the candidate who got the second highest vote may be proclaimed as governor when the
candidate for such position was disqualified
HELD:
1. NO
2. NO
RATIO:
1. Section 12, Article X of the Constitution is explicit in that aside from highly urbanized cities, component cities whose
charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same
provision, it provides for other component cities within a province whose charters do not provide a similar
prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial
elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which
they are geographically attached. This independence from the province carries with it the prohibition or mandate
directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in
G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case.
While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is
applicable.
Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of
Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the
COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial
governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running
for and the second, from voting for any provincial elective official."
2. The Supreme Court held that while it is true that SPC No. 88-546 was originally a petition to deny due course to the
certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that
the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona
fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate
for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that
the Abella lost in the election. He was repudiated by the electorate.
It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who
has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in
the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election.

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for
the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a
contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray, void or meaningless.
In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the
COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion.

DISPOSITIVE PORTION
WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of the Commission
on Elections dated February 14, 1991 and the questioned Resolution en banc of the Commission dated July 18, 1991 are
hereby AFFIRMED. The temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the petitioners.

091 Juan Gallanosa Frivaldo vs. Commission on AUTHOR: Em

Elections
NOTES/QUICKIE FACTS:
G.R. No. 87193, June 23, 1989
TOPIC: Qualifications of Elective Officials
PONENTE: Vitug, J.
PARTIES:
Petitioner: Juan Gallanosa Frivaldo
Respondents: Commission on Elections
FACTS:
In 1988, Juan Frivaldo won as governor of Sorsogon. Salvador Estuye,
President of the League of Municipalities of Sorsogon, filed with the COMELEC a petition for annulment of Frivaldos
election and proclamation because apparently, Frivaldo, in 1983, was naturalized as an American. In his defense,
Petitioners Contention:
Frivaldo said that he was forced to be naturalized because the then President Marcos was after him; but that participating in
the Philippine elections, he has effectively lost his American citizenship pursuant to American laws. He also assailed the
petition as he claimed that it is in the nature of a quo warranto which is already filed out of time, the same not being filed
ten days after his proclamation.
Respondents Contention [answer]:
The private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired
Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be
elected governor. They also argued that their petition in the Commission on Elections was not really for quo
warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing
as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to
be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it
was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a
proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless
institute the suit by himself alone.
Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the
Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified
from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not
amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private
respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and
Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were
also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino.
ISSUE: Whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988,
as provincial governor of Sorsogon.
HELD: NO.
RATIO:
Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of
the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

He claims that he has reacquired Philippine citizenship by virtue of valid repatriation. He claims that by actively
participating in the local elections, he automatically forfeited American citizenship under the laws of the United States of
America. The Court stated that that the alleged forfeiture was between him and the US. If he really wanted to disavow his

American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws
of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired
by direct act of Congress, by naturalization, or by repatriation.
While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine
citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he
automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The
alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose
his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his
citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his
naturalized citizenship was that he became a stateless individual.
Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided
for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary.
That is far-fetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos
who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate
and reaffirming their allegiance to the Philippines.
It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of
candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal
declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the
Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was
done, or seek naturalization by legislative or judicial proceedings.
The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken.
The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because
he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be
possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure.
Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to
marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in
office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been
established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his
proclamation and his title was challenged shortly thereafter.
This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive
allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation
of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed
for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot
cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified.
Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and
fidelity to any other state.
It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws,
which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and
renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like
a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant
children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love.

092 RAMON L. LABO, JR., petitioner, vs.

AUTHOR: Rhona
THE COMMISSION ON ELECTIONS (COMELEC)
EN BANC AND LUIS L. LARDIZABAL, respondents The petitioner asks the SC to restrain the COMELEC from
looking into the question of his citizenship as a qualification
for his office as Mayor of Baguio City. The SC ruled that
G.R. No. 86564 August 1, 1989
TOPIC: Elective Officials; qualifications
petitioner is NOT a Filipino citizen. Hence, he is disqualified
PONENTE: Bidin, J.
from continuing to serve as Mayor of Baguio City.
FACTS:
1. 1988: Ramon Labo Jr. was proclaimed mayor-elect of Baguio City.
2. Respondent Luis Lardizabal, his rival and one of the candidates for Mayor, filed a petition for quo warranto against
Labo.
3. Respondent Lardizabals contention: Labo is disqualified from running as mayor because he is an Australian citizen
having been naturalized as an Australian after he married an Australian citizen.
4. Petitioner Labos contention: His marriage with an Australian did not make him an Australian; that at best he has dual
citizenship, Australian and Filipino; that even if he indeed became an Australian when he married an Australian citizen,
such citizenship was lost when his marriage with the Australian was later declared void for being bigamous. Even if hes
considered as an Australian, his lack of citizenship is just a mere technicality, which should not frustrate the will of the
electorate of Baguio who voted for him by a vast majority.
ISSUE: Whether or not petioner Labo can retain his public office.
HELD: No. Labo, being a foreigner, cannot serve public office. He is DISQUALIFIED from continuing to serve as Mayor
of Baguio City. Section 42 of the Local Government Code provides that an elective local official must be a citizen of the
Philippines.
RATIO:
1. Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship.
The first was rendered by the COMELEC on May 12, 1982, and found the petitioner to be a citizen of the Philippines. The
second was rendered by the Commission on Immigration and Deportation (CID) on September 13, 1988, and held that the
petitioner was not a citizen of the Philippines.
It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner
had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely
inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien
with the CID upon his return to this country in 1980.
On the other hand, the decision of the CID took into account the official statement of the Australian Government dated
August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by
reason of his naturalization in 1976. The decision also noted the oath of allegiance taken by every naturalized Australian
and the Affirmation of Allegiance.
The petitioner does not deny that he obtained Australian Passport No. 754705, which he used in coming back to the
Philippines in 1980, when he declared before the immigration authorities that he was an alien and registered as such under
Alien Certificate of Registration. He later asked for the change of his status from immigrant to a returning former
Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. He also categorically declared that he
was a citizen of Australia in a number of sworn statements voluntarily made by him and even sought to avoid the
jurisdiction of the barangay court on the ground that he was a foreigner.
2. Petitioner's contention: his marriage to an Australian national in 1976 did not automatically divest him of Philippine
citizenship
SC: This is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that
marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process,
simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he
formally took the Oath of Allegiance and/or made the Affirmation of Allegiance.
Petitioner's contention: his naturalization in Australia made him at worst only a dual national and did not divest him of
his Philippine citizenship.

SC: Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by
which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation
of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of
which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the
present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."
Petitioner's contention: his naturalization in Australia was annulled after it was found that his marriage to the Australian
citizen was bigamous.
SC: that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian
citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is
the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the
citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims,
does not mean that he has been automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. That is why the CID rejected his application for the cancellation of his
alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of
the Philippines.
3. The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the
Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. He was
therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code
providing in material part as follows:
Sec. 42. Qualifications. An elective local official must be a citizen of the Philippines, at least twenty-three years of
age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes
to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read
and write English, Filipino, or any other local language or dialect.
4. Petitioner's contention: his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the
electorate of Baguio City
SC: His lead over the second-placer was only about 2,100 votes. In any event, the people of that locality could not
have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The
electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a
stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city.
Only citizens of the Philippines have that privilege over their countrymen. The results of the election cannot nullify
the qualifications for the office now held by him. These qualifications are continuing requirements; once any of
them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship
and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of
the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified
to serve as such.
Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only
after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms
once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to
public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and
surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The temporary
restraining order dated January 31, 1989, is LIFTED.

093 Dominador Jalosjos v. COMELEC

Gr no. 196804, Oct. 9, 2012
TOPIC: Disqualifications
PONENTE: Carpio J.:

AUTHOR: SJ Catubay
NOTES: short version for reading.

Perpetual special disqualification; accessory penalties. The Comelec ordered

the cancellation of Jalosjos certificate of candidacy on the ground of false
material representation when he declared under oath that he was eligible for
the office he had sought to be elected to when in fact he was not by reason of a
final judgment in a criminal case, the sentence of which he has not yet served.
The penalty imposed on Jalosjos was the indeterminate sentence of one year,
eight months and twenty days of prisin correccional as minimum, to four
years, two months and one day of prisin mayor as maximum. The Supreme
Court ruled that 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. The penalty of prisin 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
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. The accessory penalty of perpetual special disqualification
takes effect immediately once the judgment of conviction becomes final. Once
the judgment of conviction becomes final, it is immediately executory. 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.
2012.

Background:

Jalosjos and three (3) others were accused of the crime of robbery on January 22, 1969 in Cebu City. On
April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City found him and his
co-accused guilty of robbery and sentenced them to suffer the penalty of prision correccional minimum to
prision mayor maximum. Jalosjos appealed this decision to the Court of Appeals but his appeal was
dismissed on August 9, 1973. It was only after a lapse of several years or more specifically on June 17,
1985 that Jalosjos filed a Petition for Probation before the RTC Branch 18 of Cebu City which was granted
by the court. But then, on motion filed by his Probation Officer, Jalosjos probation was revoked by the
RTC Cebu City on March 19, 1987 and the corresponding warrant for his arrest was issued. Surprisingly,
on December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod issued a Certification
attesting that respondent Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This
Certification was the one used by respondent Jalosjos to secure the dismissal of the disqualification case
filed against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan
dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation
Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on
December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms and
conditions of his probation. Simply put the certification of fulfillment of parole is void.
FACTS:
1. Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May 2010
elections. Jalosjos was running for his third term.
2. Cardino filed in COMELEC 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.

3. Cardino asserted:
long before Jalosjos filed his certificate of candidacy, Jalosjos had already been convicted by

final judgment for robbery and sentenced to prisin mayor by the RTC Cebu
Jalosjos has not yet served his sentence

4. Jalosjos answered:
admitted his conviction but stated that he had already been granted probation
5. Other facts and contentions:
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.
6. COMELEC First Division: granted Cardinos petition and cancelled Jalosjos certificate of candidacy.
The COMELEC First Division concluded that "Jalosjos has indeed committed material
misrepresentation in his certificate of candidacy when he declared, under oath, that he is eligible
for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a
criminal case, the sentence of which he has not yet served."6 The COMELEC First Division found
that Jalosjos certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not
yet served his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one
year, eight months and twenty days of prisin correccional as minimum, to four years, two months
and one day of prisin mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not
eligible by reason of his disqualification as provided for in Section 40(a) of Republic Act No. 7160."
7. COMELEC en banc: Denied Jalosjos motion for reconsideration. Affirmed the ruling of COMELEC
First Division. Jalosjos is disqualified to run for an elective position or to hold public office. His
proclamation as the elected mayor in the May 10, 2010 election does not deprive the Commission
of its authority to resolve the present petition to its finality, and to oust him from the office he now
wrongfully holds.
8. Hence the case to the SC (this is what happened): Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial
notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29 March 2011, this Court resolved11
to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the
position of Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of Zamboanga del Norte,
Atty. Rolando E. Yebes."12 Jalosjos resignation was made "in deference with the provision of the Omnibus Election Code in relation to his candidacy
as Provincial Governor of Zamboanga del Sur in May 2013."13

ISSUE(S):

1. Won Jalosjos should be disqualified from running as mayor.

2. Won Cardino should be the mayor (not related to our topic, but related to LOCGOV)

HELD:
1. Yes, Jalosjos is barred from running as mayor because of false material representation when he declared under
oath that he was eligible for the office he had sought to be elected to when in fact he was not by reason of a final
judgment in a criminal case, the sentence of which he has not yet served
2. Yes, Cardino is properly proclaimed as the mayor
Dispositive:
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May
2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the
MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the highest number of votes for Mayor. The COMELEC En
Bane is DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del
Norte.

RATIO I:
1. 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.
2. 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 prisin 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.
3. 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.

RATIO II:
1.

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

CASE LAW/ DOCTRINE: sorry for the long case doctrine, but all of it is material. It explains the whole
disqualification. Pls. read the note portion above to have a summary of the ruling Sorry once again.
A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false material representation which is a ground for a petition under Section
78 of the same Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated
by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily,
without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time
not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the
election. (Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if he has a right to run for the
public office.14 If a candidate is not actually eligible because he is barred by final judgment in a criminal case from running for public office, and he still states under oath in his
certificate of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation that is a ground for a petition under Section
78.
A sentence of prisin mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election
Code. It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a person can file a petition under Section
40 of the Local Government Code or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. x x x
Prisin mayor and temporary disqualification. The duration of the penalties of prisin mayor and temporary disqualification shall be from six years and one day to twelve
years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The penalties of perpetual or temporary absolute disqualification for public office shall
produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. The penalties of perpetual or temporary special disqualification for public office,
profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. The perpetual or temporary special
disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the
right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the
period of his disqualification.
Art. 42. Prisin mayor its accessory penalties. The penalty of prisin mayor shall carry with it that of temporary absolute disqualification and that of perpetual special
disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in
the pardon. (Emphasis supplied)
The penalty of prisin 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 appellees conviction of a crime penalized with prisin mayor which carried the accessory
penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised
Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term

of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty
deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the
term of the sentence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. The perpetual or temporary special
disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the
right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the
period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective antecedents; thus, the word "perpetually" refers to
the perpetual kind of special disqualification, while the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the
perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their durations into one period, states that such duration is
"according to the nature of said penalty" which means according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office
perpetually."
The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty
does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall
not be permitted to hold any public office during the period of his perpetual special disqualification." Once the judgment of conviction becomes final, it is immediately
executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to
run for any elective public office perpetually. In the case of Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office from the time his
judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this accessory penalty is an ineligibility, which means that
the convict is not eligible to run for public office, contrary to the statement that Section 74 requires him to state under oath. As used in Section 74, the word "eligible" means
having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for public office. As this Court held in Fermin v.
Commission on Elections,17 the false material representation may refer to "qualifications or eligibility." One who suffers from perpetual special disqualification is ineligible to
run for public office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office,"
as expressly required under Section 74, then he clearly makes a false material representation that is a ground for a petition under Section 78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a
material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her
CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is
empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section
253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before
proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisin mayor, to which perpetual special disqualification attaches by operation of law, is not a ground for a
petition under Section 68 because robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68 refers only to election offenses
under the Omnibus Election Code and not to crimes under the Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made
any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as one of the offenses enumerated in this Section. All the offenses
enumerated in Section 68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it holds that Jalosjos conviction for
the crime of robbery under the Revised Penal Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section
78 thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68. In
Codilla, Sr. v. de Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond
the ambit of COMELEC jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement that the candidate is a natural born or naturalized Filipino citizen; (2)
a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible for the office he seeks election;
and (4) a statement of the candidates allegiance to the Constitution of the Republic of the Philippines.20

DISSENTING/CONCURRING OPINION(S):
(If any)

094
TOPIC: Disqualification of Elective Officials
PONENTE: Justice Bersamin

AUTHOR: TRICIA C.
NOTES/QUICKIE FACTS:
*This case tackled various sections in the Omnibus
Election Code which Ive omitted here in my digest. For
purposes of discussion/recit, Ive only included the issues
related to the topic in the outline.

FACTS:
On Nov 26 and December 1, 2009, Ramon Talaga (Ramon) and Philip 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-KampiCMD, declared in his CoC that he was eligible for the office that he was seeking to be elected to. Castillo is
the incumbent city vice-mayor of Lucena having been elected during the 2007 local elections, is running for
city mayor of Lucena under the Liberal party.
Four days later, Castillo filed with the COMELEC a petition to deny due course to or cancel the CoC of Ramon
Talaga as Mayor for having already served three (3) consecutive terms as a City Mayor of Lucena. He has also
alleged the following in his petition:
o Ramon was successively elected mayor of Lucena City in 2001, 2004, and 2007 local elections based on
the records of the Commission on Elections of Lucena City and had fully served the aforesaid three (3)
terms without any voluntary and involuntary interruption;
o Except the preventive suspension imposed upon him from 13 October 2005 to 14 November 2005 and
from 4 September 2009 to 30 October 2009 pursuant to Sandiganbayan 4th Division Resolution in
Criminal Case No. 27738 dated 3 October 2005, the public service as city mayor of Ramon is continuous
and uninterrupted under the existing laws and jurisprudence;
o There is no law nor jurisprudence to justify the filing of the certificate of candidacy of the respondent,
hence, such act is outrightly unconstitutional, illegal, and highly immoral;
o Under the Constitution and existing Election Laws, New Local Government Code of the Philippines, and
jurisprudence, Ramon is no longer entitled and is already disqualified to be a city mayor for the fourth
consecutive term.
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 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 3-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: Thus, even if respondent was elected during the 2004 elections,
which was supposedly his third and final term as city councilor, the same cannot be treated as a complete service
or full term in office since the same was interrupted when he was suspended by the Sandiganbayan Fourth
Division.
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in the May 10,
2010 national and local election, Ramon did not withdraw his CoC.
Acting on Ramons Manifestation with Motion to Resolve, the COMELEC First Division issued a Resolution
granted Castillos petition and thereby disqualified Ramon Talaga from running as Mayor of Lucena City in the
2010 National and Local Elections.
Ramon filed his Verified Motion for Reconsideration against COMELECs Resolution. Later on he filed an Exparte Manifestation of Withdrawal of the Pending MR on May 4, 2010. During the afternoon of the very same day,
Barbara Ruby Talaga 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.
The COMELEC En Banc, acting on Ramons Manifestation, declared the COMELEC First Divisions Resolution
final and executory.
On May 10, 2010 (ELECTION DAY), the name of Ramon remained printed on the ballots but the votes cast in his
favor were counted in favor of Barbara Ruby (Ramons wifey) as his substitute candidate, resulting in Barbara

Ruby being ultimately credited with 44,099 votes as against Castillos 39,615 votes.
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the suspension of Barbara
Rubys procalamation.
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its Law
Department, gave due course to Barbara Rubys CoC and CONA through Resolution No. 8917, thereby
including her in the certified list of candidates. Consequently, the CBOC proclaimed Barbara Ruby as the
newly-elected Mayor of Lucena City.
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the COMELEC. 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.
Barbara Ruby maintained the validity of her substitution in her comment on the said Petition. She
countered that the COMELEC En Banc did not deny due course to or cancel Ramons 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. 9006 applied, based on which the votes cast for Ramon were
properly counted in her favor.
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 Rubys substitution had been invalid and Castillo had
clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillos petition and Alcalas petition-inintervention.
Acting on Castillo and Alcalas respective motions for reconsideration, the COMELEC En Banc issued a
Resolution dated May 20, 2011, REVERSING the COMELEC Second Divisions ruling. Pointing out that: (a)
Resolution No. 8917 did not attain finality for being issued without a hearing as a mere incident of the
COMELECs ministerial duty to receive the CoCs of substitute candidates; (b) Resolution No. 8917 was based on
the wrong facts; and (c) Ramons 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/S:
1. Whether the substitution by Barbara Ruby as candidate for the position of Mayor of Lucena City in lieu of Ramon
was valid?
2. Who among the contending parties should assume the contested elective position?
HELD:
1. No. The declaration of Ramons disqualification rendered his CoC invalid; hence he was not a valid candidate to
be properly substituted.
2. Elected Vice Mayor (Roderick Alcala) must succeed and assume the position of Mayor due to a permanent
vacancy in the office.

RATIO:
1. 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. The Court
differentiated the two remedies in Fermin v. Commission on Elections, thuswise:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the Omnibus
Election Code, or Section 40 of the Local Government Code. On the other hand, a petition to deny due course to
or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is
false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate is cancelled or denied course under Section 78 is
not treated as a candidate at all, as if he/she never filed a CoC.
The Court concurs with the conclusion of the COMELEC En Banc that the Castillos petition was in the nature of a
petition to deny due course to or cancel under Section 78 of the Omnibus Election Code. Castillos petition contained
essential allegations pertaining to a Section 78 petition, namely: (a) Ramon made a false representation in his CoC; (b) the
false representation referred to a material matter that would affect the substantive right of Ramon as candidate (that is, the
right to run for the election for which he filed his certificate); and (c) Ramon made the false representation with the
intention to deceive the electorate as to his qualification for public office or deliberately attempted to mislead, misinform,
or hide a fact that would otherwise render him ineligible. The petition expressly challenged Ramons eligibility for public
office based on the prohibition stated in the Constitution and the Local Government Code against any person serving three
consecutive terms, and specifically prayed that the Certificate of Candidacy filed by the respondent Ramon be denied due
course to or cancel the same and that he be declared as a disqualified candidate.
The denial of due course to or the cancellation of the CoC under Section 78 involves a finding not only that a person lacks
a qualification but also that he made a material representation that is false. A petition for the denial of due course to or
cancellation of CoC that is short of the requirements will not be granted. It is underscored, however, that a Section 78
petition should not be interchanged or confused with a Section 68 petition. The remedies under the two sections are
different, for they are based on different grounds, and can result in different eventualities. A person who is disqualified
under Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied due course under
Section 78 is not considered as a candidate at all because his status is that of a person who has not filed a CoC.
To be sure, the cause of Ramons ineligibility (i.e., the three-term limit) is enforced both by the Constitution and
statutory law. Article X, Section 8 of the 1987 Constitution provides:
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.
Section 43 of the Local Government Code reiterates the constitutional three-term limit for all elective local officials,
to wit:
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 concerned was elected.
The objective of imposing the three-term limit rule was 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, which the Court
has underscored in Aldovino v. COMELEC.
To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from asserting an eligibility
to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his CoC was invalid and ineffectual ab initio
for containing the incurable defect consisting in his false declaration of his eligibility to run. The invalidity and inefficacy

of his CoC made his situation even worse than that of a nuisance candidate because the nuisance candidate may remain
eligible despite cancellation of his CoC or despite the denial of due course to the CoC pursuant to Section 69 of the
Omnibus Election Code.45
Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to Resolve on December
30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid, considering that for all intents and purposes the
COMELECs declaration of his disqualification had the effect of announcing that he was no candidate at all.
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. Thus, Barbara Ruby did not validly substitute her husband to run for City Mayor of Lucena.
2. 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 candidates 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. 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. 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 Rubys illegibility 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 elections.
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 Ramons 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.
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:
Section 44. Permanent Vacancies in the Office 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

DISPOSITIVE: WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the
Resolutions issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to pay the costs of suit.

[95] Cayat vs. COMELEC

GR No. 163776
Facts:

Cayat and Palileng were the only candidates for the mayoralty post in Buguias, Benguet in the 10 May 2004 local elections
On Jan. 5, 2004, Cayat filed his Certificate of Candidacy.
On Jan. 26, Palileng filed a petition for disqualification against Cayat in the Regional Election Office of Comelec in Baguio
Contention: Cayat was convicted by final judgment for a criminal offense for the crime Forcible Acts of Lasciviousness.
By the time he filed the COC, Cayat was still under probation. Therefore, Cayat made misrepresentations and
committed acts of perjury when he filed his candidacy.
Cayat did not file an answer despite the service of summons by telegram.

Comelec Ruling
The petition filed should be petition to deny due course or to cancel certificate of candidacy, which should be filed within 5
days from the last day of filing of COC. Since the petition was filed more than 5 days after the last day, said petition is no
longer acceptable
However, considering the nature of the petition, Sec. 40 of RA 7160 or the Local Government Code is applicable. It states
that
Sec. 40. Disqualifications. The following persons are disqualified from running fro [sic] any
elective local position:
a) Those sentenced by final judgment for an offense involving moral turpitude for an offense punishable by one
(1) year or more of imprisonment within [two] (2) years after serving sentence

Moral turpitude had been defined as everything which is done contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general,
contrary to justice, honesty, modesty or good morals.
Clearly, the act of Cayat involves moral turpitude and was even convicted of it. Applying Sec. 40 of the Local Government
Code, it is recommended that he be disqualified from running as Mayor
The Comelec First Division did not disturb Atty. Torres findings and cancelled Cayats COC.
Cayat filed a MR before the Comelec En Banc since Comelec did not acquire jurisdiction over him. He also argued that
allowing service of summons by telegram is void.
Said MR was dismissed.
During the local elections, Cayat received more votes and was proclaimed as the duly elected mayor of Buguias, Benguet.
He took his oath of office on May 17.
Prior to his oath taking, Cayat received the order of Comelec denying his MR. Hence, this present petition, docketed as GR
No. 163776
Pending the resolution of GR No. 163776, Palileng filed a petition for annulment of proclamation with a prayer for the
issuance of an injunctive relief against the Municipal Board of Canvassers (MBOC) of Buguias and Cayat before the
COMELEC Second Division.

Comelec Second Division

Dismissed the complaint pursuant to COMELEC Omnibus Resolution No. 7257
Said resolution enumerated the cases which survived from among those filed before the Clerk of the COMELEC in the 10
May 2004 elections and which required proceedings beyond 30 June 2004.

Palileng also filed a motion for execution of judgment

Comelec First Division granted said motion and annulled the proclamation of Fr. Cayat as mayor. At the same time, it
ordered for the creation of new MBOC.

Cayat filed a petition for certiorari before the SC.

Consequently, the new MBOC proclaimed Palileng as the mayor of Buguias, Benguet on Oct 25, 2004. He took his oath of
office on the same day.
Bayacsan, the elected Vice Mayor, filed a Petition In Intervention and prayed that the proclamation be nullified and that he
be declared as the rightful Mayor of Buguias, Benguet.

Issue: the legality of the orders cancelling Cayats Certificate of Candidacy, nullifying Cayats proclamation as Mayor of Buguias,
Benguet, and declaring Palileng as Mayor of Buguias, Benguet.
Ruling:
Take note that the Comelecs First Divisions cancellation of Cayats COC due to disqualification became final and executory
on 17 April 20043 when Cayat failed to pay the prescribed filing fee.
This makes Palileng as the only candidate for mayor in the May 10, 2004 elections, second to none. The doctrine on the
rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is
not a second-placer but the only placer.
Requirements for the doctrine on the rejection of the second placer
a. The decision on Cayats disqualification remained pending on election day, 10 May 2004, resulting in the presence of
two mayoralty candidates for Buguias, Benguet in the elections
b. The decision on Cayats disqualification became final only after the elections
The doctrine on the rejection of second placer is NOT applicable in this case since the disqualification of the candidate has
become final before the elections.
Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day, Cayat was no longer
legally a candidate for mayor. In short, Cayats candidacy for Mayor of Buguias, Benguet was legally non-existent in the 10
May 2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes
cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral
Reforms Law of 1987 states
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

Therefore, all the 8,164 votes cast in Cayats favor are stray. Cayat was never a candidate in the 10 May 2004 elections.
Palilengs proclamation is proper because he was the sole and only candidate, second to none. At the same time, Cayats
proclamation on 12 May 2004 is void because the decision disqualifying Cayat had already become final on 17 April 2004
To allow a candidate disqualified by final judgment 23 days before the elections to be voted for and have his votes counted
is a blatant violation of a mandatory provision of the election law. It creates confusion in the results of the elections and
invites needless new litigations from a candidate whose disqualification had long become final before the elections. The
doctrine on the rejection of the second placer was never meant to apply to a situation where a candidates disqualification
had become final before the elections

WHEREFORE, we DISMISS Rev. Fr. Nardo B. Cayats petitions and Feliseo K. Bayacsans petition-in-intervention. We AFFIRM the
Resolution of the First Division of the Commission on Elections dated 12 April 2004 and the Orders dated 9 May 2004 and 25
October 2004.

096 ANTONIO M. BERNARDO, ERNESTO A.

DOMINGO, JR. and JESUS C. CRUZ, petitioners, vs.
BENJAMIN S. ABALOS, SR., BENJAMIN
"BENHUR" D. ABALOS, JR., DR. EDEN C. DIAZ,
ROMEO F. ZAPANTA, ARCADIO S. DE VERA and
THE COMMISSION ON ELECTIONS, respondents.
G.R. No. 137266
December 5, 2001
TOPIC: ELECTIVE OFFICIALS-Disqualification
PONENTE: SANDOVAL-GUTIERREZ, J.

AUTHOR: DeLeon, Marvin

This is a petition for certiorari1 seeking the nullification
of Resolution No. 98-3208 of the Commission on
Elections (COMELEC) En Banc promulgated on
December 1, 1998 dismissing the complaint for vote
buying filed by petitioners against respondents.
Warning: This is G. R. No. 137266, December 5, 2001,
different from what is indicated in the syllabus which is
G. R. No. 137266, December 5, 2004.

PARTIES:
Petitioner: ANTONIO M. BERNARDO, ERNESTO A. DOMINGO, JR. and JESUS C. CRUZ
Respondents: BENJAMIN S. ABALOS, SR., BENJAMIN "BENHUR" D. ABALOS, JR., DR. EDEN C. DIAZ, ROMEO
F. ZAPANTA, ARCADIO S. DE VERA and THE COMMISSION ON ELECTIONS
FACTS: Respondent Benjamin Abalos, Sr. was the mayor of Mandaluyong City and his son, Benjamin Abalos Jr. was a
candidate for city mayor of the same city for the May 1998 elections. Petitioners herein interposed that respondents
conducted an all-expense-free affair at a resort in Quezon Province for the Mandaluyong City public school teachers,
registered voters of the said city and who are members of the Board of Election Inspectors therein. The said affair was
alleged to be staged as a political campaign for Abalos Jr., where his political jingle was played all throughout and his
shirts being worn by some participants. Moreover, Abalos Sr. also made an offer and a promise then to increase the
allowances of the teachers. In this regard, petitioners filed a criminal complaint with the COMELEC against Abalos Sr.
and Abalos Jr. for vote-buying, further alleging that they conspired with their co-respondents in violating the Omnibus
Election Code. Pursuant to the recommendation of the Director of the Law Departmentof the COMELEC, the COMELEC
en banc dismissed the complaint for insufficiency of evidence. Hence, this petition for certiorari.
ISSUE: Whether or not the vote buying alleged by the petitioners is sufficiently violated the Omnibus Election code, thus
disqualifying the respondents from running.
Held: No. Petitioners' complaint expressly states that no supporting affidavits were submitted by the complaining witness
to sustain their charge of vote buying. Suffice it to state that the absence of such supporting affidavits shows the frailty of
petitioners' complaint. Indeed, it is vulnerable to dismissal.
ISSUE: Whether the petition before the Supreme Court must be given due course without the petitioners first submitting a
motion for reconsideration before the COMELEC
HELD: NO. The Court ruled that a petition for certiorari can only be resorted to if there is no appeal, or any plain, speedy
and adequate remedy in the ordinary course of law. In the instant case, it was said that filing of the motion for
reconsideration before the COMELEC is the most expeditious and inexpensive recourse that petitioners can avail of as it
was intended to give the COMELEC an opportunity to correct the error imputed to it. As the petitioners then did not
exhaust all the remedies available to them at the COMELEC level, it was held that their instant petition is certainly
premature. Significantly, they have not also raised any plausible reason for their direct recourse to the Supreme Court. As
such, the instant petition was ruled to fail.
RATIO:
1. In its assailed Resolution, the COMELEC cited a valid reason for dismissing petitioners' complaint against private
respondents for vote buying. The COMELEC found that the evidence of the respondents have "more probative value and
believable than the evidence of the complainants;" and that the evidence submitted by petitioners are "mere self-serving
statements and uncorroborated audio and visual recording and a photograph."
Moreover, Section 28 of Republic Act 6646 provides:
"SEC. 28. Prosecution of Vote-buying and Vote-selling. - The representation of a complaint for violations of
paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witnesses
attesting to the offer or promise by or of the voter's acceptance of money or other consideration from the relatives,
leaders or sympathizers of candidate, shall be sufficient basis for an investigation to be immediately conducted by
the Commission, directly or through its duly authorized legal officers, under Section 68 or Section 265 of said
Batas Pambansa Blg. 881.
Petitioners' complaint expressly states that no supporting affidavits were submitted by the complaining witness to sustain
their charge of vote buying. Suffice it to state that the absence of such supporting affidavits shows the frailty of petitioners'
complaint. Indeed, it is vulnerable to dismissal.
2. Petitioners did not exhaust all the remedies available to them at the COMELEC level. Specifically, they did not seek a

reconsideration of the assailed COMELEC En Banc Resolution as required by Section 1, Rule 13 of the 1993 COMELEC
Rules of Procedure, thus:
"Section 1. What Pleadings are not Allowed. - The following pleadings are not allowed:
xxx
d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;
x x x."
It is not disputed that petitioners' complaint before the COMELEC involves an election offense. But in this petition, they
conveniently kept silent why they directly elevated to this Court the questioned Resolution without first filing a motion for
reconsideration with the COMELEC En Banc. It was only after the respondents had filed their comment on the petition
and called this Court's attention to petitioners' failure to comply with Section 1 of Rule 13 that they, in their Consolidated
Reply, advanced the excuse that they "deemed it best not seek any further dilatory motion for reconsideration' , even if
allowed by Sec. 1 (d) of COMELEC Rule 13."
Petitioners' failure to file the required motion for reconsideration utterly disregarded the COMELEC Rules intended "to
achieve an orderly, just, expeditious and inexpensive determination and disposition of every action and proceeding brought
before the Commission."
Contrary to petitioners' statement that a resort to a motion for reconsideration is "dilatory, " it bears stressing that the
purpose of the said motion is to give the COMELEC an opportunity to correct the error imputed to it. If the error is
immediately corrected by way of a motion for reconsideration, then it is the most expeditious and inexpensive recourse.
But if the COMELEC refuses to correct a patently erroneous act, then it commits a grave abuse of discretion justifying a
recourse by the aggrieved party to a petition for certiorari.
WHEREFORE, the instant petition is DISMISSED. SO ORDERED.

097 Unda v. Comelec and

DITANGONGAN RANGIRIS
TOPIC: Vacancies and Succession
PONENTE: Regalado, J.

HADJI

ACMAD AUTHOR: Den

NOTES/QUICKIE FACTS: An election protest was filed
by the rival candidate of the mayor which was dismissed
by the COMELEC. The mayor died, substituted by the
Vice-mayor. The rival candidate for the mayor protested
again.
NATURE: Petition for certiorari seeks to annul the resolution of respondent Commission on Elections (COMELEC),
promulgated on July 12, 1990 in SPR No. 1-90, dismissing the petition for certiorari, prohibition and mandamus filed by
petitioner Baquit Unda and ordering the court a quo to proceed with the trial of the election protest.
FACTS:
1. Hadji Minandang Guiling and private respondent Hadji Acmad Ditangongan Rangiris were the rival candidates for
mayor of Masiu, Lanao del Sur in the local elections of February 4, 1988.
2. Hadji Minandang Guiling was proclaimed as the duly elected mayor of Masiu, along with herein petitioner who
was proclaimed as the duly elected vice-mayor of the same municipality. Both officials duly took their oaths of office
and entered upon the performance of their duties.
3. Private respondent filed in the COMELEC a petition questioning the said proclamation which the latter dismissed
without prejudice to the filing of an election contest within ten days from receipt thereof.
4. On November 1, 1988, Mayor Minandang Guiling passed away and, the following day, petitioner took his oath of
office as mayor and forthwith assumed and exercised the duties of said office.
5. On November 3, 1988, private respondent filed an election protest against the deceased Mayor Minandang
Guiling with Branch 10 of the Regional Trial Court of Lanao del Sur. The summons issued to Mayor Minandang
Guiling was returned unserved on December 8, 1988 since protestee Minandang Guiling had already been dead for
over a month.
6. The protest filed by private respondent was brought to the COMELEC three times on certiorari:
The first, in which the COMELEC declared null and void the order of the aforesaid regional trial court denying
petitioner's motion for intervention, and ordered the trial court to admit the intervention and proceed with the
trial of the case on the basis of the protest and petitioner's answer in intervention.
The second, the COMELEC reversed the resolution of the trial court denying petitioner's motion for
reconsideration and affirming the order of the same court denying petitioner's motion for inhibition and
manifestation, and ordered the court a quo to proceed with the hearing on the affirmative defenses raised by herein
petitioner.
The third, the COMELEC issued the resolution, now subject of this petition, ordering the court below to
proceed with the trial of the case on the ground, among others, that the death of the protestee does not
divest the court of jurisdiction over the election protest.
Petitioners Contentions: No law which allows a deceased person to be sued as a party defendant, much less as a
protestee in an election contest; and that the COMELEC misapplied, in support of its challenged resolution, the case
of Vda. de De Mesa, etc., et al., vs. Mencias, etc., et al. Impliedly suggested thereby is that the procedure would be to
have the case dismissed without prejudice, to be refiled against the proper protestee. This may be the conventional
procedure but it overlooks the time element which is of the essence of and constitutes a major consideration in this
case.
Respondents Contention/s: First, filed an election protest in the COMELEC questioning the proclamation of the
mayor. Second, he filed an election protest against the deceased Mayor Minandang Guiling with Branch 10 of the
Regional Trial Court
ISSUE: Whether or not the trial court has jurisdiction over an election protest filed against a protestee who had died prior
to the filing thereof.
HELD: Yes.
RATIO:
1. It has been frequently decided, and it may be stated as a general rule recognized by all courts, that statutes providing for
election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not
be defeated by mere technical objections. To that end, immaterial defects in pleadings should be disregarded and necessary

and proper amendments should be allowed as promptly as possible.

2. An election case, unlike an ordinary action, is imbued with public interest since it involves not only the adjudication of
the private interests of rival candidates but also the paramount need of dispelling the uncertainty which beclouds the real
choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift. Moreover, it is
neither fair nor just to keep in office for an uncertain period one whose right to it is under suspicion. It is imperative that
his claim be immediately cleared not only for the benefit of the winner but for the sake of public interest, which can only
be achieved by brushing aside technicalities of procedure which protract and delay the trial of an ordinary action.
3. On the procedural aspect, it is established that amendments to pleadings may be permitted by this Court even for the
first time on appeal in order to substitute the name of the real party in interest, provided that such an amendment would not
involve a change in the cause of action or result in undue prejudice to the adverse party. For, as long as there is justice
done upon the merits, all the imperfections of form and technicalities of procedure ought to be brushed aside as wholly
trivial and indecisive.
4. It follows, therefore, that the election protest filed by private respondent can and ought to be amended by
striking out the name of Hadji Minandang Guiling, as the protestee, and substituting, in his place, petitioner Baquit
S. Unda. Besides, we do not find that such a course of procedure will be productive of any undue substantial prejudice to
herein private respondent. For that matter, said procedure should have been inceptively adopted by the trial court under the
circumstances of the election case before it.
5. The Court agrees with private respondent that Vda. de De Mesa, as well as the other cases invoked and relied upon by
public respondent, do not present the same factual situation obtaining in the case before us. In the decisions cited by public
respondent, the protestees had been duly served with summons and died either during the pendency of the election protest
or on appeal, which is not so in the case at bar wherein the protestee was already dead at the time of the filing of the
election protest. However, as earlier explained, we cannot allow public interest to be fettered by procedural lapses or
technicalities where the circumstances demand and warrant the adjudication of the case on the merits as early as
practicable.
6. For purposes of the present case avail of the ruling in the Vda. de De Mesa case to the effect that Section 17, Rule 3 of
the Rules of Court, on substitution of parties, applies to election contests to the same extent and with the same force and
effect as it does in ordinary civil actions.
7. Now, under the Local Government Code, the vice-mayor stands next in the line of succession to the mayor in case of a
permanent vacancy in the latter's position. Upon the death of the protestee mayor in the case at bar, petitioner, as then
incumbent vice-mayor, succeeded by operation of law to the vacated office and is ordinarily entitled to occupy the same
for the unexpired term thereof The outcome of the election contest necessarily and primarily bears upon his right to his
present position and he is the person directly concerned in the fair and regular conduct of the election in order that the true
will of the electorate will be upheld. His status as a real party in interest in the continuation of said case cannot thus be
disputed.
8. It appears that petitioner became a party to the election protest as an intervenor with the approval of respondent
COMELEC. As already discussed, the pleadings in the election protest should properly be amended to substitute petitioner
as the party protestee, instead of his being merely an intervenor therein, and that the proceedings be thereafter conducted
accordingly.
DISPOSITIVE PORTION:
WHEREFORE, judgment is hereby rendered:
1. AFFIRMING the resolution of public respondent Commission on Elections promulgated on July 12,1990 in SPR No. 190;
2. ORDERING the court a quo to forthwith appoint petitioner as the legal representative of the deceased protestee, and
cause the amendment of the pleadings and processes concerned to substitute petitioner therein in the name and stead of the
late protestee;
3. ALLOWING petitioner to file an answer in said election case within ten (10) days from receipt of this resolution, failing
which his aforestated answer in intervention shall stand as his answer to the amended protest; and
4. DIRECTING the lower court to grant full representation of and participation by petitioner Baquit S. Unda as protestee in
all proceedings and incidents in Election Case No. 77-88 of said court.
The temporary restraining order issued in this case is LIFTED, and the court a quo is hereby ORDERED to proceed with
the trial and adjudication of said election case with deliberate dispatch.

098 MACALINCAG v. CHANG

408 SCRA 413 May 6, 1992

AUTHOR: RAVZ
NOTES:

TOPIC: Vacancies and succession

PONENTE: Paras, J.:
FACTS:
9. On October 6, 1989, petitioner Lorinda M. Carlos (Carlos for short) signed a formal administrative charge
approved by petitioner Victor C. Macalincag (Macalincag for short) for dishonesty, neglect of duty and acts
prejudicial to the best interest of the service againt the respondent Chang, for disbursement of funds.
10. The basis of the formal charge by petitioner Carlos was the preliminary evaluation of the Commission on Audit
(COA) Report dated January 18, 1989 and the affidavit-complaints of Councilor Roberto Brillante dated April 27,
1989 and May 23, 1989.
11. On the same date, October 5, 1989, petitioner Macalincag issued an Order of Preventive Suspension against
Chang, for the reason that there was a complaint filed against the respondent.
12. Also on October 6, 1989, petitioner Macalincag sent a letter to the "Governor, Metro Manila Commission Attn:
the Officer-in-Charge MMC Finance Office," seeking the implementation of the Order of Preventive Suspension
dated October 6, 1989 and recommending that an Officer-in-Charge be immediately designated from the ranks of
qualified Municipal Treasurers and Assistant Municipal Treasurers in Metro Manila.
13. By virtue of the said letter, the Officer-in-Charge, MMC Finance Office furnished respondent Chang, by ordinary
mail, with a copy of the Order of Preventive Suspension also dated October 6, 1989.
14. On November 10, 1989, respondent Chang filed a petition for prohibition with writ of preliminary injunction
before the Regional Trial Court (RTC) of Makati against petitioners Macalincag and Carlos.
15. In an Order dated November 10, 1989, Executive Judge Santiago Ranada, Jr., the court also temporarily restrained
Macalincag and Carlos, or their duly authorized representatives from implementing the questioned "Order of
Preventive Suspension" dated October 6, 1989 for the preservation of the rights of the parties pending the final
determination of the prayer for a writ of preliminary injunction.
16. The court on January 19, 1990 issued an Order denying-respondent's Chang application for a writ of preliminary
injunction, and sustained the power of the Secretary of Finance to issue the Order of Preventive Suspension.
17. A motion for reconsideration dated February 13, 1990 was filed by respondent Chang. In said motion, Chang
raised a new argument by invoking Section 8 of the recently issued (January 9, 1990) Executive Order No. 392
entitled "Constituting the Metropolitan Manila Authority, providing for its powers and functions and for other
purposes."
18. The trial court issued an Order reconsidering and setting aside its previous Order dated January 19, 1990 thus
granting respondent Chang's application for a writ of preliminary injunction.
19. The Second Division of this Court in its resolution dated February 11, 1991 denied the petition for having been
filed out of time but the same was reinstated in a resolution dated April 15, 1991.
20. In the resolution dated July 10, 1991, the Second Division of this Court gave due course to the petition and
required both parties to file their simultaneous memoranda.
21. Petitioners contend that the Order of Preventive Suspension became effective upon receipt thereof by respondent
Chang and not upon the designation of an officer-in-charge to replace him; that the Order of Preventive
Suspension dated October 6, 1989 became effective before the issuance of Executive Order No. 392 and, therefore,
can no longer be enjoined by reason of the alleged transfer of the power to suspend from the Secretary of Finance
to the President of the Republic of the Philippines and that the power to suspend and remove municipal officials is
not an incident of the power to appoint.

22. On the other hand, the contention of the private respondent is that a government officer is not suspended until
someone has assumed the post and the officer subject of the suspension order has ceased performing his official
function; that the implementation of the questioned suspension order was overtaken by the issuance of Executive
Order No. 392 creating the Metropolitan Manila Authority and that the power to discipline is vested solely on the
person who has the power to appoint.
23.
ISSUE(S):

3. Whether or not the Secretary of Finance has jurisdiction to issue an Order of Preventive Suspension
against the acting municipal treasurer of Makati, Metro Manila.
HELD:
4. Yes, PREMISES CONSIDERED, the petition is GRANTED and the assailed Order dated October 24, 1990 is
NULLIFIED.
RATIO:
4. In the questioned decision of the lower court, it was pointed out that in order that a preventive suspension will be
implemented, there are two steps involved, viz: 1) service of a copy of said order on the respondent and 2)
designation of his replacement. The trial court ruled that until an acting municipal treasurer is appointed to replace
the respondent, the order of preventive suspension dated October 6, 1989 is incomplete and cannot be said to have
taken effect. This ruling of the trial court is untenable.
5. Preventive Suspension is governed by Sec. 41 of P.D. 807 or the Civil Service Law which provides:
Sec. 41. Preventive Suspension. The proper disciplining authority may preventively suspend any
subordinate officer or employee under his authority pending an investigation, if the charge against
such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from service (Emphasis supplied)
6. It will be noted that under the aforesaid law, designation of the replacement is not a requirement to give effect to
the preventive suspension.
7. On the contrary, Batas Pambansa Blg. 337, otherwise known as the Local Government Code, provides in Section
156, Article 5, Chapter 3, Title II thereof for the automatic assumption of the assistant municipal treasurer or next
in rank officer in case of suspension of the municipal treasurer, to wit:
Sec. 156. TEMPORARY DISABILITY. In the event of inability of the treasurer to discharge the
duties of his office on account of a trip on official business, absence on leave, sickness, suspension,
or other temporary disability, the assistant municipal treasurer or, in his absence, the treasury official
next in rank in the municipality shall discharge the duties of the office subject to existing laws.
(Emphasis supplied)
Specifically, it is provided under Section 233(2)of BP 337, that:
Until otherwise provided by law, nothing in this code shall be understood to amend or repeal the
pertinent provisions of P.D. No. 824 and BP 20, and all presidential decrees and issuances relevant
to Metropolitan Manila and the Sangguniang Pampook of Regions IX and XII.
8. Accordingly, there appears to be no question that: the Order of Preventive Suspension of respondent Chang
became effective upon his receipt thereof, which is presumed when he filed a complaint in the trial court
preventing the implementation of such Order of Suspension. Otherwise stated, the designation of the OFFICERIN-CHARGE to replace respondent Chang is immaterial to the effectivity of the latter's suspension. A contrary
view would render nugatory the very purpose of preventive suspension.
9. Chang claims that only the president has the power to removed him, relative thereto, Sec. 8 of Executive Order No.
392 provides:

Sec. 8. All city and municipal treasurers, municipal assessors and their assistants as well as other
officials whose appointment is currently vested upon the Metropolitan Manila Commission shall be
appointed by the President of the Philippines, upon recommendation of the Council, subject to the
Civil Service law, rules and regulations. (Emphasis supplied).
10. Earlier, prior to Executive Order No. 392, the power to appoint the aforesaid public officials was vested in the
Provincial Treasurers and Assessors of the Municipalities concerned, under P.D. No. 477 and later transferred to
the Commissioner of Finance under P.D. No. 921, but under both decrees, the power of appointment was made
subject to Civil Service Laws and the approval of the Secretary of Finance.
11. Verily, the intention of the aforesaid legislations to follow the Civil Service Laws, Rules and Regulations is
unmistakable.
12. Correspondingly, the power to discipline is specifically vested under Sec. 37 of P.D. No. 807 in heads of
departments, agencies and instrumentalities, provinces and chartered cities who have original jurisdiction to
investigate and decide on matters involving disciplinary action. Stated differently, they are the proper disciplining
authority referred to in Sec. 41 of the same law.
13. The Office of the Municipal Treasurer is unquestionably under the Department of Finance as provided for in Sec.
3, P.D. No. 477. Hence, the Secretary of Finance is the proper disciplining authority to issue the preventive
suspension order. More specifically acting Secretary of Finance, Macalincag, acted within his jurisdiction in
issuing the aforesaid order.
14. By and large, even assuming that the power to appoint, includes the power to discipline as argued by Chang, acting
Secretary Macalincag as Secretary of Finance is an alter ego of the President and therefore, it is within his
authority, as an alter ego, to preventively suspend respondent Chang.
CASE LAW/ DOCTRINE:
DISSENTING/CONCURRING OPINION(S):
(If any)

99 VICTORINO DENNIS M. SOCRATES, Mayor of

Puerto Princesa City, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE
PREPARATORY RECALL ASSEMBLY (PRA) of
Puerto Princesa City, PRA Interim Chairman Punong
Bgy. MARK DAVID HAGEDORN, PRA Interim
Secretary Punong Bgy. BENJAMIN JARILLA, PRA
Chairman and Presiding Officer Punong Bgy. EARL S.
BUENVIAJE and PRA Secretary Punong Bgy.
CARLOS ABALLA, JR. respondents.

AUTHOR: Diaz de Rivera, Jon

NOTES/QUICKIE FACTS:
In summary, Hagedorn is qualified to run in the 24
September 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 30 June 2001;

VICENTE S. SANDOVAL, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS, respondent.

2. Hagedorn's continuity of service as mayor was

involuntarily interrupted from 30 June 2001 to 24
September 2002 during which time he was a private
citizen;

MA. FLORES P. ADOVO, MERCY E. GILO and

BIENVENIDO OLLAVE, SR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, and EDWARD
S. HAGEDORN, respondents.

3. Hagedorn's recall term from 24 September 2002

to 30 June 2004 cannot be made to retroact to 30
June 2001 to make a fourth consecutive term
because factually the recall term is not a fourth
consecutive term; and

G.R. No. 154512, G.R. No. 154683, G.R. Nos. 155083-84

November 12, 2002

4. Term limits should be construed strictly to give

the fullest possible effect to the right of the
electorate to choose their leaders.

TOPIC: Term Limits and Recall

PONENTE: Carpio J.
PARTIES:
G.R. No. 154512
PETITIONER: Dennis Socrates (Mayor of Puerto Princesa City)
RESPONDENT: COMELEC, Preparatory Recall Assembly (composed of the incumbent barangay officials of Puerto
Princesa City)
G.R. No. 154683
PETITIONER: Vicente Sandoval (one of the mayoral candidates in the recall election)
RESPONDENT: COMELEC
G.R. Nos. 155083-84
PETITIONER: Ma. Flores Adovo, Mercy Gilo, Bienvenio Ollave, Sr. (citizens who wanted to disqualify Hagedorn)
RESPONDENT: COMELEC and Edward Hagedorn (At the time of filing the petition, he is a private citizen who garnered
the most number of votes in the recall election.)
FACTS:
On 2 July 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened
themselves into a Preparatory Recall Assembly (PRA) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00
noon. The PRA was convened to initiate the recall of Victorino Dennis M. Socrates (Socrates) who assumed office as
Puerto Princesa's mayor on 30 June 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) 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 16 July 2002, Socrates filed with the COMELEC a petition to nullify and deny due course to the Recall Resolution.
COMELEC: dismissed the petition of Socrates for lack of merit; it gave due course to the Recall Resolution and scheduled
the recall election on 7 September 2002.
On 23 August 2002, Edward M. Hagedorn (Hagedorn) filed his certificate of candidacy for mayor in the recall election.
On 17 August 2002, Ma. Flores F. Adovo (Adovo) and Merly E. Gilo (Gilo) filed a petition before the COMELEC while a
certain Bienvenio Ollave, Sr. (Olave) filed a petition-in-intervention to disqualify Hagedorn from running in the recall
election and to cancel his certificate of candidacy. Thereafter, a certain Genaro V. Manaay filed another petition 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, both petitions were consolidated.
COMELEC (1st Division): dismissed both petitions for lack of merit; it declared Hagedorn qualified to run in the recall
election; it also reset the recall election from 7 September 2002 to 24 September 2002. (Parties filed M.R.)
COMELEC (en banc): denied the motion for reconsideration; affirmed the resolution declaring Hagedorn qualified to run
in the recall election.
On 24 September 2002, the recall election was held and 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.
G.R. No. 154512
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.
G.R. No. 154683
Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated 21 August 2002 insofar as it fixed the recall
election on 7 September 2002, giving the candidates only a ten-day campaign period.
(Note: This petition has become moot and academic since the COMELEC issued another resolution granting an additional
fifteen (15) days for the campaign period when it moved the date of the recall election to 24 September 2002.)
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions 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.

ISSUE: Whether Hagedorn is qualified to run for mayor in the recall election.
HELD: Yes.
RATIO: (Side Note: SC held that the Recall Election was validly made)
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 threeterm 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
(immediate reelection). 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.
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 threeterm limit, then Senators should also be prohibited from running in any election within the six-year full term following
their two-term limit.
The framers of the Constitution clarified that a Senator can run after only three years 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 24 September 2002 is not an immediate reelection
after his third consecutive term which ended on 30 June 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. 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 24 September 2002 when he won by 3,018 votes over his closest opponent, Socrates.
From 30 June 2001 until the recall election on 24 September 2002, the mayor of Puerto Princesa was Socrates.
During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity
of Hagedorn's service as mayor, not because of his voluntary renunciation, but because of a legal prohibition.
Hagedorn's three consecutive terms ended on 30 June 2001. Hagedorn's new recall term from 24 September 2002 to 30
June 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together
Hagedorn's 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 30 June 2001 to 24 September 2002 which
broke the continuity or consecutive character of Hagedorn's service as mayor.
In the case at bar, the nearly 15-month period he was out of office, although short of a full term of three years, constituted
an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to
be a full term of three years. The clear intent is that interruption "for any length of time," as long as the cause is
involuntary, is sufficient to break an elective local official's continuity of service.
Moreover, Hagedorn's recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be
disqualified to run in the 24 September 2002 recall election if the recall term is made to retroact to 30 June 2001, for only
then can the recall term constitute a fourth consecutive term. But to consider Hagedorn's recall term as a full term of
three years, retroacting to 30 June 2001, despite the fact that he won his recall term only last 24 September 2002, is
to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually
are not.
Worse, to make Hagedorn's recall term retroact to 30 June 2001 creates a legal fiction that unduly curtails the
freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation
of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly
to give the fullest possible effect to the sovereign will of the people.
A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption.
An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one
term for purposes of counting the three-term limit.
In summary, the Court holds that Hagedorn is qualified to run in the 24 September 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 30 June 2001;
2. Hagedorn's continuity of service as mayor was involuntarily interrupted from 30 June 2001 to 24 September
2002 during which time he was a private citizen;
3. Hagedorn's recall term from 24 September 2002 to 30 June 2004 cannot be made to retroact to 30 June 2001 to
make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose
their leaders.

WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The temporary restraining
order issued by this Court on September 24, 2002 enjoining the proclamation of the winning candidate for mayor of Puerto
Princesa in the recall election of September 24, 2002 is lifted. No costs.

100 FEDERICO T. MONTEBON and ELEANOR M.

ONDOY, petitioners, vs. COMMISSION ON ELECTION
and SESINANDO F. POTENCIOSO, JR., respondents.

AUTHOR: Edison Flores

NOTES/QUICKIE FACTS:

GR No. 180444, April 8, 2008

TOPIC: Exercising Good Governance at the Local Level:
Elective Officials: Term Limits and Recall
PONENTE: Ynares-Santiago, J.:
FACTS:
Petitioners Montebon and Ondoy and respondent Potencioso, Jr. were candidates for municipal councilor of the
Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007,
petitioners and other candidates for municipal councilor filed a petition for disqualification against respondent with the
COMELEC.
PETITIONERS:
Petitioners allege that respondent had been elected and served three consecutive terms as municipal councilor in 19982001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it
would be his fourth consecutive term.
Respondents assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service
of his second term since it was a voluntary renunciation of his office as municipal councilor. According to the law,
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 official concerned was elected.
RESPONDENT:
Respondent claims that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he
succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not
disqualified from vying for the position of municipal councilor in the 2007 elections.
A local elective official is not disqualified from running for the fourth consecutive time to the same office if there was an
interruption in one of the previous three terms.
ISSUE: Whether the assumption of office as vice-mayor is not considered as an interruption in service, hence, baring the
Respondent from running for municipal councilor the fourth time.
HELD: No. Respondents assumption to the office of vice-mayor during his second term as councilor is not a voluntary
renunciation of the latter office. The same therefore operated as an effective disruption in the full service of his second
term as councilor.
RATIO:
In Lonzanida v. Commission on Elections, the Court held that the two conditions for the application of the disqualification
must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post;
and 2) that he has fully served three consecutive terms.
In Borja, Jr. v. Commission on Elections, the Court emphasized that the term limit for 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. Thus, for the disqualification to
apply, it is not enough that the official has been elected three consecutive times; he must also have served three
consecutive terms in the same position.
Succession in local government offices is by operation of law. Section 44 of Republic Act No. 7160, otherwise known as
the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest
ranking sanggunian member shall become vice mayor.
In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza.
Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that
his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal

councilor.
The Respondents assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as
municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by
reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC
that
The legal successor is not given any option under the law on whether to accept the vacated post or not.
Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is
permanently unable to succeed to the post does the law speak of alternate succession. Under no
circumstances can simple refusal of the official concerned be considered as permanent inability within the
contemplation of law. Essentially therefore, the successor cannot refuse to assume the office that he is
mandated to occupy by virtue of succession. He can only do so if for some reason he is permanently
unable to succeed and occupy the post vacated.
Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the
performance of a public duty by a government official, the non-performance of which exposes said official to possible
administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore
more compulsory and obligatory rather than voluntary.
DISPOSITIVE: WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007 Resolution of the
COMELEC First Division denying the petition for disqualification and the September 28, 2007 Resolution of the
COMELEC en banc denying the motion for reconsideration, are AFFIRMED. SO ORDERED.

102 Abundo v Comelec

TOPIC: Term Limits and Recall
PONENTE: Justice Velaso Jr.

AUTHOR: Dann M.
NOTES/QUICKIE FACTS:

FACTS:
Petitioner: MAYOR ABELARDO ABUNDO, SR.
Respondent: COMMISSION ON ELECTIONS and ERNESTO R. VEGA
1.

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.
2. 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.
3. 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
4. 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.
5. Then came the May 10, 2010 elections where Abundo and Torres again opposed each other.
3
6. When Abundo filed his certificate of candidacy for the mayoralty seat relative to this electoral contest, Torres lost no time
in seeking the formers disqualification to run, the corresponding petition predicated on the three-consecutive term limit
rule.
5
7. On June 16, 2010, the COMELEC First Division issued a Resolution finding for Abundo, who in the meantime bested Torres
6
by 219 votes and was accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.
8. 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 action to unseat Abundo on
essentially the same grounds Torres raised in his petition to disqualify.
9. RTC = Abundo ineligible to serve as municipal mayor.
a. citing Aldovino, Jr. v. COMELEC, Abundo 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 Abundos
second term as mayor.
10. Therefrom, Abundo appealed to the COMELEC.
11. Comelec = Affirmed.
a. there was no involuntary interruption of Abundos 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
b. 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.
12. Hence, the instant petition.
ISSUE: whether the service of a term less than the full three years by an elected official arising from his being declared as the duly
elected official upon an election protest is considered as full service of the term for purposes of the application of the three
consecutive term limit for elective local officials
HELD: No, there is merit in the petitioners argument.
RATIO:
1. The three-term limit rule for elective local officials, a disqualification rule, is found in Section 8, Article X of the 1987
Constitution.
2. It is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC) of 1991.
3. 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.
4. As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC, voluntary renunciation of the
office by the incumbent elective local official for any length of time shall NOT, in determining service for three consecutive
terms, be considered an interruption in the continuity of service for the full term for which the elective official concerned

was elected. In Aldovino, Jr., however, the Court stated the observation that the law "does not textually state that voluntary
renunciation is the only actual interruption of service that does not affect continuity of service for a full term for purposes
32
of the three-term limit rule."
33
5. As stressed in Socrates v. Commission on Elections, the principle behind the three-term limit rule covers only consecutive
terms and that what the Constitution prohibits is a consecutive fourth term. Put a bit differently, an elective local official
34
cannot, following his third consecutive term, seek immediate reelection for a fourth term, albeit he is allowed to seek a
fresh term for the same position after the election where he could have sought his fourth term but prevented to do so by
reason of the prohibition.
6. There has, in fine, to be a break or interruption in the successive terms of the official after his or her third term. An
interruption usually occurs when the official does not seek a fourth term, immediately following the third.
7. Of course, the basic law is unequivocal that a "voluntary renunciation of the office for any length of time shall NOT be
considered an interruption in the continuity of service for the full term for which the elective official concerned was
elected." This qualification was made as a deterrent against an elective local official intending to skirt the three-term limit
rule by merely resigning before his or her third term ends.
8. This is a voluntary interruption as distinguished from involuntary interruption which may be brought about by certain events
or causes.
9. While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes resulting from the
varying interpretations applied on local officials who were elected and served for three terms or more, but whose terms or
service was punctuated by what they view as involuntary interruptions, thus entitling them to a, but what their opponents
perceive as a proscribed, fourth term. Involuntary interruption is claimed to result from any of these events or causes:
a. succession or assumption of office by operation of law,
b. preventive suspension, declaration of the defeated candidate as the winner in an election contest,
c. declaration of the proclaimed candidate as the losing party in an election contest,
d. proclamation of a non-candidate as the winner in a recall election,
e. removal of the official by operation of law, and
f. other analogous causes.
10. To summarize (because the SC discussed a lot of cases), hereunder are the prevailing jurisprudence on issues affecting
consecutiveness of terms and/or involuntary interruption, viz:
a) When a permanent vacancy occurs in an elective position and the official merely assumed the position pursuant to
the rules on succession under the LGC, then his service for the unexpired portion of the term of the replaced official
cannot be treated as one full term as contemplated under the subject constitutional and statutory provision that
service cannot be counted in the application of any term limit (Borja, Jr.). If the official runs again for the same
position he held prior to his assumption of the higher office, then his succession to said position is by operation of
law and is considered an involuntary severance or interruption (Montebon).
b) An elective official, who has served for three consecutive terms and who did not seek the elective position for what
could be his fourth term, but later won in a recall election, had an interruption in the continuity of the officials
service. For, he had become in the interim, i.e., from the end of the 3rd term up to the recall election, a private
citizen (Adormeo and Socrates).
c) The abolition of an elective local office due to the conversion of a municipality to a city does not, by itself, work to
interrupt the incumbent officials continuity of service (Latasa).
d) Preventive suspension is not a term-interrupting event as the elective officers continued stay and entitlement to
the office remain unaffected during the period of suspension, although he is barred from exercising the functions of
his office during this period (Aldovino, Jr.).
e) When a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when
he loses in an election protest and is ousted from office, thus disenabling him from serving what would otherwise
be the unexpired portion of his term of office had the protest been dismissed (Lonzanida and Dizon). The break or
interruption need not be for a full term of three years or for the major part of the 3-year term; an interruption for
any length of time, provided the cause is involuntary, is sufficient to break the continuity of service (Socrates, citing
Lonzanida).
f) When an official is defeated in an election protest and said decision becomes final after said official had served the
full term for said office, then his loss in the election contest does not constitute an interruption since he has
managed to serve the term from start to finish. His full service, despite the defeat, should be counted in the
application of term limits because the nullification of his proclamation came after the expiration of the term (Ong
and Rivera).
9. The intention behind the three-term limit rule was not only to abrogate the "monopolization of political power" and prevent
60
elected officials from breeding "proprietary interest in their position" but also to "enhance the peoples freedom of
61
choice." In the words of Justice Vicente V. Mendoza, "while people should be protected from the evils that a monopoly of
62
power may bring about, care should be taken that their freedom of choice is not unduly curtailed."
10. In the present case, the Court finds Abundos case meritorious and declares that the two-year period during which his

11.

12.

13.
14.

15.

16.
17.

18.
19.
20.

21.

22.

23.

24.

opponent, Torres, was serving as mayor should be considered as an interruption, which effectively removed Abundos 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 Abundos 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.
63
A "term," as defined in Appari v. Court of Appeals, means, in a legal sense, "a fixed and definite period of time which the
64
law describes that an officer may hold an office." It also means the "time during which the officer may claim to hold office
65
as a matter of right, and fixes the interval after which the several incumbents shall succeed one another." 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
66
Sec. 43, RA 7160, 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 Abundos opponent actually served as Mayor is and ought to be
considered an involuntary interruption of Abundos continuity of service.
An involuntary interrupted term, cannot, in the context of the disqualification rule, be considered as one term for purposes
67
of counting the three-term threshold.
The notion of full service of three consecutive terms is related to the concepts of interruption of service and voluntary
68
renunciation of service. The word interruption means temporary cessation, intermission or suspension. To interrupt is to
69
obstruct, thwart or prevent.
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
70
of a known right. To renounce is to give up, abandon, decline or resign. 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.
As previously stated, the declaration of being the winner in an election protest grants the local elected official the right to
serve the unexpired portion of the term. Verily, while he was declared winner in the protest for the mayoralty seat for the
2004-2007 term, Abundos full term has been substantially reduced by the actual service rendered by his opponent (Torres).
Hence, there was actual involuntary interruption in the term of Abundo and he cannot be considered to have served the full
2004-2007 term.
This is what happened in the instant case. It cannot be overemphasized that pending the favorable resolution of his election
protest, Abundo was relegated to being an ordinary constituent since his opponent, as presumptive victor in the 2004
elections, was occupying the mayoralty seat. In other words, for almost two years or from July 1, 2004the start of the
termuntil May 9, 2006 or during which his opponent actually assumed the mayoralty office, Abundo was a private citizen
warming his heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to serve the
elective position from July 1, 2004, such declaration would not erase the fact that prior to the finality of the election protest,
Abundo did not serve in the mayors office and, in fact, had no legal right to said position.
Aldovino Jr. case cannot possibly lend support to respondents cause of action, or to COMELECs resolution against Abundo.
In Aldovino Jr., the Court succinctly defines what temporary inability or disqualification to exercise the functions of an
elective office means, thus:
a. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if

25.
26.

27.

28.
29.

30.

involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title
to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred
74
from exercising the functions of his office for a reason provided by law.
We rule that the above pronouncement on preventive suspension does not apply to the instant case. Verily, it is erroneous
to say that Abundo merely was temporarily unable or disqualified to exercise the functions of an elective post.
For one, during the intervening period of almost two years, reckoned from the start of the 2004-2007 term, Abundo cannot
be said to have retained title to the mayoralty office as he was at that time not the duly proclaimed winner who would have
the legal right to assume and serve such elective office.
For another, not having been declared winner yet, Abundo cannot be said to have lost title to the office since one cannot
plausibly lose a title which, in the first place, he did not have. Thus, for all intents and purposes, even if the belated
declaration in the election protest accords him title to the elective office from the start of the term, Abundo was not entitled
to the elective office until the election protest was finally resolved in his favor.
Consequently, there was a hiatus of almost two years, consisting of a break and effective interruption of his service, until he
assumed the office and served barely over a year of the remaining term.
As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest period during which the
local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial
75
jurisdiction of a particular local government unit." Applying the said principle in the present case, there is no question that
during the pendency of the election protest, Abundo ceased from exercising power or authority over the good people of
Viga, Catanduanes.
Consequently, the period during which Abundo was not serving as mayor should be considered as a rest period or break in
his service because, as earlier stated, prior to the judgment in the election protest, it was Abundos opponent, Torres, who
was exercising such powers by virtue of the still then valid proclamation.

WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8, 2012 Resolution of the Commission on
Elections Second Division and May 10, 2012 Resolution of the Commission on Elections en banc in EAC (AE) No. A-25-2010 and the
Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55, are hereby
REVERSED and SET ASIDE.
Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga, Catanduanes to which he was duly elected in
the May 2010 elections and is accordingly ordered IMMEDIATELY REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar
O. Cervantes are ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes, respectively, and shall
revert to their original positions of Vice-Mayor and First Councilor, respectively, upon receipt of this Decision.

[103] Title: Miranda vs Sandiganbayan,

Quick Notes/Doctrine
G.R. 154098 , July 27, 2005
Topic: Supervision Over and Discipline of
Local
Officials ( Applicability of RA 6770 The
Ombudsman Act of 1989
Facts:
1. The Ombudsman placed petitioner Jose C. Miranda then the mayor of Santiago City,
Isabela, under preventive suspension for six months from 25 July 1997 to 25 January
1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees.
2. Subsequently, then Vice Mayor Amelita S. Navarro filed a Complaint with the Office of
the Ombudsman. Vice Mayor Navarro contended that Mayor Miranda committed the
felony of usurpation of authority or official functions.
3. In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the
following acts on 24 November 1997 despite the continuing effectivity of the
Ombudsmans preventive suspension order: (a) issued a memorandum addressed to
Navarro advising her that he was assuming his position as City Mayor;(b) gave directives
to the heads of offices and other employees;(c) issued Office Order No. 11-021 which
authorized certain persons to start work; and (d) insisted on performing the functions and
duties of Mayor despite Navarrros requests to desist from doing so without a valid court
order and in spite of the order of Department of Interior and Local Government (DILG)
Undersecretary Manuel Sanchez directing him to cease from reassuming the position.
4. Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good
faith. He contended that under Section 63(b) of the Local Government Code, local
elective officials could not be preventively suspended for a period beyond 60 days He
also averred that, on the day he reassumed office, he received a memorandum from DILG
Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately
complied with the same. Notably, Mayor Mirandas counter-affidavit also stated that he
left the mayoralty post after coercion by the Philippine National Police.
5. On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to
suspend Mayor Miranda pendente lite based on Section 13 of Republic Act No. 3019
(R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.
6. Miranda opposed the motion on the ground that the offense of usurpation of authority or
official functions under Article 177 of the RPC is not embraced by Section 13 of R.A.
No. 3019 which only contemplates offenses enumerated under R.A. No. 3019, Title VII,
Book II of the RPC or which involve fraud upon government or public funds or
property.
7. In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended
Mayor Miranda from office for 90 days.The anti-graft court held that a violation of
Article 177 of the RPC involves fraud which in a general sense is deemed to comprise
anything calculated to deceive, including all acts, omissions, and concealment involving a
breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage
to another or by which an undue and unconscious advantage is taken of another. It

further ruled that Mirandas act fell within the catch-all provision x x x or for any
offense involving fraud upon government.
8. Hence, the present petition assailing the Sandiganbayans orders of preventive
suspension
Issues:
(1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts involving public funds
or property; and (2) WON Ombudsmans authority to preventively suspend local elective
officials for 6 months is limited by Section 63(b) of the Local Government Code.
Held:
(1) No, The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two
types of offenses: (1) any offense involving fraud on the government; and (2) any offense
involving public funds or property. Contrary to the submission of the petitioner, nothing
in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving
fraud on public funds or property. The phrase any offense involving fraud upon
government or public funds or property is clear and categorical. To limit the use of
government as an adjective that qualifies funds is baseless. The word public
precedes funds and distinguishes the same from private funds. To qualify further
public funds as government funds, as petitioner claims is the laws intent, is plainly
superfluous. We are bound by the rule that a statute should be construed reasonably with
reference to its controlling purpose and its provisions should not be given a meaning that
is inconsistent with its scope and object. R.A. No. 3019, commonly known as the AntiGraft and Corrupt Practices Act, should be read to protect the State from fraud by its own
officials.
It is obvious to the eyes that the phrase fraud upon government means any instance or act of
trickery or deceit against the government. It cannot be read restrictively so as to be equivalent to
malversation of funds as this is covered by the preceding phrase any offense involving . . .
public funds or property. It ought to follow that fraud upon government was committed when
the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the
Mayor under pretense of official position.
(2) 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 dishonestly,
oppression or grave misconduct or neglect in the performance of duty; (b) that 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 6month 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

Sec. 63 (LGC) - It is plain that the provision was only meant as a cap on the discretionary
power of the President, governor and mayor to impose excessively long preventive
suspensions. The Ombudsman is not mentioned in the said provision and was not meant
to be governed thereby. Indeed, the reason is not hard to distill. The President, governor
and mayor are political personages
Verily, Section 63 of the Local Government Code does not govern preventive
suspensions imposed by the Ombudsman, which is a constitutionally created office and
independent from the Executive branch of government.[56] The Ombudsmans power of
preventive suspension is governed by Republic Act No. 6770,[57] otherwise known as The
Ombudsman Act of 1989, which provides:
SECTION 24.
Preventive Suspension. The Ombudsman or his
Deputy may preventively suspend any officer or employee under his authority
pending an investigation, if in his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's continued stay in office
may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by
the Office of the Ombudsman but not more than six months, without pay,
except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing the period of
suspension herein provided.

The court is not a bit persuaded by the posture of the petitioner that he reassumed office under an
honest belief that he was no longer under preventive suspension. Petitioners pretense cannot
stand scrutiny. Petitioners own affidavit states.Petitioners excuse for violating the order of
preventive suspension is too flimsy to merit even a side-glance. He alleged that he merely
followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule
of law, they should have assailed the validity of the order of suspension in court instead of taking
the law into their own hands.
Dispositive Decision : IN VIEW WHEREOF, the instant petition is DISMISSED there being
no showing that the Sandiganbayan gravely abused its discretion in issuing its Resolution of 4
February 2002, preventively suspending the petitioner for 90 days
Relation/Pertinent Law

1. Section 13 of R.A. No. 3019, as amended, provides:

Section 13. Suspension and loss of benefits. Any incumbent public
officer against whom any criminal prosecution under a valid information under
this Act or under Title 7, Book II of the Revised Penal Code or for any offense

involving fraud upon government or public funds or property whether as a simple

or as a complex offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from office. Should he be
convicted by final judgment, he shall lose all retirement or gratuity benefits under
any law, but if he is acquitted, he shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.

2. Section 63 of the Local Government Code

SECTION 63. Preventive Suspension. (a)

(b)

(c)

Preventive suspension may be imposed:

(1)

By the President, if the respondent is an elective official of a

province, a highly urbanized or an independent component city;

(2)

By the governor, if the respondent is an elective official of a

component city or municipality; or

(3)

By the mayor, if the respondent is an elective official of the

barangay.

Preventive suspension may be imposed at any time after the issues are
joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence: Provided, That, any single
preventive suspension of local elective officials shall not extend beyond
sixty (60) days: Provided, further, That in the event that several
administrative cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within a single year
on the same ground or grounds existing and known at the time of the first
suspension.
Upon expiration of the preventive suspension, the suspended elective
official shall be deemed reinstated in office without prejudice to the
continuation of the proceedings against him, which shall be terminated
within one hundred twenty (120) days from the time he was formally
notified of the case against him. However, if the delay in the proceedings
of the case is due to his fault, neglect, or request, other than the appeal
duly filed, the duration of such delay shall not be counted in computing
the time of termination of the case.

3. Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, which
provides:
SECTION 24.

Preventive Suspension. The Ombudsman or his

Deputy may preventively suspend any officer or employee under his authority
pending an investigation, if in his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's continued stay in office
may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by
the Office of the Ombudsman but not more than six months, without pay,
except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing the period of
suspension herein provided.

104 Bolastig v. Sandiganbayan, 235 SCRA 103, G.R.

No. 110503 August 4, 1994
TOPIC: Supervision Over and Discipline of Local
Officials; Applicability of R.A. 6770 - The Ombudsman
Act of 1989.
PONENTE: MENDOZA, J

AUTHOR: CA Lofranco
NATURE: Petition for Certiorari: Resolution of the Sandiganbayan,
granting the motion of the Special Prosecution Officer to suspend the
accused from office pendente lite and the resolution denying
reconsideration of the first resolution.
QUICKIE FACTS: Motion for Preventive Suspension was filed against
petitioner for the alleged overpricing of 100 reams of onion skin paper
in violation of the Anti-Graft and Corrupt Practices Act (Republic Act
No. 3019)
NOTE: Applicability of R.A. 3019

FACTS:
Petitioner: ANTONIO M. BOLASTIG (OIC governor of Samar)
Respondents: HON. SANDIGANBAYAN (Third Division) and THE PEOPLE OF THE PHILIPPINES
Background:
1. On August 31, 1989, an information was filed against petitioner and two others (Provincial Treasurer and Property
Officer), being public officers and being members of Bids and Awards Committee, for the alleged overpricing of 100
reams of onion skin paper in violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) to which
petitioner pleaded "not guilty."
100 reams of Onion Skin size 11" x 17" at a unit price of P550.00 or a total price of P55,000.00, which contract was
manifestly and grossly disadvantageous to the government as the prevailing unit price for said item was only
P55.00 or a total price of P5,500.00, thereby causing undue injury to the government in the total amount of
P49,500.00.
2. Special Prosecution Officer moved for petitioner's suspension, citing Sec. 13 of Republic Act No. 3019.
Sec. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution
under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense
involving fraud upon government or public funds or property, whether as a simple or as a complex offense and in
whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.
3. Petitioner opposed the motion, arguing inter alia that:
Upon a bare invocation of the foregoing provision, the prosecution would have this Honorable Court issue an
Order suspending the accused, as if suspension of a public officer is a mindless and meaningless exercise, and its
imposed without regard to the spirit and intent of the law upon which it is based.
Indeed, it cannot be simply assumed that laws are enacted and followed without a particular purpose to be
served, especially when a mechanical application shall injure not only the public official concerned, but the entire
electorate as well.
Sandiganbayan
4. Rejected petitioner's argument and ordered the suspension of petitioner from office for a period of 90 days.
Preventive suspension is mandatory under Sec. 13, of Rep. Act No. 3019, pursuant to which all that is required
is for the court to make a finding that the accused stands charged under a valid information "for any of the abovedescribed crimes for the purpose of granting or denying the sought for suspension.
Implementation of the resolution was held in abeyance to allow petitioner to file a motion for reconsideration,
which the Sandiganbayan, however, eventually denied.
5. Hence, this petition.
Arguments:
Petitioner
6. It is contended that the Sandiganbayan committed a grave abuse of its discretion in issuing it resolution
(a) despite the failure of the prosecution to show any public interest to be served, or injury to be prevented, or any
other compelling factual circumstance which justifies the preventive suspension of petitioner; and
(b) despite the injury not only upon petitioner but also upon the people of Samar whose political rights are tranched
upon by the suspension for no valid reason of their duly elected Governor.
7. While the Sandiganbayan has the power to order preventive suspension, there is a "need [for the Sandiganbayan] to
go further, beyond the filing of the information, to a determination of the necessity of the preventive suspension in
accordance with the spirit and intent of the Anti-Graft Law."

In other words, when the Anti-Graft Law gave the courts the authority to order the preventive suspension of the
accused, it never intended to impose a mindless and meaningless exercise. The exercise of such authority must
always be within the confines of the legislative intent, for to go beyond it would be to exceed the bounds of the law.
Preventive suspension, should therefore be ordered only when the legislative purpose is achieved, that is,
when "the suspension order . . . prevent(s) the accused from using his office of influence potential witnesses or
tamper with records which may be vital in the prosecution of the case against him." Corollarily, when the

legislative purpose is not achieved, preventive suspension is improper and should not be decreed."
ISSUE: WoN the preventive suspension was proper.
HELD: YES. For the foregoing reasons, we hold that in ordering the preventive suspension of petitioner, the Sandiganbayan
acted according to law.
Dispositive: WHEREFORE, the Petition for Certiorari is DISMISSED.
RATIO:
1. It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any
public officer against whom a valid information charging violation of that law, Book II, Title 7 of the Revised
Penal Code, or any offense involving fraud upon government or public funds or property is filed. The court trying a
case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused
from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office.
The presumption is that unless the accused is suspended he may frustrate his prosecution or commit further acts of
malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has
been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the
arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade
the jurisdiction of the court.
2. It is indeed true that in some of our decisions the expression "the maximum period of ninety (90) days" is used. But
that is only for the purpose of emphasizing that the preventive suspension therein involved, which were for more than
ninety (90) days, were excessive and unreasonable. It is to be noted that the ninety-day period of preventive
suspension is not found in Sec. 13 of Republic Act No. 3019 but was adopted from Sec. 42 of the Civil Service Decree
(P.D. No. 807), 7 which is not Sec. 52 of the Administrative Code of 1987. This latter provision states:

Sec. 52. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case
against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the
period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is
due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period
of suspension herein provided.

3.

4.

The duration of preventive suspension is thus coeval with the period prescribed for deciding administrative
disciplinary cases. If the case is decided before ninety days, then the suspension will last less than ninety days, but if
the case is not decided within ninety days, then the preventive suspension must be up to ninety days only. Similarly, as
applied to criminal prosecutions under Republic Act No. 3019, preventive suspension will last for less than ninety days
only if the case is decided within that period: otherwise, it will continue for ninety days. The duration of preventive
suspension will, therefore, vary to the extent that it is contingent on the time it takes the court to decide the case but
not on account of any discretion lodged in the court, taking into account the probability that the accused may use his
office to hamper his prosecution. Indeed, were the Sandiganbayan given the discretion to impose a shorter period of
suspension, say, 80, 70 or 60 days, as petitioner asserts, it would lie in its power not to suspend the accused at all. That,
of course, would be contrary to the command of sec. 13 of Republic Act No. 3019.
Our holding that, upon the filing of a valid information charging violation of Republic Act No. 3019, Book II, Title 7 of
the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the
accused under preventive suspension disposes of petitioner's other contention that since the trial in the
Sandiganbayan is now over with respect to the presentation of evidence for the prosecution there is no longer any
danger that petitioner would intimidate prosecution's witnesses. The fact is that the possibility that the accused would
intimidate witnesses or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The
other one is, as already stated, to prevent the accused from committing further acts of malfeasance while in office.
Finally, the fact that petitioner's preventive suspension may deprive the people of Samar of the services of an official
elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period
prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. Indeed, even the
Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of disorderly
behavior, thus rejecting the view expressed in one case that members of the legislature could not be suspended
because in the case of suspension, unlike in the case of removal, the seat remains filled but the constituents are
deprived of representation.

[105] Office of the Ombudsman (Petitioner) vs. Rolson Rodriguez (Respondent)

Carpio, J.
G.R. No. 172700
23 July 2010

Facts:
This case is a petition for review of the 8 May 2006 Decision of the Court of Appeals in CA- G.R. SP No.
00528 setting aside for lack of jurisdiction the 21 September 2004 Decision of the Ombudsman (Visayas)
in OMB-V-A-03-0511-H.
26 August 2003- Ombudsman in Visayas received a complaint for abuse of authority, dishonesty,
oppression, misconduct in office, and neglect of duty against Rolson Rodriguez. Rodriguez is the punong
barangay in Brgy. Sto. Rosario, Binalbagan, Negros Occidental.
1 September 2003- The sangguniang bayan of Binalbagan, Negros Occidental, through vice-mayor Jose G.
Yulo received similar complaint against Rodriguez.
8 September 2003- The municipal vice-mayor required Rodriguez to submit his answer within 15 days
from receipt of the notice.
23 September 2003- Rodriguez filed a motion to dismiss on the grounds that said allegations in the
complaint were without factual basis and did not constitute any violation of law.
10 September 2003- Ombudsman required Rodriguez to file his answer.
3 October 2003- Municipal vice-mayor set the case for hearing. It was reset to a later date since
complainants had no counsel. When the case was called again for hearing, complainants counsel
manifested that the complainants would like to withdraw the administrative complaint filed in the
sangguniang bayan.
22 October 2003- Rodriguez alleged complainants violated rule against forum shopping.
24 October 2003- Rodriguez filed a motion to dismiss the case filed in the Ombudsman on the grounds of
litis pendetia and forum shopping since the sangguniang bayan had already acquired jurisdiction over his
person as early as 8 September 2003.
29 October 2003- The complainants filed a motion to withdraw the complaint lodged in the sangguniang
bayan on the ground that they wanted to prioritize the complaint filed in the Ombudsman. Rodriguez also
filed a comment praying that the complaint be dismissed on the ground of forum shopping. Complainants
admitted they violated the rule against forum shopping and claimed they filed the complaint in the
sangguniang bayan without the assistance of counsel.
4 November 2003- Municipal vice-mayor dismissed the case filed in the sangguniang bayan.
29 January 2004- The Ombudsman directed both parties to file respective verified position papers.
Rodriguez moved for reconsideration of the order citing the pendency of his motion to dismiss.

11 March 2004- The Ombudsman stated that a motion to dismiss was a prohibited pleading under
Section 5 (g) Rule III of Administrative Order No. 17. The Ombudsman reiterated its order for Rodriguez
to file his position paper. Rodriguez cited in his position paper that the sangguniang bayan still continued
to exercise jurisdiction over the complaint filed against him. He claimed he had not received any
resolution or decision dismissing the complaint filed in the sangguniang bayan. The complainants replied
that there was no more complaint pending in the sangguniang bayan since the latter granted their motion
to withdraw the complaint. In a rejoinder, Rodriguez averred that the sangguniang bayan resolution
dismissing the case filed against him was not valid because only the vice-mayor signed it.
21 September 2004- The Ombudsman found Rodriguez guilty of dishonesty and oppression. It imposed
on Rodriguez the penalty of dismissal from the service with forfeiture of all benefits, disqualification to
hold public office and forfeiture of civil service eligibilities. Rodriguez filed for motion for
reconsideration which the Ombudsman subsequently denied.
8 March 2005-The Ombudsman directed the mayor of Binalbagan, Negros Occidental to implement the
penalty of dismissal against Rodriguez. Rodriguez filed in the CA a petition for review with prayer for the
issuance of a temporary restraining order.
8 May 2006- CA set aside for lack of jurisdiction the Decision of the Ombudsman and directed the
sangguniang bayan to proceed with the hearing on the administrative case. CA relied on Section 4, Rule
46 of Rules of Court:
Sec. 4. Jurisdiction over person of respondent, how acquired. The court shall acquire jurisdiction over the
person of the respondent by the service on him of its order or resolution indicating its initial action on
the petition or by his voluntary submission to such jurisdiction.

Petitioners contentions:
Petitioner Ombudsman contends that upon the filing of a complaint before a body vested with
jurisdiction, that body has taken cognizance of the complaint. Petitioner cites Blacks Law Dictionary in
defining what to take cognizance means to wit, to acknowledge or exercise jurisdiction. Petitioner
points out it had taken cognizance of the complaint against Rodriguez before a similar complaint was
filed in the sangguniang bayan against the same respondent. Petitioner maintains summons or notices do
not operate to vest in the disciplining body jurisdiction over the person of the respondent in an
administrative case. Petitioner concludes that consistent with the rule on concurrent jurisdiction, the
Ombudsmans exercise of jurisdiction should be to the exclusion of the sangguniang bayan.

Respondents contentions:

Private respondent Rolson Rodriguez counters that when a competent body has acquired
jurisdiction over a complaint and the person of the respondent, other bodies are excluded from
exercising jurisdiction over the same complaint. He cites Article 124 of the Implementing Rules and
Regulations of Republic Act No. 7160,[26] which provides that an elective official may be removed from
office by order of the proper court or the disciplining authority whichever first acquires jurisdiction to
the exclusion of the other. Private respondent insists the sangguniang bayan first acquired jurisdiction
over the complaint and his person. He argues jurisdiction over the person of a respondent in an
administrative complaint is acquired by the service of summons or other compulsory processes. Private
respondent stresses complainants violated the rule against forum shopping when they filed identical
complaints in two disciplining authorities exercising concurrent jurisdiction.
Issues:
1. Whether or not complainants violated the rule against forum shopping when they filed in the
Ombudsman and the sangguniang bayan identical complaints against Rodriguez; and
2. Whether it was thesangguniang bayan or the Ombudsman that first acquired jurisdiction.
Held:
1. No. The Ombudsman has concurrent jurisdiction with the sangguniang bayan over administrative
cases against elective barangay officials occupying positions below salary grade 27, such as
private respondent in this case.
2. The Ombudsman. 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. Under Section 60 of
the Local Government Code, the sangguniang bayan has no power to remove an
elective barangay official. Apart from the Ombudsman, only a proper court may do so.[33] Unlike
the sangguniang bayan, the powers of the Ombudsman are not merely recommendatory. The
Ombudsman is clothed with authority to directly remove[34] an erring public official other than
members of Congress and the Judiciary who may be removed only by impeachment.[35]
Ruling:
Petition granted.
The petition has merit. CA decision was set aside and Ombudsmans decision was affirmed.

106
GOVERNOR BENJAMIN I. ESPIRITU
v.
MAYOR NELSON B. MELGAR and HON. JUDGE MARCIANO T.
VIROLA

AUTHOR: Frederick B. Mayuga

G.R. No. 100874, February 13, 1992

TOPIC: EXERCISING GOOD GOVERNANCE AT THE LOCAL LEVEL >
Supervision Over and Discipline of Local Officials > Disciplinary
Action > Preventive Suspension
PONENTE: GRINO-AQUINO, J.:

FACTS:
1.

Petitioner Benjamin I. Espiritu is the provincial governor of Oriental Mindoro. Respondent Nelson B. Melgar is the municipal
mayor of the Naujan, Oriental Mindoro.
2. Ramir Garing of Naujan, Oriental Mindoro, filed a sworn letter-complaint with Secretary Luis Santos of the Department of
Interior and Local Government, charging Mayor Nelson Melgar of Naujan, Oriental Mindoro, with grave misconduct,
oppression abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of the
public service. He charged Mayor Melgar of:
a. willfully, unlawfully and feloniously attacking, assaulting and using personal violence upon his person by boxing and
kicking thereby inflicting upon the latter physical injuries on different parts of his body,
b. and not being contented, ordering his arrest and detention in the municipal jail of Naujan, Oriental Mindoro without
filing any charges until he was released the following day.
3. The Sangguniang Panlalawigan of Oriental Mindoro required Mayor Melgar to answer the complaint.
4. Mayor Melgar submitted his answer in which he recounted the events of March 26, 1991 that led to the filing of Garing's
complaint against him:
a. Mayor Melgar was in the middle of my speech at the Naujan Public Gymnasium where the Jose L. Basa Memorial School
graduation ceremonies were then being held,
b. a prolonged but nonetheless loud and intermittent clapping suddenly erupted from one of the numerous people then in
attendance.
c. Mayor Melgar paused. The handclapping stopped. Mayor Melgar resumed his speech. The fellow started all over again.
d. Mayor Melgar ended his speech and instructed a policeman to investigate the culprit who turned out to be Ramir
Garing. He was drunk. Mayor Melgar did not hurt him as can be gathered from his medical certificate
e. Mayor Melgar was informed that said Ramir Garing was momentarily placed in custody for his own protection because
he was drunk. An open knife (balisong) was taken from him. I was likewise informed that after he had sobered up, he
was told to go home, but he refused to go and only did so the following morning.
5. After evaluating the complaint and its supporting documents, as well as the Mayor's answer and the affidavits of his
witnesses, the Sangguniang Panlalawigan of Oriental Mindoro passed Resolution No. 55, recommending to the Provincial
Governor that respondent Mayor be preventively suspended for forty five (45) days pending the investigation of the
administrative complaint.
6. Pursuant to the recommendation of the Sangguniang Panlalawigan in its Resolution No. 55, Governor Espiritu placed Mayor
Melgar under preventive suspension on May 28, 1991 on the ground that:
a. there is reasonable ground to believe that respondent Mayor Nelson B. Melgar of Naujan, Oriental Mindoro, has
committed the acts as stated in the complaint and affidavit of Ramir Garing and corroborated by the affidavits of his
witness.
7. Mayor Melgar received the Order of Suspension. He forthwith filed a "Petition for Certiorari with Preliminary Injunction with
prayer for Restraining Order" in the Regional Trial Court of Oriental Mindoro (Spl. Civil Action No. R-5003) alleging that "the
order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor
8. RTC Judge Virola issued a writ of preliminary injunction enjoining Governor Espiritu from implementing the Order of
suspension against Mayor Melgar for there is no reason to doubt the sworn statements of the numerous public school
teachers and members of the PNP.
9. Governor Espiritu filed a motion to dismiss and/or for reconsideration which Judge Virola denied
10. Hence, this petition for certiorari and prohibition. Petitioner submits that respondent Judge Virola acted without jurisdiction
or with grave abuse of discretion in

a.
b.

Issuing the writ of preliminary injunction restraining Governor Espiritu from implementing the order of preventive
suspension, and
in denying petitioner's motion to dismiss Special Civil Action No. R-5003, for:
(i)
Petitioner, as Provincial Governor, is empowered by Section 63 of the Local Government Code to place an
elective municipal official under preventive suspension pending decision of an administrative case against the
elective municipal official;
(ii)
Petitioner did not commit a grave abuse of discretion in placing respondent mayor under preventive
suspension; if at all, his error was an error of judgment which is not correctible by certiorari;
(iii)
By express provision of Section 61 of the Local Government Code, the Sangguniang Panlalawigan has
jurisdiction over complaints against any elective municipal official; on the other hand, Section 19(c) of the
Judiciary Reorganization Act of 1980 withdraws from regional trial courts jurisdiction over cases within the
exclusive jurisdiction of any person, tribunal or body exercising judicial or quasi-judicial functions. Thus, by
practically deciding the administrative case on the merits, the respondent court acted without jurisdiction; and
(iv)
Respondent Mayor had a remedy of appeal under Section 66 of the Local Government Code.

ISSUE:
WON the Petitioner Governor Espiritu can place Respondent Mayor Melgar under preventive suspension
HELD:
Yes
RATIO:
Section 63, Chapter IV of the Local Government Code, provides:
SEC. 63. Preventive Suspension. - (1) Preventive suspension may be imposed by the Minister of Local Government if the
respondent is a provincial or city official by the provincial governor if the respondent is an elective municipal official, or by
the city or municipal mayor if the respondent is an elective barangay official.
"(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to
believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when
the gravity of the offense so warrants, or when 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. In all cases, preventive suspension shall not
extend beyond sixty days after the start of said suspension.
"(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the
continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due
to his fault, neglect or request, the time of the delay shall not be counted in computing the time of the suspension."
Clearly, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of Naujan at
any time after the issues had been joined and any of the following grounds were shown to exist:
1. when there is reasonable ground to believe that the respondent has committed the act or acts complained of;
2. When the evidence of culpability is strong;
3. When the gravity of the offense so warrants; or
4. When 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.
There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to
prove his innocence (Nera vs. Garcia and Elicao, 106 Phil. 1031).
Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of
his influence and authority over possible witnesses (Lacson vs. Roque, 92 Phil. 456).
Since respondent mayor believed that his preventive suspension was unjustified and politically motivated, he should have sought
relief first from the Secretary of Interior and Local Government, not from the courts. Mayor Melgar's direct recourse to the courts
without exhausting administrative remedies was premature (Aboitiz & Co., Inc. vs. Collector of Customs, 83 SCRA 265; Garcia vs.
Teehankee, 27 SCRA 937; Manuel vs. Jimenez, 17 SCRA 55; Bongcawil vs. Provincial Board of Lanao del Norte, 10 SCRA 327; The Phil.
Veterans Affairs Office vs. Farias, et al., AC-G.R. SP No. 05937, July 5, 1985; Bonafe vs. Zurbano, 131 SCRA 9).
The regional trial court had no jurisdiction over Special Civil Action No. R-5003 and gravely abused its discretion in refusing to dismiss
the case

107 Bunye v Escareal

TOPIC: Disciplinary Action; Jurisdiction of Ombudsman
PONENTE: Justice Grino-Aquino

AUTHOR: Dann M.
NOTES/QUICKIE FACTS:

FACTS:
Petitioner: IGNACIO R. BUNYE, JAIME D. FRESNEDI, LUCIO B. CONSTANTINO, NOLASCO L. DIAZ, RUFINO J. JOAQUIN, ROGER S. SMITH,
ALEJANDRO L. MARTINEZ, and ROMAN E. NIEFES
Respondent: ASSOCIATE JUSTICES ROMEO M. ESCAREAL, JOSE S. BALAJADIA, NARCISO T. ATIENZA, and AUGUSTO M. AMORES in
their personalities as members of the Second Division of the SANDIGANBAYAN and THE SECRETARY, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT
1.

On motion by the prosecutor, a resolution was promulgated on May 11, 1993 by the Second Division of the
Sandiganbayan , the following persons were preventively suspended them from office pending their trial for violation of
Section 3 (e) of the Anti-Graft and Corrupt Practices Act under an information alleging that:
That on or about August 1988, in the municipality of Muntinlupa, Metro manila, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused all public officers being the Mayor (Ignacio R. Bunye), Vice-Mayor
(Jaime D. Fresnedi), Municipal Attorney (Victor C. Aguinaldo), Municipal Councilors (Carlos C. Tensuan, Alejandro L.
Martinez, Epifanio A. Espeleta, Rey E. Bulay, Lucio B. Constantino, Roman E. Niefes, Nemesio Q. Mozo, Rufino J. Joaquin,
Nolasco L. Diaz and Roger C. Smith), Barangay Chairman of Putatan (Rufino Ibe) and Barangay Chairman of Alabang
(Nestor Santos), all in the municipality of Muntinlupa, Metro Manila, said accused, while in the performance of their
official functions, in conspiracy with one another and taking advantage of their official positions, did then and there
wilfully, unlawfully and feloniously enact Kapasiyahan Bilang 45 on August 1, 1988, and on the basis thereof, forcibly
took possession of the new Public Market in Alabang, Muntinlupa, Metro Manila, and thereafter took over the operation
and management of the aforesaid public market starting August 19, 1988, despite the fact that, there was a valid and
subsisting lease contract executed on September 2, 1985 for a term of 25 years, between the Municipality of
Muntinlupa, Metro Manila, represented by the former Municipal Mayor Santiago Carlos, Jr. and the Kilusang Bayan sa
Paglilingkod and mga Magtitinda ng Bagong Pamilihan ng Muntinlupa, Inc.(Kilusang Magtitinda for brevity), a
Cooperative represented by its General Manager then, Amado G. Perez, and despite also the warnings from COA
Chairman Domingo and MMC Governor Cruz "that appropriate legal steps be taken by the MMC toward the
rescission/annulment of the contract . . . to protect the interest of the Government," and ". . . to evaluate thoroughly and
study further the case to preclude possible damages of financial liabilities which the Court may adjudge against that
municipality as an off-shoot of the case," which forcible take-over had caused undue injury to the aforesaid Cooperative
members, and gave the Municipal Government, and in effect, the herein accused themselves, unwarranted benefits,
advantage or preference in the discharge of their official functions as aforesaid, through evident bad faith or gross
inexcusable negligence, considering that, the Cooperative members had introduced improvements, including the
construction of the "KBS" building, RR Section-Phases I and II, asphalting of the roads surrounding the market place, and
for the purpose, the cooperative had invested Thirteen Million Four Hundred Seventy Nine Thousand Nine Hundred Pesos
(P13,479,900.00) in connection therewith, which had been deposited in trust to the Municipal Government, and in
consideration thereof, the cooperative was extended the above long term lease to manage and operate the public
market and to pay a monthly rental of P35,000.00 only - said offense having been committed by the accused in their
performance of official duties. (pp. 34-36, Rollo.)

2.

This resolution was issued by the Sandiganbayan pursuant to Section 13 of Republic Act No. 3019 which provides:
Sec. 13. Suspension and loss of benefits. - Any public officer against whom any criminal prosecution under a valid information
under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is
acquitted, he shall been titled to reinstatement and to the salaries and benefits which he failed to receive during suspension,
unless in the meantime administrative proceedings have been filed against him.

3.
4.

The petitioners fruitlessly sought a reconsideration of the order of suspension.

Hence, this petition.

Petitioners argument:
a.
Private suspension is unjustified or unnecessary for, having admitted repeatedly in no less than four (4) pleadings filed

b.

c.

d.

e.

in related proceedings and found in the records of this case, that they did commit the acts constituting the offense
charged against them, i.e., that they enacted and approved Kapasiyahan Blg. 45 and wrested the management and
operation of the new public market in Alabang from the Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong
Pamilihan ng Muntinlupa, Inc. (or "Cooperative for brevity) and transferred it to the Municipality of Muntinlupa, the
fear of the Court that, unless they are preventively suspended, they may tamper with the records of that transaction,
has no more validity.
Moreover, the proceedings against the petitioners before the Second Division of the Sandiganbayan involves no factual
issue but only the legal question of whether or not the cancellation by the petitioners of the Cooperative's subsisting
lease contract over the Municipal Public Market was justified by public interest or general welfare.
Consequently, nothing can possibly be compromised or hampered by their remaining in office, since the said
proceedings will no longer be for the purpose of receiving evidence on factual issues but only to hear arguments,
position papers on memoranda, on the purely legal issue of whether the rescission of the Cooperative's market contract
is a valid exercise of police power by the municipality. Absent any need for testimonial and/or documentary evidence,
any apprehension that the petitioners might intimidate or coerce prospective witnesses against them, or tamper with
office records under their control, is "more imaginary than real.
Adverting to this Court's observation in Ganzon vs. CA, 200 SCRA 271, 272, that the sole objective of an administrative
suspension is "to prevent the accused from hampering the normal course of the investigation with his influence and
authority over possible witnesses or to keep him off the records and other evidence" and "to assist prosecutors in
firming up a case, if any, against an erring local official," the petitioners insists that as no such reason for their
suspension exists, then the order suspending them should be set aside as a grave abuse of the court's discretion.
Another point asserted by the petitioners is that their preventive suspension will "sow havoc and confusion in the
government of the Municipality of Muntinlupa, to the certain shattering of the peace and order thereat" (p. 13, Rollo),
for without a mayor, vice-mayor, and six (6) councilors, the local government would be paralyzed. Only eight (8) of the
present members of the Sangguniang Bayan will remain to discharge the duties and responsibilities of that body. If two
of them will be designated to take over the offices of the mayor and vice-mayor, the Sangguniang Bayan will be without
a quorum to perform its functions.

ISSUE: Whether or not there was grave abuse of discretion on the part of Sandiganbayan in preventively suspending the
petitoners.
HELD: No, there is no merit in the petitioners argument.
RATIO:
1. Section 13 of R.A. No. 3019, as amended, unequivocally provides that the accused public officials "shall be suspended from
office" while the criminal prosecution is pending in court.
2. In Gonzaga vs. Sandiganbayan, 201 SCRA 417, 422, 426, this Court ruled that such preventive suspension is mandatory;
there are no ifs and buts about it.
3. Petitioner at the outset contends that Section 13 of Rep. Act 3019, as amended, is unconstitutional as the suspension
provided thereunder partake of a penalty even before a judgement of conviction is reached, and is thus violative of her
constitutional right to be presumed innocent.
4. We do not accept the contention because: firstly, under Section 13, Rep. Act 3019, suspension of a public officer upon the
filing of a valid information is mandatory (People vs. Albano, G.R. Nos. L-45376-77, July 26, 1988, 163 SCRA 511). . . .
xxx xxx xxx
All told, preventive suspension is not violative of the Constitution as it is not a penalty. In fact, suspension particularly under
Section 13 of Rep. Act 3019 is mandatory once the validity of the information is determined (People vs. CA, 135 SCRA 372).
5. Clearly, the Sandiganbayan did not abuse its discretion in ordering the preventive suspension of the petitioners.
6. There is no merit in the petitioners' argument that because they have repeatedly admitted that they had committed the acts
constituting the offense charged against them, there is no cause for apprehension that they might tamper with the records
in the offices under their control, or intimidate prospective witnesses against them. The Solicitor General correctly replied
that it is not for the petitioners to say that their admissions are all the evidence that the prosecution will need to hold up its
case against them. "The prosecution must be given the opportunity to gather and prepare the facts for trial under conditions
which would ensure nonintervention and noninterference for ninety (90) straight days from petitioners' camp".
7. The fear of the petitioners that the municipal government of Muntinlupa will be paralyzed for ninety (90) days when they
(petitioners) are preventively suspended, is remote. There will still remain eight (8) councilors who can meet as the
Sangguniang Bayan. The President or his alter ego, the Secretary of Interior and Local Government, will surely know how to
deal with the problem of filling up the temporarily vacant positions of mayor, vice-mayor and six councilors in accordance
with the provisions of the Local Government Code, R.A. No. 7160 (Samad vs. COMELEC, et al., G.R. No. 107854 and Samad
vs. Executive Secretary, et al., G.R. No. 108642, July 16, 1993; Sanchez vs. COMELEC, 114 SCRA 454).
WHEREFORE, the petition for certiorari and prohibition is DISMISSED for lack of merit.

AUTHOR: Ernest
109 WILFREDO M. CATU, complainant, vs.
ATTY. VICENTE G. RELLOSA, respondent.
[A.C. No. 5738
February 19, 2008]
TOPIC: Administrative Investigation and Appeals (Art. 131, IRR)(47)
PONENTE: CORONA, J
FACTS:
1. Complainant Wilfredo M. Catu is a co-owner of a lot and the building erected thereon located at 959 San Andres Street,
Malate, Manila. His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu
and Antonio Pastor of one of the units in the building. The latter ignored demands for them to vacate the premises.
2. A complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of Manila
where the parties reside.
3. Respondent Atty. Rellosa, as punong barangay of Barangay 723, summoned the parties to conciliation meetings.When the
parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in
court.
4. Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the Metropolitan Trial Court of Manila,
Branch 11. Respondent entered his appearance as counsel for the defendants in that case.
5. Complainant filed the instant administrative complaint.
Complainants Argument:
Respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the
fact that he presided over the conciliation proceedings between the litigants as punong barangay.
Respondents Defense:
One of his duties as punong barangay was to hear complaints referred to the barangay's Lupong Tagapamayapa. As such, he heard the
complaint of Regina and Antonio against Elizabeth and Pastor. As head of the Lupon, he performed his task with utmost objectivity,
without bias or partiality towards any of the parties. The parties, however, were not able to amicably settle their dispute and Regina and
Antonio filed the ejectment case. It was then that Elizabeth sought his legal assistance. He acceded to her request. He handled her
case for free because she was financially distressed and he wanted to prevent the commission of a patent injustice against her.
ISSUE: Whether or not Atty. Rellosa is guilty of professional misconduct.
HELD: Yes.
RATIO: A Lawyer In Government Service Who Is Not Prohibited To Practice Law Must Secure Prior Authority From The
Head Of His Department. A civil service officer or employee whose responsibilities do not require his time to be fully at the
disposal of the government can engage in the private practice of law only with the written permission of the head of the
department concerned. 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.
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.
NOTE: As punong barangay, respondent was not forbidden to practice his profession. However, he should have procured prior
permission or authorization from the head of his Department, as required by civil service regulations.
Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of
their profession "unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their
official functions." This is the general law which applies to all public officials and employees.
For elective local government officials, Section 90 of RA 7160 governs:
SEC. 90. Practice of Profession. - (a) All governors, city 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.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session
hours: Provided, That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court 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.
This is a special provision that applies specifically to the practice of profession by elective local officials. As a special law with a
definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713,
the general law on engaging in the private practice of profession by public officials and employees. Lex specialibus derogat
generalibus.
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.
NB: IBP-CBD stated that respondent violated Rule 6.03 of the Code of Professional Responsibility which states: A lawyer shall not,
after leaving government service, accept engagement or employment in connection with any matter in which he intervened while in
said service. Supreme Court ruled however, said rule is not applicable in this case because it only applies only to a lawyer who has left
government service and in connection "with any matter in which he intervened while in said service". Respondent was an incumbent
punong barangay at the time he committed the act complained of. Therefore, he was not covered by that provision
DISPOSITIVE: 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.
Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into the records of respondent Atty. Vicente G.
Rellosa. The Office of the Court Administrator shall furnish copies to all the courts of the land for their information and guidance.
SO ORDERED.

110 REPUBLIC OF THE PHILIPPINES, represented by AUTHOR: John Jeffrey Ramirez

the
NATIONAL
POWER
CORPORATION, NOTES/QUICKIE FACTS:
petitioner, vs.ATTY. RICHARD B. RAMBUYONG,
respondent.

TOPIC: Rights of Respondents in Administrative Cases

PONENTE: Del Castillo, J.
FACTS
Alfredo Y. Chu (Chu) filed a case for collection of a sum of money and/or damages against the National Power
Corporation (NPC). Appearing as counsel for Chu is Atty. Atty. Rambuyong who was then the incumbent Vice-Mayor of
Ipil, Zamboanga Sibugay.
Thereafter, NPC filed a Motion for Inhibition3 of Atty. Rambuyong arguing that under Section 90(b), (1) of Republic Act
(RA) No. 7160, otherwise known as the Local Government Code, sanggunian members are prohibited to appear as
counsel before any court wherein x x x any office, agency or instrumentality of the government is the adverse party. NPC
contended that being a government-owned or controlled corporation, it is embraced within the term, instrumentality.
RTC: Ruled that GOCC are expressly excluded from Section 90(b), (1) of the Local Government Code. Citing other
provisions of the LGC wherein the phrase including government-owned or controlled corporations is explicitly included,
the trial court held that if it was the intention of the framers of RA 7160 to impose obligations or give rights and privileges
to local government units, agencies, instrumentalities or corporate entities, then they would have explicitly stated so.
CA: Dismissed the petition for lack of merit.
Petitioner:
Petitioner contends that lawyer-sanggunian members cannot appear as counsel in any case where the adverse party is a
local government unit, office, agency or instrumentality. It argues that courts are not authorized to distinguish where the
law makes no distinction.
Petitioner alleges that the RTC gravely abused its discretion when it failed to recognize that the 1987 Administrative Code
and the Local Government Code are in pari materia in defining the terms used in the latter, such as office, agency or
instrumentality. It argues that the RTC acted beyond the scope of its jurisdiction when it constricted the definition of
instrumentality.
Petitioner argues that NPC is an instrumentality of government and that there is no cogent reason to exclude governmentowned and controlled corporations from the operation of Section 90(b), (1) of RA 7160.
Finally, petitioner claims that the governments challenge against Atty. Rambuyongs appearance is directed against him
alone to the exclusion of his client whose right to prosecute his claim as party litigant is beyond question.

Respondent:
Respondent contends that the party who would be benefited or injured by the compulsory inhibition of plaintiffs counsel
is the plaintiff in Civil Case No. I-197. Thus, he insists that the plaintiff is the real party in interest and his (Atty.
Rambuyong) inclusion as respondent in the present petition is erroneous.

ISSUE:
Whether NPC is an instrumentality of the Government?

HELD: Yes, NPC is an instrumentality of the Government.

RATIO:
Agency of the Government refers to any of the various units of the Government, including a department, bureau,
office, instrumentality, or government-owned or controlled corporations, or a local government or a distinct unit therein.
Instrumentalityrefers to any agency of the National Government, not integrated within the department framework,
vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special
funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies,
chartered institutionsand government-owned or controlled corporations.
It is the rule in statutory construction that if the words and phrases of a statute are not obscure or ambiguous, its
meaning and the intention of the legislature must be determined from the language employed, and, where there is no
ambiguity in the words, there is no room for construction. The courts may not speculate as to the probable intent of the
legislature apart from the words. The reason for the rule is that the legislature must be presumed to know the meaning of
words, to have used words advisedly and to have expressed its intent by use of such words as are found in the statute.
Section 2 of the Administrative Code of 1987 is clear and unambiguous. It categorically provides that the term
instrumentality includes government-owned or controlled corporations. Hence there is no room for construction. All that
has to be done is to apply the law as called for by the circumstances of the case. It is not disputed that the NPC is a
government-owned or controlled corporation. Therefore following Section 2 of the Administrative Code of 1987, the NPC
is clearly an instrumentality of the government.
It is also significant to point out that in Maceda v. Macaraig, Jr.14 the Court stated that [t]he NPC is a government
instrumentality with the enormous task of undertaking development of hydroelectric generation of power and production
of electricity from other sources, as well as the transmission of electric power on a nationwide basis, to improve the quality
of life of the people pursuant to the State policy embodied in Section [9], Article II of the 1987 Constitution.
Given the categorical words of both the law and jurisprudence, to still go to extraordinary lengths to interpret the
intention of the lawmakers and come out with the construction that a government-owned or controlled corporation like the
NPC is not included within the term instrumentality of the government is grave abuse of discretion.
Finally, Section 446 of the Local Government Code provides that [t]he sangguniang bayan, the legislative body of the
municipality, shall be composed of the municipal vice mayor as the presiding officer x x x. Thus, pursuant to Sec. 90(b)
(1) of the Local Government Code, Atty. Rambuyong, as sanggunian member, cannot appear as counsel of a party adverse
to the NPC, which is an instrumentality of government.
WHEREFORE, the petition is GRANTED. The May 20, 2004 Decision and April 13, 2005 Resolution of the Court of
Appeals in CA-G.R. SP No. 72800 are REVERSED and SET ASIDE. Atty. Richard B. Rambuyong is disqualified from
appearing in Civil Case No. I-197.

111 PEOPLE v. Sandiganbayan

G.R. No. 164185, 23 July 2008, 559 SCRA 449
TOPIC:
PONENTE: QUISUMBING, J.

AUTHOR: Jelena
NOTES/QUICKIE FACTS:
Villapano as Mayor of Palawan appointed Tiape (his losing
opponent from the election) as Municipal Administrator. They were
sued for violation of Art. 244 of the RPC. The Sandiganbayan
aquitted Villapano (Case against Tiape was dismissed due to his
death). SC: Sandiganbayan acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.

PARTIES:
PEOPLE OF THE PHILIPPINES, Petitioner, v.
THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A. VILLAPANDO, Respondents.
FACTS:
1. [May 11, 1998 ELECTIONS]
2. Villapando ran for Municipal Mayor of San Vicente, Palawan. WON
3. Orlando M. Tiape (now deceased), a relative of Villapando's wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. LOST
4. [July 1, 1998] Villapando designated Tiape Municipal Administrator of the Municipality of San Vicente, Palawan.
5. [Feb. 8, 1999] [CONTRACT OF CONSULTANCY ENTERED INTO] between the Municipality of San Vicente, Palawan and Tiape the former
employed the services of Tiape as Municipal Administrative and Development Planning Consultant in the Office of the Municipal Mayor
for a period of 6 months (January 1, 1999 to June 30, 1999) for P26,953.80/mo.
6. [SANDIGANBAYAN][February 4, 2000] Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape
a. Violation of Article 244 of the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon.
b. Resolved against Villapando and Tiape
c. [INFORMATION][Marvh 19, 2002]
i.x x xThat on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public officer, being then the
Municipal Mayor of San Vicente, Palawan, committing the crime herein charged, in relation to and taking advantage of his
official functions, conspiring and confederating with accused Orlando M. Tiape, did then and there wilfully, unlawfully and
feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of San Vicente, Palawan, accused Alejandro A. Villapando
knowing fully well that Orlando Tiape lacks the qualification as he is a losing mayoralty candidate in the Municipality of
Kitcharao, Agusan del Norte during the May 1998 elections, hence is ineligible for appointment to a public office within one
year (1) from the date of the elections, to the damage and prejudice of the government and of public interest. CONTRARY TO
LAW.
d. [ARRAGNMENT] [Sept. 3, 2002] Villapando pleaded not guilty.
e.
[CASE AGAINST TAIPE DISMISSED BECAUSE HE DIED]
f.
[May 20,2004] [DECISION] [DEMURRER TO EVIDENCE GRANTED] Sandiganbayan found Villapando's Demurrer to Evidence
meritorious, as follows:
i. The Court found the "Demurrer to Evidence" impressed with merit.
ii. Article 244 of the Revised Penal Code provides:
1. Article 244. Unlawful appointments.' Any public officer who shall knowingly nominate or appoint to any public
office any person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos. (underscoring supplied)
Elements

Present?

the offender was a public officer;

Mayor Villapando was the duly elected Municipal Mayor of San

Vicente, Palawan when the alleged crime was committed.

accused nominated or appointed a person to a public office;

Accused appointed Orlando Tiape as Municipal Administrator of

the Municipality of San Vicente, Palawan.

such person did not have the legal qualifications [therefor;] and,

There appears to be a dispute.

the offender knew that his nominee or appointee did not have the
legal qualifications at the time he made the nomination or
appointment.

this Court deems it unnecessary to discuss the same.

ii. Whether Orlando Tiape, at the time of [his] designation as Municipal Administrator, was lacking in legal qualification.
Stated differently, does "legal qualification" contemplate the one (1) year prohibition on appointment as provided for in
Sec. 6, Art. IX-B of the Constitution and Sec. 94 (b) of the Local Government Code, mandating that a candidate who lost in
any election shall not, within one year after such election, be appointed to any office in the Government?
iii. The Court answers in the negative.

iv. [THERE MUST BE A LAW PROVIDING FOR THE QUALIFICATIONS] In ascertaining the legal qualifications of a particular
appointee to a public office, "there must be a law providing for the qualifications of a person to be nominated or
appointed" therein.
1. To illuminate further, Justice Rodolfo Palattao succinctly discussed in his book that the qualification of a public
officer to hold a particular position in the government is provided for by law, which may refer to educational
attainment, civil service eligibility or experience:
v. As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public office.
The person nominated or appointed is not qualified and his lack of qualification is known to the party making the
nomination or appointment.
1. The qualification of a public officer to hold a particular position in the government is provided by law.
2. The purpose of the law is to ensure that the person appointed is competent to perform the duties of the office,
thereby promoting efficiency in rendering public service.
vi. The qualification to hold public office may refer to educational attainment, civil service eligibility or experience.
1. For instance, for one to be appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates
a person for appointment as judge knowing him to be not a member of the Philippine Bar, such act constitutes a
violation of the law under consideration.
vii. In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that
provides for the legal qualification for the position of municipal administrator is Section 480, Article X of the Local
Government Code, to wit:
1. "Section 480. Qualifications, Terms, Powers and Duties.
a. (a) No person shall be appointed administrator unless he is a citizen of the Philippines, a resident of the
local government unit concerned, of good moral character, a holder of a college degree preferably in
public administration, law, or any other related course from a recognized college or university, and a
first grade civil service eligible or its equivalent. He must have acquired experience in management and
administration work for at least five (5) years in the case of the provincial or city administrator, and
three (3) years in the case of the municipal administrator.
b. x x x
xxx
x x x"
viii. [PROSECUTION WAS UNABLE TO PROVE THAT TIAPE WAS UNQUALIFIED] It is noteworthy to mention that the prosecution
did not allege much less prove that Mayor Villapando's appointee, Orlando Tiape, lacked any of the qualifications
imposed by law on the position of Municipal Administrator.
1. Prosecution's argument rested on the assertion that since Tiape lost in the May 11, 1998 election, he necessarily
lacked the required legal qualifications.
ix. [TEMPORARY PROHIBITION NOT SYNONYMOUS WITH ABSENSE OR LACK OF LEGAL QUALIFICATION] A person who
possessed the required legal qualifications for a position may be temporarily disqualified for appointment to a public
position by reason of the one year prohibition imposed on losing candidates. Upon the other hand, one may not be
temporarily disqualified for appointment, but could not be appointed as he lacked any or all of the required legal
qualifications imposed by law.
x. WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the same is hereby GRANTED.
Mayor Villapando is hereby ACQUITTED of the crime charged. SO ORDERED.
ISSUE: whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to lack or excess of jurisdiction.
HELD: YES.
RATIO:
1. [PETITIONER ARGUES] that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or excess of
jurisdiction
a. 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.
2. [PETITIONER ARGUES] that the court erred when it ruled that temporary prohibition is not synonymous with the absence of lack of legal
qualification.
3. [SANDIGANBAYAN] 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.
a. However, there is no violation of Article 244 of the Revised Penal Code should a person suffering from temporary

4.
5.

6.
7.
8.
9.

10.

11.

12.

13.
14.

15.

disqualification be appointed so long as the appointee possesses all the qualifications stated in the law.
[SC] There is no basis in law or jurisprudence for this interpretation.
On the contrary, legal disqualification in Article 244 of the Revised Penal Code simply means disqualification under the law.
a. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing
candidates within one year after such election to be appointed to any office in the government or any government-owned or
controlled corporations or in any of their subsidiaries.
b. Article 244 of the Revised Penal Code states:
i. Art. 244. Unlawful appointments. - Any public officer who shall knowingly nominate or appoint to any public office
any person lacking the legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos.
c. Section 94 of the Local Government Code provides:
i. SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No elective
or appointive local official shall be eligible for appointment or designation in any capacity to any public office or
position during his tenure.
ii. Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local 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.
iii. (b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year
after such election, be appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.
d. Section 6, Article IX-B of the 1987 Constitution states:
i. Section 6. 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 corporations or in any of their subsidiaries.
Villapando's contention and the Sandiganbayan, Fourth Division's interpretation of the term legal disqualification lack cogency.
Article 244 of the Revised Penal Code cannot be circumscribed lexically.
Legal disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under
Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.
[People v. Sandiganbayan;jurisprudence] 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.chanrobles virtual law library
a. Grave abuse of discretion defies exact definition, but it 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.
[THIS CASE] Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with grave abuse of discretion.
a. 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.
We reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory construction that where
the law does not distinguish, the courts should not distinguish.
a. There should be no distinction in the application of a law where none is indicated.
Further, the Sandiganbayan, Fourth Division denied Villapando's Motion for Leave to File Demurrer to Evidence yet accommodated
Villapando by giving him five days within which to inform it in writing whether he will submit his demurrer to evidence for resolution
without leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal contemplation and,
thus, cannot be the source of an acquittal.
The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of statutory construction
resulting in its decision granting Villapando's Demurrer to Evidence and acquitting the latter, we can do no less but declare its decision
null and void.
WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division, in Criminal Case No.
27465, granting private respondent Alejandro A. Villapando's Demurrer to Evidence and acquitting him of the crime of unlawful
appointment under Article 244 of the Revised Penal Code is hereby declared NULL and VOID. Let the records of this case be remanded
to the Sandiganbayan, Fourth Division, for further proceedings. SO ORDERED.

112 Sales vs Carreon

TOPIC: Exercising Good Governance at the Local level;
Rights of respondent in administrative cases
PONENTE: Sandoval- Gutierrez, J.

AUTHOR: Arthur Archie Tiu

NOTES/QUICKIE FACTS:
Petitioners are the appointees of Mayor Ruiz
Respondent is Mayor Carreon

FACTS

1. During the 2001 elections, Mayor Ruiz of Dapitan City was defeated by Respondent Carreon
2. During Ruizs last month in office, he issued 83 appointments including the petitioners
appointments
3. When Carreon entered into office, he revoked the said appointments signed by Ruiz 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.
4. Patricio Sales, one of the petitioners, in his capacity as president of the Dapitan City Government
Employees Association, wrote the CSC Regional Office requesting its ruling on the matter.
5. CSC: Appointments are valid and effective (not considered mass appointments)
6. On Appeal to CSC: Reversed earlier decision, 83 appointments are revoked for being violative of RA
7041.
7. Went to CA on review: Upheld CSCs findings
ISSUE: WON the appointments issued by Ruiz are Valid?
HELD: No
Dispositive: WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed Decision of the Court of
Appeals in CA-G.R. SP No. 755151.
RATIO:
1. 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 administration and shown
to have been made through hurried maneuvers and under circumstances departing from good faith,
morality, and propriety that this Court has struck down "midnight" appointments.
2. It is State policy that "opportunities for government employment shall be open to all qualified citizens" and
"employees shall be selected on the basis of fitness to perform the duties and assume the responsibilities of
the positions."
3. It was precisely in order to ensure transparency and equal opportunity in the recruitment and hiring of
government personnel, that Republic Act No. 7041 was enacted. Section 2 provides:
4. SEC. 2. Duty of Personnel Officers. It shall be the duty of all Chief Personnel or Administrative Officers
of all branches, subdivisions, instrumentalities and agencies of the Government, including governmentowned or controlled corporations with original charters, and local government units, to post in three (3)
conspicuous places of their offices for a period ten (10) days a complete list of all existing vacant positions in
their respective offices which are authorized to be filled, and to transmit a copy of such list and the
corresponding qualification standards to the Civil Service Commission not later than the tenth day of every
month. Vacant positions shall not be filled until after publication: Provided, however, that vacant and
unfilled positions that are:
a) primarily confidential
b) policy-determining;
c) highly technical;
d) co-terminous with that of the appointing authority; or
e) limited to the duration of a particular project, shall be excluded from the list required by law.
SEC. 3. Publication of Vacancies. The Chairman and members of the Civil Service Commission shall
publish once every quarter a complete list of all the existing vacant positions in the Government throughout

the country, including the qualification standards required for each position and, thereafter, certify under
oath to the completion of publication. Copies of such publication shall be sold at cost to the public and
distributed free of charge to the various personnel office of the government where they shall be available for
inspection by the public: Provided, That said publication shall be posted by the Chief Personnel or
Administrative Officer of all local government units in at least three (3) public and conspicuous places in
their respective municipalities and provinces: Provided, further, That any vacant position published therein
shall be open to any qualified person who does not necessarily belong to the same office with the vacancy or
who occupies a position next-in-rank to the vacancy: Provided, finally, That the Civil Service Commission
shall not act on any appointment to fill up a vacant position unless the same has been reported to and
published by the Commission.
5. The foregoing provisions are clear and need no interpretation. The CSC is required to publish the lists of
vacant positions and such publication shall be posted by the chief personnel or administrative officer of all
local government units in the designated places. The vacant positions may only be filled by the appointing
authority after they have been reported to the CSC as vacant and only after publication.
6. Here, the publication of vacancies was made even before the positions involved actually became vacant.
Clearly, respondents action violated Section 2 of R.A. No. 7041 cited earlier.
7. CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the Personnel Selection
Board shall be composed of the following:
a. Official of department/agency directly responsible for personnel management
b. Representative of management;
c. Representative of organizational unit which may be an office, department, or division where the vacancy
is;
d. Representative of rank-and-file employees, one (1) for the first-level and one (1) for the second-level, who
shall both be chosen by duly registered/accredited employees association in the department or agency. The
former shall sit during the screening of candidates for vacancy in the first-level, while the latter shall
participate in the screening of candidates for vacancy in the second level. In case where there is no
employees association in the department or agency, the representative shall be chosen at large by the
employees through a general election to be called for the purpose.
8. Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of 1987 (also
known as the Civil Service Law), 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 agencys Merit Promotion Plan;
b) failure to pass through the agencys Selection/Promotion Board;
c) violation of the existing collective bargaining agreement between management and employees relative to
promotion; or
d) violation of other existing civil service laws, rules and regulations.
9. Verily, in deliberating and recommending to former Mayor Ruiz the appointments of herein petitioners to
the vacant positions sans the required representation, the Board violated the above CSC Rules. Hence, the
appointments he issued are not valid. They may be recalled. In Mathay, Jr. v. Civil Service Commission,7
this Court upheld the authority of the CSC to take appropriate action on all appointments, including its
authority to recall appointments made in disregard of the applicable provisions of Civil Service Law and
regulations.
10. In sum, 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.

113
G.R. No. 181559 October 2, 2009
LEAH M. NAZARENO vs. CITY OF DUMAGUETE, represented by CITY MAYOR AGUSTIN PERDICES
Doctrine: The Commission, as the central personnel agency of the government, has statutory authority to establish rules
and regulations to promote efficiency and professionalism in the civil service. Presidential Decree No. 807, or the Civil
Service Decree of the Philippines, provides for the powers of the Commission, including the power to issue rules and
regulations and to review appointments
Decision: Consequently, we affirm the validity of a regulation issued by the Civil Service Commission (CSC or the
Commission) intended to ensure that appointments and promotions in the civil service are made solely on the basis of
qualifications, instead of political loyalties or patronage.
Nature: This Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Decision of
the Court of Appeals. The case stemmed from CSC Field Offices invalidation of petitioners appointments as employees
of the City of Dumaguete, which was affirmed by the CSC Regional Office, by the Commission en banc and by the Court
of Appeals.
Facts:
The CSC issued Resolution No. 992411, which granted the City Government of Dumaguete the authority to take
final action on all its appointments, subject to, inter alia, the following conditions:
1. That the exercise of said authority shall be subject to Civil Service Law, rules and regulations and within
the limits and restrictions of the implementing guidelines of the CSC Accreditation Program as amended
(MC No. 27, s. 1994);
xxxx
5. That appointments issued under this authority shall be subject to monthly monitoring by the [Civil Service
Field Office] CSFO concerned;
xxxx
9. That appointments found in the course of monthly monitoring to have been issued and acted upon in
violation of pertinent rules, standards, and regulations shall immediately be invalidated by the Civil Service
Regional Office (CSRO), upon recommendation by the CSFO.
Then Dumaguete City Mayor Felipe Antonio B. Remollo sought re-election in the May 14, 2001 elections, but lost
to respondent Mayor Agustin R. Perdices. Thereafter, on June 5, 7, and 11, 2001, outgoing Mayor Remollo
promoted 15 city hall employees, and regularized another 74 city hall employees, including the herein 52
petitioners.
New Mayor Perdices publicly announced at the flag raising ceremony at the Dumaguete City Hall grounds that he
would not honor the appointments made by former Mayor Remollo. On the same day, he instructed the City
Administrator, respondent Dominador Dumalag, Jr., to direct respondent City Assistant Treasurer Erlinda C.
Tumongha (now deceased), to refrain from making any cash disbursements for payments of petitioners' salary
differentials based on their new positions.
Thus, petitioners filed a Petition for Mandamus with Injunction and Damages with Prayer for a Temporary
Restraining Order against the City of Dumaguete.
Petitioners sought the issuance of a writ of preliminary injunction to enjoin respondents from taking any action or
issuing any orders nullifying their appointments.
The CSC Field Office in Dumaguete City, through Director II Fabio R. Abucejo, revoked and invalidated the
appointments of the petitioners based of the following findings:
1. There were a total of 15 promotional appointments and 74 original appointments issued as reflected in
the submitted [Report of Personnel Actions] ROPA for the month of June 2001.
2. There was only one (1) en banc meeting of the City Personnel Selection Board (PSB) held on 5 June
2001 to consider the number of appointments thus issued and there was no other call for a PSB meeting
certified to by the City [Human Resource Management Officer] HRMO.
3. There were no minutes available to show the deliberations of the PSB of the 89 appointments listed in
the ROPA as certified by the City HRMO.
4. There were no PSB statements certifying that there was actual screening and evaluation done on all
candidates for each position.
5. The appointing officer of the 89 appointments was an outgoing local official who lost during the 14 May
2001 elections for City Mayor of Dumaguete City.
6. The 89 appointments were all issued after the elections and when the new city mayor was about to
assume office.
Director Abucejo invalidated the appointments as the same were done in violation of CSC Resolution No. 010988
dated June 4, 2001, (pertinent portions at the end of the digest)

The prohibition is designed to discourage losing candidates from extending appointments to their protgs or from
giving their constituents "promised" positions. Moreover, the same is intended to prevent the outgoing local chief
executive from hurriedly issuing appointments which would subvert the policies of the incoming leadership. Thus,
any means that would directly or indirectly circumvent the purposes for which said Resolution was promulgated
should not be allowed, particularly when the appointments were issued by the appointing authority who lost in
said election.
Court of Appeals denied the appeal and affirmed CSC Resolution No. 040932 dated August 23, 2004 and CSC
Resolution No. 050473 dated April 11, 2005, ratiocinating that:
The spirit behind the CSC Resolution is evident from its preamble. It was issued to thwart the nefarious practice
by outgoing local chief executives in making appointments before, during, and/or after the regular local elections
for ulterior partisan motives. Said practice being analogous to "midnight appointments" by the President or Acting
President, the CSC then promulgated Resolution No. 010988, to suppress the mischief and evils attributed to
"mass appointments" made by local chief executives.

Petitioners argument:
Petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is without authority to
issue regulations prohibiting mass appointments at the local government level.
Petitioners cite De Rama v. Court of Appeals which held that Section 15, Article VII of the Constitution is only
applicable to the President or Acting President.
They claim that outgoing or defeated local appointing authorities are authorized to make appointments of qualified
individuals until their last day in office, and that not all mass appointments are invalid.
Finally, petitioners claim that because Dumaguete City had been granted authority to take "final action" on all
appointments, the Commission did not have any authority to disapprove the appointments made by outgoing
mayor Remollo.
Respondents argument:
Respondents argue that petitioners appointments violated civil service rules and regulations other than CSC
Resolution No. 010988.
Respondents also assert that the Commission is authorized to invalidate the petitioners appointments, because
the CSC accreditation program carried with it the caveat that "said exercise of authority shall be subject to Civil
Service law, rules and regulations."
Issue: WON the revocation by the CSC and as affirmed by CA of the appointments made by former the former Mayor is
valid.
Held: Revocation of appointments done by the CSC is valid.
We find that the Civil Service Commission has the authority to issue CSC Resolution No. 010988 and that the
invalidation of petitioners appointments was warranted. Consequently, we affirm the Decision of the Court of
Appeals dated August 28, 2007 and its Resolution dated January 11, 2008 in CA-G.R. CEB-SP No. 00665.
The CSC has the authority to establish rules to promote efficiency in the civil service
The Commission, as the central personnel agency of the government, has statutory authority to establish rules
and regulations to promote efficiency and professionalism in the civil service. Presidential Decree No. 807, or the
Civil Service Decree of the Philippines, provides for the powers of the Commission, including the power to issue
rules and regulations and to review appointments. (pertinent provisions at the end of the digest):
Clearly, the statutory provisions authorize the Commission to "prescribe, amend, and enforce" rules to cover the
civil service.
The legislative standards to be observed and respected in the exercise of such delegated authority are set out in
the statutes, to wit: to promote "economical, efficient, and effective personnel administration."
We also find that there was substantial reason behind the issuance of CSC Resolution No. 010988. It is true that
there is no constitutional prohibition against the issuance of "mass appointments" by defeated local government
officials prior to the expiration of their terms. Clearly, this is not the same as a "midnight appointment," proscribed
by the Constitution, which refers to those appointments made within two months immediately prior to the next
presidential election.
In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last
days of his or her tenure.
However, 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.
It is not difficult to see the reasons behind the prohibition on appointments before and after the elections.
Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor in the
appointment process, and to prevent incumbents from gaining any undue advantage during the elections. To this

end, appointments within a certain period of time are proscribed by the Omnibus Election Code and related
issuances
Indeed, not all appointments issued after the elections by defeated officials are invalid. CSC Resolution No.
010988 does not purport to nullify all "mass appointments." However, it must be shown that the appointments
have undergone the regular screening process, that the appointee is qualified, that there is a need to fill up the
vacancy immediately, and that the appointments are not in bulk.
x x x [e]ach 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 administration and shown to have been made through hurried maneuvers and under
circumstances departing from good faith, morality, and propriety that this Court has struck down "midnight"
appointments.
In the instant case, Mayor Remollo issued the 89 original and promotional appointments on three separate dates,
23
but within a ten-day period, in the same month that he left office. Further, the Commissions audit found
violations of CSC rules and regulations that justified the disapproval of the appointments.
In this regard, CSC Memorandum Circular No. 40, otherwise known as the Revised Rules on Appointments and
Other Personnel Actions, provides:
o Section 1 Appointments submitted to the CSC office concerned should meet the requirements listed
hereunder. Non-compliance with such requirements shall be grounds for disapproval of said
appointments:
o xxxx
o (h) Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and
evaluated by the PSB, if applicable. As proof thereof, a certification signed by the Chairman of the Board
at the back of the appointment or alternatively, a copy of the proceedings/ minutes of the Boards
deliberation shall be submitted together with the appointment. The issuance of the appointment shall not
be earlier than the date of the final screening/deliberation of the PSB.
Here, there was only one en banc meeting of the city PSB to consider the appointments, without any evidence
that there were any deliberations on the qualifications of the petitioners, or any indication that there was an urgent
need for the immediate issuance of such appointments. The absence of evidence showing careful consideration
of the merits of each appointment, and the timing and the number of appointments, militate against petitioners
cause. On the contrary, the prevailing circumstances in this case indicate that the appointments were hurriedly
issued by the outgoing administration.
The Accreditation of Dumaguete City did not remove the CSCs authority to review appointments
We find that the authority granted by CSC Resolution No. 992411 to the City Government of Dumaguete to "take
final action" on all its appointments did not deprive the Commission of its authority and duty to review
appointments. Indeed, Resolution No. 992411 states that such exercise of authority shall be "subject to civil
service law, rules and regulations" and that appointments in violation of pertinent rules "shall immediately be
invalidated."

CSC Resolution No. 010988 dated June 4, 2001 provides:

WHEREAS, the May 14, 2001 national and local elections have just concluded and the Commission anticipates
controversies that would arise involving appointments issued by outgoing local chief executives immediately before or
after the elections;
WHEREAS, the Commission observed the tendency of some outgoing local chief executives to issue appointments even
after the elections, especially when their successors have already been proclaimed.
WHEREAS, the practice of some outgoing local chief executives causes animosities between the outgoing and incoming
officials and the people who are immediately affected and are made to suffer the consequences thereof are the ordinary
civil servants, and eventually, to a large extent, their constituents themselves;
WHEREAS, one of the reasons behind the prohibition in issuing appointments or hiring new employees during the
prohibited period as provided for in CSC Memorandum Circular No. 7, series of 2001, is to prevent the occurrence of the
9
foregoing, among others;
WHEREAS, local elective officials whose terms of office are about to expire, are deemed as "caretaker" administrators
who are duty bound to prepare for the smooth and orderly transfer of power and authority to the incoming local chief
executives;
WHEREAS, under Section 15, Article VII of the Constitution, the President or Acting President is prohibited from making
appointments two (2) months immediately before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger
public safety;
WHEREAS, while there is no equivalent provision in the Local Government Code of 1991 (Republic Act 7160) or in the
Civil Service Law (Book V of Executive Order No. 292) of the abovestated prohibition, the rationale against the prohibition
on the issuance of "midnight appointments" by the President is applicable to appointments extended by outgoing local
chief executives immediately before and/or after the elections;
xxxx

NOW THEREFORE, the Commission, pursuant to its constitutional mandate as the control personnel agency of the
government, hereby issues and adopts the following guidelines:
xxxx
3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion,
except in cases of renewal and reinstatement, regardless of status, which are issued AFTER the
elections, regardless of their dates of effectivity and/or date of receipt by the Commission, including its
Regional or Field Offices, of said appointments or the Report of Personnel Actions (ROPA) as the case
may be, 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.
4. The term "mass appointments" refers to 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.
Presidential Decree No. 807, or the Civil Service Decree of the Philippines, provides:
Section 9: Powers and functions of the Commission The Commission shall administer the Civil Service and shall have
the following powers and functions:
xxxx
(b) Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of
this Decree x x x
(c) Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to
promote economical, efficient, and effective personnel administration in the government;
xxxx
(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential
appointees, members of the armed forces of the Philippines, police forces, firemen, and jailguards, and disapprove those
where the appointees do not possess the appropriate eligibility or required qualifications; (Emphasis supplied)
Executive Order No. 292, or the Administrative Code of 1987, also provides:
Section 12: Powers and Functions The Commission shall have the following powers and functions:
xxxx
(2) prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil
Service Law and other pertinent laws;
(3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to
promote economical, efficient, and effective personnel administration in the government;
(4) take appropriate action on all appointments and other personnel matters in the Civil Service including
extension of Service beyond retirement age;
(5) inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices,
local government units, and other instrumentalities of the government, including government owned and
controlled corporations. (emphasis supplied)

114 MELANIE P. MONTUERTO, petitioner, versus

HONORABLE MAYOR ROLANDO E. TY and THE
SANGGUNIANG BAYAN, represented by HONORABLE
VICE-MAYOR RICHARD D. JAGUROS, all of the
Municipality of Almeria, Biliran, respondents. (2008)
G.R. No. 177736
TOPIC: Administrative Investigation and Appeals
PONENTE: Nachura J.

AUTHOR: HICETA
DOCTRINE: The head of a department or office in a

municipal government such as the municipal budget

officer shall be appointed by the mayor with the
concurrence of the majority of all Sangguniang Bayan
members through a resolution.

Facts:
1. On March 17, 1992, Montuerto was issued an appointment as Municipal Budget Officer by then Mayor Sabitsana
of the Municipality of Almeria, Biliran. Her appointment was approved as permanent on March 24 by the
Actining Civil Service Commission (CSC) Field Officer.
2. In 2002, the Sangguniang Bayan (SB) of Almeria, Biliran passed a Resolution requesting the CSC to revoke the
appointment of Montuerto as Municipal Budget Officer for failure to secure the required concurrence from the
Sangguniang Bayan.
3. The Municipality submitted the 201 file of Montuerto showing that the appointment lacked the SBs concurrence
to the CSC Regional Office VIII while Montuerto submitted a Joint-affidavit by the majority of SB members stating
that the concurrence on Montuertos appointment was not highlighted during the March 1992 session and was
inadvertently omitted from the Minutes but they can still fully recall that there was a verbal concurrence during
said session.
4. The CSCRO ordered Montuertos appointment recalled. Montuerto filed a motion for reconsideration. To resolve
the motion, the incumbent SB secretary was ordered to submit evidence showing that Montuertos appointment
was submitted to the SB for concurrence. The SB secretary issued a Certification that there is no record that
Montuertos appointment was submitted for concurrence however the presence of Montuerto was noted in the
Minutes of the March 1992 session.
5. The CSCRO denied the Motion for Reconsideration. The CSC Central Office dismissed Montuertos appeal. The CA
affirmed the CSC resolution in toto. Hence this petition for certiorari.
Petitioners argument/s:
1. Per the Joint-Affidavit by the majority of the SB members, there was a verbal concurrence on Montuertos
appointment.
Respondents argument/s:
1. Petitioners 201 file showed that her appointment lacked the required concurrence of the local sanggunian.
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/Ratio: YES. Petition is denied.
1. Under Section 443(a) and (d) of Republic Act (R.A.) No. 7160 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 members subject to civil service
law, rules and regulations.
2. 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.
3. The verbal concurrence allegedly given by the Sanggunian 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.
4. Accordingly, the CSC has the authority to recall the appointment of the petitioner.

115 FELICIDAD UY, petitioner,versus HON. MAXIMO C.

CONTRERAS, Presiding Judge, Metropolitan Trial Court,
Branch 61, Makati, Metro Manila; HON. MAURO M.
CASTRO, Provincial Prosecutor of Pasig, Metro Manila;
SUSANNA ATAYDE and WINNIE JAVIER, respondents.
(1994)
G.R. No. 111416
TOPIC: Barangay Justice
PONENTE: Davide Jr., J.

AUTHOR: HICETA
DOCTRINE:

Facts:
1. Petitioner Uy subleased half of the second floor of a building in Makati from private respondent Atayde
where Uy operated a beauty parlor.
2. The sublease expired but Uy was not able to remove all her movables. An argument ensued between
Uy and Atayde when the former sought to remove her movables which led to a scuffle between Uy and
Atayde and her employees including private respondent Javier.
3. Private respondents filed a complaint with the barangay captain of Valenzuela, Makati on April 23,
1993. A confrontation betweeen the parties was scheduled but only Uy appeared on the scheduled
date.
4. On May 11, 1993, the Office of the Prosecutor filed two Informations for slight physical injuries against
Uy.
5. In her counter-affidavit, Uy specifically alleged the prematurity of the filing of the complaint and filed a
Motion to Dismiss for non-compliance with the requirement of P.D. No. 1508 on prior referral to the
Lupong Tagapamayapa and pursuant to Section 18 of the 1991 Revised Rule on Summary Procedure.
6. The MTC judge denied the motion. Hence this petition.
Petitioners argument:
1. Respondent judge committed grave abuse of discretion amounting to lack of jurisdiction when he
denied the motion to dismiss considering that the private respondents failed to comply with the
mandatory requirement of P.D. No. 1508, now embodied in Section 412 of the Local Government Code
of 1991 and further required under the 1991 Revised Rule on Summary Procedure
Private Respondents arguments:
1. Prior referral of the dispute to the lupon is not applicable in the case of private respondent Javier since
she and the petitioner are not residents of barangays in the same city or municipality or of adjoining
barangays in different cities or municipalities
2. The referral to the lupon is not likewise required if the case may otherwise be barred by the statute of
limitations
3. Even assuming arguendo that prior referral to the lupon applies to the case of private respondent
Atayde, the latter had, nevertheless, substantially complied with the requirement
4. Petitioner had already waived the right to a reconciliation proceedings before the barangay of
Valenzuela, Makati
Issue: Whether the Informations should be dismissed for failure to comply with the requirement of referral to
lupon.
Held/Ratio: YES. Petition is granted and respondent judge is ordered to dismiss the Informations.
A. The applicable law
1. Sec 412 of the Local Government Code provides that: No complaint, petition, action, or proceeding

involving any matter within the authority of the lupon shall be filed or instituted directly in court or any
other government office for adjudication, unless there has been a confrontation between the parties
before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as
certified by the lupon secretary or pangkat secretary as attested to by the lupon chairman or pangkat
chairman or unless the settlement has been repudiated by the parties thereto.
2. The law on the katarungang pambarangay was originally embodied in PD 1508 but is now repealed by
the Local Government Code and the latter contains the new law (Chapter VII).
3. The 3 new significant features of the new law are as follows:
a. INCREASED AUTHORITY IN CRIMINAL OFFENSES. From those punishable by imprisonment not
exceeding thirty days or a fine not exceeding P200.00 in P.D. No. 1508 to those offenses
punishable by imprisonment not exceeding one year or a fine not exceeding P5,000.00.
i. Therefore, few cases would reach the regular courts, justice would be achieved at less
expense to the litigants, cordial relationships among protagonists in a small community
would be restored, and peace and order therein enhanced.
b. VENUE. It provides that disputes arising at the workplace where the contending parties are
employed or at the institution where such parties are enrolled for study, shall be brought in the
barangay where such workplace or institution is located.
i. This rule provides convenience to the parties.
c. SUSPENSION OF PRESCRIPTIVE PERIODS. It provides for the suspension of the prescriptive
periods of offenses during the pendency of the mediation, conciliation, or arbitration process.
Such suspension, however, shall not exceed sixty days.
i. This will discourage any intentional delay of the referral to a date close to the expiration
of the prescriptive period and then invoking the proximity of such expiration as the
reason for immediate recourse to the courts and will afford the parties sufficient time to
cool off and face each other with less emotionalism and more objectivity which are
essential ingredients in the resolution of their dispute.
4. Non-compliance with this law affects the sufficiency of the plaintiffs cause of action and subjects
complaint to dismissal however, it is not jurisdictional. Non-compliance must be seasonably invoked
and failure to do so will constitute a waiver.
B. On the respondents arguments
1. On the argument that the law does not apply because Javier and Uy do not reside in the same barangay
a. (The Court did not specifically discussed this but it mentioned that) The respondents having
brought the dispute before the lupon of barangay Valenzuela, Makati, the private respondents
are estopped from disavowing the authority of the body which they themselves had sought.
2. On the argument that the action was about to prescribe
a. This is untenable because under Sec 410 (c), the prescriptive period was automatically
suspended for a maximum period of sixty days from 23 April 1993 when the private respondents
filed their complaints with the lupon of Valenzuela Makati.
b. The Information being for slight physical injuries which will be meted with light penalties based
on the medical certificates, the action will prescribe two months from April 17, 1993 (when
injuries were allegedly inflicted). The running of the period will be tolled by the filing of the
complaints with the lupon and if no conciliation is reached, the respondents would still have 56
days to file their criminal complaints.
3. On substantial compliance
a. The respondents, after failing to appear at the initial confrontation, have no right to invoke
substantial complaince.
4. On the alleged waiver
a. The petitioner did not waive the reconciliation proceedings before the lupon of Valenzuela,
Makati; she submitted to it and attended the scheduled conciliation and invoked the pre-

condition of referral to the lupon in her counter-affidavit.

116 CARLITO D. CORPUZ, petitioner, versus HONORABLE
COURT OF APPEALS (SIXTEENTH DIVISION) and JUANITO
ALVARADO, respondents. (1997)

AUTHOR: HICETA
DOCTRINE:

G.R. No. 117005

TOPIC: Barangay Justice
PONENTE: Romero, J.

Facts:
1. Barredo decided to sell his property to his tenants, two of whom were Alvarado and Corpuz. Alvarado
and other lessees executed an Affidavit of Waiver granting Barredo to sell his house to anyone who
would purchase the same. Barredo sold it to Corpuz and as a result of this sale, a tenancy relationship
was created between Corpuz and Alvarado.
2. Corpuz sent a written notice to Alvarado on October 1991 for the latter to vacate. Alvarado refused
prompting Corpuz to file a case for unlawful detainer before the MTC of Manila.
3. Alvarado raised two major defenses, to wit: (1) the alleged "Affidavit of Waiver" executed between him
and Barredo was a forgery; and (2) the dispute was not referred to the Lupong Tagapayapa.
4. The MTC ordered Alvarado to vacate but the RTC reversed this decision. It ruled that on the ground that
the purported sale between Corpuz and Barredo was the subject of a controversy pending before the
National Housing Authority which must be resolved first by said agency. It also concluded that the
"Affidavit of Waiver" executed by Alvarado and Barredo was a forgery. Consequently, it ordered the
dismissal of the case for unlawful detainer, and ruled that Alvarado cannot be legally expelled from the
subject premises. The CA affirmed the RTC judgment.
Petitioners argument: (The petitioner did not raise any argument against Alvarados defense of failure to refer
to the lupon.)
Respondents argument:
1. The ejectment suit was not referred to the Lupon Tagapayapa as required by Presidential Decree No.
1508.
Issue [Relevant]: Whether the action should be dismissed for failure to comply with the requirement of
referral to the lupong tagapamayapa.
Held/Ratio: NO. Petition is granted.
Alvarados defense was only stated in a single general short sentence in his answer. In the case of Diuvs. Court
of Appeals (1995), the Court ruled that failure of a party to specifically allege the fact that there was no
compliance with the Barangay conciliation procedure constitutes a waiver of that defense. A perusal of
Alvarado's answer reveals that no reason or explanation was given to support his allegation, which is deemed a
mere general averment.
In any event, the proceeding outlined in P.D. 1508 is not a jurisdictional requirement and non-compliance
therewith cannot affect the jurisdiction which the lower court had already acquired over the subject matter
and the parties therein.
NOTE: The controversy pending before the NHA for the annulment of the Deed of Sale and assailing the
authenticity of the "Affidavit of Joint Waiver" cannot deter the MTC from taking cognizance of the ejectment

suit merely for the purpose of determining who has a better possessory right among the parties.