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[G.R. No. 99425. March 3, 1997]

ANTONIO C. RAMOS, ROSALINDA M. PEREZ, NORMA C. CASTILLO and BALIUAG MARKET
VENDORS ASSOCIATION, INC., petitioners, vs. COURT OF APPEALS, HON. CAMILO O.
MONTESA, JR., in his capacity as Presiding Judge of the Regional Trial Court of Bulacan,
Branch 19, and MUNICIPALITY OF BALIUAG, respondents.
DECISION
PANGANIBAN, J.:
Who has the legal authority to represent a municipality in lawsuits? If an unauthorized lawyer
represents a municipality, what is the effect of his participation in the proceedings? Parenthetically, does a
motion to withdraw the appearance of the unauthorized counsel have to comply with Rule 15 of the Rules
of Court regarding notice and hearing of motions?
These questions are answered by this Court in resolving this petition for review under Rule 45 of the
Rules of Court of the Decision[1] of public respondent[2] in CA-G.R. SP No. 23594 promulgated on March
15, 1991, which denied due course to and dismissed the petition therein. Also assailed is the
Resolution[3] of public respondent promulgated on May 9, 1991, which denied the motion for
reconsideration for lack of merit.
The Facts
The facts as found by public respondent are undisputed, to wit: [4]
"On April 18, 1990, petitioners Antonio C. Ramos, Rosalinda M. Perez, Norma C. Castillo, and the Baliuag Market
Vendors Association, Inc. filed a petition before the court a quo docketed as Civil Case No. 264-M-9 for the
Declaration of Nullity of Municipal Ordinances No. 91 (1976) and No. 7 (1990) and the contract of lease over a
commercial arcade to be constructed in the municipality of Baliuag, Bulacan.
On April 27, 1980, during the hearing on the petitioners' motion for the issuance of preliminary injunction, the
Provincial Fiscal appeared as counsel for respondent Municipality of Baliuag, which opposed the petition.
Whereupon, a writ of preliminary injunction was issued by the court a quo on May 9, 1990.
Meanwhile, on May 3, 1990, the Provincial Fiscal and the Provincial Attorney, Oliviano D. Regalado, filed an
Answer in (sic) behalf of respondent municipality.
At the pre-trial conference scheduled on May 28, 1990, Atty. Roberto B. Romanillos appeared, manifesting that he
was counsel for respondent municipality. On the same date, and on June 15, 1990, respectively, Atty. Romanillos
filed a motion to dissolve injunction and a motion to admit an Amended Answer with motion to dismiss.
On June 18, 1990, Provincial Attorney Oliviano D. Regalado appeared as collaborating counsel of Atty. Romanillos.
The Provincial Fiscal did not appear. It was Atty. Romanillos who submitted the Reply to- petitioners' Opposition to
respondents' motion to dissolve injunction. It was also Atty. Romanillos who submitted a written formal offer of
evidence on July 17, 1990 for respondent municipality.
During the hearing on August 10, 1990, petitioners questioned the personality of Atty. Romanillos to appear as
counsel of (sic) the respondent municipality, which opposition was reiterated on August 15, 1990, and was put in
writing in petitioners' motion of August 20, 1990 to disqualify Atty. Romanillos from appearing as counsel for
respondent municipality and to declare null and void the proceedings participated in and undertaken by Atty.
Romanillos.
Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint motion dated August 22, 1990 stating, among others,
that Atty. Romanillos was withdrawing as counsel for respondent municipality and that Atty. Regalado, as his
collaborating counsel for respondent municipality, is adopting the entire proceedings participated in/undertaken by
Atty. Romanillos.
On September 19, 1990 respondent Judge issued the Order now being assailed which, as already stated, denied
petitioners' motion to disqualify Atty. Romanillos as counsel for respondent municipality and to declare null and
void the proceedings participated in by Atty. Romanillos; and on the other hand, granted Atty. Regalado's motion 'to
formally adopt the entire proceedings including the formal offer of evidence'. In support of his foregoing action,
respondent Judge reasoned:

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'Petitioners' motion for the disqualification of Atty. Romanillos as respondent municipality's counsel is deemed moot
and academic in view of his withdrawal as counsel of said municipality pursuant to a joint motion dated August 22,
1990, although he shall remain as counsel on record of private respondent Kristi Corporation. Atty. Oliviano
Regalado under the same joint motion moved for the adoption of the entire proceedings conducted by collaborating
counsel, Atty. Romanillos.
It is noted that Atty. Romanillos initially entered his appearance as collaborating counsel of the Provincial
Prosecutor and the Provincial Attorney when he filed a motion to dissolve injunction under motion dated May 30,
1990 and since then despite his active participation in the proceedings, the opposing counsel has never questioned
his appearance until after he made a formal offer of evidence for the respondents. The acquiescence of petitioners,'
counsel of (sic) his appearance is tantamount to a waiver and petitioners are, therefore, estopped to question the
same. In all the pleadings made by Atty. Romanillos, it was clearly indicated that he was appearing as the
collaborating counsel of the Provincial Attorney. Besides, petitioners' counsel failed to submit their comment and/or
objection to the said joint motion of respondents' counsel as directed by the Court within the reglementary period.
By virtue of these circumstances, all the proceedings attended to and participated in by said collaborating counsel is
a fait accompli and the Court finds no cogent justification to nullify the same.'
Petitioners' motion for reconsideration of the foregoing Order was denied by respondent Judge in his Order dated
October 19, 1990, the second Order now being assailed. Respondent Judge reiterated the observations which he
made in the Order of September 19, 1990 that Atty. Romanillos, while actively handling the said case was merely
appearing as the collaborating counsel of both the Provincial Prosecutor and the Provincial Attorney of Bulacan; that
Atty. Romanillos' appearance was 'never impugned by petitioners' and was only questioned after his (Atty.
Romanillos') submission of the formal offer of evidence for respondent; and that therefore, said court proceedings 'is
(sic) a fait accompli'. Respondent Judge went on to say that the declaration of nullity of said proceedings and the retaking of the same evidence by the same parties is (sic) apparently an exercise in futility'. He added that in the
absence of untimely objection by petitioners to Atty. Romanillos' appearance as the collaborating counsel,
petitioners are guilty of laches for having slept on (sic) their rights and are estopped as their acquiescence may be
considered as waiver of such right. Furthermore, according to respondent Judge, assuming that the proceedings had
been 'tainted with frailness to render the same legally objectionable', the same has been 'legally remedied' by its
formal adoption upon motion of the Provincial Accorney (sic), Atty. Regalado, who is not disqualified to appear as
counsel for the municipality of Baliuag, for the reason that by virtue of Section 19 of R.A. No. 5185 (The
Decentralization Act of 1967), the authority to act as legal officer/adviser for (sic) civil cases of the province of
Bulacan, of which the municipality of Baliuag is a political subdivision, has been transferred from the Provincial
Fiscal (now Provincial Prosecutor) of Bulacan to the Provincial Attorney thereof."
As earlier stated, the Court of Appeals dismissed the petition and denied the motion for
reconsideration. Hence this recourse.
The Issues
The issues raised by petitioners in their Memorandum are: [5]
"1) Under present laws and jurisprudence, can a municipality be represented in a suit against it by a private
counsel?
2) If not, what is the status of the proceedings undertaken by an unauthorized private counsel;
3) Can the provincial attorney of a province act as counsel of a municipality in a suit;
4) Can the provincial attorney adopt with legal effect the proceedings undertaken by an unauthorized private
counselof (sic) a municipality;
5) May a court act on an alleged motion which violates Sections 4 and 5 of Rule 15 and Section 26, Rule 128
of the Rules of Court."
Petitioners contend that the assailed Decision which affirmed the Orders of the trial court is void for
being violative of the following laws: [6]
"VI-1 The respondent court violated Section 1683 of the Revised Administrative Code; Section 3, paragraph 3
(a) of Republic Act No. 2264, otherwise known as the Local Autonomy Act; and Section 35; Book
IV, Title III, Chapter 12, Administrative Code of 1987 (Executive Order No. 292) when it
authorized Atty. Oliviano D. Regalado, the Provincial Attorney of Bulacan, to appear as counsel
for respondent Municipality of Baliuag.

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VI-2 The respondent court violated Section 1683 of the Revised Administrative Code; Section 3, paragraph 3
(a) of Republic Act No. 2264, otherwise known as the Local Autonomy Act; Section 35, Book IV,
Title III, Chapter 12, Executive Order No. 292, otherwise known as the Administrative Code of
1987; and Article 1352 of the New Civil Code, when it denied the petitioners' motion to declare
the proceedings undertaken or participated in by said Atty. Roberto B. Romanillos, as private
counsel of respondent Municipality, null and void.
VI-3 The respondent court acted in excess of its jurisdiction and in grave abuse of discretion when it acted and
granted the respondent's JOINT MOTION dated August 22, 1990 (Annex 'H') which, as a rule, is a
mere worthless piece of paper which the respondent judge/court has no authority to act upon,
considering that said motion was filed in court in patent violation of or without complying with
the mandatory requirements provided for by Sections 4 and 5 of Rule 15 and Section 26 of Rule
138 of the Rules of Court."
Public respondent did not give due course to the petition "because it does not prima facie show
justifiable grounds for the issuance of certiorari."[7] Public respondent adds that:[8]
"Considering the foregoing jurisprudence, the logical conclusion is that the Provincial Attorney of Bulacan has now
the authority to represent the municipality of Baliuag in its law suits.
It follows that respondent Judge was correct in ruling in the assailed Order of October 19, 1990 that even
assuming, arguendo, that the proceedings by the court a quo which had been participated in by Atty. Romanillos are
legally objectionable, this was legally remedied by the formal adoption by the provincial Attorney, Atty. Regalado,
of the said proceedings, considering that the provincial attorney is not disqualified from representing the
municipality of Baliuag in civil cases.
In the second place, the record discloses that Atty. Romanillos had appeared as counsel for respondent municipality
of Baliuag in collaboration with the Provincial Prosecutor and the Provincial Attorney, as shown in the motion to
dissolve injunction dated May 28, 1990 which Atty. Romanillos had filed for respondent municipality. Accordingly
and pursuant to the aforecited provisions of law, it cannot correctly be said that respondent Judge had acted with
grave abuse of discretion when he allowed Atty. Romanillos to act as private counsel and Atty. Regalado, Provincial
Attorney of Bulacan, to appear as counsel for respondent Municipality of Baliuag. Perforce, it also cannot be
correctly said that respondent Judge violated the aforecited provisions when he denied petitioners' motion to declare
null and void the proceedings undertaken by and participated in by Atty. Romanillos as private counsel of the
municipality of Baliuag.
At any rate, even granting, only for the sake of argument, that Atty. Romanillos' appearance as
counsel for the municipality could not be legally authorized under the aforesaid provisions of law, the fact
that Atty. Regalado as Provincial Attorney of Baliuag had formally adopted the proceedings participated in
by Atty. Romanillos as counsel for the municipality of Baliuag had served, as already stated, to cure such a
defect.
Thirdly, We are likewise unable to see grave abuse of discretion in respondent Judge's actuation in
granting the joint motion filed by Atty. Romanillos and Atty. Regalado for the withdrawal of the former as
private counsel of respondent municipality, and the adoption by the latter of the proceedings participated
in/undertaken by the former, including the formal offer of evidence submitted by the former."
Public respondent likewise found that the "joint motion does not partake of the nature of an
adversarial motion which would have rendered non-compliance with Sections 4 and 5 of Rule 15 of the
Rules of Court fatal to the motion." [9] It is to be emphasized that petitioners "sought the disqualification of
Atty. Romanillos x x x (Thus,) what petitioners had sought to (be) achieve(d) in their said motion was in
fact what Atty. Romanillos had sought x x x in the joint motion dated August 22, 1990." [10]
Respondent municipality submits that Section 19 of RA 5185:
"is not meant to prohibit or prevent the Provincial Attorney to act as legal adviser and legal officer for municipalities
and municipal districts because such interpretations would be to say the least, absurb (sic). In this jurisdiction, a
province is composed of municipalities and municipal districts, and therefore they are deemed included in the
provisions of Section 19 of Republic Act 5185. It is also impractical and contrary to the spirit of the law to limit the
sphere of authority of the Provincial Attorney to the province only."[11]
The different allegations boil down to three main issues: (1) Who is authorized to represent a
municipality in a civil suit against it? (2) What is the effect on the proceedings when a private counsel
represents a municipality? Elsewise stated, may the proceedings be validated by a provincial attorney's

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adoption of the actions made by a private counsel? (3) Does a motion of withdrawal of such unauthorized
appearance, and adoption of proceedings participated in by such counsel have to comply with Sections 4
and 5[12] of Rule 15 of the Rules of Court?
The Court's Ruling
We affirm the Decision and Resolution of public respondent.
First Issue: Who Is Authorized to Represent a
Municipality in Its Lawsuits?
In the recent case of Municipality of Pililla, Rizal vs. Court of Appeals,[13] this Court, through Mr.
Justice Florenz D. Regalado, set in clear-cut terms the answer to the question of who may legally
represent a municipality in a suit for or against it, thus: [14]
"x x x The matter of representation of a municipality by a private attorney has been settled in Ramos vs. Court of
Appeals, et al.,[15] and reiterated in Province of Cebu vs. Intermediate Appellate Court, et al.,[16] where we ruled that
private attorneys cannot represent a province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
'Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. The provincial fiscal
shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof
(sic) original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in
question is a party adverse to the provincial government or to some other municipality or municipal district in the
same province. When the interests of a provincial government and of any political division thereof are opposed, the
provincial fiscal shall act on behalf of the province.
When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a
special attorney may be employed by its council.'[17]
Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy Law,[18] only
the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The
provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to
situations where the provincial fiscal is disqualified to represent it.[19]
For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the
municipality's case must appear on record.[20] In the instant case, there is nothing in the records to show that the
provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of
herein private counsel is without authority of law."
The provincial fiscal's functions as legal officer and adviser for the civil cases of a province and
corollarily, of the municipalities thereof, were subsequently transferred to the provincial attorney.[21]
The foregoing provisions of law and jurisprudence show that only the provincial fiscal, provincial
attorney, and municipal attorney should represent a municipality in its lawsuits. Only in exceptional
instances may a private attorney be hired by a municipality to represent it in lawsuits. These exceptions
are enumerated in the case ofAlinsug vs. RTC Br. 58, San Carlos City, Negros Occidental,[22] to wit:[23]
"Indeed, it appears that the law allows a private counsel to be hired by a municipality only when the municipality is
an adverse party in a case involving the provincial government or another municipality or city within the province.
This provision has its apparent origin in the ruling in De Guia v. The Auditor General (44 SCRA 169, March 29,
1979) where the Court held that the municipality's authority to employ a private attorney is expressly limited only to
situations where the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old
Administrative Code as legal basis, the Court therein citedEnriquez, Sr. v. Gimenez [107 Phil. 932 (1960)] which
enumerated instances when the provincial fiscal is disqualified to represent in court a particular municipality; if and
when original jurisdiction of case involving the municipality is vested in the Supreme Court, when the municipality
is a party adverse to the provincial government or to some other municipality in the same province, and when, in a
case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or
otherwise.
Thereafter, in Ramos vs. Court of Appeals (108 SCRA 728, October 30, 1981), the Court ruled that a municipality
may not be represented by a private law firm which had volunteered its services gratis, in collaboration with the

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municipal attorney and the fiscal, as such representation was violative of Sec. 1683 of the old Administrative
Code. This strict coherence to the letter of the law appears to have been dictated by the fact that 'the municipality
should not be burdened with expenses of hiring a private lawyer' and that the interests of the municipality would be
best protected if a government lawyer handles its litigations."' (Underscoring supplied.)
None of the foregoing exceptions is present in this case. It may be said that Atty. Romanillos
appeared for respondent municipality inasmuch as he was already counsel of Kristi Corporation which
was sued with respondent municipality in this same case. The order of the trial court dated September 19,
1990, stated that Atty. Romanillos "entered his appearance as collaborating counsel of the provincial
prosecutor and the provincial attorney."[24] This collaboration is contrary to law and hence should not have
been recognized as legal. It has already been ruled in this wise:
"The fact that the municipal attorney and the fiscal are supposed to collaborate with a private law firm does not
legalize the latter's representation of the municipality of Hagonoy in Civil Case No. 5095-M. While a private
prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in civil cases wherein a
municipality is the plaintiff."[25]
As already stated, private lawyers may not represent municipalities on their own. Neither may they do so
even in collaboration with authorized government lawyers. This is anchored on the principle that only
accountable public officers may act for and in behalf of public entities and that public funds should not be
expended to hire private lawyers.
Petitioners cannot be held in estoppel for questioning the legality of the appearance of Atty.
Romanillos, notwithstanding that they questioned the witnesses of respondent municipality during the
hearing of its motion to dissolve the preliminary injunction. Municipality of Pililla, Rizal vs. Court of
Appeals[26] held that the legality of the representation of an unauthorized counsel may be raised at any
stage of the proceedings. This Court stated that: [27]
"The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his
lack of authority to represent the municipality is untenable. The legality of his representation can be
questioned at any stage of the proceedings. In the cases hereinbefore cited, the issue of lack of authority of
private counsel to represent a municipality was only raised for the first time in the proceedings for the
collection of attorney's fees for services rendered in the particular case, after the decision in that case had
become final and executory and/or had been duly executed."
Elementary fairness dictates that parties unaware of the unauthorized representation should not be
held in estoppel just because they did not question on the spot the authority of the counsel for the
municipality. The rule on appearances of a lawyer is that
"(u)ntil the contrary is clearly shown, an attorney is presumed to be acting under authority of the litigant whom he
purports to represent. (Azotes v. Blanco, 78 Phil. 739) His authority to appear for and represent petitioner in
litigation, not having been questioned in the lower court, it will be presumed on appeal that counsel was properly
authorized to file the complaint and appear for his client. (Republic v. Philippine Resources Development
Corporation, 102 Phil. 960)"[28]
Second Issue: Effect on Proceedings by Adoption
of Unauthorized Representation
Would the adoption by Atty. Regalado of the proceedings participated in by Atty. Romanillos validate
such proceedings? We agree with public respondent that such adoption produces validity. Public
respondent stated the reasons [29] to which we agree:
"Moreover, it does not appear that the adoption of proceedings participated in or undertaken by
Atty. Romanillos when he was private counsel for the respondent municipality of Baliuag such as the
proceedings on the motion to dissolve the injunction, wherein petitioners had even cross-examined the
witnesses presented by Atty. Romanillos in support of said motion and had even started to present their
witnesses to sustain their objection to the motion would have resulted in any substantial prejudice to
petitioners' interest. As We see it, to declare the said proceedings null and void notwithstanding the formal
adoption thereof by Atty. Regalado as Provincial Attorney of Bulacan who is authorized to represent
respondent municipality of Baliuag in court and to require trial anew to cover the same subject matter, to
hear the same witnesses and to admit the same evidence adduced by the same parties cannot enhance the
promotion of justice."

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This Court believes that conferring legitimacy to the appearance of Atty. Romanillos would not cause
substantial prejudice on petitioners. Requiring new trial on the mere legal technicality that the municipality
was not represented by a legally authorized counsel would not serve the interest of justice. After all, this
Court does not see any injustice committed against petitioners by the adoption of the work of private
counsel nor any interest of justice being served by requiring retrial of the case by the duly authorized legal
representative of the town.
In sum, although a municipality may not hire a private lawyer to represent it in litigations, in the
interest of substantial justice however, we hold that a municipality may adopt the work already performed
in good faith by such private lawyer, which work is beneficial to it (1) provided that no injustice is thereby
heaped on the adverse party and (2) provided further that no compensation in any guise is paid therefor
by said municipality to the private lawyer. Unless so expressly adopted, the private lawyer's work cannot
bind the municipality.
Third Issue: "Joint Motion" Need Not Comply with Rule 15
We also agree with the justification of public respondent that a motion to withdraw the appearance of
an unauthorized lawyer is a non-adversarial motion that need not comply with Section 4 of Rule 15 as to
notice to the adverse party. The disqualification of Atty. Romanillos was what petitioners were really
praying for when they questioned his authority to appear for the municipality. The disqualification was
granted, thereby serving the relief prayed for by petitioners. Such being the case, no "notice directed to
the parties concerned and served at least 3 days before the hearing thereof" [30] need be given petitioners,
the questioned motion not being contentious. Besides, what petitioners were questioning as to lack of
authority was remedied by the adoption of proceedings by an authorized counsel, Atty. Regalado. The
action of the trial court allowing the motion of respondent municipality effectively granted petitioners'
motion to disqualify Atty. Romanillos. In People vs. Leviste,[31] we ruled that:
"While it is true that any motion that does not comply with the requirements of Rule 15 should not be
accepted for filing and, if filed, is not entitled to judicial cognizance, this Court has likewise held that where a
rigid application of the rule will result in a manifest failure or miscarriage of justice, technicalities may be
disregarded in order to resolve the case. Litigations should, as much as possible, be decided on the merits and
not on technicalities. As this Court held in Galvez vs. Court of Appeals, an order of the court granting the
motion to dismiss despite the absence of a notice of hearing, or proof of service thereof, is merely an
irregularity in the proceedings x x x (which) cannot deprive a competent court of jurisdiction over the
Case."'(Citations omitted).
It should be remembered that rules of procedure are but tools designed to facilitate the attainment of
justice, such that when rigid application of the rules tend to frustrate rather than promote substantial
justice, this Court is empowered to suspend their operation. [32]
WHEREFORE, premises considered, the Petition is DENIED and the assailed Decision and
Resolution areAFFIRMED. No costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 105909 June 28, 1994

MUNICIPALITY OF PILILLA, RIZAL, petitioner,
vs.
HON. COURT OF APPEALS, HON. ARTURO A. MARAVE, as Presiding Judge, Regional Trial Court,
Branch 78, Morong, Rizal, and PHILIPPINE PETROLEUM CORPORATION, respondents.

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Felix E. Mendiola for petitioner.

Makalintal, Barot, Torres & Ibarra for respondent Philippine Petroleum Corporation.

REGALADO, J.:
Petitioner questions and seeks the nullification of the resolution of respondent Court of Appeals in CAG.R. SP. No. 27504 dated March 31, 1992, dismissing the petition for having been filed by a private
counsel, as well as its succeeding resolution dated June 9, 1992, denying petitioner's motion for
reconsideration. 1
The records show that on March 17, 1989, the Regional Trial Court of Tanay, Rizal, Branch 80, rendered
judgment in Civil Case No. 057-T in favor of plaintiff, now herein petitioner Municipality of Pililla, Rizal,
against defendant, now herein private respondent Philippine Petroleum Corporation (PPC, for short),
ordering therein defendant to pay said plaintiff (1) the amount of P5,301,385.00 representing the tax on
business due from the defendant under Section 9(A) of Municipal Tax Ordinance No. 1 of said
municipality for the period from 1979 to 1983, inclusive, plus such amount of tax as may accrue until final
determination of the case; (2) storage permit fee in the amount of P3,321,730.00 due from the defendant
under Section 10, paragraph Z(13)
(b-1-c) of the same municipal tax ordinance for the period from 1975 to 1986, inclusive, plus the amount
of said fee that may accrue until final determination of the case; (3) mayor's permit fee due from the
defendant under Section 10, paragraph (P) (2) of said municipal tax ordinance from 1975 to 1984,
inclusive, in the amount of P12,120.00, plus such amount of the same fee as may accrue until final
determination of the case; (4) sanitary inspection fee in the amount of P1,010.00 for the period from 1975
to 1984, plus the amount of this fee that may accrue until final determination of the case; and (5) the costs
of suit. 2
On June 3, 1991, in G.R. No. 90776 this Court affirmed the aforesaid judgment, with the modification that
business taxes accruing prior to 1976 are not to be paid by PPC because the same have prescribed, and
that storage fees are not also to be paid by PPC since the storage tanks are owned by PPC and not by
the municipality and, therefore, cannot be the bases of a charge for service by the municipality. 3 This
judgment became final and executory on July 13, 1991 and the records were remanded to the trial court
for execution.
On October 14, 1991, in connection with the execution of said judgment, Atty. Felix E. Mendiola filed a
motion in behalf of plaintiff municipality with the Regional Trial Court, Branch 78, Morong, Rizal* for the
examination of defendant corporation's gross sales for the years 1976 to 1978 and 1984 to 1991 for the
purpose of computing the tax on business imposed under the Local Tax Code, as amended. On October
21, 1991, defendant corporation filed a manifestation to the effect that on October 18, 1991, Pililla Mayor
Nicomedes Patenia received from it the sum of P11,457,907.00 as full satisfaction of the abovementioned judgment of the Supreme Court, as evidence by the release and quitclaim documents
executed by said mayor. Accordingly, on October 31, 1991 the court below issued an order denying
plaintiff municipality's motion for examination and execution of judgment on the ground that the judgment
in question had already been satisfied. 4
Thereafter, on November 21, 1991 Atty. Mendiola filed a motion for reconsideration of the court's
aforesaid order of October 31, 1991, claiming that the total liability of defendant corporation to plaintiff
municipality amounted to P24,176,599.00, while the amount involved in the release and quitclaim
executed by Mayor Patenia was only P12,718,692; and that the said mayor could not waive the balance
which represents the taxes due under the judgment to the municipality and over which judgment the law
firm of Atty. Mendiola had registered two liens for alleged consultancy services of 25% and attorneys' fees
of 25% which, when quantified and added, amount to more than P12 million.
On January 28,1992, the trial court denied the aforesaid motion for reconsideration. 5
On February 18, 1992, Atty. Mendiola, again ostensibly in behalf of herein petitioner municipality, filed a
petition for certiorari with us, which petition we referred to the Court of Appeals for proper disposition and
was docketed therein as CA-G.R. SP No. 27504. 6 On March 2, 1992, respondent PPC filed a motion
questioning Atty. Mendiola's authority to represent petitioner municipality. 7 Consequently, on March 31,
1992 respondent Court of Appeals dismissed the petition for having been filed by a private counsel in
violation of law and jurisprudence, but without prejudice to the filing of a similar petition by the Municipality

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of Pililla through the proper provincial or municipal legal officer. 8 Petitioner filed a motion for
reconsideration which was denied by the Court of Appeals in its resolution of June 9, 1992. 9
Petitioner is once again before us with the following assignment of errors:
1. It is an error for the Court of Appeals to consider private respondent's new issue raised
for the first time on appeal, as it could no longer be considered on appeal, because it was
never been (sic) raised in the court below.
2. It is an error for the Court of Appeals in dismissing (sic) the instant petition with
alternative remedy of filing similar petition as it is a departure from established
jurisprudence.
3. It is an error for the Court of Appeals to rule that the filing of the instant petition by the
private counsel is in violation of law and jurisprudence. 10
We find the present petition devoid of merit.
The Court of Appeals is correct in holding that Atty. Mendiola has no authority to file a petition in behalf of
and in the name of the Municipality of Pililla. The matter of representation of a municipality by a private
attorney has been settled in Ramos vs. Court of Appeals, et al., 11 and reiterated in Province of Cebu
vs. Intermediate Appellate Court, et al., 12 where we ruled that private attorneys cannot represent a
province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in
litigation. The provincial fiscal shall represent the province and any municipality or
municipal district thereof in any court, except in cases whereof original jurisdiction is
vested in the Supreme Court or in cases where the municipality or municipal district in
question is a party adverse to the provincial government or to some other municipality or
municipal district in the same province. When the interests of a provincial government
and of any political division thereof are opposed, the provincial fiscal shall act on behalf of
the province.
When the provincial fiscal is disqualified to serve any municipality or other political
subdivision of a province, a special attorney may be employed by its council. 13
Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy
Law, 14 only the provincial fiscal and the municipal attorney can represent a province or municipality in
their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is
expressly limited only to situations where the provincial fiscal is disqualified to represent it. 15
For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the
municipality's case must appear on
record. 16 In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified
to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel
is without authority of law.
The submission of Atty. Mendiola that the exception is broad enough to include situations wherein the
provincial fiscal refuses to handle the case cannot be sustained. The fiscal's refusal to represent the
municipality is not a legal justification for employing the services of private counsel. Unlike a practicing
lawyer who has the right to decline employment, a fiscal cannot refuse to perform his functions on
grounds not provided for by law without violating his oath of office. Instead of engaging the services of a
special attorney, the municipal council should request the Secretary of Justice to appoint an acting
provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case in
court, pursuant to Section 1679 of the Revised Administrative Code. 17
It is also significant that the lack of authority of herein counsel,
Atty. Mendiola, was even raised by the municipality itself in its comment and opposition to said counsel's
motion for execution of his lien, which was filed with the court a quo by the office of the Provincial
Prosecutor of Rizal in behalf of said municipality. 18

Page

The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his lack
of authority to represent the municipality is untenable. The legality of his representation can be
questioned at any stage of the proceedings. In the cases hereinbefore cited, 19 the issue of lack of
authority of private counsel to represent a municipality was only raised for the first time in the proceedings
for the collection of attorney's fees for services rendered in the particular case, after the decision in that
case had become final and executory and/or had been duly executed.
Furthermore, even assuming that the representation of the municipality by Atty. Mendiola was duly
authorized, said authority is deemed to have been revoked by the municipality when the latter, through
the municipal mayor and without said counsel's participation, entered into a compromise agreement with
herein private respondent with regard to the execution of the judgment in its favor and thereafter filed
personally with the court below two pleadings
entitled and constitutive of a "Satisfaction of Judgment" and a "Release and Quitclaim". 20
A client, by appearing personally and presenting a motion by himself, is considered to have impliedly
dismissed his lawyer. Herein counsel cannot pretend to be authorized to continue representing the
municipality since the latter is entitled to dispense with his services at any time. Both at common law and
under Section 26, Rule 138 of the Rules of Court, a client may dismiss his lawyer at any time or at any
stage of the proceedings, and there is nothing
to prevent a litigant from appearing before the court to conduct his own litigation. 21
The client has also an undoubted right to compromise a suit without the intervention of his lawyer. 22 Even
the lawyers' right to fees from their clients may not be invoked by the lawyers themselves as a ground for
disapproving or holding in abeyance the approval of a compromise agreement. The lawyers concerned
can enforce their rights in the proper court in an appropriate proceeding in accordance with the Rules of
Court, but said rights may not be used to prevent the approval of the compromise agreement. 23
The apprehension of herein counsel that it is impossible that the municipality will file a similar petition,
considering that the mayor who controls its legislative body will not take the initiative, is not only
conjectural but without factual basis. Contrary to his pretensions, there is presently a manifestation and
motion pending with the trial court filed by the aforesaid municipal mayor for the withdrawal of the
"Satisfaction of Judgment" and the "Release and Quitclaim" 24 previously filed in the case therein as
earlier mentioned.
WHEREFORE, the petition at bar is DENIED for lack of merit and the judgment of respondent Court of
Appeals is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

[G.R. No. 127325. March 19, 1997]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA ISABEL ONGPIN,petitioners,

vs. COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the Peoples Initiative for Reforms,
Modernization and Action (PIRMA), respondents, SENATOR RAUL S. ROCO,

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10

DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS

FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR
OF THE PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.
DECISION
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the
Rules of Court is the right of the people to directly propose amendments to the Constitution through the
system of initiativeunder Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands
special attention, as this system of initiative was unknown to the people of this country, except perhaps to
a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself,
through the original proponent [1] and the main sponsor[2] of the proposed Article on Amendments or
Revision of the Constitution, characterized this system as innovative. [3] Indeed it is, for both under the
1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the
Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2)
by a constitutional convention.[4] For this and the other reasons hereafter discussed, we resolved to give
due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a Petition to Amend the Constitution, to Lift Term Limits
of Elective Officials, by Peoples Initiative (hereafter, Delfin Petition) [5] wherein Delfin asked the COMELEC
for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for Initiative on
the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners
and volunteers, in establishing signing stations at the time and on the dates designated for
the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for Peoples Initiative, [6] a
group of citizens desirous to avail of the system intended to institutionalize people power; that he and the
members of the Movement and other volunteers intend to exercise the power to directly propose
amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise
of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that,
as required in COMELEC Resolution No. 2300, signature stations shall be established all over the
country, with the assistance of municipal election registrars, who shall verify the signatures affixed by
individual signatories; that before the Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the purpose be first fixed in an order to be issued
by the COMELEC; and that to adequately inform the people of the electoral process involved, it is likewise
necessary that the said order, as well as the Petition on which the signatures shall be affixed, be
published in newspapers of general and local circulation, under the control and supervision of the
COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI,[7] Section 4 of Article VII,[8] and Section 8 of Article X [9] of the Constitution. Attached to the
petition is a copy of a Petition for Initiative on the 1987 Constitution [10] embodying the proposed
amendments which consist in the deletion from the aforecited sections of the provisions concerning term
limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS,
AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND
SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be formally
filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order [11] (a) directing Delfin to cause the
publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution
(including the proposal, proposed constitutional amendment, and the signature form), and the notice of
hearing in three (3) daily newspapers of general circulation at his own expense not later than 9 December
1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty.
Pete Q. Quadra; representatives of the Peoples Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers; and representatives of, or
counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK),
Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). [12] Senator Roco, on that
same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition
properly cognizable by the COMELEC.

11

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
memoranda and/or oppositions/memoranda within five days. [13]

Page

On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin -- filed this special civil action for prohibition raising the following
arguments:
(1) The constitutional provision on peoples initiative to amend the Constitution can only be implemented by law to
be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and
Regulating Constitutional Amendments by Peoples Initiative, which petitioner Senator Santiago filed on 24
November 1995, is still pending before the Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on
statutes, and on local legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in
the other modes of initiative, which are specifically provided for in Subtitle II and Subtitle III. This deliberate
omission indicates that the matter of peoples initiative to amend the Constitution was left to some future law. Former
Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in
1994: There is not a single word in that law which can be considered as implementing [the provision on
constitutional initiative]. Such implementing provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that
the Act covers only laws and not constitutional amendments because the latter take effect only upon ratification and
not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the conduct of initiative on the
Constitution and initiative and referendum on national and local laws, is ultra vires insofar as initiative on
amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and regulations
for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized by the Constitution
to pass the implementing law.
(5)The peoples initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of
term limits constitutes a revision and is, therefore, outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the COMELEC nor any other
government department, agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in
the event the COMELEC grants the Delfin Petition, the peoples initiative spearheaded by PIRMA would
entail expenses to the national treasury for general re-registration of voters amounting to at least P180
million, not to mention the millions of additional pesos in expenses which would be incurred in the conduct
of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues
raised demands that this petition for prohibition be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of a taxpayers and legislators suit. [14] Besides,
there is no other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a
non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding
with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment [15] on the
petition. They argue therein that:
1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL
REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION
(P180,000,000.00) IF THE COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE
THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC
GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING
ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED
COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571, 200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING
WHICH BY LAW COMELEC IS DUTY BOUND TO SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY
JURISDICTION UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION
IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE
POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR

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12

DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY

PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT
6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN
THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE
THE HONORABLE COURT SAID:THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL
AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 CONTAINS A PROVISION
DELEGATING TO THE COMELEC THE POWER TO PROMULGATE SUCH RULES AND REGULATIONS AS
MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED
UNDER THE 1987 CONSTITUTION IS NOT A REVISION OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT.AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS
OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE
DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED. (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment [16] which starts
off with an assertion that the instant petition is a knee-jerk reaction to a draft Petition for Initiative on the
1987 Constitution ... which is not formally filed yet. What he filed on 6 December 1996 was an Initiatory
Pleading or Initiatory Petition, which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and function. On the
substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to
amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution
approved by the majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of
the Constitution, which grants the COMELEC the power to enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of
the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks
to alter only a few specific provisions of the Constitution, or more specifically, only those which lay term limits. It
does not seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite
it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will
be a priority government expense because it will be for the exercise of the sovereign power of the people.
In the Comment[17] for the public respondent COMELEC, filed also on 2 January 1997, the Office of
the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the Constitution. Its Section 2 on Statement of
Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three
systems of initiative, includes initiative on the Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in
scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and
Senator Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal
with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision
thereof.

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13

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus
Election Code. The rule-making power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact
upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b)
noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private
respondents through Atty. Quadra, as well as the latters Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas;
and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed
him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on
23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of
Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for
Intervention. Attached to the motion was their Petition in Intervention, which was later replaced by an
Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the
words of Fr. Joaquin Bernas, S.J.,[18] it would involve a change from a political philosophy that rejects unlimited
tenure to one that accepts unlimited tenure; and although the change might appear to be an isolated one, it can affect
other provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to
opportunities for public service and prohibiting political dynasties.[19] A revision cannot be done by initiative which,
by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for all other national and local elective
officials are based on the philosophy of governance, to open up the political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to break the concentration of political and economic powers in the
hands of a few, and to promote effective proper empowerment for participation in policy and decision-making for
the common good; hence, to remove the term limits is to negate and nullify the noble vision of the 1987
Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest
situation. Initiative is intended as a fallback position that may be availed of by the people only if they are dissatisfied
with the performance of their elective officials, but not as a premium for good performance.[20]
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the
peoples initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file the petition,
(b) the appropriate agency before whom the petition is to be filed, (c) the contents of the petition, (d) the publication
of the same, (e) the ways and means of gathering the signatures of the voters nationwide and 3% per legislative
district, (f) the proper parties who may oppose or question the veracity of the signatures, (g) the role of the
COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any decision
of the COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such peoples
initiative. Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the
COMELEC is without authority to legislate the procedure for a peoples initiative under Section 2 of Article XVII of
the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a
legal basis for the Resolution, as the former does not set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. [21] He avers that R.A. No.
6735 is the enabling law that implements the peoples right to initiate constitutional amendments. This law
is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even
delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under
Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the
respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its
publication because the said petition is not the initiatory pleading contemplated under the Constitution,
Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC
in an initiative on the Constitution is the filing of a petition for initiative which is signed by the required
number of registered voters. He also submits that the proponents of a constitutional amendment cannot
avail of the authority and resources of the COMELEC to assist them is securing the required number of
signatures, as the COMELECs role in an initiative on the Constitution is limited to the determination of the
sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend
the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures.

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14

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a
constitutional convention.[22]
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by
the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of
Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five
days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to
file its Petition in Intervention within a nonextendible period of three days from notice, and the
respondents to comment thereon within a nonextendible period of five days from receipt of the said
Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues,
which the Court formulated in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating
Funds Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether
the Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of
Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of
initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the
conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft Petition for
Initiative on the 1987 Constitution, would constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an
order (a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist
Delfin's movement and volunteers in establishing signature stations; and (c) directing or causing the publication
of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before
the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin
Petition for failure to state a sufficient cause of action and that the Commissions failure or refusal to do so
constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record
of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee
on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP.[23] The parties thereafter filed, in due
time, their separate memoranda.[24]
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.
I

THE INSTANT PETITION IS VIABLE DESPITE THE

PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a
pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin. This being
so, it becomes imperative to stop the Comelec from proceeding any further, and under the Rules of Court, Rule 65,
Section 2, a petition for prohibition is the proper remedy.

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15

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with
which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of the questioned Comelec
order. The consequent climate of legal confusion and political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of man, only
the Supreme Court can save a nation in peril and uphold the paramount majesty of the Constitution. [25]
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. [26] The
COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them to submit within five days their
memoranda or oppositions/memoranda. [27] Earlier, or specifically on 6 December 1996, it practically gave
due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with
the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case
for hearing. The COMELECs failure to act on Rocos motion to dismiss and its insistence to hold on to the
petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court,
which provides:
SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter
specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of signatures
of registered voters.LABAN also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of
Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc.
v. Guingona, Jr.:[28]
A partys standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set
aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside
this technicality because the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.
II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must
be represented by at least three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of the 1986
Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution
is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on
congressional action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution through the
system of initiative would remain entombed in the cold niche of the Constitution until Congress provides

16

for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the
people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

Page

This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). [30] That section
reads as follows:
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article ____ Section ____ of the Constitution.
[31]

After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of the
Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee
Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7.[32]
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision
on how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary
implementing law on this, this will not operate?
MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget
appropriations which would have to be legislated so that the plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In any event, as envisioned, no amendment through the
power of initiative can be called until after five years from the date of the ratification of this Constitution. Therefore,
the first amendment that could be proposed through the exercise of this initiative power would be after five years. It
is reasonably expected that within that five-year period, the National Assembly can come up with the appropriate
rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature - the details on how this is to be carried out - is it possible
that, in effect, what will be presented to the people for ratification is the work of the legislature rather than of the
people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose
that amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in order to constitute
itself as a constituent assembly and submit that proposal to the people for ratification through the process of an
initiative.
xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the
people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular
participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot of difficulties in
terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal mandates?

17

MR. SUAREZ. The Commissioner is right, Madam President.

Page

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source
of all legal mandates and that therefore we require a great deal of circumspection in the drafting and in the
amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the
constitution that would specifically cover the process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the
legislature the process or the requirement of determining the mechanics of amending the Constitution by people's
initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly,
not unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable
situations.[33]
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals
to AMEND -- not to REVISE -- the Constitution; thus:
MR. SUAREZ. ... This proposal was suggested on the theory that this matter of initiative, which came about because
of the extraordinary developments this year, has to be separated from the traditional modes of amending the
Constitution as embodied in Section 1. The committee members felt that this system of initiative should not extend
to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article
on Amendment or Revision.[34]
xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in
the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning
Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a
self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to
the matter of amendment and should not expand into a revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in
Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public,
would only apply to amendments?
MR. SUAREZ.That is right. Those were the terms envisioned in the Committee.[35]
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:
xxx
MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the
modifications submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople,
de los Reyes and Romulo. The modified amendment in substitution of the proposed Section 2 will now read as
follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE
OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in
Section 2 of our completed Committee Report No. 7, we accept the proposed amendment.[36]

Page

18

The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain
procedures to carry out the initiative...?
MR. DAVIDE. It can.
xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature from asking another body to
set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be
subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people,
may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures
to be proposed by the legislative body must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?
MR. DAVIDE. Yes.[37]
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to -- NOT REVISION of -- the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to
"amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments" not "revision."[38]
Commissioner Davide further emphasized that the process of proposing
through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

amendments

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the
Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of
three-fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the
issue of calling a constitutional convention, a majority of the National Assembly is required, the import being that
the process of amendment must be made more rigorous and difficult than probably initiating an ordinary legislation
or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing
the requirement approved by the Committee on the Legislative because it would require another voting by the
Committee, and the voting as precisely based on a requirement of 10 percent.Perhaps, I might present such a
proposal, by way of an amendment, when the Commission shall take up the Article on the Legislative or on the
National Assembly on plenary sessions.[39]
The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION
NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE
OF THIS RIGHT.[40]
The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July
1986.[41]Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce
an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again
approved on Second and Third Readings on 1 August 1986.[42]

Page

19

However, the Committee on Style recommended that the approved Section 2 be amended by
changing percent to per centum and thereof to therein and deleting the phrase by law in the second
paragraph so that said paragraph reads: The Congress[43] shall provide for the implementation of the
exercise of this right.[44] This amendment was approved and is the text of the present second paragraph of
Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress provided for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No.
6735.
There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII
then reading:
The Congress[45] shall by law provide for the implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the rules
implementingthe exercise of the right. The rules means the details on how [the right] is to be carried out.
[46]

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, [47] which dealt
with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b)
House Bill No. 988,[48] which dealt with the subject matter of House Bill No. 497, as well as with initiative
and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of
Article XVII of the Constitution. Senate Bill No. 17[49] solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated
Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June
1989 by the Senate[50] and by the House of Representatives.[51] This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to provide for the
implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:
SECTION 2. Statement and Policy. -- The power of the people under a system of initiative and referendum to
directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions
passed by any legislative bodyupon compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a delayed afterthought. That word is neither germane
nor relevant to said section, which exclusively relates to initiative and referendum on national laws and
local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As
pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are
not accorded the power todirectly propose, enact, approve, or reject, in whole or in part, the Constitution
through the system of initiative. They can only do so with respect to laws, ordinances, or resolutions.
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1
of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and
appropriately used the phrases propose and enact, approve or reject and in whole or in part. [52]
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide
for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among
other things, statement of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of
the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:
(c) The petition shall state the following:

c.2 the proposition;

Page

20

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case
may be;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition. (Underscoring supplied).
The use of the clause proposed laws sought to be enacted, approved or rejected, amended or repealed
only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for
Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of
the people to directly propose amendments to the Constitution is far more important than the initiative on
national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed
under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of
Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no
room for doubt that the classification is not based on the scope of the initiative involved, but on
its nature and character. It is national initiative, if what is proposed to be adopted or enacted is a national
law, or a law which only Congress can pass. It is local initiative if what is proposed to be adopted or
enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis
and clearer understanding:
SEC. 3. Definition of terms -xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal,
or barangay law, resolution or ordinance. (Underscoring supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative
on amendments to the Constitution.[53]
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b)
and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an election called for the
purpose shall become effective fifteen (15) days after certification and proclamation of the Commission.
(Underscoring supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of
local governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined by law, may file a petition for
indirect initiative with the House of Representatives, and other legislative bodies....

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21

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency
or insufficiency of the petition for initiative or referendum, which could be petitions for both national and
local initiativeand referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local Initiative and
Referendum is misplaced,[54] since the provision therein applies to both national and local initiative and
referendum. It reads:
SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the proper courts from declaring null
and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the
local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in
the implementation of initiative and referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the
Philippines; and
(f) The effects of the approval or rejection of the proposition.[55]
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the invocation of the power of initiative as
a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as
to whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their
approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.[56]
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word Constitution in Section 2; (b) defines initiative on the
Constitution and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of
plebiscite as the process by which the proposition in an initiative on the Constitution may be approved or
rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. R.A. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service. [57]

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22

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by empowering the COMELEC to
promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. [58]
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest.[59] The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[60]
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to
promulgate rules and regulations is a form of delegation of legislative authority under no. 5
above. However, in every case of permissible delegation, there must be a showing that the delegation
itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes astandard -- the limits of which are
sufficiently determinate and determinable -- to which the delegate must conform in the performance of his
functions.[61] A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected.[62]
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the
COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement
the exercise of the right of the people to directly propose amendments to the Constitution through the
system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELECs power
under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to
therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or
(b) a law where subordinate legislation is authorized and which satisfies the completeness and the
sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress
to implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters of
which every legislative district is represented by at least 3% of the registered voters therein. The Delfin
Petition does not contain signatures of the required number of voters. Delfin himself admits that he has
not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is theinitiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the
form of the petition;[63] (2) to issue through its Election Records and Statistics Office a certificate on the
total number of registered voters in each legislative district; [64] (3) to assist, through its election registrars,
in the establishment of signature stations;[65] and (4) to verify, through its election registrars, the signatures
on the basis of the registry list of voters, voters affidavits, and voters identification cards used in the
immediately preceding election.[66]
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The latter knew that the
petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or
under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the
said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a

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23

mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing
on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion
and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of the elective national and local officials is an amendment to, and not a revision of, the Constitution
is rendered unnecessary, if not academic.

CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a
sufficient law shall have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not
tarry any longer in complying with the constitutional mandate to provide for the implementation of the right
of the people under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno, Francisco and
Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.

EN BANC
IN THE MATTER OF THE PETITION
FOR DISQUALIFICATION OF
TESS DUMPIT-MICHELENA,
TESS DUMPIT-MICHELENA,
Petitioner,
- versus CARLOS BOADO,
FERNANDO CALONGE,
SALVADOR CARRERA,
BENITO CARRERA,
DOMINGO CARRERA, and
ROGELIO DE VERA,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
IN THE MATTER OF THE PETITION
TO DENY DUE COURSE OR

G.R. Nos. 163619-20

Present:
Davide, Jr., C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.

TESS DUMPIT-MICHELENA,
Petitioner,

24
Page

TO CANCEL CERTIFICATE
OF CANDIDACY FOR MAYOR,

- versus CARLOS BOADO,

FERNANDO CALONGE,
SALVADOR CARRERA,
Promulgated:
BENITO CARRERA,
DOMINGO CARRERA, and
November 17, 2005
ROGELIO DE VERA,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CARPIO, J.:

The Cases

Before this Court is a petition for certiorari[1] assailing the 9 March 2004 Resolution [2] of the Commission on
Elections (COMELEC) Second Division and the 7 May 2004 Resolution [3] of the COMELEC En Banc in SPA 04015[4] and SPA 04-016.[5]

The COMELEC Second Division cancelled the certificate of candidacy of Tess Dumpit-Michelena (DumpitMichelena) on the ground of material misrepresentation. The COMELEC En Banc denied Dumpit-Michelenas
motion for reconsideration for late filing.

The Antecedent Facts

Dumpit-Michelena was a candidate for the position of mayor in the municipality of Agoo, La Union during the 10
May 2004 Synchronized National and Local Elections. Engineer Carlos Boado, Rogelio L. De Vera, Fernando
Calonge, Benito Carrera, Salvador Carrera and Domingo Carrera (Boado, et al.) sought Dumpit-Michelenas
disqualification and the denial or cancellation of her certificate of candidacy on the ground of material
misrepresentation under Sections 74[6] and 78[7] of Batas Pambansa Blg. 881 (Omnibus Election Code).

Boado, et al. alleged that Dumpit-Michelena, the daughter of Congressman Tomas Dumpit, Sr.
(Congressman Dumpit) of the Second District of La Union, is not a resident of Agoo, La Union. Boado, et al.
claimed that Dumpit-Michelena is a resident and was a registered voter of Naguilian, La Union and that DumpitMichelena only transferred her registration as voter to San Julian West, Agoo, La Union on 24 October 2003. Her

25
Page

presence in San Julian West, Agoo, La Union was noticed only after she filed her certificate of candidacy. Boado, et
al. presented, among other things, a joint affidavit of all barangay officials of San Julian West to prove that DumpitMichelena is not a resident of the barangay.

Dumpit-Michelena countered that she already acquired a new domicile in San Julian West when she purchased from
her father, Congressman Dumpit, a residential lot on 19 April 2003. She even designated one Gardo Fontanilla as a
caretaker of her residential house. Dumpit-Michelena presented the affidavits and certifications of her neighbors in
San Julian West to prove that she actually resides in the area.

The Ruling of the COMELEC

In a Resolution issued on 9 March 2004, the COMELEC Second Division ruled, as follows:
WHEREFORE, premises considered, the instant petitions are hereby GRANTED.
Respondent is hereby adjudged to be a non-resident of Brgy. San Julian West, Agoo, La Union for
purposes of the May 10, 2004 synchronized national and local elections. Accordingly, her
Certificate of Candidacy is hereby CANCELLED on the ground of material misrepresentation
under Sections 78 and 74 of the Omnibus Election Code, as amended, in relation to Comelec
Resolution No. 6452.
SO ORDERED.[8]

The COMELEC Second Division held that Boado, et al. established by convincing evidence that DumpitMichelena is not a bona fide resident of San Julian West, Agoo, La Union. The COMELEC Second Division found
that among the neighbors of Dumpit-Michelena who executed affidavits in her favor, only one is a resident of San
Julian West. The others are from other barangays of Agoo, La Union. The COMELEC Second Division noted that
several affiants who declared that Dumpit-Michelena resides in San Julian West later retracted their statements on
the ground that they did not read the contents of the documents when they signed the affidavits.

Dumpit-Michelena moved for the reconsideration of the Resolution of the COMELEC Second Division.

In a Resolution issued on 7 May 2004, the COMELEC En Banc denied Dumpit-Michelenas motion for
reconsideration. The COMELEC En Banc ruled that the motion for reconsideration was filed three days after the last
day of the prescribed period for filing the motion.

Hence, the present recourse by Dumpit-Michelena.

26
Page
The Issues

The issues raised in the petition are the following:

1.

Whether Dumpit-Michelenas motion for reconsideration was filed on time;

2.

Whether Dumpit-Michelena was denied due process of law; and

3.

Whether Dumpit-Michelena satisfied the residency requirement under the Local Government

Code of 1991.

The Ruling of the Court

The petition is partly meritorious.

On Timeliness of the Motion for Reconsideration

We rule that the COMELEC En Banc committed grave abuse of discretion in denying Dumpit-Michelenas motion
for reconsideration for late filing.

Resolution No. 6452[9] provides:

SECTION 8. Motion for Reconsideration. - A motion to reconsider a decision, resolution, order or
ruling of a division shall be filed within three (3) days from the promulgation thereof. Such
motion, if not pro-forma, suspends the execution for implementation of the decision, resolution,
order and ruling.
Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission shall notify the
Presiding Commissioner. The latter shall, within two (2) days thereafter, certify the case to the
Commission en banc.
The Clerk of the Commission shall calendar the motion for reconsideration for the resolution of
the Commission en banc within three (3) days from the certification thereof.

In this case, the Resolution cancelling Dumpit-Michelenas Certificate of Candidacy was promulgated in open court
on 9 March 2004. Dumpit-Michelenas counsel was present during the promulgation. Following Section 8 of
Resolution No. 6452, Dumpit-Michelena had until 12 March 2004 within which to file her motion for
reconsideration. However, while Dumpit-Michelena claims to be familiar with Resolution No. 6452, she filed her

27
Page

motion for reconsideration on 15 March 2004. This is because during the promulgation of the cases on 9 March
2004, the COMELEC Second Division issued an Order[10] which states:
On call of these cases today for promulgation, counsels for the respondent appeared. There was no
appearance for the petitioners. Counsel manifested that they filed a manifestation and motion and
an urgent motion holding in abeyance the promulgation of the resolution of these cases. The
motions to hold in abeyance the promulgation is hereby denied. However, the respondent may
file a motion for reconsideration within five (5) days from receipt of the decision if the
decision is adverse to their client. (Emphasis supplied)

Apparently, the COMELEC committed an oversight in declaring that Dumpit-Michelena had five days within which
to file her motion for reconsideration. The COMELEC overlooked Resolution No. 6452. For her part, DumpitMichelena only followed the period provided in the Order. She filed her motion for reconsideration on 15 March
2004 since 14 March 2004 fell on a Sunday. This Court can hardly fault her for following the COMELEC Order.

On Denial of Due Process

Dumpit-Michelena asserts that she was denied due process when the COMELEC summarily resolved the
disqualification case against her without giving her a fair opportunity to submit additional evidence to support her
case.

Resolution No. 6452 delegates the reception of evidence in disqualification cases to field officials
designated by the COMELEC.[11] The summary nature of disqualification proceedings is provided under Section
5(A)(6) of Resolution No. 6452 which states:
6.

The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall
submit their affidavits or counter-affidavits and other documentary evidence including
their position paper or memorandum within a period of three (3) inextendible days;
The position paper or memorandum of each party shall contain the following:
a.

b.

A Statement of the Case, which is a clear and concise statement of the nature of the
action, a summary of the documentary evidence and other matters necessary to an
understanding of the nature of the controversy;
A Statement of the Issues, which is a clear and concise statement of the issues;

c.

The Argument which is a clear and concise presentation of the argument in support
of each issue; and

d.

The Relief which is a specification of the judgment which the party seeks to obtain.
The issues raised in his/its pleadings but not included in the Memorandum shall be
deemed waived or abandoned. Being a summation of the parties pleadings and
documentary evidence, the Commission may consider the memorandum alone in
deciding or resolving the petition.

In these cases, Dumpit-Michelena filed a motion for the inhibition of Atty. Marino V. Salas (Atty. Salas),
the Provincial Election Supervisor and hearing officer designated to receive the evidence of the parties. She alleged

28
Page

that Boado, et al.s counsel was the former Regional Director of the COMELEC Regional Office and undue influence
might be exerted over Atty. Salas. In the meanwhile, she submitted a semblance of a memorandum if only to insure
x x x that she would be able to convey her opposition to the petitions filed against her. [12] Dumpit-Michelena alleged
that she wanted to submit her evidence to a hearing officer who would not be biased and would not be inclined to
side with Boado, et al.

Without resolving the Motion to Inhibit, Atty. Salas forwarded the records of the case to COMELEC
Manila. However, to obviate suspicion of partiality, Atty. Salas did not make any recommendation as required under
Resolution No. 6452.

We rule that there was no denial of due process in the cases before the Court.

Section 5(A) of Resolution No. 6452 provides:

7.

The hearing must be completed within ten (10) days from the date of the filing of the
answer. The Hearing Officer concerned shall personally or through his authorized
representative submit to the Clerk of the Commission his Hearing/Case report(s) indicating
his findings and recommendations within five (5) days from the completion of the hearing
and reception of evidence together with the complete records of the case;

8.

Upon receipt of the records of the case [indicating] the findings and recommendations of
the Hearing Officer concerned, the Clerk of the Commission shall immediately docket the
case consecutively and calendar the same for raffle to a division;

9. The division to whom the case is raffled shall, after evaluation and consultation, assign
immediately the same to a member who shall pen the decision within five (5) days from the
date of consultation.
Resolution No. 6452 is clear. The hearing officer is only designated to hear and receive evidence. His conclusions
are merely recommendatory upon the COMELEC. Dumpit-Michelena knew fully well that the entire records of the
case would be forwarded to COMELEC Manila for the resolution of the cases. She had all the opportunity to present
her evidence to support her stand. Instead, she chose to file a Memorandum which she described as one done in halfhearted compliance with the rules. [13] She may not claim now that she was denied due process because she was
unable to present all her evidence before the hearing officer.

On Residency Requirement

Dumpit-Michelena failed to prove that she has complied with the residency requirement.

Section 65 of the Omnibus Election Code provides that the qualifications for elective provincial, city,
municipal and barangay officials shall be those provided for in the Local Government Code. Section 39(a) of the
Local Government Code of 1991[14] states:

Page

29

SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other local language or dialect.
(Emphasis supplied)

The concept of residence in determining a candidates qualification is already a settled matter. For election
purposes, residence is used synonymously with domicile. [15] In Co v. Electoral Tribunal of the House of
Representatives,[16] this Court declared:
x x x The term residence has been understood as synonymous with domicile not only under the
previous Constitutions but also under the 1987 Constitution.
The deliberations of the Constitutional Commission reveal that the meaning of residence
vis-a-vis the qualifications of a candidate for congress continues to remain the same as that of
domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than
one year immediately preceding the day of the elections. So my question is: What
is the committees concept of residence of a candidate for the legislature? Is it
actual residence or is it the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National
Assembly are concerned, the proposed section merely provides, among others,
and a resident thereof, that is, in the district, for a period of not less than one year
preceding the day of the election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was domicile. (Records of the 1987
Constitutional Convention, Vol. II, July 22, 1986, p. 87)
xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that resident has been interpreted
at times as a matter of intention rather than actual residence.
Mr. Delos Reyes: Domicile.
M[r]s. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to
go back to actual residence rather than mere intention to reside?
Mr. Delos Reyes: But we might encounter some difficulty especially considering
that a provision in the Constitution in the Article on Suffrage says that Filipinos
living abroad may vote as enacted by law. So, we have to stick to the original
concept that it should be by domicile and not physical and actual residence.
(Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110)
The framers of the Constitution adhered to the earlier definition given to the word
residence which regarded it as having the same meaning as domicile.

Prior to her transfer, Dumpit-Michelena was a resident and registered voter of Ambaracao North,
Naguilian, La Union. She claims that she has already acquired a new domicile in San Julian West and is thus
qualified to run for the position of mayor. She transferred her registration as a voter of San Julian West on 24
October 2003.

30
Page

Dumpit-Michelena presented a Deed of Sale dated 19 April 2003 showing her acquisition of a parcel of
land in San Julian West where she eventually built a house. However, property ownership is not indicia of the right
to vote or to be voted for an office. [17] Further, domicile of origin is not easily lost. [18] To successfully effect a change
of domicile, there must be concurrence of the following requirements:

(1) an actual removal or an actual change of domicile;

(2) a bona fide intention of abandoning the former place of residence and establishing a new one; and
(3) acts which correspond with the purpose.[19]

Without clear and positive proof of the concurrence of these three requirements, the domicile of origin
continues.[20] To effect change, there must be animus manendi coupled with animus non revertendi.[21] The intent to
remain in the new domicile of choice must be for an indefinite period of time, the change of residence must be
voluntary, and the residence at the place chosen for the new domicile must be actual.[22]

The Court agrees with the COMELEC Second Division that Dumpit-Michelena failed to establish that she
has abandoned her former domicile. Among the documents submitted by Dumpit-Michelena is a Special Power of
Attorney[23] authorizing Clyde Crispino (Crispino) to apply, facilitate and follow up the issuance of a building permit
of the beach house she intended to put up in her lot. She also authorized Crispino to help her caretaker oversee the
lot and the construction of the beach house. As correctly pointed out by the COMELEC Second Division, a beach
house is at most a place of temporary relaxation. It can hardly be considered a place of residence.

In addition, the designation of caretaker with monthly compensation of P2,500[24] only shows that DumpitMichelena does not regularly reside in the place. The Deed of Absolute Sale states that Dumpit-Michelena is a
resident of Naguilian, La Union[25] while the Special Power of Attorney states that she is a resident of San Julian
West, Agoo, La Union and No. 6 Butterfly St. Valle Verde 6, Pasig, Metro Manila. Dumpit-Michelena obviously has
a number of residences and the acquisition of another one does not automatically make the most recently acquired
residence her new domicile.

We considered the affidavits submitted by Dumpit-Michelena where the affiants retracted their previous
affidavits stating that Dumpit-Michelena was not a resident of San Julian West. The affiants alleged that they signed
the first affidavits without knowing their contents. However, the COMELEC Second Division pointed out that
Boado, et al. also submitted affidavits with the affiants repudiating their previous affidavits that Dumpit-Michelena

31
Page

was a resident of San Julian West. The Court is inclined to give more weight to the joint affidavit of all
the barangay officials of San Julian West attesting that Dumpit-Michelena is not a resident of their barangay.

Hence, the COMELEC Second Division did not commit grave abuse of discretion in cancelling DumpitMichelenas Certificate of Candidacy.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution dated 9 March 2004 of the
COMELEC Second Division and the Resolution dated 7 May 2004 of the COMELEC En Banc
withMODIFICATION that Tess Dumpit-Michelenas motion for reconsideration was not filed late.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 167591

May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners,

vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.
x---------------------------------------------x
G.R. No. 170577

May 9, 2007

ANTHONY D. DEE, Petitioner,

vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the
COMELEC En Banc.
G.R. No. 167591
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO
"BOKING" MORALES
In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as
candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007.
Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy.
On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the
Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales
Certificate of Candidacy on the ground that he was elected and had served three previous consecutive
terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the

Page

32

Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government
Code.
In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the
term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third
term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the
office" or as a "de facto officer" because of the following reasons:
a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor
was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision
dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and
executory on August 6, 2001; and
b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16,
1999 to July 15, 1999.
On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales
disqualified to run for the position of municipal mayor on the ground that he had already served three (3)
consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May 7, 2004, he filed with
the COMELEC En Banc a motion for reconsideration.
On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales motion for
reconsideration and setting aside that of the Second Division. The COMELEC En Banc held that since the
Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales
proclamation void, his discharge of the duties in the Office of the Mayor in Mabalacat is that of a de facto
officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has been
severed.
Hence, this petition for certiorari.
G.R. No. 170577
ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES
On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the
term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed
with the RTC, Branch 61, Angeles City a petition for quo warranto against the said respondent. Petitioner
alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run
for another term or fourth term. The case was docketed as Civil Case No. 11503.
In his answer, respondent Morales raised the following defenses:
a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City
declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner Dee
was then proclaimed the duly elected mayor; and
b. He was preventively suspended for six months by the Ombudsman, during the same term in an
anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat. 1
In its Decision dated November 22, 2004, the RTC dismissed petitioner Dees petition for quo warranto on
the ground that respondent Morales did not serve the three-term limit since he was not the duly elected
mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus:
Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998
elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of
Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the
duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected
Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No.
98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57,
Angeles City. x x x.
Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales
violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections.
Consequently, his proclamation as such should be set aside. In a Resolution dated July 29, 2005 the

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33

COMELEC First Division issued a Resolution dismissing the appeal. It held that respondent Morales
cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his
proclamation was declared void by the RTC, Branch 57 of Angeles City. He only served as a caretaker,
thus, his service during that term should not be counted.
On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a
Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the
Second Division.
Hence, petitioner Dees instant petition for certiorari.
Both cases may be decided based on the same facts and issues.
It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the
following consecutive terms:
a) July 1, 1995 to June 30, 1998
b) July 1, 1998 to June 30, 2001
c) July 1, 2001 to June 30, 2004
d) July 1, 2004 to June 30, 2007
THE PRINCIPAL ISSUE.
Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his
fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he
served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles
City.
Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue
in Ong v. Alegre2 with identical facts, thus:
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of
mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC
winner in the contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850
before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the
duly elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July 4, 2001,
when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the
2001-2004 term as mayor-elected for the municipality of San Vicente.
xxx
A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis
assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001
should be considered as full service for the purpose of the three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand,
disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San
Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was
contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4,
2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation
subsequently declared void is no proclamation at all and one assuming office on the strength of a
protested proclamation does so as a presumptive winner and subject to the final outcome of the election
protest.
xxx
For the three-term limit for elective local government officials to apply, two conditions or requisites must
concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same
local government post, and (2) that he has fully served three (3) consecutive terms.

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34

With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring
petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections.
There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality
in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the
July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral
term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May
1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially
declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed,
therefore, is whether or not Francis assumption of office as Mayor of San Vicente, Camarines Norte from
July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the
consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be
counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and
statutory provisions, supra, barring local elective officials from being elected and serving for more than
three consecutive terms for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis
opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of
San Vicente. However, that disposition, it must be stressed, was without practical and legal use and
value, having been promulgated after the term of the contested office has expired. Petitioner Francis
contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was
under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board
of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his
assumption of office and his continuous exercise of the functions thereof from start to finish of the term,
should legally be taken as service for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view
would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue
of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a
proclamation made in due course after an election.
Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in Lonzanida v. Comelec,
citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive
terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the
same position in the May 1995 elections, won and discharged his duties as Mayor. However, his
opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in
a decision dated January 8, 1997, ruled that there was a failure of elections and declared the position
vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the
post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May
1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the threeterm rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be
considered as having been duly elected to the post in the May 1995 election, and that he did not fully
serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court
pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because
he was ordered to vacate [and in fact vacated] his post before the expiration of the term."
The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the
result of the mayoralty elections was declared a nullity for the stated reason of "failure of election," and,
as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an
order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998
mayoral term, there being an involuntary severance from office as a result of legal processes. In fine,
there was an effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly,
here, there was actually no interruption or break in the continuity of Francis service respecting the 19982001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased
discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period
covering the 1998-2001 term.
It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of
the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in
the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July
4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-

Page

35

term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to
respondent Morales who is similarly situated.
Here, respondent Morales invoked not only Lonzanida v. COMELEC, 3 but also Borja, Jr. v. Commission
on Elections4 which is likewise inapplicable. The facts in Borja are:
Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term
ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of
the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years
which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years
ending June 30, 1998.
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative
to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor,
sought Capcos disqualification on the theory that the latter would have already served as mayor for three
consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and
declared private respondent Capco disqualified from running for reelection as mayor of Pateros. However,
on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared
Capco eligible to run for mayor in the May 11, 1998 elections. x x x
This Court held that Capcos assumption of the office of mayor upon the death of the incumbent may not
be regarded as a "term" under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160
(the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of
less than three years. Moreover, he was not elected to that position.
Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a recall
election for the remaining term is not the "term" contemplated under Section 8, Article X of the
Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed,
there was a "break" in the service of private respondent Ramon T. Talanga as mayor. He was a "private
citizen" for a time before running for mayor in the recall elections.
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the
position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding
the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as
mayor. To reiterate, as held in Ong v. Alegre,6 such circumstance does not constitute an interruption in
serving the full term.
Section 8, Article X of the Constitution can not be more clear and explicit
The term of the office of elected local officials x x x, shall be three years and no such official shall serve
for more than three consecutive terms. x x x
Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:
No local official shall serve for more than three consecutive terms in the same position. x x x
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously
without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of
Mabalacat for twelve (12) continuous years.
In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus:
The framers of the Constitution, by including this exception, wanted to establish some safeguards against
the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated
during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest
in their positions and to accumulate these powers and prerequisites that permit them to stay on
indefinitely or to transfer these posts to members of their families in a subsequent election. x x x
xxx

Page

36

It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local
elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next
mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private
citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during
which the local elective official steps down from office and ceases to exercise power or authority over the
inhabitants of the territorial jurisdiction of a particular local government unit.
This Court reiterates that the framers of the Constitution specifically included an exception to the peoples
freedom to choose those who will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office.
To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive
terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this
exception. Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner
would then be possibly holding office as chief executive over the same territorial jurisdiction and
inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the
Constitution, if not abhorred by it.
This is the very situation in the instant case. Respondent Morales maintains that he served his second
term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the
Constitution is violated and its purpose defeated when an official serves in the same position for three
consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the
prerequisites of the office which enables him "to stay on indefinitely".
Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.
G.R. No. 167591
Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003
should be cancelled. The effect of the cancellation of a Certificate of Candidacy is provided under
Sections 6 and 7 of R.A. No. 6646, thus:
SECTION 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 guilt is strong.
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure
hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as
provided in Section 78 of Batas Pambansa Blg. 881.
in relation to Section 211 of the Omnibus Election Code, which provides:
SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot
shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of
election inspectors shall observe the following rules, bearing in mind that the object of the election is to
obtain the expression of the voters will:
xxx
19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for
an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate
the whole ballot.
xxx
In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004
elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be
considered stray votes.
G.R. No. 170577

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37

Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant
petition for quo warranto has become moot.
Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who
shall serve for the remaining portion of the 2004 to 2007 term.
In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a
substitute winner, thus:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office.
xxx
It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the
disqualified candidate should, in effect, be considered null and void. This would amount to
disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of
Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and
in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise
of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot
assume the office.
Whether or not the candidate whom the majority voted for can or cannot be installed, under no
circumstances can minority or defeated candidate be deemed elected to the office. Surely, the 12,602
votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as
certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).
xxx
As a consequence of petitioners ineligibility, a permanent vacancy in the contested office has occurred.
This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government
Code, to wit:
Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor.
(a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vicemayor concerned shall become the governor or mayor. x x x
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of
Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor in
Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized
National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration
of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.
This Decision is immediately executory.
SO ORDERED.

EN BANC
FRANCIS G. ONG, G.R. No. 163295 Petitioner,
Present:
PANGANIBAN, C.J.
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus - CARPIO
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,

38
Page

CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.

JOSEPH STANLEY ALEGRE and Promulgated:

COMMISSION ON ELECTIONS,
Respondents. January 23, 2006
x---------------------x
ROMMEL G. ONG,
Petitioner,
-

versus - G.R. No. 163354

JOSEPH STANLEY ALEGRE and

COMMISSION ON ELECTIONS,
Respondents.
x----------------------------------------x
DECISION
GARCIA, J.:

Before the Court are these two separate petitions under Rule 65 of the Rules of Court to
nullify and set aside certain issuances of the Commission on Elections (COMELEC) en banc.
The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G.
Ong impugning the COMELEC en banc resolution[1] dated May 7, 2004 in SPA Case No. 04048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the
resolution dated March 31, 2004[2] of the COMELECs First Division.
The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application
for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other
things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en
bancresolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No.
163295.
Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these
petitions.
The recourse stemmed from the following essential and undisputed factual backdrop:
Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis)
were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines
Norte in theMay 10, 2004 elections. Francis was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify,
Deny Due Course and Cancel Certificate of Candidacy [3] of Francis. Docketed as SPA Case
No. 04-048, the petition to disqualify was predicated on the three-consecutive term rule,
Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001

39

mayoralty elections and have assumed office as mayor and discharged the duties thereof for

Page

three (3) consecutive full terms corresponding to those elections.

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each
other for the office of mayor of San Vicente, Camarines Norte, with the latter being
subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed an
election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at
Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998
mayoralty contest,[4]albeit the decision came out only on July 4, 2001, when Francis had fully
served the 1998-2001 mayoralty term and was in fact already starting to serve the 20012004 term as mayor-elect of the municipality of San Vicente.
Acting on Alegres petition to disqualify and to cancel Francis certificate of candidacy for the
May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a
resolution[5]dismissing the said petition of Alegre, rationalizing as follows:
We see the circumstances in the case now before us analogous to those obtaining in the sample
situations addressed by the Highest Court in the Borja case. Herein, one of the requisites for the
application of the three term rule is not present. Francis Ong might have indeed fully served the
mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from
1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of
Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its
decision that Stanley Alegre was the legally elected mayor in the 1998 mayoralty election in
San Vicente, Camarines Norte. This disposition had become final after the [COMELEC]
dismissed the appeal filed by Ong, the case having become moot and academic.
xxx xxx xxx
On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable
in the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001
because he was not duly elected to the post; he merely assumed office as a presumptive winner;
which presumption was later overturned when [the RTC] decided with finality that [he] lost in the
May 1998 elections. (Words in bracket and emphasis in the original).
Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that
there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs.
Comelec andLonzanida vs. Comelec, infra.

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution [6] reversing
the March 31, 2004 resolution of the COMELECs First Division and thereby (a) declaring
Francis as disqualified to run for mayor of San Vicente, Camarines Norte in the May 10,
2004; (b) ordering the deletion of Francis name from the official list of candidates; and (c)
directing the concerned board of election inspectors not to count the votes cast in his favor.
The following day, May 8, Francis received a fax machine copy of the aforecited May
7, 2004 resolution, sending him posthaste to seek the assistance of his political party, the
Nationalist Peoples Coalition, which immediately nominated his older brother, Rommel
Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is
past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of
candidacy for the position of mayor, as substitute candidate for his brother Francis.
The following undisputed events then transpired:

40
Page

1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to
Deny Due Course to or Cancel Certificate of Rommel Ong.
2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter [7] to
Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cario and Acting Election
Officer Emily G. Basilonia in which he appealed that, owing to the COMELECs inaction on
Alegre's petition to cancel Rommels certificate of candidacy, the name Rommel Ong be
included in the official certified list of candidates for mayor of San Vicente, Camarines Norte.
The desired listing was granted by the PES Carino.
3. On May 10, 2004, Alegre wrote [8] to then COMELEC Commissioner Virgilio
Garcillano, Commissioner-in-Charge for Regions IV and V, seeking clarification on the legality
of the action thus taken by the PES Cario. Responding, Commissioner Garcillano issued a
Memorandum under date May 10, 2004 [9] addressed to PES Liza D. Zabala-Cario, ordering
her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on
May 7, 2004.[10] Said Memorandum partly stated:
The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV,
Law Department], which he quote your stand, "that substitution is not proper if the certificate of
the substituted candidacy is denied due course. In the Resolution of the Commission En banc, the
Certificate of candidacy of Francis Ong was denied due course," and elaborated further that:
"x x x there is an existing policy of the Commission not to include the
name of a substitute candidate in the certified list of candidates unless the
substitution is approved by the Commission.
In view, thereof, it is recommended that 1) the substitute certificate of
candidacy of Rommel Ong Gan Ong, should be denied due course; and 2) the
election officer be directed to delete his name from the list of candidates."
The above position of the Commission was in line with the pronouncement of Supreme
Court in Miranda vs. Abaya (311 SCRA 617) which states:
"There can no valid substitution where a candidate is excluded not only
by disqualification but also by denial and cancellation of his certificate of
candidacy."
In view thereof, you are hereby directed to faithfully implement the said Resolution of
the Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the
original; words in bracket added].
4. Owing to the aforementioned Garcillano Memorandum, it would seem that the
Chairman of the Municipal Board of Canvasser of San Vicente issued an order enjoining all
concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest
with that Board.[11]
5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the
winning candidate for the mayoralty post in San Vicente, Camarines Norte. [12]

On May 12, 2004, Francis filed before the Court a petition for certiorari, presently
docketed as G.R. No. 163295. His brother Rommels petition in G.R. No. 163354 followed
barely a week after.
In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No.
163354were consolidated.[13]
Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private
respondent Alegres Petition to Deny Due Course to or Cancel Certificate of Candidacy of
Rommel Ong, for being moot and academic.[14]
The issues for resolution of the Court are:

41

In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting

Page

to lack or excess of jurisdiction in issuing its en banc resolution dated May 7, 2004 declaring
petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the
May 10, 2004 elections and consequently ordering the deletion of his name from the official
list of candidates so that any vote cast in his favor shall be considered stray.
In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it
denied due course to Rommels certificate of candidacy in the same mayoralty election as
substitute for his brother Francis.
A resolution of the issues thus formulated hinges on the question of whether or not
petitioner Franciss assumption of office as Mayor of San Vicente, Camarines Norte for the
mayoralty term 1998 to 2001 should be considered as full service for the purpose of the
three-term limit rule.
Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on
the other hand, disagrees. He argues that, while he indeed assumed office and discharged
the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayorelect in the May 1998 election was contested and eventually nullified per the decision of the
RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues,
citing Lonzanida vs. Comelec[15], that a proclamation subsequently declared void is no
proclamation at all and one assuming office on the strength of a protested proclamation
does so as a presumptive winner and subject to the final outcome of the election protest.
The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987
Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.

Section 43 (b) of the Local Government Code restates the same rule as follows:
Sec. 43. Term of Office.
xxx xxx xxx
(b) No local elective official shall serve for more than three consecutive years in the same
position. Voluntary renunciation of the office for any length of time shall not be considered an
interruption in the continuity of service for the full term for which the elective official concerned
was elected.

For the three-term limit for elective local government officials to apply, two conditions or
requisites must concur, to wit: (1) that the official concerned has been elected for three (3)
consecutive terms in the same local government post, and (2) that he has fully served three
(3) consecutive terms.[16]

42

With the view we take of the case, the disqualifying requisites are present herein, thus

Page

effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte
in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having
been duly elected mayor of that municipality in the May 1995 and again in the May 2001
elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004
terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit
there can also be no quibbling that Francis ran for mayor of the same municipality in the
May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a
proclamation initially declaring him mayor-elect of the municipality of San Vicente. The
question that begs to be addressed, therefore, is whether or not Franciss
assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998
to June 30, 2001, may be considered as one full term service in the context of the
consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, service for the full term, and
should be counted as a full term served in contemplation of the three-term limit prescribed
by the constitutional and statutory provisions, supra, barring local elective officials from
being elected and serving for more than three consecutive term for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, [17] that
it was Francis opponent (Alegre) who won in the 1998 mayoralty race and, therefore, was
the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was
without practical and legal use and value, having been promulgated after the term of the
contested office has expired. Petitioner Francis contention that he was only a presumptive
winner in the 1998 mayoralty derby as his proclamation was under protest did not make him
less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of
San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his
assumption of office and his continuous exercise of the functions thereof from start to finish
of the term, should legally be taken as service for a full term in contemplation of the threeterm rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such
contrary view would mean that Alegre would under the three-term rule - be considered as
having served a term by virtue of a veritably meaningless electoral protest ruling, when
another actually served such term pursuant to a proclamation made in due course after an
election.

Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling
in, Lonzanida vs. Comelec,[18] citing Borja vs. Comelec[19]. In Lonzanida, petitioner Lonzanida
was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior
to the May 8, 1995 elections. He then ran again for the same position in the May 1995
elections, won and discharged his duties as Mayor. However, his opponent contested his

43

proclamation and filed an election protest before the RTC of Zambales, which, in a decision

Page

dated January 9, 1997, ruled that there was a failure of elections and declared the position
vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to
vacate the post. Lonzanida assumed the office and performed his duties up to March 1998
only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town.
A petition to disqualify, under the three-term rule, was filed and was eventually granted.
There, the Court held that Lonzanida cannot be considered as having been duly elected to
the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty
term by reason of involuntary relinquishment of office. As the Court pointedly observed,
Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was
ordered to vacate [and in fact vacated] his post before the expiration of the term.
The difference between the case at bench and Lonzanida is at once apparent. For
one, inLonzanida, the result of the mayoralty election was declared a nullity for the stated
reason offailure of election, and, as a consequence thereof, the proclamation of Lonzanida as
mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an
involuntary severance from office as a result of legal processes. In fine, there was an
effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case.
But more importantly, here, there was actually no interruption or break in the continuity of
Francis service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never
unseated during the term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the
1998-2001 term.
The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en
bancwhen it disqualified Francis from running in the May 10, 2004 elections for the
mayoralty post of San Vicente and denying due course to his certificate of candidacy by
force of the constitutional and statutory provisions regarding the three-term limit rule for any
local elective official cannot be sustained. What the COMELEC en banc said in its May 7,
2004 assailed Resolution commends itself for concurrence:
As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in
the Borja andLonzanida cases in the instant petition will be erroneous because the factual milieu
in those cases is different from the one obtaining here. Explicitly, the three-term limit was not
made applicable in the cases of Borja andLonzanida because there was an interruption in the
continuity of service of the three consecutive terms. Here, Respondent Ong would have served
continuously for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001
could not be simply discounted on the basis that he was not duly elected thereto on account of
void proclamation because it would have iniquitous effects producing outright injustice and
inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Word
in bracket added; emphasis in the original)

Given the foregoing consideration, the question of whether or not then Commissioner Virgilio
Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum,

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44

ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even
before its finality[20]is now of little moment and need not detain us any longer.
Just as unmeritorious as Francis petition in G.R. No. 163295 is Rommels petition in G.R. No.
163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a
substitute candidate in the official list of candidates for the May 10, 2004 elections. As it
were, existing COMELEC policy[21] provides for the non-inclusion of the name of substitute
candidates in the certified list of candidates pending approval of the substitution.
Not to be overlooked is the Courts holding in Miranda vs. Abaya,[22] that a candidate whose
certificate of candidacy has been cancelled or not given due course cannot be substituted by
another belonging to the same political party as that of the former, thus:
While there is no dispute as to whether or not a nominee of a registered or accredited
political party may substitute for a candidate of the same party who had been disqualified for any
cause, this does not include those cases where the certificate of candidacy of the person to be
substituted had been denied due course and cancelled under Section 78 of the Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where a
candidate may be validly substituted, there is no mention of the case where a candidate is excluded
not only by disqualification but also by denial and cancellation of his certificate of candidacy.
Under the foregoing rule, there can be no valid substitution for the latter case, much in the same
way that a nuisance candidate whose certificate of candidacy is denied due course and/or
cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have
so easily and conveniently included those persons whose certificates of candidacy have been
denied due course and/or cancelled under the provisions of Section 78 of the Code.
xxx xxx xxx
A person without a valid certificate of candidacy cannot be considered a candidate in
much the same way as any person who has not filed any certificate of candidacy at all can not, by
any stretch of the imagination, be a candidate at all.
xxx xxx xxx
After having considered the importance of a certificate of candidacy, it can be readily
understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we
ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the
case at bar and considering that Section 77 of the Code is clear and unequivocal that only an
official candidate of a registered or accredited party may be substituted, there demonstrably cannot
be any possible substitution of a person whose certificate of candidacy has been cancelled and
denied due course.

In any event, with the hard reality that the May 10, 2004 elections were already pass,
Rommel Ongs petition in G.R. No. 163354 is already moot and academic.
WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution
dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED.
Costs against petitioners.
SO ORDERED.

EN BANC
[G.R. No. 133495. September 3, 1998]
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and JOSE T. CAPCO,
JR., respondents.
DECISION

45

MENDOZA, J.:

Page

This case presents for determination the scope of the constitutional provision barring elective officials, with the
exception of barangay officials, from serving more than three consecutive terms. In particular, the question is
whether a vice-mayor who succeeds to the office of mayor by operation of law and serves the remainder of the term
is considered to have served a term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term ending
June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent,
Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30,
1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998.[1]
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to
the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos
disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June
30, 1998 and would therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and
declared private respondent Capco disqualified from running for reelection as mayor of Pateros. [2] However, on
motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible
to run for mayor in the May 11, 1998 elections.[3] The majority stated in its decision:
In both the Constitution and the Local Government Code,
the three-term limitation refers to the term of office for
which the local official was elected. It made no reference to
succession to an office to which he was not elected. In the
case before the Commission, respondent Capco was not
elected to the position of mayor in the January 18, 1988
local elections. He succeeded to such office by operation of
law and served for the unexpired term of his
predecessor.Consequently, such succession into office is not
counted as one (1) term for purposes of the computation of
the three-term limitation under the Constitution and the
Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes against petitioners
7,773 votes and was proclaimed elected by the Municipal Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of he COMELEC and to
seed a declaration that private respondent is disqualified to serve another term as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from September 2, 1989 to June 30, 992
should be considered as service for full one term, and since he thereafter served from 1992 to 1998 two more terms
as mayor, he should be considered to have served three consecutive terms within the contemplation of Art. X, 8 of
the Constitution and 43(b) of the Local Government Code. Petitioner stresses the fact that, upon the death of Mayor
Cesar Borja on September 2, 1989, private respondent became the mayor and thereafter served the remainder of the
term. Petitioner argues that it is irrelevant that private respondent became mayor by succession because the purpose
of the constitutional provision in limiting the number of terms elective local officials may serve is to prevent a
monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office - . . .
(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.

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46

First, to prevent the establishment of political dynasties is not the only policy embodied in the constitutional
provision in question. The other policy is that of enhancing the freedom of choice of the people. To consider,
therefore, only stay in office regardless of how the official concerned came to that office whether by election or by
succession by operation of law would be to disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that the members of
the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they
were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further
reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner
Christian Monsod that such officials be simply barred from running for the same position in the succeeding election
following the expiration of the third consecutive term. [4] Monsod warned against prescreening candidates [from]
whom the people will choose as a result of the proposed absolute disqualification, considering that the draft
constitution provision recognizing peoples power.[5]
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a perpetual disqualification
on those who have served their terms in accordance with the limits on consecutive service as decided by the
Constitutional Commission.I would be very wary about this Commission exercising a sort of omnipotent power in
order to disqualify those who will already have served their terms from perpetuating themselves in office. I think the
Commission achieves its purpose in establishing safeguards against the excessive accumulation of power as a result
of consecutive terms. We do put a cap on consecutive service in the case of the President, six years; in the case of
the Vice-President, unlimited; and in the case of the Senators, one reelection. In the case of the Members of
Congress, both from the legislative districts and from the party list and sectoral representation, this is now under
discussion and later on the policy concerning local officials will be taken up by the Committee on Local
Governments. The principle remains the same. I think we want to prevent future situations where, as a result of
continuous service and frequent reelections, officials from the President down to the municipal mayor tend to
develop a proprietary interest in their position and to accumulate those powers and perquisites that permit them to
stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is
taken care of because we put a gap on the continuity or the unbroken service of all of these officials. But where we
now decide to put these prospective servants of the people or politicians, if we want to use the coarser term, under a
perpetual disqualification, I have a feeling that we are taking away too much from the people, whereas we should be
giving as much to the people as we can in terms of their own freedom of choice.[6]
Other commissioners went on record against perpetually disqualifying elective officials who have served a
certain number of terms as this would deny the right of the people to choose. As Commissioner Yusup R. Abubakar
asked, why should we arrogate unto ourselves the right to decide what the people want? [7]
Commisioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to "allow the
people to exercise their own sense of proportion and [rely] on their own strength to curtail power when it
overreaches itself.[8]
Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual disqualification after serving a
number of terms] to the premise accepted by practically everybody here that our people are politically
mature? Should we use this assumption only when it is convenient for us, and not when it may also lead to a
freedom of choice for the people and for politicians who may aspire to serve them longer? [9]
Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is
the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged
stay in office. The second is the idea of election, derived from the concern that the right of the people to choose
those whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the
assumption that the officials concerned were serving by reason of reelection. This is clear from the following
exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI 4 and 7 of the
Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the
Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.

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47

MR. GASCON. And the question that we left behind before if the Gentlemen will remember- was: How long
will that period of rest be? Will it be one election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during
the electionfollowing the expiration of the first 12 years, whether such election will be on the third year or
on the sixth year thereafter, this particular member of the Senate can run. So it is not really a period of
hibernation for six years. That was the Committees stand.[10]
Indeed, a fundamental tenet of representative democracy is that the people should be allowed to choose whom
they please to govern them.[11] To bar the election of a local official because he has already served three terms,
although the first as a result of succession by operation of law rather than election, would therefore be to violate this
principle.
Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that
Art. X, 8contemplates service by local officials for three consecutive terms as a result of election. The first sentence
speaks of the term of office of elective local officials and bars such official[s] from serving for more than three
consecutive terms. The second sentence, in explaining when an elective local official may be deemed to have served
his full term of office, states that 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. The term served must
therefore be one for which [the official concerned] was elected. The purpose of this provision is to prevent a
circumvention of the limitation on the number of terms an elective official may serve. Conversely, if he is not
serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term now withstanding his voluntary renunciation of office
prior to its expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly bars members of the
House of Representatives from serving for more than three terms. Commissioner Bernas states that if one is elected
Representative to serve the unexpired term of another, that unexpired term, no matter how short, will be considered
one term for the purpose of computing the number of successive terms allowed.[12]
This is actually based on the opinion expressed by Commissioner Davide in answer to a query of
Commissioner Suarez:For example, a special election is called for a Senator, and the Senator newly elected would
have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is
already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify
the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam
President? Commissioner Davide said: Yes, because we speak of term and if there is a special election, he will serve
only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the
Members of the Lower House.[13]
There is a difference, however, between the case of a vice-mayor and that of a member of the House of
Representatives who succeeds another who dies, resigns, becomes incapacitated, or is removed from office. The
vice-mayor succeeds to the mayorship by operation of law.[14] On the other hand, the Representative is elected to fill
the vacancy.[15] In a real sense, therefore, such Representative serves a term for which he was elected. As the purpose
of the constitutional provision is to limit the right ot be elected and to serve in Congress, his service of the unexpired
term is rightly counted as his first term. Rather than refute what we believe to be the intendment of Art. X, 8 with
regard to elective local officials, the case of a Representative who succeeds another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the Vice-President to the
Presidency in case of vacancy in that office. After stating that The President shall not be eligible for any reelection,
this provision says that No person who has succeeded as President and has served as such for more than four years
shall be qualified for election to the same office at any time. Petitioner contends that, by analogy, the vice-mayor
should likewise be considered to have served a full term as mayor if he succeeds to the latters office and serves for
the remainder of the term.
The framers of the Constitution included such a provision because, without it, the Vice-President, who simply
steps into the Presidency by succession would be qualified to run for President even if he has occupied that office
for more than four years. The absence of a similar provision in Art. X, 8 on elective local officials throws in bold
relief the difference between the two cases. It underscores the constitutional intent to cover only the terms of
office to which one may have been elected for purpose of the three-term limit on local elective officials,
disregarding for this purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the Presidency and serves in that office for
more than four years is ineligible for election as President. The Vice-President is elected primarily to succeed the
President in the event of the latters death, permanent disability, removal or resignation. While he may be appointed
to the cabinet, his becoming so is entirely dependent on the good graces of the President. In running for Vice-

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48

President, he may thus be said to also seek the Presidency. For their part, the electors likewise choose as VicePresident the candidate who they think can fill the Presidency in the event it becomes vacant. Hence, service in the
presidency for more than four years may rightly be considered as service for a full term.
This is not so in the case of the vice-mayor. Under the local Government Code, he is the presiding officer of
the sanggunian and he appoints all officials and employees of such local assembly. He has distinct powers and
functions, succession to mayorship in the event of vacancy therein being only one of them. [16] It cannot be said of
him, as much as of the Vice-President in the event of a vacancy in the Presidency, that in running for vice-mayor, he
also seeks the mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance than
of design. Hence, his service in that office should not be counted in the application of any term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well
as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected to the same position for the same
number of times before the disqualification can apply. This point can be made clearer by considering the following
cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months
before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election.
Yes, because although he has already first served as mayor by succession and subsequently resigned from office
before the full term expired, he has not actually served three full terms in all for the purpose of applying the term
limit. Under Art. X, 8, voluntary renunciation of the office is not considered as an interruption in the continuity of
his service for the full term only if the term is one for which he was elected. Since A is only completing the service
of the term for which the deceased and not he was elected. A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for misconduct for a total
of 1 year. If he is twice reelected after that, can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the
disqualification provisions have not concurred, namely, that the local official concerned has been elected three
consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is
considered to have served three full terms notwithstanding his resignation before the end of the first term, the fact
remains that he has not beenelected three times. In the second case, the local official has been elected three
consecutive times, but he has not fully servedthree consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two
conditions to concur for the purpose of applying Art. X 8. Suppose he is twice elected after that term, is he qualified
to run again in the next election?
Yes, because he was not elected to the office of the mayor in the first term but simply found himself thrust into it by
operation of law. Neither had he served the full term because he only continued the service, interrupted by the
death , of the deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to run a third time
for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom
they wish to govern them.If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by
simply not reelecting him for another term. But if, on the other hand, he proves to be a good mayor, there will be no
way the people can return him to office (even if it is just the third time he is standing for reelection) if his service of
the first term is counted as one of the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of the Constitutional
Commission that while the people should be protected from the evils that a monopoly of political power may bring
about, care should be taken that their freedom of choice is not unduly curtailed.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

49
Page

EN BANC

[G.R. No. 120295. June 28, 1996]

JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE,respondents.

[G.R. No. 123755. June 28, 1996]

RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO,respondents.

DECISION
PANGANIBAN, J.:
The ultimate question posed before this Court in these twin cases is: Who should be declared the
rightful governor of Sorsogon
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who
was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now
claims to have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo
should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and
that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor,
but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of
Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies
existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over
pure legalisms.
G.R. No. 123755.
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary
injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First
Division,1promulgated on December 19,19952 and another Resolution of the Comelec en
bane promulgated February 23, 19963 denying petitioner's motion for reconsideration.

The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the
office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee,
another candidate, filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo
"be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of
the Philippines," and that his Certificate of Candidacy be cancelled. On May 1, 1995, the Second Division
of the Comelec promulgated a Resolution5 granting the petition with the following disposition: 6
"WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to
run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly,
respondent's certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8,
1995 elections. So, his candidacy continued and he was voted for during the elections held on said date.
On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second Division.

Antonio H. Escudero, Jr. 51,060

Page

50

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate
of Votes8.dated May 27, 1995 was issued showing the following votes obtained by the candidates for the
position of Governor of Sorsogon:

Juan G. Frivaldo 73,440

RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his
proclamation as the duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29,
1995," the Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to reconvene for
the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening of June 30,1995, Lee was
proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317,
praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He
alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of
the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee
on Naturalization in September 1994 had been granted." As such, when "the said order (dated June 21,
1995) (of the Comelec) x x x was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in
the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor x x x." In
the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor not
Lee should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled
to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of
votes, and xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of Sorsogon";
thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is
hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is
directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo
as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his
Filipino citizenship by repatriation on June 30,1995 under the provisions of Presidential Decree No. 725 and, thus,
qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is
directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang
Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof."
On December 26,1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its
Resolution14promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the
prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter
alia directed the parties "to maintain thestatus quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions": 15
"First - The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the
COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second- The judicially declared disqualification of respondent was a continuing condition and rendered him
ineligible to run for, to be elected to and to hold the Office of Governor;

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51

Third - The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his
ineligibility and qualify him to hold the Office of Governor; and
Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as
duly elected Governor of Sorsogon."

G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are
also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for
governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines";
2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and
3. Resolution18 of the Comelec en bane, promulgated also on May 11, 1995 suspending the proclamation of, among
others, Frivaldo.

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo
assails the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus
Election Code, which is reproduced hereinunder:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is false. The petition may be filed at
any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after notice and hearing, not later than fifteen days before the election." (Italics supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the
period allowed by law," i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for
disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional
defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they
are intimately related in their factual environment and are identical in the ultimate question
raised, viz., who should occupy the position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to
file simultaneously their respective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify
him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from
when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility
to run for, be elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that :
said petition is not "a pre-proclamation case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all
of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered
within ( the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before
the elections"?

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The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this
case. All the other matters raised are secondary to this.
The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for
elective local officials, including that of provincial governor, thus:
"Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and able to read and write Filipino or any other local language
or dialect.
(b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor,
vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23)
years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent
upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications
prescribed under the said statute (R. A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or
by repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that
he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to
materialize, notwithstanding the endorsement of several members of the House of Representatives" due,
according to him, to the "maneuvers of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the
electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000
in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice
disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a
fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself,
who was the prime opposing counsel in the previous cases he lost, this time, as counsel for corespondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S.
Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00
p.m.on June 30, 1995 is not disputed. Hence, he insists that henot Leeshould have been proclaimed as
the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the
said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and
since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects, which we shall
now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that "then President
Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution,
forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a
serious and contentious issue of policy which the present government, in the exercise of prudence and
sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution,"
adding that in her memorandum dated March 27,1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them
"to cease and desist from undertaking any and all proceedings within your functional area of responsibility
as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23
This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed
as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent
ones25 and a repeal may be express or implied. It is obvious that no express repeal was made because
then President Aquino in her memorandum based on the copy furnished us by Lee did not categorically
and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In
fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of
statutory construction that repeals by implication are not favored. An implied repeal will not be allowed
"unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and
patently inconsistent that they cannot co-exist." 26
The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for
not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987
Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be
treated as an executive policy addressed to the Special Committee to halt the acceptance and processing
of applications for repatriation pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first
Congress once createdto deal with the matter. If she had intended to repeal such law, she should have

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unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her
presidential issuance in terms that clearly indicated the intention of "the present government, in the
exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other
interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee,
would visit unmitigated violence not only upon statutory construction but on common sense as well.
Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings,"
asserting that Frivaldo's application therefor was "filed on June 29, 1995 x x x (and) was approved in just
one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President
in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the
Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee
required. Under these circumstances, it could not be said that there was "indecent haste" in the
processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was
intended solely for the personal interest of respondent," 27 the Solicitor General explained during the oral
argument on March 19, 1996 that such allegation is simply baseless as there were many others who
applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a
Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a
ground to conclude that such proceedings were necessarily tainted. After all, the requirements of
repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In
fact, P.D. 72529 itself requires very little of an applicant, and even the rules and regulations to implement
the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In
the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his
country and his province prior to his naturalization in the United States a naturalization he insists was
made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in
conscience embrace and who, after the fall of the dictator and the re-establishment of democratic space,
wasted no time in returning to his country of birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted
repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited
by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued
before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of
exhaustion of administrative remedies.
Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could
only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the
Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is
filed," citing our decision in G.R. 104654 30 which held that "both the Local Government Code and the
Constitution require that only Philippine citizens can run and be elected to Public office" Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was
valid or not and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then
the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court.
Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province x x x where he intends to be
elected;
* a resident therein for at least one (1) year immediately preceding the day of the election;
* able to read and write Filipino or any other local language or dialect."
* In addition, "candidates for the position of governor x x x must be at least twenty-three (23)
years of age on election day."
From the above, it will be noted that the law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence (which must consist of at least one year's
residency immediately preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an
official begins to govern or to discharge his functions only upon his proclamation and on the day the law
mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995the very
day32 the term of office of governor (and other elective officials) beganhe was therefore already qualified
to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said

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date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal
interpretation that should give spirit, life and meaning to our law on qualifications consistent with the
purpose for which such law was enacted. So too, even from a literal (as distinguished
fromliberal) construction, it should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should such qualification be
required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists?
Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence
should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's ruling
in Vasquez vs. Giapand Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure
that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to
another nation, that aim or purpose would not be thwarted but instead achieved by construing the
citizenship qualification as applying to the time of proclamation of the elected official and at the start of his
term.
But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect
that the citizenship qualification should be possessed at the time the candidate (or for that matter the
elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen,
also specifies as another item of qualification, that he be a "registered voter." And, under the law 35 a
"voter" must be a citizen of thePhilippines. So therefore, Frivaldo could not have been a voter-much less
a validly registered one if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the law
intended thecitizenship qualification to be possessed prior to election consistent with the requirement of
being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law
abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a
qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also
stands to reason that the voter requirement was included as another qualification (aside from
"citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter
IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the
barangay, municipality, city, or province x x x where he intends to be elected." It should be emphasized
that the Local Government Code requires an elective official to be a registered voter. It does not require
him to vote actually. Hence, registrationnot the actual votingis the core of this "qualification." In other
words, the law's purpose in this second requirement is to ensure that the prospective official is actually
registered in the area he seeks to govern and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasizedand Lee has not disputed that he "was and is
a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial
declaration x x x In fact, he cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel stead-fastly maintained that "Mr. Frivaldo has always
been a registered voter of Sorsogon. He has voted in 1987,1988,1992, then he voted again in 1995. In
fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he
was allowed to vote as in fact, he voted in all the previous elections including on May 8,1995.37
It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section
253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the
opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the
Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising
from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such
remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate.
Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission.
And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was
already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same
day, then he should have been the candidate proclaimed as he unquestionably garnered the highest
number of votes in the immediately preceding elections and such oath had already cured his previous
"judicially-declared" alienage. Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo
RETRO ACTED to the date of the filing of his application on August 17,1994.
It is true that under the Civil Code of the Philippines,39 "(l)aws shall have no retroactive effect, unless
the contrary is provided." But there are settled exceptions 40 to this general rule, such as when the statute
is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities,
thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences by reason of some statutory
disability or failure to comply with some technical requirement. They operate on conditions already
existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that curative
statutes are "healing acts x x x curing defects and adding to the means of enforcing existing obligations x
x x (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils x x x
By their very nature, curative statutes are retroactive xxx (and) reach back to past events to correct errors
or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for
the purpose the parties intended."

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On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective
law, nor within the general rule against the retrospective operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new
remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the
plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who
could not, under the existing law (C. A. No. 63, as amended) avail of repatriation until "after the death of
their husbands or the termination of their marital status" and who could neither be benefitted by the 1973
Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine
citizenship xxx" because "such provision of the new Constitution does not apply to Filipino women who
had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these
womenthe right to re-acquire Filipino citizenship even during their marital coverture, which right did not
exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in
favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to reacquire Philippine citizenship," because prior to the promulgation of P.D. 725 such former Filipinos would
have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D.
725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation.
The Solicitor General44 argues:
"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to
supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil.
119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C. A. No. 63
wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid
procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are
considered essentially remedial and curative."
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the
legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is
given to a statute or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof." 45 It is obvious to the Court that the statute
was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing
law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right
equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches
and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give
retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a
remedial statute must be so construed as to make it effect the evident purpose for -which it was enacted,
so that if the reason of the statute extends to past transactions, as well as to those in the future, then it
will be so applied although the statute does not in terms so direct, unless to do so would impair some
vested right or violate some constitutional guaranty." 46 This is all the more true of P.D. 725, which did not
specify any restrictions on or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo
considering that said law was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship much
later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an American
citizen, nevertheless, it is not only the law itself (P.D. 725) which is tobe given retroactive effect, but even
the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted
to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case,
it was the intent of the legislative authority that the law should apply to past events i.e., situations and
transactions existing even before the law came into being in order to benefit the greatest number of
former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right
of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is
all the more reason to have the law apply in a retroactive or retrospective manner to situations, events
and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo
on June 30, 1995 can and should be made to take effect as of date of his application. As earlier
mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of
the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust
or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will
result the impairment of any contractual obligation, disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed
mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants.
If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to

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delay the processing of applications for any substantial length of time, then the former Filipinos who may
be stateless, as Frivaldohaving already renounced his American citizenship was, may be prejudiced for
causes outside their control. This should not be. In case of doubt in the interpretation or application of
laws, it is to be presumed that the law-making body intended right and justice to prevail. 47
And as experience will show, the Special Committee was able to process, act upon and grant applications
for repatriation within relatively short spans of time after the same were filed. 48 The fact that such
interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result
of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government
is possible only where a person's repatriation has the effect of wiping out a liability of his to the
government arising in connection with or as a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now
prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as
having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all
questions about his possession of the nationality qualification whether at the date of proclamation (June
30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20,
1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled.
Inasmuch as he is considered as having been repatriatedi.e., his Filipino citizenship restored as of August 17, 1994,
his previous registration as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation
not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him
"from running for any elective local position?"49 We answer this question in the negative, as there is cogent reason to
hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he
ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his
American citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and
renounced his US citizenship but before he was repatriated to his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated December 19, 1995:51
"By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of
allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate
of candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995
have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission
are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. 52

The Second Issue: Is Lack of Citizenship a Continuing Disqualification?

Lee contends that the May 1,1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028
as affirmedin toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory
after five (5) days or on May 17,1995, no restraining order having been issued by this Honorable
Court."54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was
already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings
(which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final
and executory way before the 1995 elections, and these "judicial pronouncements of his political status as
an American citizen absolutely and for all time disqualified (him) from running for, and holding any public
office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992
elections. That he was disqualified for such elections is final and can no longer be changed. In the words
of the respondent Commission (Second Division) in its assailed Resolution: 55
"The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus
disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any 'final judgment' of
the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order
of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was
not a Filipino citizen 'having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of
the Philippines.' This declaration of the Supreme Court, however, was in connection with the 1992 elections."
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future
status with finality. This is because a person may subsequently reacquire, or for that matter lose, his
citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner
of Immigration,56 we held:

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"Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the
corresponding court or administrative authority decides therein as to such citizenship is generally not considered res
judicata,hence it has to be threshed out again and again, as the occasion demands."
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95317 because the only "possible types of proceedings that may be entertained by the Comelec are a preproclamation case, an election protest or a quo warranto case." Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation
only on July 6, 1995 "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution 57 has given the Comelec ample power to
"exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications
of all elective x x x provincial x x x officials." Instead of dwelling at length on the various petitions that
Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice
it to say that this Court has invariably recognized the Commission's authority to hear and decide
petitions for annulment of proclamations of which SPC No. 95-317 obviously is one. 58 Thus, in Mentang
vs. COMELEC,59 we ruled:
"The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer
viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by
the COMELEC after the winning candidate has been proclaimed, (citing Gallardo vs. Rimando, 187 SCRA 463;
Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is
premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing
Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul a proclamation must "be done within ten (10)
days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's
proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.

The Fourth Issue: Was Lee's Proclamation Valid

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the
sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, xxx just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the
aforesaidLabo62 case, as follows:
"The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification
so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the
ineligible candidate. In such case, 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
obtaining the next higher number of votes may be deemed elected."
But such holding is qualified by the next paragraph, thus:
"But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that
petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such
fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated
May 10, 1992 to be voted for the office of the city mayor as its resolution dated May 9,1992 denying due course to
petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case
because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's
cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a
pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring
that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in
fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of
Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such
awareness within the realm of notoriety", in other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that
the vice-governor and not Leeshould be proclaimed, since in losing the election, Lee was, to

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paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic
teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate
receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office."
Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and
inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be
proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of the Election Code Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division)
dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of
citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed
by Section 78 of the Omnibus Election Code which reads as follows:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is false. The petition may be filed at
any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided after notice and hearing, not later than fifteen days before the election" (italics supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en
banc63 onFebruary 23, 1996, which both upheld his election. At any rate, it is obvious that Section 78 is
merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
"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." (Italics supplied)

Refutation of Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President
Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged
by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction
because the said issuance is not a statute that can amend or abrogate an existing law. The existence and
subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz, "(u)nder CA No. 63 as amended
by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by xxx repatriation" He also
contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in
effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do
not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured
whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections.
Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such
previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility
of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing
the denial of a certificate of candidacy on the ground of a false material representation therein as required
by Section 74. CitingLoong, he then states his disagreement with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295
that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they
were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the
petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because
"Section 6 of R. A. 6646 authorizes the Comelec to try and decide disqualifications even after the
elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory," we
note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295." One other
point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must
be filed within the 25-day period prescribed therein. The present case however deals with the period
during which the Comelec may decide such petition. And we hold that it may be decided even after
thefifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec
even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time.
There is no inconsistency nor conflict.

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Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual
circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity
"dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not
directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that
Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation has changed his political status not in 1988 or 1992, but
only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation,
saying that "informal renunciation or abandonment is not a ground to lose American citizenship." Since
our courts are charged only with the duty of the determining who are Philippine nationals, we cannot rule
on the legal question of who are or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens not who are the citizens of other countries. 65 The issue
here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been
shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and
final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three
previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was
publicly known." First, there is absolutely no empirical evidence for such "public" knowledge. Second,
even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even
the Comelec and now this Court were/are still deliberating on his nationality before, during and after the
1995 elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications
of electivelocal officials, i.e., candidates, and not elected officials, and that the citizenship qualification
[under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the
term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective
local official" while par. (b) to (f) refer to "candidates." If the qualifications under par. (a) were intended to
apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating
par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification
should be possessed at election day or prior thereto, it would have specifically stated such detail, the
same way it did in pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the
ground, among others, that the law specifically provides that it is only after taking the oath of allegiance
that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the
provision states. We hold however that the provision should be understood thus: that after taking the oath
of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or
repatriation) is deemed for all purposes and intents to have retroacted to the date of his application
therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference
to Section 39 of the Local Government Code, as well as regarding Mr. Justice Davide's thesis that the
very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in
this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule
of Law." We agree we must all follow the rule of law. But that is NOT the issue here. The issue
is how should the law be interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how to
interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or
its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions;
harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.
Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated
judicial tyranny and an unacceptable assault upon this Court's conscience.

EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed
by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to
which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present,
not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by
virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the
remedial or curative nature of the law granting him a new right to resume his political status and the
legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship
and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the pendency of which he was stateless,
he having given ' up his U. S. nationality. Thus, in contemplation of law, he possessed the vital
requirement of Filipino citizenship as of the start of the term of office of governor, and should have been
proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well.
The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement

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is not a continuing disability or disqualification to run for and hold public office. And once again, we
emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to
give fullest effect to the manifest will of our people, 66 for in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate freely expressed through the ballot.
Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will.
Consistently, we have held:
"x x x (L)aws governing election contests must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical objections (citations omitted)."67
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in
deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to
the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility
of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely sound public policy to cause
elective offices to be filled by those who are the choice of the majority. To successfully
challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility
is so patently antagonistic68 to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could
have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his
failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could
have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and
thus hold his consequent dual citizenship as a disqualification "from running for any elective local
position." But the real essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the
ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy,
legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in
the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine
political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship.
At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At
the first opportunity, he returned to this land, and sought to serve his people once more. The people of
Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every
time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be
overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth
despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality,
of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe
old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on
this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was
assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted,
nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of
birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in
the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly
deserve to be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the
respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event,
it has no merit.
No costs.
SO ORDERED.

Romualdez-Marcos vs COMELEC
TITLE: Romualdez-Marcos vs. COMELEC
CITATION: 248 SCRA 300

FACTS:

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Imelda, a little over 8 years old, in or about 1938, established her domicile in Tacloban, Leyte
where she studied and graduated high school in the Holy Infant Academy from 1938 to
1949. She then pursued her college degree, education, in St. Pauls College now Divine
Word University also in Tacloban. Subsequently, she taught in Leyte Chinese School still in
Tacloban. She went to manila during 1952 to work with her cousin, the late speaker Daniel
Romualdez in his office in the House of Representatives. In 1954, she married late President
Ferdinand Marcos when he was still a Congressman of Ilocos Norte and was registered there
as a voter. When Pres. Marcos was elected as Senator in 1959, they lived together in San
Juan, Rizal where she registered as a voter. In 1965, when Marcos won presidency, they
lived in Malacanang Palace and registered as a voter in San Miguel Manila. She served as
member of the Batasang Pambansa and Governor of Metro Manila during 1978.

Imelda Romualdez-Marcos was running for the position of Representative of the First District
of Leyte for the 1995 Elections. Cirilo Roy Montejo, the incumbent Representative of the
First District of Leyte and also a candidate for the same position, filed a Petition for
Cancellation and Disqualification" with the Commission on Elections alleging that petitioner
did not meet the constitutional requirement for residency. The petitioner, in an honest
misrepresentation, wrote seven months under residency, which she sought to rectify by
adding the words "since childhood" in her Amended/Corrected Certificate of Candidacy filed
on March 29, 1995 and that "she has always maintained Tacloban City as her domicile or
residence. She arrived at the seven months residency due to the fact that she became a
resident of the Municipality of Tolosa in said months.

ISSUE: Whether petitioner has satisfied the 1year residency requirement to be eligible in
running as representative of the First District of Leyte.

HELD:

Residence is used synonymously with domicile for election purposes. The court are in favor
of a conclusion supporting petitoners claim of legal residence or domicile in the First District
of Leyte despite her own declaration of 7 months residency in the district for the following
reasons:

1. A minor follows domicile of her parents. Tacloban became Imeldas domicile of origin by
operation of law when her father brought them to Leyte;

2. Domicile of origin is only lost when there is actual removal or change of domicile, a bona
fide intention of abandoning the former residence and establishing a new one, and acts
which correspond with the purpose. In the absence and concurrence of all these, domicile of
origin should be deemed to continue.

3. A wife does not automatically gain the husbands domicile because the term residence
in Civil Law does not mean the same thing in Political Law. When Imelda married late
President Marcos in 1954, she kept her domicile of origin and merely gained a new home
and not domicilium necessarium.

4. Assuming that Imelda gained a new domicile after her marriage and acquired right to
choose a new one only after the death of Pres. Marcos, her actions upon returning to the
country clearly indicated that she chose Tacloban, her domicile of origin, as her domicile of
choice. To add, petitioner even obtained her residence certificate in 1992 in Tacloban, Leyte
while living in her brothers house, an act, which supports the domiciliary intention clearly

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62

manifested. She even kept close ties by establishing residences in Tacloban, celebrating her
birthdays and other important milestones.

WHEREFORE, having determined that petitioner possesses the necessary residence

qualifications to run for a seat in the House of Representatives in the First District of Leyte,
the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are
hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of
Canvassers to proclaim petitioner as the duly elected Representative of the First District of
Leyte.
EN BANC

FEDERICO T. MONTEBON G.R. No. 180444

and ELEANOR M. ONDOY,
Petitioners, Present:
Puno, C.J.,
Quisumbing,
Ynares-Santiago,
Carpio,
Austria-Martinez,
- versus - Corona,
Carpio Morales,
Azcuna,
Tinga,
Chico-Nazario,
Velasco, Jr.,
Nachura,
Reyes,
Leonardo-De Castro, and
Brion, JJ.
COMMISSION ON ELECTION and
SESINANDO F. POTENCIOSO, JR., Promulgated:
Respondents.
April 8, 2008
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

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Page

This petition[1] for certiorari assails the June 2, 2007 Resolution [2] of the First Division of the
Commission on Elections (COMELEC) in SPA No. 07-421, denying the petition for
disqualification filed by petitioners Federico T. Montebon and Eleanor M. Ondoy against
respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007 Resolution [3] of
the COMELEC En Banc denying the motion for reconsideration.

Petitioners Montebon and Ondy 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. OnApril 30, 2007, petitioners and other candidates [4] for municipal
councilor filed a petition for disqualification against respondent with the COMELEC alleging
that respondent had been elected and served three consecutive terms as municipal
councilor in 1998-2001, 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.

In his answer, respondent admitted that he had been elected for three consecutive terms as
municipal councilor. However, he claimed 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.

In the hearing of May 10, 2007, the parties were directed to file their respective memoranda.

In petitioners memorandum, they maintained that 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. They
argued that, 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.

On the other hand, respondent alleged that 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.

On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling
that respondents assumption of office as vice-mayor should be considered an interruption in
the continuity of his service. His second term having been involuntarily interrupted,
respondent should thus not be disqualified to seek reelection as municipal councilor. [5]

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On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows:

Respondents assumption to the office of the vice-mayor of Tuburan in

January 2004 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. Thus, in running
for councilor again in the May 14, 2007 Elections, respondent is deemed to be
running only for a second consecutive term as councilor of Tuburan, the first
consecutive term fully served being his 2004-2007 term.

Petitioner Montebons and Ondoys June 9, 2007 manifestation and

omnibus motion are hereby declared moot and academic with the instant
disposition of their motion for reconsideration.

WHEREFORE,
premises
considered,
petitioners
reconsideration is hereby DENIED for lack of merit.

motion

for

SO ORDERED.[6]
Petitioners filed the instant petition for certiorari on the ground that the COMELEC
committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that
respondents assumption of office as vice-mayor in January 2004 interrupted his 2001-2004
term as municipal councilor.

The petition lacks merit.

The 1987 Constitution bars and disqualifies local elective officials from serving more
than three consecutive terms in the same post. Section 8, Article X thereof states:

Sec. 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law shall be three years and no such
officials 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 also provides:

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive
terms in the same position.Voluntary renunciation of the office for any length

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65

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.

In Lonzanida v. Commission on Elections,[7] 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. [8] In Borja, Jr. v. Commission on Elections,[9] 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. [10]

While it is undisputed that respondent was elected municipal councilor for three
consecutive terms, the issue lies on whether he is deemed to have fully served his second
term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004.

Succession in local government offices is by operation of law. [11] Section 44[12] 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. Thus:

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and
Vice Mayor.(a) 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. If a permanent vacancy
occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian
member, shall become the governor, vice governor, mayor or vice mayor, as the case may
be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian
members according to their ranking as defined herein. x x x

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.

In Lonzanida v. Commission on Elections, the Court explained the concept of

voluntary renunciation as follows:

The second sentence of the constitutional provision under scrutiny

states, Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for
which he was elected. The clear intent of the framers of the constitution to bar
any attempt to circumvent the three-term limit by a voluntary renunciation of

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66

office and at the same time respect the peoples choice and grant their elected
official full service of a term is evident in this provision. Voluntary renunciation
of a term does not cancel the renounced term in the computation of the three
term limit; conversely, involuntary severance from office for any length
of time short of the full term provided by law amounts to an
interruption of continuity of service.[13] (Emphasis added)

Thus, 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.

xxxx

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. [14]

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.

Rodolfo Farias vs Angelo Barba, et al., L-116763, April 19, 1996

Posted on October 3, 2012
GOVERNOR RODOLFO C. FARIAS and AL NACINO, petitioners,
vs.

67

MAYOR ANGELO N. BARBA, VICE MAYOR MANUEL S. HERNANDO and EDWARD

Page

PALAFOX, respondents.
L-116763; 256 SCRA 396
April 19, 1996
FACTS:

Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte.
On March 24, 1994, he resigned after going without leave to the United States.
To fill the vacancy created by his resignation, a recommendation for the appointment of
Edward Palafox was made by the Sangguniang Bayan of San Nicolas but the
recommendation was made to Mayor Barba. The resolution, containing the recommendation,
was submitted to the Sangguniang Panlalawigan of Ilocos Norte purportedly in compliance
with Sec. 56 of the Local Government Code (R.A. No. 7160).
The Sangguniang Panlalawigan, purporting to act under this provision of the Local
Government Code, disapproved the resolution for the reason that the authority and power
to appoint Sangguniang Bayan members are lodged in the Governor. Accordingly, the
Sangguniang Panlalawigan recommended to the Governor the appointment of petitioner Al
Nacino. On June 8, 1994, the Governor appointed petitioner Nacino and swore him in office
that same day. On the other hand, respondent Mayor Barba appointed respondent Edward
Palafox to the same position.
On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a petition for
quo warranto and prohibition.
On July 8, 1994 the trial court rendered its decision, upholding the appointment of
respondent Palafox by respondent Mayor Barba.
ISSUE:
Who can appoint the replacement and in accordance with what procedure?
HELD:
The person who has the power to appoint under such circumstance is the Governor upon the
recommendation of the Sangguniang concerned which is the Sangguniang Bayan of San
Nicolas where the vacancy occurs.
The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor
respondent Edward Palafox was appointed in the manner indicated in the preceding
paragraph, neither is entitled to the seat in the Sangguniang Bayan of San Nicolas, Ilocos
Norte which was vacated by member Carlito B. Domingo. For while petitioner Al Nacino was
appointed by the provincial governor, he was not recommended by the Sangguniang Bayan
of San Nicolas. On the other hand, respondent Edward Palafox was recommended by the
Sangguniang Bayan but it was the mayor and not the provincial governor who appointed
him.
[G.R. No. 141307. March 28, 2001]
PURTO J. NAVARRO and DANNY B. TAMAYO, petitioner, vs. COURT OF APPEALS and ADOLFO
AQUINO, ROLANDO LALAS, ABRAHAM MORALES, BLANDO QUINTO, ROMEO

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68

VISPERAS, ANTONIO PENULIAR, EDUARDO ABULENCIA, EMILIO PENULIAR, JR.,

ERNESTO SERAPION, VICTORIO LALANGAN, ANTONIO BURGUILLOS, MIGUEL
JIMENEZ, and ELPIDIO VILLANUEVA, respondents.
DECISION
KAPUNAN, J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing as
erroneous the decision of the Court of Appeals, Fourth Division, [1] dated October 7, 1999 in CA-G.R. SP No. 5475
which granted the petition for certiorari filed by herein respondents and declared as null and void the appointment
of herein petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan, Pangasinan.
The facts are undisputed.
In the May 11, 1997 local elections, the following officials were elected to office in the Municipality of
Mapandan, Pangasinan:
Cesar M. Calimlim - Mayor - Lakas NUCD-KAMPI
Baltazar Aquino - Vice-Mayor - Lakas NUCD-KAMPI
Elected as members of the Sangguniang Bayan ranked according to the highest number of votes obtained were
the following councilors:
Political Party
1. Danny B. Tamayo REFORMA-LM
2. Rolando S. Soriano REFORMA-LM
3. Leopoldo C. Biagtan REFORMA-LM
4. Florentino Z. Lalas REFORMA-LM
5. Mamerto Eden, Jr. REFORMA-LM
6. Victorio C. Lalangan LAKAS-NUCD-KAMPI
7. Judy A. Pascual REFORMA-LM
8. Rolando Lalas LAKAS-NUCD-KAMPI
On March 25, 1999, Mayor Cesar Calimlim died. A vacancy was thus created in the Office of the Mayor so by
operation of law, Section 44 of Republic Act 7160, otherwise known as the Local Government Code of 1991, then
Vice-Mayor Baltazar Aquino succeeded him. Accordingly, the highest ranking member of the Sangguniang
Bayan, i.e. the one who garnered the highest number of votes, was elevated to the position of the Vice-Mayor,
pursuant to the same law. This was petitioner Danny B. Tamayo who belonged to the REFORMA-LM political
party.
Since a vacancy occurred in the Sangguniang Bayan by the elevation of petitioner Tamayo to the office of the
Vice-Mayor, Governor Victor Agbayani of Pangasinan appointed herein petitioner Purto J. Navarro as Member of
the Sangguniang Bayan.Navarro belonged to the same political party as that of petitioner Tamayo.
Private respondents filed Civil Case No. 99-12958-D to nullify the appointment of petitioner Navarro before
the Regional Trial Court of Dagupan City, Branch 44 presided by Judge Crispin Laron. Their motions for the
issuance of a temporary restraining order and for the inhibition of Judge Laron having been denied, private
respondents filed a Petition for Review onCertiorari with this Court.
In a Resolution dated August 25, 1999, this Court referred the case to the Court of Appeals due to the hierarchy
of courts.
Private respondents argued before the Court of Appeals that it was the former vice-mayor, succeeding to the
position of the mayor, who created the permanent vacancy in the Sanggunian Bayan because under the law he was

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69

also a member of the Sanggunian. Thus, the appointee must come from said former vice-mayor's political party, in
this case, the Lakas-NUCD-Kampi.
Petitioners, on the other hand, contended that it was the elevation of petitioner Tamayo, who was the highestranking member of the Sanggunian Bayan, to the office of the Vice-Mayor which resulted in a permanent vacancy in
the SanggunianBayan. Pursuant to Section 45 (b) of RA 7160, the person to be appointed to the position vacated by
him should come from the same political party affiliation as that of petitioner Tamayo. Hence, the appointment
extended by Governor Agbayani to petitioner Navarro, who was a member of and recommended by the REFORMALM, is valid.
The Court of Appeals in a decision dated October 7, 1999 resolved the petition in favor of private respondents
but for the reason different from that posited by private respondents. According to the appellate court, the vacancy
which resulted from the death of the mayor created a series of vacancies and successions by operation of law. By
this interpretation, petitioner Tamayo's former position as the highest-ranking member of the Sanggunian Bayan was
filled up by the second highest-ranking member and that vacated by the second highest-ranking member was
succeeded by the third highest-ranking member, and so forth. And the last vacancy created was the position of the
lowest ranking-member of the Sanggunian, that is, the eighth position occupied by Rolando Lalas. The Court of
Appeals then concluded that it was the appointment of the eighth councilor, who was Rolando Lalas to the number
seven position which created the "last vacancy;" therefore, the person to be appointed to the vacant position should
come form the same political party to which Rolando Lalas belonged, which was the Lakas-NUCD-Kampi.
Aggrieved by the decision of the Court of Appeals, petitioners brought the instant petition.
We give due course to the petition.
Sections 44 and 45 of RA 7160 governing vacancies and succession are quoted hereunder:
Sec. 44. Permanent Vacancies in the Offices of the 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. If a permanent vacancy in the offices of the governor, vice-governor, mayor or vice-mayor, the highest
sanggunian member or, in case of his permanent inability, the second highest-ranking sanggunian member,
shall become the governor, vice-governor, mayor or vice-mayor as the case may be. Subsequent vacancies in the
said office shall be filled automatically by the other sanggunian members according to their ranking as defined
herein:
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay
members or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the
punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of
the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in
the immediately preceding local election.
Sec. 45. Permanent Vacancies in the Sanggunian. - (a) Permanent vacancies in the sanggunian where automatic
successions provided above do not apply shall be filled by appointment in the following manner:
(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the
sangguniang panglungsod of highly urbanized cities and independent component cities;
(2) The governor, in the case of the sangguniang panglunsod of component cities and the sangguniang bayan;
(3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang
barangay concerned;
(b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian
member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy

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70

in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the
same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of
the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the
appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment
without such nomination and certification shall be null and void ab initio and shall be a ground for administrative
action against the official responsible therefor.
(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the
local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the
vacancy.
(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be
filled automatically by the official next in rank of the organization concerned.
Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office, refuses to
assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
What is crucial is the interpretation of Section 45 (b) providing that "xxx only the nominee of the political
party under which the Sanggunian member concerned has been elected and whose elevation to the position next
higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner hereinabove
provided. The appointee shall come from the political party as that of the Sanggunian member who caused the
vacancy xxx."
The reason behind the right given to a political party to nominate a replacement where a permanent vacancy
occurs in the Sanggunian is to maintain the party representation as willed by the people in the election. [2]
With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of Vice-Mayor, a
vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the political party
of petitioner Tamayo. Otherwise, REFORMA-LM's representation in the Sanggunian would be diminished. To argue
that the vacancy created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member, would result
in the increase of that party's representation in the Sanggunian at the expense of the REFORMA-LM. This
interpretation is contrary to the letter and spirit of the law and thus violative of a fundamental rule in statutory
construction which is to ascertain and give effect to the intent and purpose of the law.[3] As earlier pointed out, the
reason behind par. (b), section 44 of the Local Government Code is the maintenance party representation in the
Sanggunian in accordance with the will of the electorate.
The "last vacancy" in the Sanggunian refers to that created by the elevation of the member formerly occupying
the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term
"last vacancy" is thus used in Sec. 45 (b) to differentiate it from the other vacancy previously created. The term by
no means refers to the vacancy in the No. 8 position which occurred with the election of Rolando Lalas to the
seventh position in the Sanggunian. Such construction will result in absurdity.
Petitioners also allege that the Court of Appeals erred in giving due course to the petition because the
verification is defective. It is argued that the affidavit merely stated that the allegations therein are "true and correct
to the best of my own knowledge and information" whereas Section 4, Rule 7 of the Rules of Court specifically
requires that the allegations be "true and correct of his knowledge and belief."
The contention is without merit. Verification based on the affiant's own knowledge and information is
sufficient under the circumstances. Verification is merely a formal and not a jurisdictional requisite which does not
affect the validity or efficacy of the pleading, or the jurisdiction of the court. [4] Therefore, a defective verification, as
in the present case, does not render the pleading or the petition invalid and the Court of Appeals did not err in giving
due course to the petition.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. SP No.
54675 dated October 7, 1999 is REVERSED and SET ASIDE. The appointment of petitioner Purto J. Navarro to the
Sanggunian Bayan of Mapandan, Pangasinan is hereby AFFIRMED as valid and legal.
SO ORDERED.

71
Page

EN BANC
[G.R. No. 134213. July 20, 1999]
Romeo J. Gamboa, Jr., petitioner, vs. Marcelo Aguirre, Jr., and Juan Y. Araneta, respondents.
DECISION
YNARES-SANTIAGO, J.:
The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the Acting Governor,
continue to preside over the sessions of the Sangguniang Panlalawigan (SP)?
The facts are not in dispute.
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents Marcelo Aguirre,
Jr., and Juan Y. Araneta were elected Negros Occidental Governor, Vice-Governor and SP members,
respectively. Sometime in August of 1995, the governor designated petitioner as Acting Governor for the duration of
the formers official trip abroad until his return.When the SP held its regular session on September 6, 1995,
respondents questioned the authority of petitioner to preside therein in view of his designation as Acting Governor
and asked him to vacate the Chair. The latter, however, refused to do so.In another session, seven (7) members of the
SP voted to allow petitioner to continue presiding while four (4) others voted against with one (1) abstention. On
September 22, 1995, respondents filed before the lower court a petition for declaratory relief and prohibition. In the
meantime, on October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a decision and
declared petitioner as temporarily legally incapacitated to preside over the sessions of the SP during the period that
he is the Acting Governor.[1] Aggrieved, petitioner filed a petition for review raising the issue earlier
mentioned. Although this case is dismissible for having become moot and academic considering the expiration in
1998 of the terms of office of the local officials involved herein, the Court nonetheless proceeds to resolve this
common controversy but novel issue under the existing laws on local government.
Sections 49(a) and 466(a)(1) of Republic Act (R.A.) No. 7160 otherwise known as the Local Government Code
of 1991, provide that the Vice-Governor shall be the presiding officer of the SP.[2] In addition to such function, he
become(s)[3] the Governor and assume(s)[4] the higher office for the unexpired term of his predecessor, in case of
permanent vacancy therein.When the vacancy, however, is merely temporary, the Vice-Governor shall automatically
exercise the powers (subject to certain limitations) and perform the duties and functions [5] of the Governor. It may be
noted that the Code provides only for modes of succession in case of permanent vacancy in the office of the
Governor and the Vice-Governor (whether single or simultaneously) as well as in case of a temporary vacancy in the
office of the Governor. But, no such contingency is provided in case of temporary vacancy in the office of the ViceGovernor, just like the 1983 Local Government Code.[6]
It is correct that when the Vice-Governor exercises the powers and duties of the Office of the Governor, he
does not assume the latter office. He only acts as the Governor but does not become the Governor. His assumption
of the powers, duties and functions of the provincial Chief Executive does not create a permanent vacuum or
vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title
as Vice-Governor by merely becoming an Acting Governor, (not Governor) or by merely exercising the powers and
duties of the higher office. But the problem is, while in such capacity, does he temporarily relinquish the powers,
functions, duties and responsibilities of the Vice-Governor, including the power to preside over the sessions of the
SP?
Sad to say the new Local Government Code is silent on this matter, yet this query should be answered in the
positive. A Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that
for purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the
time being. By tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in
nature, whereas plain members of the provincial board perform functions partaking of a legislative character. This is
because the authority vested by law in the provincial boards involves primarily a delegation of some legislative
powers of Congress.[7] Unlike under the old Code, where the Governor is not only the provincial Chief Executive,
[8]
but also the presiding officer of the local legislative body, [9] the new Code delineated the union of the executivelegislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the
Governor was deprived of the power to preside over the SP and is no longer considered a member thereof. [10] This is
clear from the law, when it provides that local legislative power shall be vested in the SP, [11] which is the legislative
body of the province, and enumerates therein its membership consisting of the:
1.) Vice-Governor, as presiding officer,

4.) those ex-officio members, namely:

72

3.) three elective sectoral representatives, and

Page

2.) regular elective SP members,

a.) president of the provincial chapter of the liga ng mga barangay,

b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,
c.) president of the provincial federation of sanggunian members of municipalities and component cities. [12]
Not being included in the enumeration, the Governor is deemed excluded applying the rule in legal
hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local executive power in
the province is vested alone in the Governor.[13] Consequently, the union of legislative-executive powers in the office
of the local chief executive under the former Code has been disbanded, so that either department now comprises
different and non-intermingling official personalities with the end in view of ensuring a better delivery of public
service and provide a system of check and balance between the two.
It has been held that if a Mayor who is out of the country is considered effectively absent, the Vice-Mayor
should discharge the duties of the mayor during the latters absence. [14] This doctrine should equally apply to the
Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as
to what constitutes absence, yet this term should be reasonably construed to mean effective absence, [15] that is, one
that renders the officer concerned powerless, for the time being, to discharge the powers and prerogatives of his
office.[16] There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario,
there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the
office.[17] By virtue of the foregoing definition, it can be said that the designation, appointment or assumption of the
Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the ViceGovernor during such contingency. Considering the silence of the law on the matter, the mode of succession
provided for permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be
observed in the event of temporary vacancy occurring in the same office. [18] This is so because in the eyes of the law,
the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of
the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the
latter office, since the nature of the duties of the provincial Governor call for a full-time occupant to discharge them.
[19]
Such is not only consistent with but also appears to be the clear rationale of the new Code wherein the policy of
performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary
vacancy in the office of the Governor creates a corresponding temporary vacancy in the office of the Vice-Governor
whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an inability on the
part of the regular presiding officer (Vice Governor) to preside during the SP sessions, which thus calls for the
operation of the remedy set in Article 49(b) of the Local Government Code concerning the election of a temporary
presiding officer. The continuity of the Acting Governors (Vice-Governor) powers as presiding officer of the SP is
suspended so long as he is in such capacity. Under Section 49(b), (i)n the event of the inability of the regular
presiding officer to preside at the sanggunian session, the members present and constituting a quorum shall elect
from among themselves a temporary presiding officer.[20]
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.

EN BANC
[G.R. No. 135150. July 28, 1999]
ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO
MULI, repondents.
DECISION

73

GONZAGA-REYES, J.:

Page

This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the
COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98190 entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio,
Zambales. Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein
petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May
1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said
proclamation is declared null and void.
Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San
Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San
Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His
proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before
the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The
court ruled:
PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of
the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of
election.
Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant.
Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed
by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of
San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for
Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post,
which obeyed, and Alvez assumed office for the remainder of the term.
In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On
April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of
San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On
May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC
issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served
three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post
for the fourth time. The COMELEC found that Lonzanidas assumption of office by virtue of his proclamation in
May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full
term in computing the three term limit under the Constitution and the Local Government Code. The finding of the
COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.
Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for
mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two
consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of
applying the three term limit for local government officials, because he was not the duly elected mayor of San
Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC no.
6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant, wherein the COMELEC
declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC
ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral
elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36
of the COMELEC Rules of Procedure.
Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned
resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private
respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral
elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification
filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be
herd and decided by the COMELEC after the election and proclamation of the said party without distinction as to
the alleged ground for disqualification, whether for acts constituting an election offense or for
ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for
disqualification were issued within the commissions jurisdiction. As regards the merits of the case, the private
respondent maintains that the petitioners assumption of office in 1995 should be considered as service of one full
term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months
before the next mayoral elections.

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The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of
the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter I of
the Local Government Code which bar a local government official from serving more than three consecutive terms
in the same position speaks of service of a term and so the rule should be examined in this light. The public
respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which
should be counted as service of one full term, albeit he was later unseated, because he served as mayor for the
greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 19951998 term is inconsequential in the application of the three term limit because the prohibition speaks of service of a
term which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is
likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the
petition for disqualification is filed after the elections and so the instant petition for disqualification which was filed
before the elections may be resolved by the COMELEC thereafter regardless of the imputed basis of
disqualification.
The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid
term from 1995 to 1998 although he assumed office as mayor for that period because he was no t lawfully elected to
the said office.Moreover, the petitioner was unseated before the expiration of the term and so his service for the
period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his
Reply that the COMELEC ceased to have jurisdiction to hear the election protest after the petitioners proclamation.
The petition has merit.
Section 8, Art. X of the Constitution provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law
shall be three years and no such officials 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 (R.A. No. 7160) restates the same rule:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three 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 issue before us is whether petitioner Lonzanidas assumption of office as mayor of San Antonio Zambales
from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the threeterm limit for elective local government officials.
The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in
section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government
official from running for the same position after serving three consecutive terms. The said disqualification was
primarily intended to forestall the accumulation of massive political power by an elective local government official
in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the
choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by
disqualifying officials from running for the same office after a term of nine years. The mayor was compared by
some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is
most likely to form a political dynasty.[1] The drafters however, recognized and took note of the fact that some local
government officials run for office before they reach forty years of age; thus to perpetually bar them from running
for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose
from.As finally voted upon, it was agreed that an elective local government official should be barred from running
for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same
office.[2]
The scope of the constitutional provision barring elective officials with the exception of barangay officials
from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr., vs.
COMELEC and Jose Capco, Jr.[3] where the issue raised was whether a vice-mayor who succeeds to the office of the
mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term should be
considered to have served a term in that office for the purpose of computing the three term limit. This court pointed
out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the
premise that the officials assumption of office is by reason of election. This Court stated:[4]

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Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion
of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in
office. The second is the idea of election, derived from the concern that the right of the people to choose those whom
they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that
the officials concerned were serving by reason of election. This is clear from the following exchange in the
Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution,
for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the
Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before-if the Gentlemen will remember-was: How long
will that period of rest be? Will it be one election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during
the election following the expiration of the first 12 years, whether such election will be on the third year or
on the sixth year thereafter, his particular member of the Senate can run. So it is not really a period of
hibernation for six years. That was the Committees stand.
xxxx xxxx xxxx
Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X,
section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence
speaks of the term of office of elective local officials and bars such officials from serving for more than three
consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his
full term of office, states that 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. The term served must
therefore be one for which the the official concerned was elected. The purpose of the provision is to prevent a
circumvention of the limitation on the number of terms an elective official may serve.
This Court held that two conditions for the application of the disqualification must concur: 1) that the official
concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully
served three consecutive terms. It stated:
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as
the right to serve in the same elective position. Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected to the same position for the same
number of times before the disqualification can apply.
It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San
Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of
San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of
mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated
November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly
elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are absent. First, the petitioner cannot be
considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully
serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and
revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in
the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His
assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void
proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no
proclamation at all[5] and while a proclaimed candidate may assume office on the strength of the proclamation of the
Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election
protest.[6] Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March
1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which
presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May
1995 mayoral elections.

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Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to
vacate his post before the expiration of the term. The respondents contention that the petitioner should be deemed to
have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis
to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served
three consecutive terms. The second sentence of the constitutional provision under scrutiny states, Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for
the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice
and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term
does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance
from office for any length of time short of the full term porvided by law amounts to an interruption of continuity of
service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that
effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did
not fully serve the 1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence,
his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the
three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998
mayoral elections should therefore be set aside.
The respondents harp on the delay in resolving the election protest between petitioner and his then opponent
Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to
which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific
allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in
office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election
protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial
courts decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the
appeal was pending with the COMELEC. Such delay which is not here shown to have been intentionally sought by
the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen
local government post in the succeeding mayoral election.
The petitioners contention that the COMELEC ceased to have jurisdiction over the petition for disqualification
after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998
or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioners proclamation. It was
held in the case of Sunga vs. COMELEC and Trinidad[7] that the proclamation nor the assumption of office of a
candidate against whom a petition for disqualification is pending before the COMELEC does not divest the
COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits.
Section 6 of RA 6646 specifically mandates that:
Sec. 6. Effects 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.
This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of
the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for
disqualification filed before the election but which remained unresolved after the proclamation of the candidate
sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to
impede the resolution of the petition until after he has been proclaimed.
The court stated:
Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case
to its conclusion, i.e., until judgment is rendered thereon. The word shall signified that this requirement of the law is
mandatory, operating to impose a positive duty which must be enforced. Theimplication is that the COMELEC is
left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the
outright dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in
effect disallows what R. A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the
COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its
authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect
harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such

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interpretative or administrative rulings, of course, the scope of the law itself cannot be limited.Indeed, a quasijudicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a
discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to forsee. A candidate guilty of election offenses
would be undeservedly rewarded, instead of punished, by the dismissal of thedisqualification case against him
simply because the investigating body was unable, for any reason caused upon it, to determine before the election if
the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would
need to do is to employ delaying tactics so that the disqualification case based on the commission of election
offenses would not be decided before the election.This scenario is productive of more fraud which certainly is not
the main intent and purpose of the law.
The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC
of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v.
COMELEC this Court heldTime and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any
canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we
have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid
proclamation. Since private respondents petition before the COMELEC is precisely directed at the annulment of the
canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution
and law to COMELEC xxx Really, were a victim of a proclamation to be precluded from challenging the validity
thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene.
It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or,
if elected.From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate
has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the
subject of a separate investigation.
ACCORDINGLY, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner
Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside.
SO ORDERED.

THIRD DIVISION
[G.R. No. 147767. January 14, 2004]
MANUEL E. ZAMORA, petitioner, vs. GOVERNOR JOSE R. CABALLERO, ANESIO M. RANARIO, in
his capacity as Provincial Administrator, MARIANO KINTANAR, in his capacity as
Provincial Auditor, CARMEN R. RASUL, in his capacity as Provincial Treasurer, ROLANDO
L. OSORIO, BELINDA G. APAWAN, ARMANDO L. SERAS, RUWEL PETER S. GONZAGA,
ARMANDO C. CODILLA, RAUL B. BASAES, GRACIANO C. ARAFOL, JR., respondents.
DECISION
CARPIO-MORALES, J.:
Petitioner Manuel Zamora, a member of the Sangguniang Panlalawigan of Compostela Valley (the
Sanggunian), seeks to invalidate all acts executed and resolutions issued by the Sanggunian during its
sessions held on February 8 and 26, 2001 for lack of quorum.
It appears that on February 6, 2001, Vice-Governor Reynaldo Navarro sent a written notice of a
special session on February 7, 2001. [1] Upon the request of Governor Jose R. Caballero, however, the
scheduled special session was reset to February 8, 2001 without the benefit of a written notice. [2]
On February 8, 2001, the Sanggunian thus held a special session to, among other things, allow the
Governor to deliver his State of the Province Address. As only seven members of the fourteen-member
Sanggunian were present,[3] no resolution was considered.
On February 26, 2001, the Sanggunian held its 4 th regular session during which it issued Resolution
No. 05[4]declaring the entire province of Compostela Valley under a state of calamity and Resolution No.

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07[5] authorizing the Governor to, on behalf of the province, enter into a construction contract (Contract)
with Allado Construction Company, Inc. (the Allado Company) for the completion of Phase II of the
construction of the capitol building. During the same session, the Sanggunian accepted the letter of
irrevocable resignation submitted by Board Member Gemma Theresa M. Sotto. [6]
While only eight members of the Sanggunian were present at the commencement of the session on
February 26, 2001, the Journal of the Proceedings (Journal) and Resolution Nos. 05 and 07 showed that
a total of thirteen members attended it.[7]
Petitioner thus filed a petition [8] before the Regional Trial Court (RTC) of Nabunturan, Compostela
Valley against the Governor, et al., challenging the validity of the acts of the Sanggunian on February 26,
2001, alleging that while the Journal and Resolutions indicated the presence of 13 members, the
Sanggunian nonetheless conducted official business without a quorum [9] as only seven of its fourteen
members were actually present when the irrevocable letter of resignation of Board Member Sotto was
noted,[10] and the motions to declare the entire province of Compostela Valley under a state of
calamity[11] and to authorize the Governor to enter into the Contract with the Allado Company [12] were
approved.[13]
Petitioner additionally alleged that when the vote respecting Resolution No. 05 was taken, only the
remaining six members voted for the adoption thereof, the then presiding officer Board Member Rolando
Osorio not having cast his vote; [14] that when Resolution No. 07 was taken up, however, then presiding
officer Osorio,[15] relinquished his seat to Board Member Graciano Arafol after the six members present
unanimously voted on the said resolution in the affirmative, following which Osorio cast his vote as a
member also in the affirmative, thereby authorizing the Governor to enter into the Contract with Allado
Company; and that Board Member Arafol thereafter relinquished his seat as presiding officer to Board
Member Osorio who once again assumed the duties of a presiding officer.[16]
Petitioner furthermore challenged the validity of the special session of February 8, 2001 for lack of
quorum, there being only seven members of the Sanggunian in attendance, and for lack of written notice
sent to all members at least 24 hours before the holding of the special session in accordance with Section
52 (d)[17] of the Local Government Code of 1991 (LGC).[18]
Respondents, on the other hand, contended that since Board Member Sotto was in the United
States[19] at the time the questioned acts were executed and resolutions adopted, the actual number of
Board Members then in the country was thirteen which should be the basis of the determination of a
quorum.
Branch 3 of the RTC of Nabunturan, at Compostela Valley, by Order [20] of April 24, 2001, dismissed
the petition upon the following ratiocination:
. . . Gemma Theresa M. Sotto should not be counted as member for the purpose of determining the number to
constitute a quorum because she is in the United States of America. However, sub-paragraph (b) [of section 53 of the
Local Government Code] states and provides for compulsion of any member absent without any justifiable cause.
This is interpreted by the Supreme Court in the case of Jose Avelino, petitioner vs. Mariano J. Cuenco, respondent,
G.R. No. L-2821, March 4, 1949.
Gemma Theresa M. Sotto is beyond the reach of the legal processes of the Sangguniang Panlalawigan and could not
be arrested to compel her to attend its session. Quorum should be determined on the basis of the actual number of
members of the body concerned rather than upon its full membership which is fourteen (14). Therefore, in this case,
with seven (7) members of the thirteen (13) members present in constitutive of a quorum. x x x
Moreover, Presidential Decree 1818[21] prohibits the issuance of a restraining order or injunction in any case
involving government infrastructure projects.[22] (Emphases omitted)
Hence, the present petition for Certiorari under Rule 45, faulting the trial court for erroneously (1)
applying the case of Avelino v. Cuenco[23] to a controversy involving a local government unit; (2) taking
judicial notice of Board Member Sottos being in the United States without proof thereof; and (3) ruling that
to grant a Temporary Restraining Order would be in violation of P.D. 1818. [24]
Respondents question the authority of the Court to look beyond the Journal and Resolutions of the
Sanggunian[25] and assert that the construction of the capitol building [26] cannot be enjoined. And they too
assert that the presence of thirteen members at the February 26, 2001 session should be conclusive on
the strength ofArroyo v. De Venecia[27] and U.S. v. Pons.[28] Citation of these cases is misplaced, however.

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In Arroyo v. De Venecia, this Court refused to inquire into allegations that the House of
Representatives failed to comply with the rules of procedures which the House itself promulgated absent
any showing that there was a violation of a constitutional provision or of the rights of private individuals.
In U.S. v. Pons, this Court did not go beyond the legislative journals which it found clear and explicit,
it holding that to disprove the entries in the journals, evidence must be adduced based merely upon the
memory or recollection of witnesses in contrast to journals which are the acts of the Government or
sovereign itself.[29]
In the instant case, this Court is not called upon to inquire into the Sanggunians compliance with its
own rules. Rather, it is called upon to determine whether the Sanggunian complied with the LGC, a law
enacted by Congress, and its Implementing Rules.
Moreover, the Journal of the Sanggunian is far from clear and explicit as to the presence of a quorum
when the questioned acts were taken. It does not indicate how many members were actually present
when the body voted on the motions leading to the adoption of Resolution Nos. 05 and 07. While the
Journal and the Resolutions show that 13 members attended the session,[30] the Journal shows that only
six members were called by the presiding officer to vote on the motions.[31] Six members whose names
appear in attendance, namely: Vice Governor Navarro and Board Members Zamora, Yanong, Castillo,
Andres and Gentugaya, were not called and, save for the absent Vice Governor, [32] no explanation was
given therefor.
Coincidentally, in Resolutions 05 and 07, the names of the Board Members who were not called
upon to vote, including petitioner as he had in the meantime left, are followed by two asterisks (**).
Additionally, it was clearly noted by petitioner, when he asked permission to leave the session, that
only seven members were left:
SP Member ZAMORA : Mr. President, I move to adjourn, Mr. President.
SP Member ARAFOL : Objection Mr. President.
SP Member ZAMORA : Mr. President, before the objection, before objection Mr. President, I would like to invite
everybody to go at my service I have a patient nga gi-pagawas na sa hospital nga i-uli na sa Awao, its been there for
one hour so I really have to go I have to carry that patient to Awao Mr. President.
SP Member OSORIO : You are excused Honorable
SP Member ZAMORA : Okay, then remember that youre only seven Mr. President.
SP Member ARAFOL : No problem.
SP Member ZAMORA : Okay so its alright for you to decide. The seven of you. I would like to manifest in the
record that before further discussion that
SP Member GONZAGA : Mr. President he is already excused Mr. President.
SP Member ZAMORA : Yes but I would like to make statement first for the record, for the record. That I do not
want Mr. President that the incident of the of the State of the Province Address will be repeated Mr. President,
wherein there are only seven members present and the quorum was declared Mr. President. x x x
SP Member GONZAGA : Thats only your opinion . . .[33] (Underscoring supplied)
Respondents themselves admit that there were only seven members present when the motions were
voted upon:
26. Nevertheless, even if that remark constituted a proper question on quorum, it is a matter of fact that there were
still seven (7) members present. x x x [T]here is a quorum since seven is a majority of thirteen (13). x x
x [34] (Emphasis supplied.)
Clearly, this Court is constrained to look into the proceedings of the Sanggunian as recorded in the
Journal and not just rely on Resolution Nos. 05 and 07 to determine who and how many participated in
the consideration thereof. The placing of the asterisks after the names of five members in the Resolutions
is highly irregular and suspicious especially since both resolutions indicate that petitioner, whose name is

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also followed by asterisks, was present even if it is clear from the Journal that he had already left the
session before the Sanggunian took note of the resignation of Board Member Sotto and voted on the
motions.
Respondents other contention that the construction of the capitol building cannot be enjoined in light
of Malaga v. Penachos, Jr.[35] fails to convince. In Malaga, this Court declared that although Presidential
Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the
prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in
controversies involving facts or the exercise of discretion in technical cases. On issues clearly outside this
dimension and involving questions of law, this Court declared that courts could not be prevented from
exercising their power to restrain or prohibit administrative acts. [36]
Respondents maintain that the exception in Malaga as indicated above should not be applied in the
instant case because there was therein a defect in the compliance with procedural rules on bidding. In
contrast, respondents stress, the bidding for the construction of the capitol building in which the winner
was the Allado Company was not defective, they adding that Resolution 07 simply authorized the
Governor to formalize the Contract necessary for the full implementation of the project. [37]
This Court fails to see the essential difference between Malaga and the instant case.
In both cases, the defect in the Contract relates to the non-compliance with the mandate of a law
respecting requirements before validly entering into a contract. In Malaga, the defect pertained to
bidding. In the present case, the alleged defect pertains to the required number of votes necessary to
authorize the Governor to enter into a construction contract.
Clearly then, what is at issue in this case is not the propriety or the wisdom of entering into the
Contract for the construction of the capitol building, which is beyond the power of this Court to enjoin, but
the Sanggunians compliance with the requirements prescribed under the LGC before it may grant the
Governor authority to enter into the Contract, which issue falls under the exception to the proscription
against injunctions in cases involving infrastructure projects, as held in Malaga.
On the applicability of Avelino[38] to the present case: The issue in said case was whether there was a
quorum in a meeting attended by only 12 of 24 senators, one having been in the hospital while another
was out of the country. This Court held that although the total membership of the Senate was 24, the
presence of 12 members already constituted a quorum since the 24 th member was outside the country
and beyond the coercive power of the Senate.[39]
In the instant case, there is nothing on record, save for respondents allegation, to show that Board
Member Sotto was out of the country and to thereby conclude that she was outside the coercive power of
the Sanggunian when the February 8 and 26, 2001 sessions were held. In fact it is undisputed that the
leave form filed by said Board Member before the Department of Interior and Local Government (DILG)
did not mention that she was going out of the country. [40] Petitioners contention that the trial court cannot
take judicial notice of Board Member Sottos whereabouts is thus well taken. On this score, the instant
case is outside the application of the doctrine in Avelino.
A court may take judicial notice of matters of public knowledge, or those which are capable of
unquestionable determination or ought to be known to judges because of their judicial functions. [41] With
respect to disputed facts, however, the court must receive evidence thereof, with notice to the parties. [42]
Also, in Avelino, the legislative body involved was the Senate and the applicable rule on quorum was
that embodied in Article VI, Section 10 of the 1935 Constitution which reads:
Section 10. x x x
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may
adjourn from day to day and may compel the attendance of absent Members in such manner and
under such penalties as such House may provide.[43] (Emphasis supplied)
The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of
Compostela Valley Province, and the applicable rule respecting quorum is found in Section 53(a) of the
LGC which provides:
Section 53. Quorum.-

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(a) A majority of all members of the sanggunian who have been elected and qualified shall constitute a
quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer
shall immediately proceed to call the roll of the members and thereafter announce the results. (Emphasis supplied)
Quorum is defined as that number of members of a body which, when legally assembled in their
proper places, will enable the body to transact its proper business or that number which makes a lawful
body and gives it power to pass upon a law or ordinance or do any valid act. [44] Majority, when required to
constitute a quorum, means the number greater than half or more than half of any total. [45] In fine,
the entire membership must
be
taken
into
account
in
computing
the
quorum
of
the sangguniang panlalawigan, for while the constitution merely states that majority of each House shall
constitute a quorum, Section 53 of the LGC is more exacting as it requires that the majority
of all members of the sanggunian . . . elected and qualified shall constitute a quorum.
The difference in the wordings of the Constitution and the LGC is not merely a matter of style and
writing as respondents would argue, but is actually a matter of meaning and intention. [46] The qualification
in the LGC that the majority be based on those elected and qualified was meant to allow sanggunians to
function even when not all members thereof have been proclaimed. [47] And, while the intent of the
legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all
members thereof have been proclaimed and have assumed office, the provision necessarily applies
when, after all the members of the sanggunian have assumed office, one or some of its members file for
leave. What should be important then is the concurrence of election to and qualification for the office. And
election to, and qualification as member of, a local legislative body are not altered by the simple expedient
of filing a leave of absence.
The trial court should thus have based its determination of the existence of a quorum on the total
number of members of the Sanggunian without regard to the filing of a leave of absence by Board
Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in
order to cripple the functioning of thesanggunian is already addressed by the grant of coercive power to a
mere majority of sanggunian members present when there is no quorum.[48]
A sanggunian is a collegial body. Legislation, which is the principal function and duty of
the sanggunian, requires the participation of all its members so that they may not only represent the
interests of their respective constituents but also help in the making of decisions by voting upon every
question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of the
legal provisions aforementioned are legally infirm, highly questionable and are, more importantly, null and
void. And all such acts cannot be given binding force and effect for they are considered unofficial acts
done during an unauthorized session.
Board Member Sotto is then deemed not resigned because there was no quorum when her letter of
irrevocable resignation was noted by the Sanggunian. For the same reason, Resolution Nos. 05 and 07
are of no legal effect.
Even assuming arguendo that there were indeed thirteen members present during the questioned
February 26, 2001 session, Resolution No. 05 declaring the entire province of Compostela Valley under
state of calamity is still null and void because the motion for its approval was approved by only six
members.[49] When there are thirteen members present at a session, the vote of only six members can
not, at any instance, be deemed to be in compliance with Section 107(g) [50] of the Rules and Regulations
Implementing the LGC which requires the concurrence of the approval by the majority of the members
present and the existence of a quorum in order to validly enact a resolution.
The motion to grant the Governor authority to enter into the construction contract is also deemed not
approved in accordance with the law even if it received seven affirmative votes, which is already the
majority of thirteen, due to the defect in the seventh vote. For as priorly stated, as the Journal confirms,
after all six members voted in the affirmative, Board Member Osorio, as acting presiding officer,
relinquished his seat to Board Member Arafol and thereafter cast his vote as a member in favor of
granting authority to the Governor.[51]
This Court is faced with an act clearly intended to circumvent an express prohibition under the law a
situation that will not be condoned. [52] The LGC clearly limits the power of presiding officers to vote only in
case of a tie, to wit:
Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang
panlalawigan x x x. The presiding officer shall vote only to break a tie.

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(b) In the event of inability of the regular presiding officer to preside at a sanggunian session, the members present
and constituting a quorum shall elect from among themselves a temporary presiding officer. x x x (Italics in the
original. Emphasis supplied.)
While acting as presiding officer, Board Member Osorio may not, at the same time, be allowed to
exercise the rights of a regular board member including that of voting even when there is no tie to break.
A temporary presiding officer who merely steps into the shoes of the presiding officer could not have
greater power than that possessed by the latter[53] who can vote only in case of a tie.
Lastly, for a resolution authorizing the governor to enter into a construction contract to be valid, the
vote of the majority of all members of the Sanggunian, and not only of those present during the session, is
required in accordance with Section 468 [54] of the LGC in relation to Article 107 [55] of its Implementing
Rules.
Even including the vote of Board Member Osorio, who was then the Acting Presiding Officer,
Resolution No. 07 is still invalid. Applying Section 468 of the LGC and Article 107 of its Implementing
Rules, there being fourteen members in the Sanggunian, the approval of eight members is required to
authorize the governor to enter into the Contract with the Allado Company since it involves the creation of
liability for payment on the part of the local government unit.
WHEREFORE, the petition is hereby GRANTED. The assailed Order of the Regional Trial Court of
Nabunturan, Compostela Valley dated April 24, 2001 is hereby reversed and set aside.
Resolution Nos. 05 and 07 of the Sangguniang Panlalawigan of Compostela Valley approved on
February 26, 2001 declaring the entire Province of Compostela Valley under a state of calamity and
granting authority to the Provincial Governor to enter into a general construction agreement, respectively,
are hereby declared null and void.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18919

December 29, 1962

ABELARDO JAVELLANA, TOMAS JONCO, RUDICO HABANA, EXEQUIEL GOLEZ, ALFREDO ANG,
and FILIPINAS SOLEDAD, in their capacities as Councilors of the Municipal Municipality of
Buenavista, Province of Iloilo, petitioners appellees,
vs.
SUSANO TAYO, as Mayor of the Municipal Municipality of Buenavista, Iloilo, respondent-appellant.
Ramon A. Gonzales for petitioners-appellees.
Rico & Tia for respondent-appellant.
BARRERA, J.:
This is a direct appeal taken by respondent Susano Tayo (Mayor of the Municipality of Buenavista, Iloilo)
from the decision of the Court of First Instance of Iloilo (in Civil Case No. 5558, for mandamus) declaring
legal and validity the regular session held by petitioners Abelardo Javellano Tomas Jonco, Rudico
Habana, Exequiel Golez, Alfredo Ang, and Filipinas Soledad, constituting a majority of the elected
councilors of said municipality, and ordering respondent to give due course to the resolutions and or
ordinances passed thereat, and to sign the payrolls corresponding to the session days of June 1, June
15, July 6, July 20, August 3, August 17, September 7, and September 21, 1960 for payment of the per
diems of petitioner as councilors; to pay said Councilor Golez the sum of P100.00 as moral damages; and
to pay P100.00 as attorney' fees plus costs.
The case was submitted on the following Stipulation of Facts:
I

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That the petitioners are duly elected and qualified a members of the Municipal Council of the
Municipality of Buenavista, Province of Iloilo, Philippines; and that the respondent at the time the
acts hereinbelow complained of took place, was and still is the duly-elected and qualified Mayor
of the Municipality of Buenavista, Province of Iloilo Philippines where he resides and may be
served with summons.
II
On February 8, 1960. the Municipal Council of the Municipality of Buenavista, Iloilo, unanimously
approved Resolution No. 5, Series of 1960, dated February 8, 1960, a copy of which is hereto
attached to form an integral part hereon as Annex 'A', which set the regular sessions of the
Municipality Council of Buenavista on every first and third Wednesday of every month, and which
resolution was duly approved by the respondent, in his capacity as Mayor of the Municipality of
Buenavista.
III
That on June 1, 1960, at the time and place set for the regular session of the Municipal Council,
the Mayor, Vice-Mayor, No. 1 and No. 2 Councilors, and the Secretary were absent.
IV
That the six councilors, who are the petitioners in this case, were present and they proceeded to
elect among themselves a temporary presiding officer and Acting Secretary to take notes of the
proceedings. Having thus elected a temporary presiding officer and a secretary of the Council,
they proceeded to do business.
V
That on June 15. 1960, at the time and place designated in Resolution No. 5, series of 1960,
dated February 8, 1960 above referred to, the petitioners acting as duly elected and qualified
councilors were present and again, in view of the absence of the Mayor, Vice-Mayor said to
councilor and the Secretary proceeded to elect a temporary presiding officer and temporary
secretary from among them, and did business as a Municipal Council of Buenavista.
VI
That again on July 6, and July 21, 1960, on August 3, and August 17, September 7, and on
September 21, 1960, the petitioners met at the place and time designated in Resolution No. 5,
series of 1960, and proceeded to elect a temporary Secretary among themselves, and did
business as the Municipal Council of Buenavista, in view again of the absence of the Mayor ViceMayor, 2 councilors, and the Secretary.
VII
That when the minutes of the proceedings of June 1, June 15. July 6, July 20, August 17,
September 7, and September 21, 1960 of the Municipal Council were presented to the
respondent for action, the respondent Mayor refused to act upon said minutes, or particularly to
approve or disapprove the resolution as approved by the municipal Council, the Mayor declaring
the sessions above referred to as null and void and not in accordance with.
VIII
That the petitioners made repeated demands for payment of their per diems for the of June 1,
June 15, July 6, July 20, August 3, August 17, September 7, 1960, by representing the payrolls;
Provincial Forms No. 38(A) to the respondent Mayor for the latter signature, but that the
respondent refused to affix his signature to the payrolls thus presented, covering the per diems of
the petitioner alleging that the proceedings were illegal due to his absence.
IX
That the petitioners, acting through Atty. Bartolome T. Tina, addressed a letter dated August 8,
1960 to the Honorable Provincial Fiscal of the Province of Iloilo, asking of the latter's opinion on
the validity of the acts of the herein petitioners, acting as the Municipal Council in the absence of

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84

the Mayor, Vice-Mayor, said two councilors and the secretary, a copy which letter is herewith
attached as Annex 'B' and made an integral part of this petition.
X

That on August 9, 1960, the Honorable Provincial Fiscal of the Province of Iloilo in his
indorsement, rendered an opinion upholding the validity of the controverted sessions of the
Municipal Council, a copy, of which communication is, likewise attached herein is Annex 'C' and
made an integral part of this petition.
XI
That despite the opinion of the Provincial Fiscal, the respondent Mayor refused and still refuses to
act upon the resolution petitions presented to him and to sign the payrolls covering the per diems
of the herein petitioners.
XII
That the respondent brought the matter to the attention of the Provincial Board, of the Province of
Iloilo, by means of a letter questioning the legality of the minutes of the regular possession of the
Municipal Council without his presence individual that the Provincial Board resolved on
September 23, 1960 to return the minutes of the regular session of the Municipal Council of
Buenavista, Iloilo, informing the Mayor that per the opinion of the Legal Assistant, said minutes is
legal.
XIII
That despite the resolution of the Provincial Board, the Mayor refused and still refuses to
recognize the validity of the acts of the Municipal Council and the legality of its regular session
held in his absence.
On the basis of the foregoing Stipulation of Facts (plus the testimony of Councilor Exequiel Golez), the
trial court (on July 26, 1961) rendered the decision above adverted to, partly stating:
This Court, after perusal of all the records of this case has reached the conclusion that the
sessions held by the petitioner during the absence of the respondent Mayor were perfectly valid
and legal. The attendance of the Mayor is not essential to the validity of the session as long as
there is quorum constituted in accordance with law. To declare that the proceedings of the
petitioners were null and void, is to encourage recalcitrant public officials who would frustrate
valid session for political end or consideration. Public interest will immensely suffer, if a mayor
who belongs to one political group refuses to call or attend a session, because the Council is
controlled by another political group. In a democrats the minority should respect the majority and
inasmuch as the petitioners constitute the majority political group, it is but natural that they could
validly hold a valid session, in order to devise means for public interest.
The respondent here as Municipal Mayor should have given good example, by calling and
attending regular session on the dates fixed by the Council. In the discharge of his of official duty,
he should consider the Session Hall of the Municipal Council as the sanctuary and depository of
public interest and public welfare. Any member of the Council should enter the Session Hall, not
as a representative of any political part or group, but as a representative of the people of the
municipality whose interest and welfare should be safeguarded by the Council. In entering this
Hall, he must lay aside his political affiliation, interest, and consideration, because it is the sworn
duty of every councilor to perform his duty with justice and impartiality. Not to attend a meeting,
constitutes an abandonment of the people's welfare. One may be in the minority group, but he
can discharge his duty with honor and prestige as a fiscalizer, to fiscalize the doings and
actuations of the majority. He may be overwhelmed in his plan or project by superior numerical
majority but if he could adduce good reasons and arguments in favor of the welfare of the people,
his task as a fiscalizer is thereby attained. There is no fear on attending any session because if
your project is not carried out, you may have the remedy, either by administrative or judicial relief,
by questioning and ordinance or resolution passed by the majority, which may be null and void
because they are excessive and unreasonable. So, there is no reason why the respondent in this
case had refused to attend the session of the Council.

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85

Petitioners here claim moral damages pursuant to the provisions of Article 2219, in connection
with Article 21 and Article 27 of the new Civil Code. Said Article 27 provides as follows:
'Any person suffering material or moral loss because a public servant or employee
refuses or neglects, without just cause, to perform his official duty may file an action for
damages and other relief against the latter, without prejudice to any disciplinary
administrative action that my be taken.'lawphil.net
But in support of the allegations in the petition, only petitioner Exequiel Golez was presented as a
witness who prove moral damages he suffered as a consequence of the refusal the respondent
Susano Tayo to perform his official duty. such, of all the petitioners, only Exequiel Golez is entitled
receive moral damages in the sum of P100.00.
IN VIEW OF THE FOREGOING, the petition for a writ of mandamus is hereby granted, and the
respondent is here ordered to give due course to the resolutions and ordinance passed by the
petitioners in the regular sessions during the absence of the respondent, to give due course and
sign the payrolls covering the periods of June 1, June 15, July 6, July 20, August 3, August 17,
September 7, and September 21, 196 for the payment of per diems of the petitioners as
Municipal Councilors; to pay to said Exequiel Golez, the sum of P100.00 as moral damage, to
pay the sum of P100.00 as attorney's fee and to pay the costs of the proceeding.
SO ORDERED.
Respondent-appellant claims, in this appeal, that the trial court erred in holding that the sessions held by
petitioners-appellees during his absence and during the absence of his Vice-Mayor and the No. 1 and No.
2 Councilors the Municipal Council of Buenavista, Iloilo were valid an legal.
The claim is untenable. In the first place, there is no question that the sessions at issue were held on the
days set for regular sessions of the council, as authorized an approved in a previous resolution. Secondly,
it is not disputed that a majority of the members of the council (six out of ten) were present in these
sessions. Consequently, pursuant to Section 2221 of the Revised Administrative Code which provides:
SEC. 2221. Quorum of council Enforcing Attendance of absent members. The majority of
the council elected shall constitute a quorum to do business; ....
there was a quorum to do business in all the sessions in question. The term "quorum" has been
defined as that number of members of the body which, when legally as assembled in their proper
places, will enable the body to transact its proper business, or, in other words, that number that
makes a lawful body and gives it power to pass a law or ordinance or do any other valid corporate
act. (4 McQuillin, Municipal Corporation [3rd Ed 478]; see also State vs. Wilkesville Tp., 20 Ohio
St. 288).
Appellant, however asserts that while under Section 2221 of the Revised Administrative Code, the
majority of the members of the council constitutes a quorum to do business, the council "shall be presided
by the Mayor and no one else", inasmuch as it is one of the duties imposed upon him under Section
2194(d) of the Revised Administrative Code. 1 The argument would be correct if the mayor (herein
appellant) were present at the sessions in question and was prevented from presiding therein, but not
where, as in the instant case, he absented himself therefrom.
Appellant likewise invokes Section 7 (third paragraph) of Republic Act No. 9264, 2 in support of his view
that the sessions in question were null and void, as they were not presided by him or by his Vice-Mayor,
or by the councilor who obtained the largest number of votes.lawphil.net
It is true that this section mentions only the vice-mayor, or in his place, the councilor who obtained the
largest number of votes who could perform the duties of the mayor, in the event of the latter's temporary
incapacity to do so, except the power to appoint, suspend, or dismiss employees. Ordinarily, this
enumeration would be in interpreted as exclusive, following the general principle of inclusio unius, est
exclusio alterius, but there are cogent reasons to disregard this rule in this case, since to adopt it would
cause inconvenience, hardship, and injury to public interest, as it would place in the hands of mayor, vicemayor, and the councilor receiving the highest number of votes an instrument to defeat the law investing
the legislative power in the municipal council, by simply boycotting, as they continuously did for 4 months,
regular sessions of the council. It is to be noted that same section 7 of Republic Act No. 2264 invoked by
appellant provides, in case of permanent incapacity of mayor, vice-mayor, and the councilor obtaining the
largest number of votes, to assume and perform the duties of mayor, the councilor receiving the next

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largest number of votes, and so on, can assume and perform such duties. We see no strong reason why
the same procedure should not be followed in case of temporary incapacity, there being no express
prohibition against its observance. The legal provision being therefore susceptible of two in
interpretations, we adopt the one in consonance with the resumed intention of the legislature to give its
enactmentthe most reasonable and beneficial construction, the that will render them operative and
effective and harmonious with other provisions of law. This is imperative because, as already pointed out
heretofore, under the law "the majority of the council elected shall constitute a quorum to do business",
and this would be defeated if adopt the literal interpretation of appellant that only mayor, vice-mayor, or
the councilor receiving the largest number of votes could preside the council's meeting, to legal,
irrespective of the presence of a quorum or majority of the councilors elected. Such an interpretation
would, indeed, be fraught with dangerous consequences. For it would, in effect, deprive the municipal
council its function, namely, the enactment of ordinances design for the general welfare of its inhabitants.
As the trial court aptly observed, "To declare that the proceedings of thepetitioners (herein appellees)
were null and void, is to encourage recalcitrant public officials who would frustrate valid sessions for
political end or consideration. Public interest will immensely suffer, if a mayor who belong to one political
group refused to call or attend a session because the council is controlled by another political group."
Lastly, appellant contests the award of moral damage to appellee councilor Exequiel Golez. We find said
award proper under Article 27 of the new Civil Code, 3 considering that according to the trial court, he
(Golez) was able to prove that he suffered the same, as a consequence of appellant's refusal to perform
his official duty, not withstanding the action taken by the Provincial Fiscal an the Provincial Board
upholding the validity of the session in question.
WHEREFORE, the decision appealed from is hereby affirmed with costs against respondent-appellant.
So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,Paredes and Makalintal,
JJ. concur.
Dizon and Regala, JJ., took no part.
1"SEC. 2194. Mayor as chief executive of municipality. ... He shall have the following duties:
xxx

xxx

xxx

"(d) He shall preside at the meetings of the municipal council and shall recommend to said body from time
to time, such measures connected with the public health, cleanliness or ornament of the municipality or
the improvement of its finances as he shall deem expedient."
2 "SEC. 7. The city, municipal, and municipal district vice-mayor and succession to the office of mayor.
... In the event of temporary incapacity of the mayor to perform the duties of his office on account of
absence on leave, sickness or and temporary incapacity, the vice-mayor shall perform the duties and
exercise the powers of the mayor except the power to appoint suspend or dismiss employees. In the even
the vice-mayor is temporarily incapacitated to perform the duties of the office of mayor, the councilor who
obtained the largest number of votes among the incumbent councilors in the local elections immediately
preceding shall perform the duties and exercise the powers of the mayor except the power to appoint,
suspend or dismiss employees. ..."
3 "Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or
neglects, without just cause, to perform his official duty may file an action for damages and other relief
against the latter, without prejudice to any disciplinary administrative action that may be taken.

EN BANC
[G.R. No. 137718. January 28, 2000]
REYNALDO O. MALONZO, in his capacity as City Mayor of Caloocan City, OSCAR MALAPITAN, in
his capacity as Vice-Mayor of Caloocan City, CHITO ABEL, BENJAMIN MANLAPIG, EDGAR ERICE,
DENNIS PADILLA, ZALDY DOLATRE, LUIS TITO VARELA, SUSANA PUNZALAN, HENRY CAMAYO,
in their capacities as Members of the Sangguniang Panlungsod of Caloocan City,petitioners,
vs. HON. RONALDO B. ZAMORA, in his capacity as Executive Secretary, HON. RONALDO V.
PUNO, in his capacity as Undersecretary of the Department of Interior and Local Government, and
EDUARDO TIBOR, respondents. Sdaadsc

87

RESOLUTION

Page

DE LEON, JR., J.:

On March 15, 1999, the Office of the President (OP) through Executive Secretary Ronaldo Zamora,
rendered a Decision[1] the dispositive portion of which reads, viz.:
"WHEREFORE, herein respondents Mayor Reynaldo Malonzo, Vice-Mayor Oscar G.
Malapitan and Councilors Chito Abel, Benjamin Manlapig, Edgar Erice, Dennis Padilla,
Zaldy Dolatre, Susana Punzalan, Henry Cammayo, and Luis Tito Varela, all of Caloocan
city are hereby adjudged guilty of misconduct and each is meted the penalty of
SUSPENSION from office for a period of three (3) months without pay to commence
upon receipt of this Decision. This Decision is immediately executory.
SO ORDERED." Rtcspped
On March 22, 1999, petitioners Mayor Reynaldo Malonzo, Vice-Mayor Oscar G. Malapitan and councilors
Chito Abel, Benjamin Manlapig, Edgar Erice Dennis Padilla, Zaldy Dolatre, Luis tito Varela, Susana
Punzalan, and Henry Cammayo, all of the City of Caloocan, filed a petition assailing the OP decision.
On July 27, 1999, We granted the petition and accordingly annulled and set aside the OP decision for
having been rendered with grave abuse of discretion and/or excess of jurisdiction. We held:
"x x x [T]he instant petition has been properly brought before us in the light of the
importance of the subject matter and the transcendental nature of the issues raised.
Realignment of [items in the annual budget] is a common practice borne of necessity and
sanctioned by law. Just how such a common practice may be carried out within the
bounds of law, considering the fact that public funds are at stake, is, we believe, an issue
that is not only one of first impression, but likewise of considerable significance as a
guide to local governance . x x x
"x x x The OP found petitioners guilty of misconduct on the ground that x x x
"x x x the P39,352,047.75 appropriated in Ordinance 0254 to fund the
expropriation of Lot 26 of the Maysilo Estate was merely a portion of the
P50 million included and appropriated in the 1998 Annual Budget for
expropriation purpose and x x x the judicial action for expropriation x x x
is still pending with the court. This being so, the amount allocated for the
expropriation cannot be reverted to or be deemed as savings to serve as
funds actually available for the supplemental budget. x x x
"We cannot, however, agree x x x. Xlaw
"The OPs premise, in our opinion, rests upon an erroneous appreciation
of facts on record. The OP seems to have been confused as to the
figures and amounts actually involved. A meticulous analysis of the
records would show that there really is no basis to support the OPs
contention that the amount of P39,352,047.75 was appropriated under
Ordinance No. 0254, S. 1998, since in truth and in fact, what was
appropriated in said ordinance was the amount of P39,343,028.00. The
allocation of P39,352,047.75 is to be found in the earlier Ordinance no.
0246,S.1997 which is a separate and distinct ordinance. x x x
"x x x
"Section 322 of the Code upon which the OP anchored its opinion that
petitioners breached a statutory mandate provides: Xsc
"SEC. 322. Reversion of Unexpended Balances of Appropriations, Continuing
AppropriationsUnexpended balances of appropriations authorized in the annual
appropriations ordinance shall revert to the unappropriated surplus of the general funds
at the end of the fiscal year and shall not thereafter be available for expenditure except
by subsequent enactment. However, appropriations for capital outlays shall continue and
remain valid until fully spent, reverted or the project is completed. Reversions of

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continuing appropriations shall not be allowed unless obligations therefor have been fully
paid or settled."
"Based on the above provision, the OP reached the determination that Ordinance No.
0254, S. 1998 could not have lawfully realigned the amount of P39,352,047.75 which was
previously appropriated for the expropriation of Lot 26 of the Maysilo Estate since such
appropriation was in the nature of a capital outlay until fully spent, reverted, or the project
for which it is earmarked is completed.
"The question, however, is not whether the appropriation of P39,352,047.75 could fall
under the definitions of continuing appropriation and capital outlays, considering that
such amount was not the subject of realignment made by Ordinance No. 0254, Series of
1998. Rather, the issue is whether petitioners are liable for their actions in regard to said
ordinance which actually realigned a position of the P50 million which was simply
denominated in a general manner as "Expropriation of Properties" and classified under
"Current Operating Expenditures" in the 1998 Annual Budget of Caloocan City. Clearly,
these are two distinct amounts separate from each other. x x x [T]he P50 million was
NOT appropriated for the purpose of purchasing Lot 26 of the Maysilo Estate but rather
for expenses incidental to expropriation such as relocation of squatters, appraisal fee,
expenses for publication, mobilization fees and expenses for preliminary studies. x x x
The appropriation of P39,352,047.75 under Ordinance No. 0246, S. 1997 is, we believe,
still a subsisting appropriation that has never been lumped together with other funds to
arrive at the sum of P50 million allocated in the 1998 budget. To be sure, denomination of
the P50 million amount as "Expropriation of Properties left much to be desired and would
have been confused with the appropriation for expropriation under Ordinance No. 0246,
S. 1997, but had respondents probed deeper into the actual intention for which said
amount was allocated then they would have reached an accurate characterization of the
P50 million. Misspped
Bearing in mind, therefore, the fact that it is the P50 million which is now being realigned,
the next logical question to ask is whether such amount is capable of being lawfully
realigned. To this we answer in the affirmative.
"x x x [R]espondents x x x argued x x x that realignment shall not be allowed when what
is involved are continuing appropriations or capital outlays. But this argument becomes
clearly inapplicable in view of our disquisition above x x x. The realignment x x x
pertained to the P50 million which was classified as "Current Operating Expenditures" x x
x
"x x x [W]hat is being realigned is the P50 million appropriation which is classified, neither
as a capital outlay nor a continuing appropriation x x x
As to the alleged violation of Sections 50 and 52 of the Code requiring the adoption of
house rules and the organization of the council, we believe that the same hardly merits
even cursory consideration. We cannot infer x x x that no other business [like the
enactment of the ordinance] may be transacted on the first regular session except to the
take up the matter of adopting or updating rules. Sc
"The foregoing explanation leads us to the ineluctable conclusion that, indeed,
respondents committed grave abuse of discretion. Not only [is] their reasoning flawed bit
[it is] likewise lacking in factual and legal support. Misconduct, being a grave
administrative offense for which petitioners stood charged, cannot be treated cavalierly.
There must be clear and convincing proof on record that petitioners were motivated by
wrongful intent, committed unlawful behavior in relation to their offices, or transgressed
some established and definite rules of action. But, as we have stressed above,
petitioners were acting within legal bounds."
The dispositive portion of Our Decision of March 22, 1999, reads, thus:
"WHEREFORE, the instant petition is hereby GRANTED. The assailed decision of the
office of the president in O.P. Case No. 98-H-8520 dated March 15, 1999 is ANNULLED
and SET ASIDE for having been rendered with grave abuse of discretion amounting to
lack and/or excess of jurisdiction. Consequently, respondents, their subordinates, agents,
representatives, and successors-in-interest are permanently enjoined from enforcing or
causing the execution in any manner of the aforesaid decision against petitioners."

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On August 12, 1999, the Office of the Solicitor General filed a Motion for Reconsideration [2] contending
that:
I. The OP did not err in its appreciation of facts; Scmis
II. Ordinance No. 0254, Series of 1998 was passed without funds actually available;
III. Ordinance No. 0254, Series of 1998 was also enacted without sufficient compliance
with Section 50, Chapter 3, Title II of the Local Government Code of 1991;
IV. Petitioners failure to observe the stricture in the enactment of the Supplemental
Budget Ordinance constitutes misconduct; and
V. Assuming arguendo that the OP did err in its appreciation of the facts on record, still
this does not constitute grave abuse of discretion which can be reviewed by this Court
through a special civil action for certiorari.
On October 20, 1999, petitioners filed their Comment and/or Opposition to Motion for Reconsideration. [3]
These issues have already been discussed in Our Decision of July 27, 1999. As respondents persist in
their stance, we must also thus restate our position to dispel any and all doubts on the matter. Missc
First. Respondents aver that in their Consolidated Answer which petitioners filed before the OP [4],
petitioners admitted that the sum of P39,352,047.75 under Ordinance No. 0246, Series of 1997 was
included in the P50,000,000.00 denominated in a general manner as "Expropriation of Properties" and
classified under "Current Operating Expenditures" in the 1998 Budget of Caloocan City. Petitioners
however allegedly only took a different position in their pleadings on appeal and during the oral argument
before the Court as they clarified that the sum of P39,352,047.75 under Ordinance No. 0246 Series of
1997 is separate and distinct from and not part of the sum of P50,000,000.00 categorized as "Current
Operating Expenditures" in the 1998 Budget of Caloocan City. Respondents insist that petitioners may not
change their theory for the first time on appeal since their admissions before the OP bind them, and to do
so would be offensive to the basic rules of fair play and justice.
We disagree.
There is nothing in the records to indicate that the sum of P39,352,047.75 appropriated under Ordinance
No. 0246, Series of 1997 is actually part of the P50,000,000.00 allotted for "Expropriation of Properties,"
under the "Current Operating Expenditures" of the 1998 Annual Budget of Caloocan City.
Ordinance No. 0246, Series of 1997[5] appropriated P39,352,047.75 for the expropriation of Lot 26 of the
Maysilo Estate. It is, however, not this but the sum of P39,343,028.00 appropriated under Ordinance No.
0254, Series of 1998[6] which was sourced from the P50,000,000,00 allotted for "Current Operating
Expenditures". It should be noted that the P50,000,000.00 under "Current Operating Expenditures" of the
1998 Annual Budget was denominated as for "Expropriation of Properties" but the particular properties
subject of expropriation were not specified. In fact, petitioners, in the same consolidated answer cited by
respondents, have unequivocally stated that "as will be noted from the budget, the expropriation of
properties does not refer to any particular property." [7] Thus, it can be said that petitioners, as early as
when the case was pending before the OP, were already arguing about the character of
the P50,000,000.00 as proper subject of realignment. Spped
The source of confusion lies in the denomination of P50,000,000.00 as money for "Expropriation of
Properties" under "Current Operating Expenditures". As such, it was to be spent for the expropriation of
various properties, including incidental expenses for expropriation. What was exclusively appropriated for
the expropriation of the Maysilo Lot was the P39, 352,047.75 under Ordinance No. 0246, Series of 1997.
It is significant to note that this is a 1997 ordinance while the P39,343,028.00 which was originally
intended for incidental expenses for expropriation of the Maysilo Lot was under a 1998 ordinance.
That what was being realigned was the P50,000,000.00 under "Current Operating Expenditures" to fund
theP39,343,028.00 expense under Ordinance No. 0254, Series of 1998, and not the P39,352,047.75
under Ordinance No. 0247, Series of 1997, was further clarified by petitioners during their oral argument
before this Court on April 20, 1999.[8] Jospped
Second. Respondents insist that Ordinance No. 0254, Series of 1998 was passed without funds actually
available. In support of their contention, they cite the dissenting opinion of Justice Kapunan that "there

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was no "unavoidable discontinuance" or an "abandonment of the work or activity" as contemplated under

Section 321 of the Local Government Code since the records do not indicate that the expropriation case
before the Regional Trial Court was actually withdrawn, suspended, discontinued or abandoned by the
City of Caloocan.
This argument however is wrongfully premised as it presupposes the identity, which does not however
exist, between the P39,352,047.75 appropriated under Ordinance No. 0246, Series of 1997, and the
P39,343,028.00 appropriated under Ordinance No. 0254, Series of 1998. The former which was a 1997
appropriation was never touched for the expropriation of the Maysilo Lot and did not materialize, while the
latter was sourced from the 1998 Annual Budget under "Current Operating Expenditures" by realigning
the allocation of P50,000,000.00 therefrom to fund the items in Ordinance No. 0254, Series of 1998.
Since the P50,000,000.00 appropriation is classified neither as capital outlay nor as a continuing
appropriation[9] but as "Current Operating Expenditures," it could be a valid subject of
realignment. Sppedjo
Third. Respondents maintain that Ordinance No. 0254, Series of 1998 was enacted without sufficient
compliance with the requirement of Section 50 of the Local Government Code requiring that house rules
be adopted or updated.
The records satisfactorily show, however, that the Sanggunnian took up the matter of adopting a set of
house rules in its general meeting entitled, "Katitikan ng Karaniwang Pulong ng Sangguniang Panlungsod
na ginanap noong ika2 ng Hulyo 1998 sa Bagong Gusali ng Pamahalaang Lungsod ng
Caloocan."[10] During said meeting, the Sanggunian created an Ad Hoc Committee composed of seven (7)
members to study the existing house rules. Thereafter, it enacted Ordinance No. 0254, Series of 1998.
As we have held in our Decision dated July 27, 1999, such succession of events is legally permissible.
The law does not require the completion of the updating or adoption of the internal rules of procedure
before the Sanggunian could act on any other matter like the enactment of an ordinance. It simply
requires that the matter of adopting or updating the internal rules of procedure be taken up during the first
day of session. It would be inequitable to read something more into the requirement of the law and use it
as a basis for finding petitioners guilty of misconduct, especially when the charge is serious enough to
warrant a penalty of suspension from office for three (3) months without pay. Miso
Fourth. Respondents maintain that assuming that the Sanggunian can legally take up matters pertaining
to the supplemental budget even before the adoption or updating of its existing rules of procedure, the
circumstances that preceded the enactment of the supplemental budget were irregular since there was
undue haste in conducting the three readings of Ordinance No. 0254, Series of 1998, in one session day.
There is nothing in the law, however, which prohibits that the three readings of a proposed ordinance be
held in just one session day. Respondents themselves are aware of this. And it certainly is not the
function of this Court to speculate that the councilors were not given ample time for reflection and
circumspection before the passage of the proposed ordinance by conducting the three readings in just
one day considering that it was a certain Eduardo Tibor, by himself as taxpayer, and not the councilors
themselves, who raised such complaint. It might not be amiss to point out that the salaries of the city
employees were to be funded by the said ordinance which embodied the supplemental budget for 1998,
hence, the urgency for its passage. Even the five (5) councilors [11] who abstained from voting for the
passage of Ordinance 0254, Series of 1998 took advantage of its benefits by submitting to the office of
petitioner Malonzo the names of the employees assigned to their respective offices for salary and
accounting purposes.[12] Nexold
Finally. Respondents assert that assuming that the OP erred in its appreciation of the facts on record, no
grave abuse of discretion correctible by a special civil action for certiorari may be attributed thereto.
But there was grave abuse of discretion on the part of the OP. Its findings are totally devoid of support in
the record. Hence, the Decision of respondent Executive Secretary, suspending the petitioners, on the
basis of the said findings, constitutes grave abuse of discretion amounting to an act done in excess of
jurisdiction.
WHEREFORE, the respondents motion for reconsideration is DENIED with FINALITY.
SO ORDERED.

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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-29458

March 28, 1969

VIRGINIA F. PEREZ petitioner,

vs.
HON. RAFAEL DE LA CRUZ, REYNALDO BORJA, ROBERTO RUELO, FELICISIMO DE ASIS and
CARLOS DEL CASTILLO, respondents.
Salonga, Ordoez, Yap, Sicat and Associates for petitioner.
Reynaldo P. Borja for and in his own behalf as respondent.
CASTRO, J.:
This is an original petition for certiorari and prohibition with preliminary injunction filed by Virginia F.
Perez, as vice mayor of Naga City, to enjoin the enforcement of a writ of prohibitory injunction dated
January 22, 1968 issued by the respondent judge Rafael de la Cruz of the Court First Instance of
Camarines Sur in civil case 6504.
The essential determinative facts are not disputed.
On January 8, 1968, in a private conference held at the Office of the petitioner Perez, with the seven city
councilors and the vice-mayor of Naga present, the latter presiding thereat, the matter of selecting the
secretary of the municipal board of the said city as well as the chairmen of the various standing
committees of the said board came up for discussion. At the indication by the four Nacionalista Party
councilors (the herein private, respondents Reynaldo P. Borja, Roberto R. Ruelo, Carlos G. del Castillo
and Felicisimo G. de Asis) of their desire to vote for a particular person as secretary of the board and to
hold the chairmanship of the committee on markets for one of them, vice-mayor Perez expressed her
intention to vote, in the deliberation on such matters, to create a tie vote and thereafter to exercise her
power as presiding officer to break such deadlock. 1
On January 10, 1968, in another conference held at the residence of the petitioner Perez, the latter
reiterated the same intention to vote twice, and such statement was radiocast on January 13, 1968.
On January 15, 1968 the four aforesaid councilors filed with the Court of First Instance of Camarines Sur
a petition for prohibition with writ of preliminary injunction, docketed as civil case 6504, to prevent Perez
from casting her vote in the selection of the secretary of the municipal board and in the choice of
chairmen and members of the different standing committees thereof, except in the event of a tie vote, and
from voting on any legislative proposal or measure or in any proceeding of the said board except when
the members thereof are equally divided. In their petition, the herein respondents alleged that the vicemayor of Naga City is not a member of the municipal board but only its presiding officer; that pursuant to
par. "g" of Rule III of the Rules of Procedure of the said board, the chairman of the board cannot vote
except in case of a tie that in the choice of secretary of the board, the vice-mayor as presiding officer of
the board cannot vote except when the members of the board are equally divided; that the vice-mayor
had threatened to participate in the election of the board secretary, in the choice of the chairmen of the
various committees of the board and in other legislative matters, proposals and proceedings, other than to
break a tie vote.
The respondents claimed that they are entitled to the relief of restraining the vice-mayor from voting on
legislative matters and acts and proceedings of the municipal board, because such proposed actuations,
unless restrained, would engender an anomalous situation which could cause great and irreparable
damage work injustice, and transgress upon the rights, privileges and prerogatives of the said
respondents, as well as confuse the proceedings and complicate public records to the detriment of public
service. They, therefore, prayed for the issuance of a writ of preliminary injunction against the vicemayor.lawphi1.et
On the same day, January 15, 1968, the respondent judge issued an order directing the vice-mayor to
show cause within 10 days why the writ should not issue, at the same setting the hearing on the petition
for preliminary injunction for January 18, 1968.

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On January 18, 1968 Perez moved for time to file a motion to dismiss and an opposition to the issuance
of a writ of preliminary injunction but her motion was denied orally in open court by the respondent judge.
On January 19, 1968 the respondent judge issued an order granting the prayer for a preliminary
injunction upon the application posting a bond of P1,000. The writ of preliminary injunction issued on
January 22, 1968 recites:
WHEREFORE, You, the City Sheriff of Naga City or any of your lawful deputies is hereby
commanded to restrain the respondent from casting her vote in the selection of the Secretary of
the Board, the chairmanship and members of the different standing committees of the Board
except when there is a tie and from voting and participating now and henceforth, in any legislative
proposal measure or proceedings of the Municipal Board of the City of Naga, except when the
members thereof are equally divided and upon order of this Court.
LIKEWISE, you respondent VIRGINIA F. PEREZ, desist and refrain from casting your vote in the
selection of the secretary of the board, the chairmanship and membership of the different
standing committees of the Board, except when there is a tie, and from voting and participating
now and henceforth in any legislative proposal, measure or proceedings of the Municipal Board of
the City of Naga, except when the members thereat are equally divided, and upon order of this
court.
On January 22, 1968 Perez filed a motion to dismiss and/or dissolve the writ of preliminary injunction,
assailing the jurisdiction of the court over the subject-matter of the action or the nature of the suit, and
alleging that complaint stated no cause of action. She further assailed the issuance of the writ as undue
interference in matters purely legislative in character, at the same time that she denied the existence of a
threatened invasion of the rights of the four councilors; she finally prayed for the immediate dissolution of
the writ of prohibitory injunction.
On February 1, 1968 the respondent judge issued an order denying the motion to dismiss the petition
and requiring the vice-mayor to answer within three days from receipt of his order, thereby maintaining the
injunction. As the respondent judge had intimated to Perez that he would not reconsider his order, Perez
did not move to reconsider. Instead she filed on February 15, 1968 a petition for certiorari and prohibition
with preliminary injunction with the Court of Appeals, docketed thereat as G.R. 40789-R, naming the trial
judge and the four councilors as respondents. On February 20, 1968 the appellate court issued, thru its
Second Division, a restraining order enjoining the enforcement of the writ of prohibitory injunction issued
by the respondent court on January 22, 1968.
On March 5, 1968, taking the cue from the issuance of the said restraining order against the four
respondents councilors, Perez and the Liberal councilors in the Naga municipal board (with the four
respondents councilors walking out of the session hall) passed an amendment to the Rules of Procedure
of the Naga municipal board granting the chairman thereof the right to vote as a member, and as
presiding officer the right to vote again in case of a tie vote.
On July 12, 1968 the Court of Appeals rendered a decision dismissing Perez' petition for certiorari and
dissolving the restraining order issued by it, on the ground that the said appellate court had no jurisdiction
to entertain the same, there being no factual issues involved in the main case.
On September 3, 1968 Perez filed the present petition for certiorari and prohibition. We gave due
course, and issued a writ of preliminary injunction, upon the posting of a bond of P200, on September 11,
1968.
As matters now stand, the enforcement of the writ of prohibitory injunction by the respondent judge in
civil case 6504 has been stayed; consequently, Perez has been allowed to sit in the municipal board both
as a constituent member and as presiding officer thereof.
The two issues dividing the parties are:
(1) Is the vice-mayor of Naga city, besides being the presiding officer of the municipal board, also
a member thereof? Corollary thereto, can she vote twice: to create a deadlock and then to break
it?
(2) Did the respondent judge have jurisdiction to issue the writ of prohibitory injunction against
Perez?

93

Is the vice-mayor of the City of

Naga who is presiding officer of
the municipal board also a
member thereof?

Page

I.

To start with, we have the charter of the City of Naga, Republic Act 305, section 11 of which provides in
part as follows:
Constitution and organization of the Municipal Board; Compensation of Members thereof .
The Municipal Board shall be the legislative body of the city and shall be composed of
the Mayor who shall beits presiding officer, the city treasurer, the city engineer and five councilors
elected at large by popular vote during every election for provincial and municipal officials in
conformity with the provisions of the Election Code. (emphasis supplied)
Remarkably, the charter did not at all provide for the position of vice-mayor; indeed, it explicitly provided
that "the City Treasurer shall perform the duties of the Mayor" "in the event of sickness, absence or other
temporary incapacity of the Mayor." 2
On June 19, 1959 upon approval of Republic Act 2259 3 making elective the offices of mayor, vice-mayor
and councilors in chartered cities, the position of vice-mayor, among others was created. Thus section 3
of said law provides:
The position of Vice-Mayor is hereby created in chartered cities which at present have no
position for Vice-Mayor by provision of their corporate charters: Provided, That the Vice-Mayor
shall be the presiding officer of the City Council or Municipal Board in all chartered cities.
Perez now contends that since under the Naga City charter the mayor was the presiding officer of the
municipal board, and since under Republic Act 2259 creating the position of vice-mayor who was made
the presiding officer, the vice-mayor simply replaced the mayor as "presiding officer" of the municipal
board, the vice-mayor acquired all the rights and prerogatives of the presiding officer under the charter,
one of which is "membership in the municipal board." To fortify her claim, Perez adverts to sec. 11 of
Republic Act 537, as amended by Republic Act 1575, 4 as well as to Bagasao et al. vs. Tumangan et
al., 5 where this Court held that "the presiding officer of the Municipal Board of the City of Cabanatuan is a
member thereof."
The petitioner's contention suffers from several grave infirmities.
1. There is absolutely nothing in Republic Act 305, also known as the charter of the City of Naga,
which provides that the vice-mayor of the said city is a member of the municipal board thereof.
For sooth, the position of vice-mayor was not even provided for, as the "acting mayor" designated
to take over in case of sickness, absence or other temporary incapacity of the Mayor was the
"City Treasurer." 6
True it is that upon the passage of Republic Act 2259, the position of vice-mayor in Naga City,
and in all other chartered cities whose corporate charters did not provide for the position of vicemayor, was created, but section 3 thereof simply provides that "the Vice-Mayor shall be
the presiding officer of the City Council or Municipal Board in all chartered cities." 7 It does not
decree that the vice-mayor is a member of the city council or municipal board.
2. Quiem v. Seria et al. 8 is cited, where this Court held that the silence of Rep. Act 2259 on
whether the vice-mayor, the presiding officer, is a member of the board, was not enough ground
for excluding the vice-mayor from membership in the board. But the legal setting and premises
in Quiem are widely disparate from those in the case at bar.
In the first place, in Quiem we found that "by express legal mandate, the vice-mayor of Cagayan
de Oro City is a member of the board" because "that city's original charters calls 9 for an
appointive Vice-Mayor who 'shall be a member of the Municipal Board'." In the case at bar,
however, in contrast with sec. 11 of Republic Act 521 creating the city of Cagayan de Oro which
explicitly made the vice-mayor a member of the municipal board, section 11 of Republic Act 305
creating the City of Naga failed to provide even for the position of vice-mayor.
In the second place, Republic Act 1325, 10 particularly section 1 thereof, amending the Cagayan
de Oro charter, expressly reiterated that the vice-mayor "shall be a member of the Municipal
Board;" as such similar statutory basis can be cogently invoked for the petitioner Perez.

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3. Bagasao, et al. vs. Tumangan, supra, which was decided before the enactment of Republic Act
2259 furnishes no prop to the petitioner's position. There we held that the vice-mayor "as the
presiding officer of the Municipal Board of the City of Cabanatuan is a member thereof" and "he
may exercise his right to vote as a member on any proposed ordinance, resolution or motion." But
we so held because "both the unamended and amended provisions of section 11 of the Charter of
the City of Cabanatuan provide that the presiding officer of the Municipal Board is a
member thereof. And as we have re repeatedly stated, there is no provision whatever in Republic
Act 305 creating the City of Naga that provides for the position of vice-mayor; and the
amendatory provisions of Republic Act 2259 making the vice-mayor the presiding officer of the
municipal board does not make him a constituent member thereof.
To paraphrase Quiem, in the absence of any statutory authority constituting the vice-mayor as a
member of the municipal board, in addition to being the presiding officer thereof, we cannot read
in the law something which is not there. 11 For, as aptly put, differences in law beget differences in
legal effects. 12
4. Resort to the charter of Quezon City 13 would avail the petitioner none. For under section 9 of
the said charter, as amended, the vice-mayor is explicitly made "a member of the City Council,"
and section 11 of the same law expressly states that "there shall be City Council composed of the
Mayor as Chairman, Vice-Mayor and eight other members." Clearly, then, the vice-mayor of
Quezon City is a member of the city council and, as such, is entitled to vote as a constituent
member thereof.
II. Rules of Procedure of the 4th &
5th Municipal Boards of Naga
City exclude chairman from voting
except in case of a tie vote.
Further cutting the ground from under the petitioner's pretension is paragraph (g) of Rule III of the Rules
of Procedure adopted by the municipal board of Naga City, which recites:
(g) The chairman cannot vote, except in case of a tie. However, a member of the Board acting
as chairman may vote as a member and as chairman to break a tie.
The petitioner insists, however, that the above provision was amended by the 6th municipal board,
headed by her, to read as follows:
(g) The Chairman, as member of the Board can vote and as a Presiding Officer may vote again
in case of a tie. In the same manner, a member of the Board acting as chairman, may vote as a
member and as Chairman, to break the tie.
Such insistence is a sheer exercise in futility because (1) the amended rule presupposes that the
chairman is a "member of the Board" an assumption that is without legal basis; (2) the said
amendatory rule was passed on March 5, 1968, almost two months after the filing on January 15, 1968,
by the private respondents of their petition in civil case 6504, that is, pendente lite; and (3) although on
the date the said amendment was passed, that restraining order dated February 20, 1968 of the Court of
Appeals was in force, there was no quorum in the board, 14 as the four respondents councilors had walked
out of the session hall, leaving only the three Liberal Party councilors and the petitioner. The proposed
amendment was, therefore, a complete nullity.
III. The Vice-Mayor replaced the Mayor
of Naga City as presiding officer of
the Municipal Board but did not
replace him as a member thereof.
The petitioner deposits the theory that since the mayor of Naga City, who was a member of the
municipal board under Rep. Act 305, was replaced by the vice-mayor as presiding officer thereof, the
vice-mayor must, perforce, be deemed a member of the municipal board. Pressing her bid, she asserts
that Republic Act 2259 effected a mere change in the officer who will preside the meetings of the board,
and since the vice-mayor replaced the mayor as "presiding officer" thereof, the vice-mayor acquired all
the rights and prerogatives of the presiding officer, one of which is membership in the board.
This contention finds no support either in law or logic. For, section 3 of Rep. Act 2259 simply installs the
vice-mayor as the presiding officer of the board in all chartered cities. It does not install the vice-mayor as

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a member thereof. This is especially true in the case of Naga where the position of vice-mayor (whether
appointive or elective) was originally not even provided for in its charter the official next-in-rank to the
mayor being the city treasurer. In no manner does the law, either in its original form under Rep. Act 305,
or in its amendatory shape under Rep. Act 2259, constitute the vice-mayor as a member of the municipal
board. It simply says that "the vice-mayor shall be presiding officer of the City Council or Municipal
Board." Nothing more.
In this connection, American Jurisprudence has this to say: 15
When the statutes provide that the mayor shall preside at meetings of the municipal council, he
is a constituent part of the council for certain purposes, and he sits and acts therein, but he is not
in any proper sense a member of the council, unless the statutes expressly so provide.
This brings back to mind the ruling of this Court in Rivera, et al. vs. Villegas: 16
It is our considered view, however, that the Vice-Mayor of Manila is not identically situated as the
Vice-Mayor of Cabanatuan City, except insofar as each forms part of the respective municipal
board and presides the same. The former is an integral part of the Municipal Board of Manila, but
only 'as presiding officer' thereof. Hence, unlike the Vice-Mayor of Cabanatuan City, that of Manila
does not have either the status of a regular member of its municipal board or the powers and
attributes of a municipal councilor. In short, the Vice-mayor of Manila possesses in the Municipal
Board of Manila no more than the prerogatives and authority of a "presiding officer" as such, and
those specified by law (to vote in case of tie and to sign all ordinances or resolutions and
measures directing the payment of money or creating liability enacted or adopted by the Board.)
The mere fact, therefore, that the vice-mayor was made the "presiding officer" of the board did not ipso
juremake him a member thereof; and even if he "is an integral part of the Municipal Board" such fact does
not necessarily confer on him "either the status of a regular member of its municipal board or the powers
and attributes of a municipal councilor." In sum, the vice-mayor of Naga possesses in the municipal board
of Naga no more than the prerogatives and authority of a "presiding officer" as such, and no more.
It is not amiss to note that the Rules of Procedure of the 4th and 5th municipal boards of Naga City
which were then in force prior to the start of the present controversy explicitly provide that:
(g) The chairman cannot vote, except in case of tie. However, a member of the Board acting as
chairman may vote as a member, and as chairman to break a tie. (Rule III)
Note that the petitioner was elected along with the four respondents councilors in the local elections of
November 14, 1967, and all of them began to exercise their functions in January 1968. The vice-mayor,
prior to the petitioner's term, had been presiding officer and chairman of the municipal board since 1959,
upon the passage of Republic Act No. 2259, and by the terms of the board's rules of procedure, the vicemayor as "chairman cannot vote, except in case of tie." The chairman of the board the vice-mayor
was, therefore, bereft of a casting vote such as would empower him to vote to create a tie then vote again
to break such tie.
In Bagasao, supra, this Court quoted McQuillin as follows:

17

McQuillin in his treatise "The Law of Municipal Corporations" says:

The presiding officer is not entitled to vote by virtue of his office, but of course if he is a member
of the body he may vote as such member and he may also vote the second time in case of a tie if
the charter confers this privilege. (emphasis supplied)
And this Court proceeded to recognize the right of the vice-mayor of Cabanatuan City to vote as a
member of the board precisely because "both the unamended and amended provisions of section 11 of
the Charter of the City of Cabanatuan provide that the presiding officer of the Municipal Board is a
member thereof ." 18 Needless to emphasize is the fact that neither the Naga City charter nor Rep. Act
2259 provides that the presiding officer of the Naga municipal board is a member thereof.
It is true that in the later case of Quiem, we upheld the right of the vice-mayor of Cagayan de Oro City to
vote as a member of the municipal board, underscoring the observations that the charter of the city of
Manila "in language indubitable, withheld from the Vice-Mayor the right to vote 'except in case of a tie'"
and that "no such delimitation of powers appears in the Cagayan de Oro charter." It is likewise true that
no explicit delimitation of powers appears in the Naga City charter expressly withholding the right to vote

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from the vice mayor. But it is just as cogent that no explicit legal mandate, either in the Naga City charter
or in the amendatory law, Rep. Act 2259, makes the vice-mayor a member of the board, unlike in the case
of the vice-mayor of Cagayan de Oro who by express legal mandate is a member of the board, under that
city's original and amended charters. Absent such explicit legal mandate making the vice-mayor of Naga
City a member of the board, we cannot import therein the assumption that he is.
McQuillin pertinently writes: 19
Casting vote by presiding officer. Where the presiding officer or mayor is a member of the
council or governing body, unless expressly forbidden by law, it is generally held that he may not
only vote on all questions as a constituent member, but where the charter gives him a casting
vote in event of a tie may vote the second time. However, he may be without vote except in the
case of a tie as where he is merely the executive or presiding officer and not a member. In such
case, his vote cannot be counted in determining whether or not there is a majority vote, nor can
he vote so as to make a tie and then give the casting vote. He gives the casting vote, where he is
empowered to do so, only in the event of a tie vote. Thus for example, in the election of officers,
the casting vote may be given only where there is an equal division of votes between the
candidates. It cannot be given to make a majority in favor of one candidate, when the other votes
are scattered among other candidates. Hence where three vote year two do not vote and one
votes for another, the latter three being recorded as voting no, and the mayor declares a tie and
casts his vote with the three yea votes, there is no election. 20
In a case of more recent vintage, the State Supreme Court of Georgia ruled:

21

The sole remaining issue of law is: Did the mayor have the right, after announcing that a
majority of council had voted for the relator to vote for the respondent and thereby create a tie
vote, and again vote for the respondent to break the tie? Unlike the charters involved in the cases
of Gostin v. Brooks, 89 Ga. 244, 15 S.E. 361, and Johnson v. Arnold, 176 Ga. 910, 160 S.E. 505,
the charter of the Town of Kite is silent as to when the mayor can vote in the election of officers
and the enactment of ordinances. We are of the opinion that the provision of the charter that the
"clerk shall be elected by the mayor and council" has reference to the name and style of the
corporate governing body. Gostin v. Brooks, supra; Akerman v. Ford, 116 Ga. 473(3), 42 S.W.
777. Under the charter the office of mayor is separate and distinct from the office of councilman....
So, the mayor is not a member of the council, he does so as mayor and not as a member of
council....
But where he [the mayor] is merely an executive or presiding officer and not a member of the
council, his vote cannot be counted in determining whether or not there is a majority vote, nor can
he vote so as to make a tie and then give the casting vote. Thus, for example, in the election of
officers the casting vote may be given only where there is an equal division of votes between the
candidates.
IV. Assuming that the Vice-Mayor
acquired all the rights, prerogatives and privileges of the
Mayor as presiding officer of
the Council she cannot vote as a
member except to break a tie.
The petitioner points to the congressional record, 22 to buttress her claim that she is a constituent
member of the board entitled to vote twice, because it was there observed that "even under the present
law, the vice-mayor is a member of the municipal council." Indeed, the vice-mayor of a municipality under
the Rev. Administrative Code was "an ex officio member of the council with all the rights and duties of any
other member," 23 but at that time, the vice-mayor was not the presiding officer of the board. The presiding
officer was the mayor who, by express legal mandate had "no right to vote, except in case of tie." 24
The petitioner now argues that as vice-mayor she merely stepped into the shoes of the mayor as
presiding officer of the board, and since the mayor was considered a member thereof, she too became a
member entitled to the same rights, powers and prerogatives of voting as the mayor. There is no
gainsaying the fact that prior, to the approval of Rep. Act 2259, the mayor of a municipality was a member
of the municipal council, 25 besides being the presiding officer thereof, but his right to vote could be
exercised only in "case of a tie." 26 Certainly, the vice-mayor who merely stepped into the shoes of the
mayor could have no greater power than that possessed by the mayor who could not create a tie vote and
then break it. A stream, as the aphorism goes, cannot rise higher than its source.

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Moreover, the observation made by then Sen. Dioscorro Rosales, as bill sponsor of Senate bill 2 (which
later became Rep. Act 2259), that "under the present law, the vice-mayor is a member of the municipal
council," could have no reference to the petitioner's position as vice-mayor of Naga City because when
the said remark was made, the Naga City charter, Rep. Act 305, did not even provide for the position of
vice-mayor.
V. The Petitioner Cannot Vote Twice
to Elect City Secretary of the Board.
The law provides that "the city secretary shall be elected by majority vote of the elective city council or
municipal board." 27 The majority of the council elected shall constitute a quorum to do
business. 28 "Majority" means the number greater than half or more than half of any total. 29 There are
seven (7) councilors in the municipal board of Naga City. 30 Four councilors, therefore, would constitute a
majority who, voting together for a single person could elect a secretary of the municipal board.
In the light of the manifestation made by the four respondents councilors belonging to the Nacionalista
Party of "their desire to vote for a particular person as secretary of the Board" which the petitioner does
not traverse and considering that there are only three other councilors left, a tie vote is out of the
question. A four-to-three (4-3) vote creates no tie and, in the light of the conclusions we have above
made, furnishes no occasion for the petitioner to vote. 31
We hold that the four concurring votes of the four respondents councilors will carry the day for their
candidate.
There is no dispute as to the power of the municipal board to adopt its own rules of procedure.
end, par. "g" of Rule III of the Rules of Procedure of the municipal board of Naga provides:

32

To this

(g) The Chairman cannot vote, except in case of a tie. However, a member of the Board acting
as chairman may vote as a member, and as chairman to break the tie.
It is not here urged that the petitioner is a member of the board acting as chairman. Her claim is that she
is the presiding officer and also a member of the board. But as we said, she is not both the presiding
officer and a constituent member of the board. She cannot, therefore, vote twice once to create a tie as
a constituent member, and, the second time around, to break such tie with another vote. 33
VI. Did the respondent Judge have
Jurisdiction over the case?
The petitioner's final contention is that as a legislative official, performing legislative functions, she is not
subject to any prohibitory process by the courts. She invokes Vera, et al. vs. Avelino, et al. (77 Phil. 192)
where we held:
Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to proceedings of
any tribunal, corporation, board or person exercising functions, judicial or ministerial. As
respondents do not exercise such kind of functions, theirs being legislative, it is clear that the
dispute falls beyond the scope of such special remedy.
Invocation of this ruling is completely inapposite. The doctrine therein laid down is based on the principle
of separation of powers and cheeks and balances and is not applicable to local governments. 34 Moreover,
executives at the local or municipal level are vested with both legislative and sometimes judicial functions,
in addition to their purely executive duties. 35
By explicit statutory command, courts are given authority to determine the validity of municipal
proceedings. 36 It is not disputed that the present proceeding for prohibition has for its objective to prevent
the petitioner from "participating in the election of Secretary of the Board, chairmanship of different
committees and in voting in other legislative matters, proposals and proceedings, other than to break a
tie." It is our view that the petitioner, in insisting to exercise the right to vote twice in the municipal board,
acted without jurisdiction and power to do so, and may be validly prevented and restrained by a writ of
prohibition. 37
In reply to the petitioner's assertion that the acts sought to be restrained are mere "probable individual
actuations" beyond the reach of a prohibitory writ, suffice it to state that prohibition is essentially a
"preventive remedy" and is "not intended to provide for a remedy for acts already
accomplished." 38 Withal, petitioner's threat of voting twice in the municipal board was not an empty or

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98

meaningless gesture, for the record shows that on March 5, 1968, soon after the writ complained of was
lifted by the Court of Appeals through the latter's restraining order of February 20, 1968, the petitioner
proceeded to act by voting twice for the approval of an alleged amendment to the rules of procedure of
the municipal board.
ACCORDINGLY, the present petition is hereby denied, and the preliminary injunction heretofore issued
is dissolved, at petitioner's cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Fernando, Capistrano, Teehankee and
Barredo, JJ., concur.
Makalintal, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-53487 May 25, 1981
ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEA, NICETAS DAGAR and JESUS
EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte, Ormoc
City Branch V, BARANGAY COUNCIL of Valencia, Ormoc City, Barangay Captain MANUEL C.
VELOSO, Councilmen GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO
NAVARRO, Barangay Secretary CONCHITA MARAYA and Barangay Treasurer LUCENA
BALTAZAR, respondents.

AQUINO, J.:1wph1.t
This case is about the constitutionality of four resolutions of the barangay council of Valencia, Ormoc City,
regarding the acquisition of the wooden image of San Vicente Ferrer to be used in the celebration of his
annual feast day. That issue was spawned by the controversy as to whether the parish priest or a layman
should have the custody of the image.
On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional socioreligious celebration" every fifth day of April "of the feast day of Seor San Vicente Ferrer, the patron saint
of Valencia".
That resolution designated the members of nine committees who would take charge of the 1976 festivity.
lt provided for (1) the acquisition of the image of San Vicente Ferrer and (2) the construction of a waiting
shed as the barangay's projects. Funds for the two projects would be obtained through the selling of
tickets and cash donations " (Exh A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in accordance
with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman or hermano mayor of
the fiesta, would be the caretaker of the image of San Vicente Ferrer and that the image would remain in
his residence for one year and until the election of his successor as chairman of the next feast day.
It was further provided in the resolution that the image would be made available to the Catholic parish
church during the celebration of the saint's feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay general
assembly on March 26, 1976. Two hundred seventy-two voters ratified the two resolutions (Exh. 2 and 5).
Funds were raised by means of solicitations0 and cash donations of the barangay residents and those of
the neighboring places of Valencia. With those funds, the waiting shed was constructed and the wooden
image of San Vicente Ferrer was acquired in Cebu City by the barangay council for four hundred pesos
(Exh. F-l, 3 and 4).

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On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay
Valencia so that the devotees could worship the saint during the mass for the fiesta.
A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmea refused to
return that image to the barangay council on the pretext that it was the property of the church because
church funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass, Father
Osmea allegedly uttered defamatory remarks against the barangay captain, Manuel C. Veloso,
apparently in connection with the disputed image. That incident provoked Veloso to file against Father
Osmea in the city court of Ormoc City a charge for grave oral defamation.
Father Osmea retaliated by filing administrative complaints against Veloso with the city mayor's office
and the Department of Local Government and Community Development on the grounds of immorality,
grave abuse of authority, acts unbecoming a public official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because Father
Osmea did not accede to the request of Cabatingan to have custody of the image and "maliciously
ignored" the council's Resolution No. 6, the council enacted on May 12, 1976 Resolution No. 10,
authorizing the hiring of a lawyer to file a replevin case against Father Osmea for the recovery of the
image (Exh. C or 8). On June 14, 1976, the barangay council passed Resolution No. 12, appointing
Veloso as its representative in the replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against Father Osmea and Bishop Cipriano
Urgel (Exh. F). After the barangay council had posted a cash bond of eight hundred pesos, Father
Osmea turned over the image to the council (p. 10, Rollo). ln his answer to the complaint for replevin, he
assailed the constitutionality of the said resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two Catholic
laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its members
(excluding two members) a complaint in the Court of First Instance at Ormoc City, praying for the
annulment of the said resolutions (Civil Case No. 1680-0).
The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners appealed
under Republic Act No. 5440. The petitioners contend that the barangay council was not duly constituted
because lsidoro M. Maago, Jr., the chairman of the kabataang barangay, was not allowed to participate
in its sessions.
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A).
Presidential Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L, directed that all
barrios should be known as barangays and adopted the Revised Barrio Charter as the Barangay Charter.
Barrios are units of municipalities or municipal districts in which they are situated. They are quasimunicipal corporations endowed with such powers" as are provided by law "for the performance of
particular government functions, to be exercised by and through their respective barrio governments in
conformity with law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590).
The barrio assembly consists of all persons who are residents of the barrio for at least six months,
eighteen years of age or over and Filipino citizens duly registered in the list kept by the barrio secretary
(Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the barangay captain and six councilmen (Sec.
7, Ibid). Section 3 of Presidential Decree No. 684, which took effect on April 15, 1975, provides that "the
barangay youth chairman shall be an ex-officio member of the barangay council", having the same
powers and functions as a barangay councilman.
In this case, Maago, the barangay youth chairman, was notified of the sessions of the barangay council
to be held on March 23 and 26, 1976 but he was not able to attend those sessions because he was
working with a construction company based at Ipil, Ormoc City (Par. 2[d] Exh. 1).
Maago's absence from the sessions of the barangay council did not render the said resolutions void.
There was a quorum when the said resolutions were passed.
The other contention of the petitioners is that the resolutions contravene the constitutional provisions that
"no law shall be made respecting an establishment of religion" and that "no public money or property shall
ever be appropriated, applied, paid, or used, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit, or support of
any priest, preacher, minister, or other religious teacher or dignitary as such. except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium (Sec. 8, Article IV and sec. 18[2], Article VIII, Constitution).

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100

That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly
establish any religion, nor abridge religious liberty, nor appropriate public money or property for the
benefit of any sect, priest or clergyman. The image was purchased with private funds, not with tax money.
The construction of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the Catholic
religion by using the funds raised by solicitations and donations for the purchase of the patron saint's
wooden image and making the image available to the Catholic church.
The preposterousness of that argument is rendered more evident by the fact that counsel advanced that
argument in behalf of the petitioner, Father Osmea the parish priest.
The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the
patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with
religious matters or the religious beliefs of the barrio residents. One of the highlights of the fiesta was the
mass. Consequently, the image of the patron saint had to be placed in the church when the mass was
celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio,
then any activity intended to facilitate the worship of the patron saint (such as the acquisition and display
of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an ingrained
tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives of the masses.
The barangay council designated a layman as the custodian of the wooden image in order to forestall any
suspicion that it is favoring the Catholic church. A more practical reason for that arrangement would be
that the image, if placed in a layman's custody, could easily be made available to any family desiring to
borrow the image in connection with prayers and novenas.
The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces swore that
the said resolutions favored the Catholic church. On the other hand, petitioners Dagar and Edullantes
swore that the resolutions prejudiced the Catholics because they could see the image in the church only
once a year or during the fiesta (Exh. H and J).
We find that the momentous issues of separation of church and state, freedom of religion annd the use of
public money to favor any sect or church are not involved at all in this case even remotely or indirectly. lt
is not a microcosmic test case on those issues.
This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the parties
had been more diplomatic and tactful and if Father Osmea had taken the trouble of causing contributions
to be solicited from his own parishioners for the purchase of another image of San Vicente Ferrer to be
installed in his church.
There can be no question that the image in question belongs to the barangay council. Father Osmea
claim that it belongs to his church is wrong. The barangay council, as owner of the image, has the right to
determine who should have custody thereof.
If it chooses to change its mind and decides to give the image to the Catholic church. that action would
not violate the Constitution because the image was acquired with private funds and is its private property.
The council has the right to take measures to recover possession of the image by enacting Resolutions
Nos. 10 and 12.
Not every governmental activity which involves the expenditure of public funds and which has some
religious tint is violative of the constitutional provisions regarding separation of church and state, freedom
of worship and banning the use of public money or property.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty thousand
pesos for the cost of plates and the printing of postage stamps with new designs. Under the law, the
Director of Posts, with the approval of the Department Head and the President of the Philippines, issued
in 1936 postage stamps to commemorate the celebration in Manila of the 33rd International Eucharistic
Congress sponsored by the Catholic Church.
The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the stamps
showed a map of the Philippines and nothing about the Catholic Church. No religious purpose was
intended.
Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church, sought to enjoin
the sale of those commemorative postage stamps.

101

It was held that the issuance of the stamps, while linked inseparably with an event of a religious character,
was not designed as a propaganda for the Catholic Church. Aglipay's prohibition suit was dismissed.

Page

The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55 Phil. 307,
where a religious brotherhood, La Archicofradia del Santisimo Sacramento, organized for the purpose of
raising funds to meet the expenses for the annual fiesta in honor of the Most Holy Sacrament and the
Virgin Lady of Guadalupe, was held accountable for the funds which it held as trustee. 0
Finding that the petitioners have no cause of action for the annulment of the barangay resolutions, the
lower court's judgment dismissing their amended petition is affirmed. No costs.
SO ORDERED.

Bunye vs Escareal
Posted on October 1, 2012
R No. 110216
September 10, 1993
Facts:
The above-named accused, all public officers of the Municipality of Muntinlupa, Metro
Manila, were charged of enacting Kapasiyahan Bilang 45 in order to allegedly take
possession and take over its operation and management of the New Public Market
in Alabang, Muntinlupa starting August 19, 1988 despite the valid and subsisting lease
contract for a term o0f 25 years between the Municipality of Muntinlupa and the Kilusang
Bayan sa Paglilingkod and Mga Magtitinda ng Bagong Pamilihan ng Muntinlupa,
Inc. (Kilusang Magtitinda). COA Chairman Domingo and MMC Governor Cruz also warned that
appropriate legal steps be taken by the MMC toward the rescission of the contractto
protect the interests 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 offshoot of the case.
The forcible take-over allegedly caused undue injury to the aforesaid Cooperative members,
and gave the Municipal Government, and in effect, the herein accused, unwarranted
benefits, advantage or preference in the discharge of their official functions.
On the motion of the Public Prosecutor, the Sandiganbayan issued a resolution suspending
thempendent lite from public office pursuant to Sec.13 of RA 3019.
Petitioners Municipal Mayor, Vice Mayor and Councilors question the resolution suspending
them from office for 90 days pending their trial for violation of Sec.3(3) of the Anti-Graft and
Corrupt Practices Act.
Issue:

102

WON the preventive suspension is unjustified or unnecessary and its implementation will
shattering of the peace and order thereat?

Page

sow havoc and confusion in the government of the Municipality of Muntinlupa, to the

Held:
Sec.13 of RA No. 3019 as amended, provides that the accused public officials shall be
suspended from office while the criminal prosecution is pending in court.
In Gonzaga vs Sandiganbayan, 201 SCRA 417, 422, 426, the SC ruled that such preventive
suspension is mandatory. Preventive suspension n is not a penalty. In fact, suspension
under Sec.13of RA 3019 is mandatory once the validity of the information is determined
(People vs CA, 135 SCRA 372).
The Sandiganbayan clearly did not abuse its discretion when it ordered the preventive
suspension of the petitioners.
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 non-intervention and non-interference for 90
straight days from petitioners camp (p.13, Solicitor Generals comment).
The petitioners fear that the municipal government of Muntinlupa will be paralyzed for 90
days when they are preventively suspended is remote. There will still remain 8 councilors
who can meet as theSangguniang Bayan. The President or his alter ego, the Secretary of the
Interior Local Government, will surely know how to deal with the problem of filling up the
temporarily vacant positions of Mayor, Vice Mayor, and 6 councilors in accordance with the
provisions of the LGC, RA 7160 (Samad vsCOMELEC, et al., GR No. 107854; Samad vs
Executive Secretary, et al., GR No. 108642, July 16, 1993).

EN BANC
[G.R. No. 80796. October 11, 2001]
PROVINCE OF CAMARINES NORTE, Represented by Hon. Roy A. Padilla, Jr., as Provincial
Governor, petitioner, vs. PROVINCE OF QUEZON, Represented by Hon. Eduardo T. Rodriguez, as
Provincial Governor, respondent.
RE: URGENT PETITION TO CITE GOVERNOR EDUARDO T. RODRIGUEZ OF QUEZON PROVINCE,
AND MAYOR JULIO U. LIM OF CALAUAG, QUEZON, IN CONTEMPT OF COURT.
[G.R. No. 132885. October 11, 2001]
THE PROVINCIAL GOVERNMENT OF QUEZON, Represented by Governor Eduardo T. Rodriguez;
MUNICIPALITY OF CALAUAG IN THE PROVINCE OF QUEZON, WIGBERTO E. TAADA,
PEDRO C. INOFRE and OSCAR F. FOLLOSO, petitioners, vs. THE COMMISSION ON
ELECTIONS, respondent.

Page

SANDOVAL-GUTIERREZ, J.:

103

DECISION

On November 8, 1989, this Court, in an En Banc Decision in G.R. No. 80796,[1] PROVINCE OF CAMARINES
NORTE, Represented by HONORABLE ROY PADILLA, as Acting Provincial Governor, petitioner, vs. PROVINCE
OF QUEZON, Represented by HONORABLE HJALMAR QUINTANA, as Acting Provincial Governor,
respondent, resolved with finality the decade-long land boundary discord between the Provinces of Camarines Norte
and Quezon,
The contending parties are back in this Court instituting two separate petitions. The present petition filed by the
Province of Camarines Norte (docketed as G.R. No. 80796) prays that respondents Quezon Governor Eduardo T.
Rodriguez and Mayor Julio U. Lim of Calauag, Quezon be cited in contempt of court for causing the removal of the
monument marker erected on the disputed boundary line by the Department of Environment and Natural Resources
in implementation of the November 8, 1989 Decision.
On the other hand, G.R. No. 132885 is a petition for certiorari with prayer for a temporary restraining order
wherein petitioners Quezon Province, et al. assail the validity of the Commission On Elections Resolution No. 972406 (dated July 10, 1997) and Resolution No. 97-3721 (dated November 27, 1997). Both Resolutions recognize
nine (9) barangays as belonging to the territorial jurisdiction of Camarines Norte, no longer part of Calauag,
Quezon, in view of the November 8, 1989 Decision of this Court in G.R. No. 80796.
The facts are not disputed:
As earlier mentioned, on November 8, 1989, this Court rendered a Decision in G.R. No. 80796 ("1989 SC
Decision," for brevity) which resolved the long-drawn boundary dispute between the Provinces of Camarines Norte
and Quezon. The Decision upheld as binding upon the parties the decision of the then Chief of the Executive
Bureau dated June 16, 1922("1922 EB decision," for brevity) delineating and describing that portion of the
boundary comprising a land area of approximately 8,762 hectares [2] as belonging to Camarines Norte, not to Quezon
Province. The pertinent portion of the 1989 SC Decision declares:
"In sum, we hold that the decision of the Chief of the Executive Bureau dated 16 June 1922 was lawfully issued and
is binding upon the parties. We hold further that prohibition and mandamus will lie for the enforcement of that
decision, an enforcement unjustifiably resisted and delayed for sixty-seven (67) years.
"WHEREFORE, the Petition for Mandamus and Prohibition is hereby GRANTED. Respondent Quezon Province is
hereby ORDERED immediately to cease and desist, and perpetually to refrain, from exercising or performing any
and all acts of jurisdiction or political authority over all or any part of the area here held to be part of the territory of
the Province of Camarines Norte and forthwith to relinquish the same to petitioner Province of Camarines Norte.
"Let a copy of this decision be furnished to the Secretary of the Local Governments and the Office of the
President with the request that surveyors from the Bureau of Lands or other appropriate government agency
be forthwith designated to survey and locate, by latitude and longitude and by metes and bounds, and to
monument the Basiad Bay -Mt. Cadig line described in the 16 June 1922 decision of the Chief of the
Executive Bureau. Costs against respondent.
"SO ORDERED."[3] (Emphasis ours)
The 1989 SC Decision became final and executory on March 19, 1990.[4]
Pursuant to the directive in the dispositive portion of the 1989 SC Decision, the Province of Camarines Norte,
through its Governor, Roy A. Padilla, Jr., asked the Secretary of the Department of Environment and Natural
Resources (DENR) to undertake the survey of the boundary line between the two provinces based on the
description[5] in the 1922 EB decision.Acting favorably on the request, then Secretary Fulgencio Factoran, Jr. issued
Special Order No. 1179[6] creating a technical working group specifically tasked to make the delineation of the
boundary separating the two provinces.
On January 31 1991, the DENR technical team informed Quezon Gov. Rodriguez about the survey it would
undertake.[7]However, Provincial Secretary Jorge Vargas (acting in behalf of Gov. Rodriguez) objected, claiming that
the 1922 EB decision should not be made the basis of the survey. He asserted that the survey should be done in
conformity with the conditions set forth in Section 42, Article II of Act 2711 (The Revised Administrative Code of
1917).[8] But the DENR technical team proceeded with the survey using as guide the 1922 EB decision.

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104

On May 28, 1991, the DENR technical team went to barangay Tabugon, Calauag, Quezon and installed a
monument marker along the boundary line determined in the survey. The marker indicates that the area consisting of
8,032 hectares then held as part of Calauag, Quezon actually falls within the territorial jurisdiction of Camarines
Norte. This area comprises the nine (9) barangays of Kagtalaba, Plaridel, Kabuluan, Don Tomas, Guitol, Tabugon,
Maualawin, Patag Ibaba and Patag Iraya.[9]
On October 14, 1991, Quezon Gov. Eduardo Rodriguez and Calauag Mayor Julio U. Lim caused the
bulldozing and removal of the boundary marker. The next day, the Manila Bulletin published an article entitled "2
provinces in border row,"[10] with a photograph containing the following caption:
"Boundary dispute
"Quezon Gov. Eduardo T. Rodriguez (2nd from right) orders the removal of a boundary marker at barangay Tabugon
in Calauag town placed by the Camarines Norte provincial government last May 29. Witnessing the bulldozing of
the marker are Calauag Mayor Julio U. Lim (right) and other town officials. (JLJ)"
Aggrieved, Camarines Norte Gov. Roy Padilla, Jr. filed the present petition for contempt (docketed as G.R. No.
80796) against Gov. Rodriguez and Mayor Lim, alleging therein that by removing the monument marker,
respondents-officials disobeyed the lawful judgment of this Court, which act is punishable as indirect contempt of
court under Section 3, Rule 71, of the Revised Rules of Court (now 1997 Rules of Civil Procedure, as amended).
In their comment[11] on the petition, respondents Gov. Rodriguez and Mayor Lim did not deny having ordered
the removal of the monument marker installed by the DENR. They claimed, however, that the placing of the marker
is illegal because (a) it was installed within the territory of Calauag, Quezon and (b) the survey conducted by the
DENR technical team was without prior authority from the Office of the President, as required by the 1989 SC
Decision. Thus, respondents Governor Rodriguez and Mayor Lim asserted that their action was a reasonable use of
force justified under Article 429[12] of the Civil Code to protect the territorial integrity of Quezon from a threatened
physical invasion.
In a Resolution dated February 4, 1992, this Court directed Justice Alicia V. Sempio-Diy of the Court of
Appeals to conduct hearing, receive evidence and submit a report and recommendation on the contempt
proceedings. During the proceedings, Gov. Roy Padilla, Jr. and Engr. Mamerto Infante, head of the DENR technical
team, testified for petitioner Camarines Norte. After petitioner has rested its case, respondent Gov. Rodriguez filed
a Demurrer to Evidence[13] contending that the 1989 SC Decision cannot be implemented and that, therefore, no
valid survey can be made, in the light of Section 42 (of Act 2711) and Republic Act No. 5480 (An Act Creating the
Municipality of Sta. Elena in the Province of Camarines Norte) which define the boundary between Camarines
Norte and Quezon provinces. [14] However, the Investigating Justice found no sufficient basis to sustain the demurrer
to evidence and ordered further hearing to ascertain respondents justification for removing the monument
marker. Eventually, the parties submitted their respective memoranda. Upon the retirement of Justice Alice V.
Sempio Diy, the contempt case was assigned to Court of Appeals Justice Teodoro P. Regino.
Thereafter, Justice Regino submitted to this Court his 29-page Report and Recommendation dated May 3,
2000. His recommendation reads:
Under the facts and for the reasons stated above, the undersigned RECOMMENDS that the respondents (Eduardo T.
Rodriguez and Julio U. Lim) be both held guilty of contempt (of court) to be sentenced the maximum penalty of six
(6) months imprisonment and to pay jointly and severally a fine of one thousand pesos (PhP1,000.00), and to
shoulder the costs of installing a new monument marker on the sight where the previous marker was removed. [15]
Meanwhile, during the pendency of the contempt proceedings in the Court of Appeals, the Department of
Budget and Management (DBM), obviously recognizing Camarines Nortes territorial jurisdiction over the subject
nine (9) barangays as determined by the DENR survey, transferred the Internal Revenue Allotment (IRA) share of
the 9 barangays from the Municipality of Calauag, Quezon to the Municipality of Sta. Elena, Camarines Norte
starting the Fiscal Year 1994.[16]
Likewise, other agencies of the government recognized the Province of Camarines Nortes jurisdiction over the
9barangays. Thus, during the May 6, 1996 Sangguniang Kabataan Elections, the COMELEC sent the election
paraphernalia of the 9 barangays to Sta. Elena, Camarines Norte. In its Resolution No. 96-1175 dated April 18,
1996, the COMELEC directedinter alia the Office of the Election Officer of Calauag, Quezon to refrain from
exercising supervision relative to any political exercise in the 9 barangays.
Moreover, the Deputy Administrator of the Office of the Civil Registrar General, National Statistics Office,
issued a Memorandum dated July 27, 1996 informing the Civil Registrar of Calauag, Quezon that the registration of
vital events occurring in the subject 9 barangays should now be exercised by the Local Civil Registry of Sta. Elena,

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Camarines Norte.Also, on March 18 1997, the Department of Finance directed the Provincial Assessor and
Provincial Treasurer of Quezon Province to transfer to Sta. Elena, Camarines Norte all the documents and records
pertaining to the assessment and collection of realty taxes on the real property located in the 9 barangays.
On July 10, 1997, the COMELEC issued Resolution No. 97-2406, [17] this time authorizing the Election Officer
of Sta. Elena, Camarines Norte to: 1) change the address in the Voter Registration Records (VRR) of the subject
9 barangays from Calauag, Quezon to Sta. Elena, Camarines Norte and 2) notify the registered voters concerned of
such change of address.
This action by the COMELEC was opposed by the Sangguniang Bayan of Calauag, Quezon through
Resolution No. 121[18] dated September 12, 1997. On November 27, 1997, the COMELEC issued Resolution No. 973721[19] noting and denying the Calauag Sangguniang Bayan Resolution with finality.
Hence, the present second petition for certiorari, docketed as G.R. No. 132885, challenging the COMELEC
twin Resolutions. This case was consolidated with G.R. No. 80796.[20]
Now to our resolution of the two petitions.
As regards the contempt proceedings (G.R. No. 80796), respondents Gov. Eduardo T. Rodriguez and Mayor
Julio U. Lim aver that their act of removing the monument marker is in accordance with Article 429 of the Civil
Code authorizing the owner or lawful possessor of a property to exclude any person from the enjoyment and
disposal thereof. They claim that the survey conducted by the DENR technical team, as well as the subsequent
setting up of the monument marker separating the two provinces, constitute usurpation of their territory because (1)
the survey was made by the DENR without prior directive from the Office of the President and (2) the 1922
Executive Bureau decision, which was the basis of the survey, is technically inconsistent with and violative of: [a]
Section 42, Article II of Act 2711 [Revised Administrative Code of 1917], [b] Republic Act No. 5480, [c] Section
10, Article X of the 1987 Constitution,[21] and [d] Section 10 of Republic Act No. 7160.[22]
In his Report and Recommendation, Justice Teodoro Regino found that respondents act of removing the
monument marker amounts to contumacious conduct defined under Section 3 (b), Rule 71 of the Revised Rules of
Court (now 1997 Rules of Civil Procedure, as amended) which declares contemptuous any disobedience of or
resistance to a lawful writ, process, order, or judgment or command of a court." He found valid and regular the
DENR survey, stressing that the installation of the monument marker was in compliance with this Courts 1989
Decision. Further, he viewed respondents persistent invocation of Section 42 of Act No. 2711 (Revised
Administrative Code of 1917); Republic Act 5480; Section 10, Article X of the 1987 Constitution; and Section 10 of
Republic Act 7160 as a continuing effort on their part to reopen settled issues in order to thwart the implementation
of the 1989 SC Decision.
Justice Regino's findings are reproduced hereunder:
The import of the (Nov. 8, 1989 SC Decision) need not be essayed. The terms employed therein are clear. In
removing the monument marker, the objective of the respondents (Eduardo T. Rodriguez and Julio U. Lim) was to
remove the proof that they no longer have any territorial jurisdiction over the area determined by the DENR survey
group as belonging to the petitioner (Province of Camarines Norte). x x x. They perceived the installation of the
monument marker as an attack on the territorial integrity of Quezon Province despite the DENR technical working
groups findings that the disputed area belongs to petitioner. Respondents were thus doing what the Supreme
Court decision expressly prohibited or enjoined, that is, the exercise of jurisdiction or political authority over
an area held to be part of the territory of the petitioner based on the 1922 Decision of the Chief of the
Executive Bureau.
xxxxxxxxx
Based on the records of the case, the respondents have a long record of resisting the claim of petitioner to the
disputed area. x x x.
The undersigned is, therefore, convinced that respondents completely understood the Supreme Court decision
but chose instead to deliberately disobey it x x x. Respondents contumacious refusal to adhere to the decision
was made with full understanding that their acts would fall under contempt of court as evidenced by the
following declaration of the respondent Governor in his Demurrer to Evidence With Leave of Court, dated
October 12, 1992, as follows:
The whole case would have been different if factually the territory defined in the (1922) Decision of the Executive
Bureau conformed with the prescription of Section 42 (of Article II, Revised Administrative Code of 1917), x x x.

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We agree with Justice Reginos findings.

106

x x x x x x x x x[23] (Emphasis ours)

Indeed, it is highly improper for respondent Gov. Rodriguez to state in his Demurrer to Evidence that the
whole case would have been different (meaning, this contempt incident would not have happened) had the territory
defined in the (1922) Decision of the Executive Bureau conformed with the prescription of Section 42 (of Article II,
Revised Administrative Code of 1917). Respondent Rodriguez knew very well that this issue on the subject
territorial boundary had long been settled in our 1989 Decision where we ruled:
"1. Turning to the first issue, we note that Section 42 (Article II, Revised Administrative Code of 1917) does set
out a definition or description of the boundary line between Ambos Camarines and Quezon Province. We note,
however, thatSection 42 does not describe or define the entirety of that line in such a manner as to permit
the whole boundary line to be located on the ground by a surveyor. Close examination of Section 42 will show that
it is not the whole boundary line that is disputed but only a segment thereof. The boundary line from the peak of Mt.
Cadig eastward to the peak of Mt. Labo and from there to a stone monument at the head-waters of the Pasay River
and thence along the course of that river to the Gulf of Ragay, is described in terms which are sufficiently precise to
permit a surveyor to locate that boundary line on the surface of the earth.It is the western portion of the boundary
line - from the peak of Mt. Cadig westward to a point on the eastern shore of Basiad Bay - which is the subject of
the boundary dispute.
"It is pointed out by petitioner Camarines Norte, firstly, that the particular point on Basiad Bay that is the terminus
of the boundary line is not specifically identified in Section 42, considering that the eastern shore of Basiad Bay
is 25 kilometers in length, more or less, such that that terminal point could in theory be located anywhere along the
25-kilometer shore line.Secondly, the specific direction or directions and the varying lengths (the 'metes and
bounds') of the various segments of the boundary line to be projected from the terminus point on Basiad Bay onto
Mt. Cadig's peak, are similarly not specified inSection 42. Thus, again, a surveyor on the ground would be unable to
locate and monument the boundary line from Basiad Bay to Mt. Cadig if all he had was the language found
in Section 42 of the Revised Administrative Code.
We agree with petitioner Camarines Nortes argument. We consider that to that limited extent, the Ambos
Camarines Quezon boundary line was undefined and that there was thus necessity for the 16 June 22 decision of
the Chief of the Executive Bureau to provide more specific guidance that would permit the actual
identification or location of the Basiad Bay Mt. Cadig portion of the boundary line between Ambos
Camarines and Quezon Province:
'[from the peak of Mt. Cadig] thence a straight line is drawn to the point of intersection of the interprovincial road
between Camarines Norte and Tayabas (now Quezon) with the Tabugon River, thence following the course of the
river to each mouth at the Basiad Bay.'"[24] (Emphasis ours)
Very clearly, our 1989 Decision categorically declared valid and binding the 1922 EB decision upon the
contending parties. Despite this, respondents stubbornly insisted on their own interpretation of what should be the
correct description of the boundary line. Such willful disregard of our Decision was eloquently demonstrated when
respondents caused the removal of the monument marker delineating the actual territorial boundary between the
Provinces of Quezon and Camarines Norte.
Parenthetically, exactly the same point was emphasized by this Court in the disbarment case[25] filed by
Camarines Norte Governor Roy Padilla, Jr. against the counsel for the Province of Quezon, Attys. Jorge B Vargas
and Jovito E. Talabong, docketed as A.C. No. 3774.[26] This Court reprimanded both lawyers for having told the
DENR technical team that the province of Quezon shall (only) agree to the definition of the boundary line if it
would comply with Section 42, Article II of Act No. 2711 (the Revised Administrative Code of 1917). There we
said:
Thus, it is clear to us that respondents insistence that the DENR Technical Working Group comply with
Section 42, Article II of Act 2711, despite the Courts ruling that said provision of law had failed to identify this
portion of the boundary between the two (2) provinces with sufficient specificity, which specificity was precisely
supplied by the 16 June 1922 Decision of the Chief of the Executive Bureau, was but a disingenuous device to
delay and perhaps frustrate the implementation of the Courts Decision in G.R. No. 80796, which Decision
respondents vehemently disagree.
This Court does not, as it cannot, always expect counsel of losing litigants graciously to accept the correctness of the
decisions of this Court. But when such decisions reach finality, it is the duty of such counsel as officers of the
Court and members of the Bar to obey those decisions, whatever their personal opinion may be in respect of
the merits of the decisions. It is, of course, open to the respondents herein to seek to change those decisions they

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107

disagree with by going to the Congress of the Philippines to try to secure the enactment of a statute changing the
boundary line already declared legally binding by this Court. Until such a statute is enacted, however,
respondents owe a special duty faithfully and honestly to comply with final decisions of this Court. The Court
cannot countenance any further disregard of this duty. It is of essence of an ordered and civilized community
that the function of final resolution of disputes be located in a particular institution.In our system, that
institution is this Court.
ACCORDINGLY, the Court Resolved to REPRIMAND respondents Attys. Jorge B. Vargas, Jr. and Jovito E.
Talabong for obstructing implementation of the Decision of this Court dated 8 November 1989 in G.R. No.
80796. Respondents are hereby solemnly WARNED that any further attempts to delay or frustrate the
implementation of the Decision in G.R. No. 80796 of the commission of similar act(s) tending towards the
same end, will be dealt with more severely.
Let copies of this Resolution be spread on respondents respective personal records in the Office of the Bar
Confidant.[27](Emphasis ours)
Next, respondents vainly sought to justify their contemptuous conduct by invoking Republic Act No. 5480 (An
Act Creating The Municipality Of Santa Elena In The Province Of Camarines Norte), which was approved on June
21, 1969. They claim that Section 1 of the law, which reads:
SECTION 1. Barrios Salvacion, Bulala, Rizal, San Lorenzo, Pulong Guit-guit, Santa Elena, San Vicente, Basiad and
San Pedroup to the boundary of the Province of Quezon and the Province of Camarines Norte as defined in
Chapter three, Article II, Section forty-two of the Administrative Code, in the Municipality of Capalonga,
Province of Camarines Norte, are hereby separated from said municipality, and constituted into a distinct and
independent political entity, to be known as the Municipality of Santa Elena. x x x." (Emphasis ours)
provides the latest definition of the boundary between Quezon and Camarines Norte. They argue that nowhere in
Section 1 can be found the subject nine (9) barangays to be within the territorial jurisdiction of Santa Elena,
Camarines Norte. Hence, to include these 9 barangays to Santa Elena would violate not only R.A. No. 5480 but also
Section 10, Article X of the 1987 Constitution and Section 10 of Republic Act 7160 (The Local Government Code
of 1991), which laws require a plebiscite in cases of substantial alteration of territorial boundaries.
Again, these arguments do not present any novel issue.
Firstly, we have settled this matter when we disposed of the Province of Quezons motion for clarification of the
1989 SC Decision. We said:
Considering that the motion for clarification of judgment dated March 26, 1990 filed by the counsel for respondent
province of Quezon merely repeats an argument previously made in their motion for reconsideration, and
considering that said motion for clarification is in effect a second motion for reconsideration, the first motion for
reconsideration having been denied with finality, the Court resolved to note without action the said motion for
clarification. The Court would simply add that Republic Act No. 5480 does not purport to have amended
Section 42 of the Revised Administrative Code nor Section 2 of Act No. 2809, both as implemented in the
decision dated 16 June 1922 of the Executive Bureau of the Department of Interior. xxx." [28] (Emphasis ours)
Moreover, while Section 1 quoted above enumerates the component barangays of Santa Elena, the same
section categorically extends Santa Elenas territorial jurisdiction up to the boundary of the Province of Quezon and
the Province of Camarines Norte as defined in Chapter three, Article II, Section forty-two of the Administrative
Code. That boundary has been defined in the 1922 EB Decision, which, in turn, was ordered enforced in our
November 8, 1989 Decision. Verily, the enumeration of the barangays in Section 1 of R.A. No. 5480 is not
intended to delimit the territorial jurisdiction of Santa Elena, Camarines Norte.
And, secondly, the 1989 SC Decision emphatically stresses that the (1922 decision of the) Chief of the
Executive Bureaudid not x x x alter or re-define or amend an existing provincial boundary, the boundary line
between Ambos Camarines and Tayabas (now Quezon Province). All that the Chief of the Executive Bureau
did was to implement, upon the authority of the Secretary of Interior, Section 42 of Act No. 2711.
[29]
Necessarily, respondents argument on the non-compliance with the plebiscite requirement under Section 10,
Article X of the 1987 Constitution, as well as Section 10 of Republic Act No. 7160, is misplaced.
We also find baseless respondents claim that the DENR technical team conducted the survey without prior
authority from the Office of the President. It cannot be gainsaid that the authority of the DENR technical team
emanated from the Special Order No. 1179 duly issued by the DENR Secretary, the alter ego of the
President. Being an alter ego, the acts of the DENR Secretary are presumed to be the acts of the President, unless

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expressly repudiated by the latter. The DENR technical team was precisely created in compliance with the 1989 SC
Decision to conduct the survey. Thus, the DENR technical teams authority is beyond question.

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From the above disquisition, we hold that respondents Gov. Eduardo T. Rodriguez and Mayor Julio U. Lim
openly disobeyed our November 8, 1989 Decision when they caused the removal of the monument marker installed
by the DENR.The significance of the monument marker cannot simply be disregarded. As aptly explained by Engr.
Mamerto Infante, it has a technical purpose of preserving the survey conducted by his team. [30] In fact, our 1989
Decision itself mandates to monumentthe Basiad Bay-Mt. Cadig line described in the 16 June 1922 decision of the
Chief of the Executive Bureau. That respondents understood our 1989 Decision is fully borne by the records in these
cases and well attested by their valiant effort in re-litigating issues already settled by this Court. That same effort,
however, highlighted by their contumacious destruction of the monument, worked adversely to their cause. It
renders them liable for indirect contempt.
We are well aware of the legal precept that the power of the court to punish contemptuous acts should be
exercised on the preservative and not on the vindictive principle. [31] However, where, as here, there
is clear and contumacious defiance of, or refusal to obey this Court's Decision, we will not hesitate to exercise our
inherent power if only to maintain respect to this Court, for without which the administration of justice may falter or
fail. We note that respondents Gov. Rodriguez and Mayor Lim committed the contemptuous act on October 14, 1991
and were charged for contempt under Section 3, Rule 71 of the Revised Rules of Court. Section 6 thereof imposes a
penalty of fine not exceeding P1,000.00 or imprisonment of not more than six (6) months, or both. We believe the
penalty of FINE in the amount of P1,000.00, with warning, is reasonable for this purpose.
We now come to the petition for certiorari (G.R. No. 132885) instituted by the Province of Quezon, et al.
against the COMELEC.
Petitioners assail the COMELEC Resolutions No. 97-2406 (dated July 10, 1997) and No. 97-3721 (dated
November 27, 1997) which, for election purposes, recognize the Province of Camarines Nortes territorial
jurisdiction over the subject nine (9)barangays formerly considered part of Calauag, Quezon. They maintain that
respondent COMELEC, in issuing the Resolutions, has committed grave abuse of discretion and/or acted without or
in excess of jurisdiction, contending that such recognition violated Republic Act No. 5480; Section 10, Article X of
the Constitution; and Section 10 of the Local Government Code.
In its comment, the COMELEC asserts that it issued the assailed Resolutions in deference to the final
(November 8, 1989) Decision of this Honorable Court in the case of Province of Camarines Norte vs. Province of
Quezon (in G.R. No. 80796), and only after the issue of the land boundary dispute between the two provinces had
been settled therein.[32] It further claims that the issuance of the challenged Resolutions was to enforce the 1989 SC
Decision as directed by this Court in a subsequentEn Banc Resolution dated August 4, 1994 in the same G.R. No.
80796, thus:
The Court takes this occasion to stress that the Province of Quezon and Governor Eduardo Rodriguez are
bound by the said final decision of this Court and that the boundary dispute there resolved is no longer a
dispute and that all the attendant legal issues have been resolved with finality. That decision of this Court
constitutes res adjudicata in respect of all offices and agencies of the Executive Department. Accordingly, the
province of Camarines Norte is entitled, not to a status quo prior to the controversy, but rather to the prompt
enforcement of the decision of this Court.[33] (Emphasis ours)
We fully agree with respondent COMELEC.
For showing high regard to this Courts Decision and Orders, we commend not only the COMELEC but also
the Department of Budget and Management, the Department of Finance, the Department of Environment and
Natural Resources, the Department of Interior and Local Government and the National Statistics Office. These
government offices and agencies have collectively recognized the subject 9 barangays as part of Camarines Nortes
jurisdiction.
Sadly, it is only Quezon Province and its officials who ignore the finality of the Decision and Resolutions of
this Court.Their present petition attempts to re-litigate the same issues judiciously passed upon by this Court with
finality. It is but imperative for this Court to write finis to these cases. Indeed, every litigation must come to an end;
otherwise, it would become even more intolerable than the wrong and injustice it is designed to correct.
WHEREFORE, the petition for contempt in G.R. No. 80796 is GRANTED. Respondents Eduardo T.
Rodriguez and Julio U. Lim are adjudged GUILTY of INDIRECT CONTEMPT of this Court and, pursuant to
Section 6, Rule 71 of the Revised Rules of Court, are FINED in the amount of P1,000.00 each, and WARNED that a
repetition of similar misconduct will be dealt with more severely. The Province of Quezon, its representatives and

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any person acting on its behalf are ORDERED to REFRAIN from committing the same or similar act tending to
obstruct the full implementation of this Courts Decision dated November 9, 1989 in G.R. No. 80796.

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Within Ten (10) days from notice of this Decision, respondents Eduardo T. Rodriguez and Julio U. Lim are
ORDERED to RE-INSTALL, at their expense, the monument marker on the site where it was originally placed,
under the direct supervision of the Department of Environment and Natural Resources.
The petition for certiorari in G.R. No. 132885 is DISMISSED for lack of merit.
Let a copy of this Decision be furnished the Office of the President and the Secretary of the Department of
Interior and Local Government, with the request that the results of the survey conducted by the DENR Technical
Working Group be FULLY and IMMEDIATELY implemented. Costs against respondents Eduardo T. Rodriguez and
Julio U. Lim.
This Decision is FINAL.
SO ORDERED.

MUNICIPALITY OF KANANGA, Represented by its Mayor, Hon. GIOVANNI M. NAPARI vs.

Hon. FORTUNITO L. MADRONA
Posted on October 9, 2013 by winnieclaire
Standard
[G.R. No. 141375. April 30, 2003.]
FACTS: When a boundary dispute arose between the Municipality of Kananga and the City of Ormoc. By
agreement, the parties submitted the issue to amicable settlement. No amicable settlement was reached.
The City of Ormoc filed before the RTC of Ormoc City a complaint to settle the boundary dispute.
Petitioner municipality filed a motion to dismiss, claiming that the court has no jurisdiction over the subject
matter, but the RTC denied the same.
RTC: it had jurisdiction over the action under Batas Pambansa Blg. 129. that Section 118 of the Local
Government Code had been substantially complied with, because both parties already had the occasion
to meet and thresh out their differences. In fact, both agreed to elevate the matter to the trial court via
Resolution No. 97-01. It also held that Section 118 governed venue; hence, the parties could waive and
agree upon it under Section 4(b) of Rule 4 of the Rules of Court.
ISSUE: WON Section 118 of the LGU on boundary dispute settlement applies.
WON respondent court may exercise original jurisdiction over the settlement of a boundary dispute
between a municipality and an independent component city.
HELD: No, Section 118 does not apply. Yes, RTC has jurisdiction.
POLITICAL LAW; LOCAL GOVERNMENT CODE; SECTION 118 THEREOF; PROCEDURE FOR
SETTLEMENT OF BOUNDARY DISPUTES BETWEEN A COMPONENT CITY OR MUNICIPALITY AND
A HIGHLY URBANIZED CITY; ORMOC IS NOT A HIGHLY URBANIZED CITY IN CASE AT BAR.
Sec. 118.Jurisdictional Responsibility for Settlement of Boundary Disputes. Boundary disputes
between and among local government units shall, as much as possible, be settled amicably. To this end:
(a)Boundary disputes involving two (2) or more barangays in the same city or municipality shall be
referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.
(b)Boundary disputes involving two (2) or more municipalities within the same province shall be referred
for settlement to the sangguniang panlalawigan concerned.

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(c) Boundary disputes involving municipalities or component cities of different provinces shall be jointly
referred for settlement to the sanggunians of the provinces concerned.
(d) Boundary disputes involving a component city or municipality on the one hand and a highly urbanized
city on the other, or two (2) or more highly urbanized cities, shall be jointly referred for settlement to the
respective sanggunians of the parties.
(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date
the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be
formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the
date of the certification referred to above.
Under Section 118 of the Local Government Code, the settlement of a boundary dispute between a
component city or a municipality on the one hand and a highly urbanized city on the other or between
two or more highly urbanized cities shall be jointly referred for settlement to the respective sanggunians
of the local government units involved. There is no question that Kananga is a municipality constituted
under Republic Act No. 542. By virtue of Section 442(d) of the LGC, it continued to exist and operate as
such. However, Ormoc is not a highly urbanized, but an independent component, city created under
Republic Act No. 179.
Section 118 of the LGC applies to a situation in which a component city or a municipality seeks to settle a
boundary dispute with a highly urbanized city, not with an independent component city. While Kananga is
a municipality, Ormoc is an independent component city. Clearly then, the procedure referred to in Section
118 does not apply to them.
SECTION 451 THEREOF; CITY; CLASSIFICATION; ORMOC IS DEEMED AN INDEPENDENT
COMPONENT CITY IN CASE AT BAR. Under Section 451 of the LGC, a city may be either component
or highly urbanized. Ormoc is deemed an independent component city, because its charter prohibits its
voters from voting for provincial elective officials. It is a city independent of the province. In fact, it is
considered a component, not a highly urbanized, city of Leyte in Region VIII by both Batas Pambansa Blg.
643, which calls for a plebiscite; and the Omnibus Election Code, which apportions representatives to the
defunct Batasang Pambansa. There is neither a declaration by the President of the Philippines nor an
allegation by the parties that it is highly urbanized. On the contrary, petitioner asserted in its Motion to
Dismiss that Ormoc was an independent chartered city.
REMEDIAL LAW; B.P. BLG. 129; GENERAL JURISDICTION OF RTCs TO ADJUDICATE ALL
CONTROVERSIES EXCEPT THOSE EXPRESSLY WITHHELD FROM THEIR PLENARY POWERS;
CASE AT BAR. As previously stated, jurisdiction is vested by law and cannot be conferred or waived
by the parties. It must exist as a matter of law and cannot be conferred by the consent of the parties or by
estoppel. It should not be confused with venue. Inasmuch as Section 118 of the LGC finds no application
to the instant case, the general rules governing jurisdiction should then be used. The applicable provision
is found in Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, as
amended by Republic Act No. 7691. Since there is no law providing for the exclusive jurisdiction of any
court or agency over the settlement of boundary disputes between a municipality and an independent
component city of the same province, respondent court committed no grave abuse of discretion in
denying the Motion to Dismiss. RTCs have general jurisdiction to adjudicate all controversies except those
expressly withheld from their plenary powers. They have the power not only to take judicial cognizance of
a case instituted for judicial action for the first time, but also to do so to the exclusion of all other courts at
that stage. Indeed, the power is not only original, but also exclusive.

MUNICIPALITY OF NUEVA ERA vs. MUNICIPALITY OF MARCOS

Amoder Cj
AS the law creating a municipality fixes its boundaries, settlement of boundary disputes between
municipalities is facilitated by carrying into effect the law that created them.
Facts: The Petitioner Municipality of Nueva Era seek to reverse the decision of the Court of Appeals (CA)
to a certain extent that of the Regional Trial Court (RTC), Branch 12, Laoag City, Ilocos Norte, in a case
that originated from the Sangguniang Panlalawigan (SP) of Ilocos Norte about the boundary dispute

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between the Municipalities of Marcos and Nueva Era in Ilocos Norte.

The Municipality of Nueva Era was created from the settlements of Bugayong, Cabittaoran, Garnaden,

Page

Padpadon, Padsan, Paorpatoc, Tibangran, and Uguis which were previously organized as rancherias,
each of which was under the independent control of a chief. In the virtue of Executive Order (E.O.) No. 66
5 dated September 30, 1916 united these rancherias and created the township of Nueva Era. The
Municipality of Marcos, on the other hand, was created on June 22, 1963 pursuant to Republic Act (R.A.)
No. 3753 entitled "An Act Creating the Municipality of Marcos in the Province of Ilocos Norte." Section 1 of
R.A. No. 3753 provides:
SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit in the
Municipality of Dingras, Province of Ilocos Norte, are hereby separated from the said municipality and
constituted into a new and separate municipality to be known as the Municipality of Marcos, with the
following boundaries:
On the Northwest, by the barrios Biding-Rangay boundary going down to the barrios Capariaan-Gabon
boundary consisting of foot path and feeder road; on the Northeast, by the Burnay River which is the
common boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos Norte-Mt. Province
boundary; on the South, by the Padsan River which is at the same time the boundary between the
municipalities of Banna and Dingras; on the West and Southwest, by the boundary between the
municipalities of Batac and Dingras.
Marcos did not claim any part of Nueva Era as its own territory until after almost 30 years,7 or only on
March 8, 1993, when its Sangguniang Bayan passed Resolution No. 93-015.8 Said resolution was
entitled: "Resolution Claiming an Area which is an Original Part of Nueva Era, But Now Separated Due to
the Creation of Marcos Town in the Province of Ilocos Norte."
Marcos submitted its claim to the SP of Ilocos Norte for its consideration and approval. In view of its claim
over the middle portion of Nueva Era, Marcos posited that Nueva Era was cut into two parts. And since
the law required that the land area of a municipality must be compact and contiguous, Nueva Era's
northern isolated portion could no longer be considered as its territory but that of Marcos'. Thus, Marcos
claimed that it was entitled not only to the middle portion of Nueva Era but also to Nueva Era's isolated
northern portion. These areas claimed by Marcos were within Barangay Sto. Nio, Nueva Era.
Nueva Era reacted to the claim of Marcos through its Resolution No. 1, Series of 1993. It alleged that
since time immemorial, its entire land area was an ancestral domain of the "tinguians," an indigenous
cultural community. It argued to the effect that since the land being claimed by Marcos must be protected
for the tinguians, it must be preserved as part of Nueva Era. Nueva Era claimed R.A. No. 3753 specifically
mentioned seven (7) barrios of Dingras to become Marcos, the area which should comprise Marcos
should not go beyond the territory of said barrios.
On March 29, 2000, the SP of Ilocos Norte ruled in favor of Nueva Era. The fallo of its decision. R.A. No.
3753 expressly named the barangays that would comprise Marcos, but none of Nueva Era's barangays
were mentioned. The SP thus construed, applying the rule of expressio unius est exclusio alterius, that no
part of Nueva Era was included by R.A. No. 3753 in creating Marcos.
Issues: Whether or not, CA erred in its appreciation of facts, in declaring that MARCOS East is not
coterminous with the Eastern boundary of its mother town-Dingras. That it has no factual and legal basis
to extend MARCOS territory beyond Brgys. Agunit (Ferdinand) and Culao (Elizabeth) of Marcos, and to go
further East, by traversing and disintegrating Brgy. Sto. Nio, and drawing parallel lines from Sto. Nio,
there lies Abra, not Mt. Province or Kalinga-Apayao.
Held: No part of Nueva Era's territory was taken for the creation of Marcos under R.A. No. 3753. Since
only the barangays of Dingras are enumerated as Marcos' source of territory, Nueva Era's territory is,
therefore, excluded. Under the maxim expressio unius est exclusio alterius, the mention of one thing
implies the exclusion of another thing not mentioned. If a statute enumerates the things upon which it is to
operate, everything else must necessarily and by implication be excluded from its operation and effect.
This rule, as a guide to probable legislative intent, is based upon the rules of logic and natural workings of
the human mind. Legislature intended other barangays from Nueva Era to become part of Marcos, it could

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have easily done so by clear and concise language. Where the terms are expressly limited to certain
matters, it may not by interpretation or construction be extended to other matters. The rule proceeds from

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the premise that the legislature would not have made specified enumerations in a statute had the intention
been not to restrict its meaning and to confine its terms to those expressly mentioned. Furthermore, this
conclusion on the intention of the legislature is bolstered by the explanatory note of the bill which paved
the way for the creation of Marcos. Said explanatory note mentioned only Dingras as the mother
municipality of Marcos. Where there is ambiguity in a statute, as in this case, courts may resort to the
explanatory note to clarify the ambiguity and ascertain the purpose and intent of the statute. Despite the
omission of Nueva Era as a mother territory in the law creating Marcos, the latter still contends that said
law included Nueva Era. It alleges that based on the description of its boundaries, a portion of Nueva Era
is within its territory.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is partly REVERSED.
The Decision of the Regional Trial Court in Ilocos Norte is Reinstated.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 116801 April 6, 1995

GLORIA G. LASTIMOSA, First Assistant Provincial Prosecutor of Cebu, petitioner,
vs.
HONORABLE OMBUDSMAN CONRADO VASQUEZ, HONORABLE ARTURO C. MOJICA,
DEPUTY OMBUDSMAN FOR THE VISAYAS, and HONORABLE FRANKLIN DRILON,
SECRETARY OF JUSTICE, and UNDERSECRETARY OF JUSTICE RAMON J.
LIWAG, respondents.

MENDOZA, J.:
This case requires us to determine the extent to which the Ombudsman may call upon
government prosecutors for assistance in the investigation and prosecution of criminal cases
cognizable by his office and the conditions under which he may do so.
Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because she and
the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge as ordered by the
Ombudsman, an administrative complaint for grave misconduct, insubordination, gross neglect of
duty and maliciously refraining from prosecuting crime was filed against her and the Provincial
Prosecutor and a charge for indirect contempt was brought against them, both in the Office of the
Ombudsman. In the meantime the two were placed under preventive suspension. This is a
petition for certiorari and prohibition filed by petitioner to set aside the orders of the Ombudsman
with respect to the two proceedings.
The background of this case is as follows:
On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed a
criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of
authority and grave misconduct against the Municipal Mayor of Santa Fe, Rogelio

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Ilustrisimo. 1 The cases were filed with the Office of the Ombudsman-Visayas where they were
docketed as OMB-VIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036, respectively.

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The complaint was assigned to a graft investigation officer who, after an investigation, found
no prima facieevidence and accordingly recommended the dismissal of the complaint. After
reviewing the matter, however, the Ombudsman, Hon. Conrado Vasquez, disapproved the
recommendation and instead directed that Mayor Ilustrisimo be charged with attempted rape in
the Regional Trial Court. 2
Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas, respondent
Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E. Kintanar for the
"filing of appropriate information with the Regional Trial Court of Danao City, . . ." 3 The case was
eventually assigned to herein petitioner, First Assistant Provincial Prosecutor Gloria G. Lastimosa.
It appears that petitioner conducted a preliminary investigation on the basis of which she found
that only acts of lasciviousness had been committed. 4 With the approval of Provincial Prosecutor
Kintanar, she filed on July 4, 1994 an information for acts of lasciviousness against Mayor
Ilustrisimo with the Municipal Circuit Trial Court of Santa Fe. 5
In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy
Ombudsman Mojica inquired as to any action taken on the previous referral of the case, more
specifically the directive of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. 6
As no case for attempted rape had been filed by the Prosecutor's Office, Deputy Ombudsman
Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner Lastimosa to show
cause why they should not be punished for contempt for "refusing and failing to obey the lawful
directives" of the Office of the Ombudsman. 7
For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial Prosecutor
were given until August 3, 1994 within which to submit their answer. 8 An answer 9 was timely filed
by them and hearings were thereupon conducted.
It appears that earlier, on July 22, 1994, two cases had been filed against the two prosecutors
with the Office of the Ombudsman for Visayas by Julian Menchavez, a resident of Santa Fe,
Cebu. One was an administrative complaint for violation of Republic Act No. 6713 and P.D. No.
807 (the Civil Service Law) 10and another one was a criminal complaint for violation of 3(e) of
Republic Act No. 3019 and Art. 208 of the Revised Penal Code. 11 The complaints were based on
the alleged refusal of petitioner and Kintanar to obey the orders of the Ombudsman to charge
Mayor Ilustrisimo with attempted rape.
In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for
Visayas Mojica issued an order on August 15, 1994, placing petitioner Gloria G. Lastimosa and
Provincial Prosecutor Oliveros E. Kintanar under preventive suspension for a period of six (6)
months, 12 pursuant to Rule III, 9 of the Rules of Procedure of the Office of the Ombudsman
(Administrative Order No. 7), in relation to 24 of R.A. No. 6770. The order was approved by
Ombudsman Conrado M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary
of Justice Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial
Prosecutor of Cebu.
On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued orders 13 in the
two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their counter
affidavits and controverting evidence.
On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for certiorari and
prohibition to set aside the following orders of the Office of the Ombudsman and Department of
Justice:
(a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C.
Mojica and related orders, referring to the Office of the Cebu Provincial
Prosecutor the records of OMB-VIS-CRIM-93-0140, entitled Jessica V. Dayon vs.
Mayor Rogelio Ilustrisimo, "for filing of the appropriate action (for Attempted
Rape) with the Regional Trial Court of Danao City.

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114

(b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders
directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to
explain in writing within three (3) days from receipt why they should not be
punished for indirect Contempt of the Office of the Ombudsman "for refusing and
failing . . . to file the appropriate Information for Attempted Rape against Mayor
Rogelio Ilustrisimo.
(c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon
J. Liwag, ordering the Office of the Provincial Prosecutor to comply with the
directive of the Office of the Ombudsman that a charge for attempted rape be
filed against respondent Mayor Ilustrisimo in recognition of the authority of said
Office.
(d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved
by Ombudsman Conrado Vasquez, and related orders in OMB-VIS-(ADM)-940189, entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa,
placing petitioner and Provincial Prosecutor Kintanar under preventive
suspension for a period of six (6) months, without pay.
(e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag
directing Assistant Regional State Prosecutor Eduardo O. Concepcion (Region
VII) to implement the letter dated August 15, 1994 of Ombudsman Vasquez,
together with the Order dated August 15, 1994, placing petitioner and Provincial
Prosecutor Kintanar under preventive suspension.
(f) Department Order No. 259 issued by Acting Secretary Liwag on August 18,
1994, designating Assistant Regional State Prosecutor Concepcion Acting
Provincial Prosecutor of Cebu.
Petitioner raises a number of issues which will be discussed not necessarily in the order they are
stated in the petition.
I.
The pivotal question in this case is whether the Office of the Ombudsman has the power to call
on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against
Mayor Ilustrisimo. Lastimosa claims that the Office of the Ombudsman and the prosecutor's office
have concurrent authority to investigate public officers or employees and that when the former
first took cognizance of the case against Mayor Ilustrisimo, it did so to the exclusion of the latter. It
then became the duty of the Ombudsman's office, according to petitioner, to finish the preliminary
investigation by filing the information in court instead of asking the Office of the Provincial
Prosecutor to do so. Petitioner contends that the preparation and filing of the information were
part and parcel of the preliminary investigation assumed by the Office of the Ombudsman and the
filing of information in court could not be delegated by it to the Office of the Provincial Prosecutor.
Petitioner defends her actuations in conducting a preliminary investigation as having been made
necessary by the insistence of the Ombudsman to delegate the filing of the case to her office.
In any event, petitioner contends, the Office of the Ombudsman has no jurisdiction over the case
against the mayor because the crime involved (rape) was not committed in relation to a public
office. For this reason it is argued that the Office of the Ombudsman has no authority to place her
and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow his orders
and to cite them for indirect contempt for such refusal.
Petitioner's contention has no merit. The office of the Ombudsman has the power to "investigate
and prosecute on its own or on complaint by any person, any act or omission of any public officer
or employee, office or agency, when such act or omission appears to be illegal, unjust, improper
or inefficient." 14 This power has been held to include the investigation and prosecution of any
crime committed by a public official regardless of whether the acts or omissions complained of
are related to, or connected with, or arise from, the performance of his official duty 15 It is enough
that the act or omission was committed by a public official. Hence, the crime of rape, when
committed by a public official like a municipal mayor, is within the power of the Ombudsman to
investigate and prosecute.

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In the existence of his power, the Ombudsman is authorized to call on prosecutors for assistance.
31 of the Ombudsman Act of 1989 (R.A. No. 6770) provides:

Page

Designation of Investigators and Prosecutors. The Ombudsman may utilize

the personnel of his office and/or designate of deputize any fiscal, state
prosecutor or lawyer in the government service to act as special investigator or
prosecutor to assist in the investigation and prosecution of certain cases. Those
designated or deputized to assist him as herein provided shall be under his
supervision and control. (Emphasis added)
It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy Ombudsman
Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an information for attempted
rape against Mayor Rogelio Ilustrismo.
It does not matter that the Office of the Provincial Prosecutor had already conducted the
preliminary investigation and all that remained to be done was for the Office of the Provincial
Prosecutor to file the corresponding case in court. Even if the preliminary investigation had been
given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense
to be charged would still be subject to the approval of the Office of the Ombudsman. This is
because under 31 of the Ombudsman's Act, when a prosecutor is deputized, he comes under
the "supervision and control" of the Ombudsman which means that he is subject to the power of
the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's)
decision. 16 Petitioner cannot legally act on her own and refuse to prepare and file the information
as directed by the Ombudsman.
II.
The records show that despite repeated orders of the Ombudsman, petitioner refused to file an
information for attempted rape against Mayor Ilustrisimo, insisting that after investigating the
complaint in the case she found that he had committed only acts of lasciviousness.
15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for
contempt, in accordance with the Rules of Court and under the same procedure and with the
same penalties provided therein." There is no merit in the argument that petitioner and Provincial
Prosecutor Kintanar cannot be held liable for contempt because their refusal arose out of an
administrative, rather than judicial, proceeding before the Office of the Ombudsman. As petitioner
herself says in another context, the preliminary investigation of a case, of which the filing of an
information is a part, is quasi judicial in character.
Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance,
disobedience or resistance of a lawful process, order or command of the Ombudsman thus
making her liable for indirect contempt under Rule 71, 3 of the Rules of Court is for respondents
to determine after appropriate hearing. At this point it is important only to note the existence of the
contempt power of the Ombudsman as a means of enforcing his lawful orders.
III.
Neither is there any doubt as to the power of the Ombudsman to discipline petitioner should it be
found that she is guilty of grave misconduct, insubordination and/or neglect of duty, nor of the
Ombudsman's power to place her in the meantime under preventive suspension. The pertinent
provisions of the Ombudsman Act of 1989 state:
21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive
officials of the Government and its subdivisions, instrumentalities and agencies,
including Members of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the Judiciary.
22. Preventive Suspension. The Ombudsman or his Deputy may 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;

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or (c) the respondent's continued stay in office may prejudice the case filed
against him.

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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.
A.
Petitioner contends that her suspension is invalid because the order was issued without giving
her and Provincial Prosecutor Kintanar the opportunity to refute the charges against them and
because, at any rate, the evidence against them is not strong as required by 24. The contention
is without merit. Prior notice and hearing is a not required, such suspension not being a penalty
but only a preliminary step in an administrative investigation. As held in Nera v. Garcia: 17
In connection with the suspension of petitioner before he could file his answer to
the administrative complaint, suffice it to say that the suspension was not a
punishment or penalty for the acts of dishonesty and misconduct in office, but
only as a preventive measure. Suspension is a preliminary step in an
administrative investigation. If after such investigation, the charges are
established and the person investigated is found guilty of acts warranting his
removal, then he is removed or dismissed. This is the penalty. There is,
therefore, nothing improper in suspending an officer pending his investigation
and before the opportunity to prove his innocence. (Emphasis added).
It is true that, under 24 of the Ombudsman's Act, to justify the preventive suspension of a public
official, the evidence against him should be strong, and any of the following circumstances is
present:
(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.
As held in Buenaseda v. Flavier, 18 however, whether the evidence of guilt is strong is left to the
determination of the Ombudsman by taking into account the evidence before him. A preliminary
hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar
argument as that made by petitioner in this case, this Court said in that case:
The import of the Nera decision is that the disciplining authority is given the
discretion to decide when the evidence of guilt is strong. This fact is bolstered by
Section 24 of R.A. No. 6770, which expressly left such determination of guilt to
the "judgment" of the Ombudsman on the basis of the administrative
complaint. . . . 19
In this case, respondent Deputy Ombudsman Mojica justified the preventive suspension of
petitioner and Provincial Prosecutor Kintanar on the following grounds:
A careful assessment of the facts and circumstances of the herein cases and the
records pertaining thereto against respondents [Provincial Prosecutor Kintanar
and herein petitioner] clearly leads to the conclusion that the evidence on record
of guilt is strong and the charges involved offenses of grave misconduct, gross
neglect of duty and dishonesty which will warrant respondents [Provincial
Prosecutor Kintanar and herein petitioner] removal from the service. Moreover,
considering the unabashed attitude of respondents in openly announcing various
false pretexts and alibis to justify their stubborn disregard for the lawful directives
of the Ombudsman as their official position in their pleadings filed in OMB-VIS-094-0478 and in print and broadcast media, the probability is strong that public

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service more particularly in the prosecution of cases referred by the Office of the
Ombudsman to the Cebu Provincial Prosecutor's office will be disrupted and
prejudiced and the records of said cases even be tampered with if respondents
[Provincial Prosecutor Kintanar and herein petitioner] are allowed to stay in the
Cebu Provincial Prosecutor's Office during the pendency of these proceedings.
Indeed respondent Deputy Ombudsman Mojica had personal knowledge of the facts justifying the
preventive suspension of petitioner and the Provincial Prosecutor since the acts alleged in the
administrative complaint against them were done in the course of their official transaction with the
Office of the Ombudsman. The administrative complaint against petitioner and Provincial
Prosecutor Kintanar was filed in connection with their designation as deputies of the ombudsman
in the prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Respondent Deputy
Ombudsman did not have to go far to verify the matters alleged in determine whether the
evidence of guilt of petitioner and Provincial Prosecutor was strong for the purpose of placing
them under preventive suspension.
Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case
against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the
proper prosecution of that case may not be hampered. 20 In addition, because the charges against
the two prosecutors involve grave misconduct, insubordination and neglect of duty and these
charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in
ordering their preventive suspension.
B.
Petitioner questions her preventive suspension for six (6) months without pay and contends that it
should only be for ninety (90) days on the basis of cases decided by this Court. Petitioner is in
error. She is referring to cases where the law is either silent or expressly limits the period of
suspension to ninety (90) days. With respect to the first situation, we ruled in the case
of Gonzaga v. Sandiganbayan 21 that
To the extent that there may be cases of indefinite suspension imposed either
under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best
for the guidance of all concerned that this Court set forth the rules on the period
of preventive suspension under the aforementioned laws, as follows:
1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be
limited to a maximum period of ninety (90) days, from issuances thereof, and this
applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are
validly charged under said Act.
2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all
officers or employees whose positions are embraced in the Civil Service, as
provided under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to
a maximum period of ninety (90) days from issuance, except where there is delay
in the disposition of the case, which is due to the fault, negligence or petition of
the respondent, in which case the period of delay shall both be counted in
computing the period of suspension herein stated; provided that if the person
suspended is a presidential appointee, the continuance of his suspension shall
be for a reasonable time as the circumstances of the case may warrant.
On the other hand, petitioner and the Provincial Prosecutor were placed under preventive
suspension pursuant to 24 of the Ombudsman Act which expressly provides that "the preventive
suspension shall continue until the case is terminated by the Office of the Ombudsman but not
more than six months, without pay." Their preventive suspension for six (6) months without pay is
thus according to law.
C.
Nor is there merit in petitioner's claim that the contempt charge should first be resolved before
any action in the administrative complaint case can be taken because the contempt case involves
a prejudicial question. There is simply no basis for this contention. The two cases arose out of the
same act or omission and may proceed hand in hand, or one can be heard before the other.
Whatever order is followed will not really matter.

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SO ORDERED.

118

WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of
Preventive Suspension is DENIED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-59679 January 29, 1987
TEODULO M. PALMA, SR., petitioner,
vs.
HON. CARLOS O. FORTICH, as Governor of Bukidnon, and THE SANGGUNIANG PANLALAWIGAN
OF BUKIDNON, respondents.

PARAS, J.:
This is a petition for certiorari and Prohibition with prayer for Preliminary Injunction seeking: (a) to prohibit
the respondents from continuing with the hearing and investigation of Administrative Case No. 2 filed by
respondent Governor of Bukidnon against petitioner Mayor Teodulo M. Palma Sr. of the Municipality of
Don Carlos, Province of Bukidnon and (b) to nullify Resolution No. 82-87 passed by respondent
Sangguniang Panlalawigan of Bukidnon, suspending him from office.
The undisputed facts of this case are:
On March 30, 1981, the Assistant Provincial Fiscal Vivencio P. Estrada of Bukidnon, at the instance of the
offended parties Nelia Arandel Clerk-typist and Susan Palamine, Clerical Aide, both of the Office of the
Mayor of the Municipality of Don Carlos, Province of Bukidnon, filed with the Court of First Instance of the
same province, Criminal Cases Nos. 2795, 2796 and 2797 against petitioner Teodulo M. Palma, Sr., the
duly elected and qualified Mayor of said Municipality.
By virtue of the aforesaid three (3) separate cases, said offended parties in a sworn joint letter complaint
requested respondent Provincial Governor for an immediate administrative investigation for the purpose
of suspending Mayor Palma from office pending final determination of these cases. (Rollo, p. 6). Attached
to said letter are: three (3) copies of the Information for Acts of Lasciviousness against the Mayor
(Annexes "B", "C" and "D"; Petition, Rollo, pp. 7-9); the statements of the offended parties (Annexes "1-a"
and "2"; Comment, Rollo, pp. 30-34; Respondent's Brief, p. 3, Rollo, p. 60). Treating the same as a formal
letter complaint, respondent Governor formally informed the Mayor of the administrative charge against
him for Misconduct in Office (Annexes "E ", Petitioner; Rollo, p. 10).lwphl@it Forthwith the record of the
administrative case against the Mayor was forwarded to the Sangguniang Panlalawigan of the province of
Bukidnon. Said body, after receipt thereof, set the case for hearing on April 13, 1981 (Annex "F", Petition,
Rollo, p. 11). After the hearing where complainants were required to testify and then cross-examined by
petitioner's counsel the former petitioned for the preventive suspension of the Mayor which was granted
by respondent Sangguniang Panlalawigan in its Resolution No. 82-87 (Annex "G", Petition, Rollo, p. 42).
The Mayor accepted his preventive suspension from office as shown in his Office Order dated February
15, 1982 (Annex "3", Comment of Respondent; Rollo, p. 35). Nonetheless, he filed this petition.
In the resolution of April 24, 1982 of the First Division of this Court (Rollo, p. 14), respondents were
required to comment on the petition. The same was filed on May 3, 1982 (Rollo, pp. 25-35) while on June
14, 1982 petitioner filed an urgent motion for immediate issuance of Temporary Restraining Order (Rollo,
pp. 37-39). In the resolution of June 16, 1982 (Rollo, p. 40) the motion of petitioner to file therein a reply
(Rollo, pp. 19-23) to respondents' comment was granted:, the petition was given due course and a
temporary restraining order was issued enjoining the respondents from continuing with the hearing and/or

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119

investigation of the administrative case and from enforcing the order of suspension against petitioner.
Petitioner's brief was filed on September 9, 1982 (Rollo, p. 57) while respondents' brief was filed on
September 27, 1982 (Rollo, p. 60). On October 1, 1982, the offended parties moved (Rollo, pp. 62-64) for
intervention and for admission of their attached brief (Rollo, p. 66) which was granted and the aforesaid
brief noted in the resolution of October 20, 1982 (Rollo, p. 68). Thereafter, the case was calendared for
decision. (Rollo, p. 67).
The only issue raised in Petitioner's Brief is as follows:
WHETHER OR NOT THE FILING AND PENDENCY OF THE AFORESAID THREE (3) SEPARATE
INFORMATION FOR "ACTS OF LASCIVIOUSNESS" AGAINST AN ELECTIVE LOCAL OFFICIAL
WOULD CONSTITUTE "MISCONDUCT IN OFFICE" WITHIN THE MEANING OF SECTION 5 OF
REPUBLIC ACT NO. 5185 WHICH MAY WARRANT THE FILING OF AN ADMINISTRATIVE COMPLAINT
AGAINST HIM AND/OR HIS SUSPENSION FROM OFFICE.
There appears to be no controversy as to the filing of the criminal cases against the petitioner. The
principal issue centers on the filing of the administrative case and consequent preventive suspension of
petitioner based solely on the filing of the above-mentioned criminal cases.
Petitioner contends that "Acts of Lasciviousness" although how numerous, do not fall within the category
of "malfeasance and misfeasance" or "conduct in the office" contemplated in Section 5 of R.A. No. 5185,
and therefore cannot be the basis of the filing of a separate administrative case against an elective official
and the preventive suspension of the latter.
Respondents, alleging otherwise, maintain that the lascivious acts of the petitioner constitute misconduct
under Article XIII, Section 1 of the 1973 Constitution, re: "Accountability of Public Officers."
However, on September 1, 1983, petitioner filed a Manifestation and Prayer (Rollo, pp. 69-71) informing
this Court that the three criminal cases filed against him were all dismissed by the Regional Trial Court of
Bukidnon Branch X in an Order dated February 24, 1983. (Annex "A", Rollo, pp. 72-79). Thus, on the
premise that the administrative case in question as well as the resulting preventive suspension is now
bereft of any legal basis, petitioner now prays that judgment be rendered in accordance with his prayer in
the petition.
But, before the instant petition could be decided by the Supreme Court, the Provisional Constitution also
known as the Freedom Constitution was promulgated in Proclamation No. 3, dated March 25, 1986, by
President Corazon C. Aquino.
Article III, Section 2 thereof, reads:
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.
Under the above quoted provision of the Freedom Constitution, an incumbent Mayor, elected under the
1973 Constitution may be replaced by an "Officer-in-Charge a specie of successor considered as within
the ambit of the provision." (G.R. No. 73770, Topacio, Jr. v. Pimentel G.R. No. 73811, Velasco v. Pimentel;
G.R. No. 73823, Governors of the Phil. v. Pimentel; G.R. No. 73940, The Municipal Mayors League of the
Phil. et al. v. Pimentel; and G.R. No. 73970, Solis v. Pimentel et al. RESOLUTION; Court En Banc dated
April 10, 1986).
Coming back to the case at bar, it appears from the records of the Ministry of Local Government that
petitioner who was obviously elected under the 1973 Constitution has been replaced by OIC Fabian
Gardones as Mayor of Don Carlos, Cagayan.
Thus, the question now confronting the Court, is whether or not, under the succeeding developments, the
issue in the case at bar has become moot and academic.
As a general rule, dismissal of an administrative case does not necessarily follow the dismissal of a
criminal case, the former requiring as it does, only preponderance of evidence while the latter requires
proof beyond reasonable doubt.

Page

120

However, in administrative actions against municipal officers, the Supreme Court in Festijo v. Crisologo,
et al. (17 SCRA 868, 869 [1966]), classified the grounds for suspension under two categories, namely: (1)
those related to the discharge of the functions of the officer concerned (neglect of duty, oppression,
corruption or other forms of maladministration of office) and (2) those not so connected with said
functions. Under the second category, when the crime involving moral turpitude is not linked with the
performance of official duties, conviction by final judgment is required as a condition precedent to
administrative action.
The ground for filing of the administrative action in the case at bar and the suspension of petitioner Mayor
is misconduct allegedly committed in the form of lascivious acts of the latter.
Misconduct has been defined as "such as affects his performance of his duties as an officer and not only
as affects his character as a private individual. In such cases, it has been said at all times, it is necessary
to separate the character of the man from the character of the officer. " (Lacson v. Roque, et al., 92 Phil.
456).lwphl@it
Now, as to whether or not, such misconduct of petitioner affects his performance of his duties as an officer
and not only his character as a private individual, has been laid to rest by the ruling of the Supreme Court
in an analogous case where it was held that while "it is true that the charges of rape and concubinage
may involve moral turpitude of which a municipal official may be proceeded against . . . but before the
provincial governor and board may act and proceed against the municipal official, a conviction by final
judgment must precede the filing by the provincial governor of the charges and trial by the provincial
board." (Mindano v. Silvosa, et al., 97 Phil. 144-145 [1955]).
Indeed, there is merit in petitioner's contention that the same ruling applies to acts of lasciviousness
which falls under the same classification as crimes against chastity. In the instant case, not only is a final
judgment lacking, but the criminal cases filed against the petitioner were all dismissed by the trial court,
for insufficiency of evidence, on the basis of its findings that the attendant circumstances logically point to
the existence of consent on the part of the offended parties. (Order, Crim. Cases Nos. 2795, 2796 and
2797, RTC, Br. X, Malaybalay, Bukidnon, Rollo, pp. 77-79). Under the circumstances, there being no
showing that the acts of petitioner Mayor are linked with the performance of official duties such as
"neglect of duty, oppression, corruption, or other form of maladministration of office" (Festijo v. Crisologo,
et al., supra, pp. 872-873), there appears to be no question that the pending administrative case against
him should be dismissed for lack of basis and the restraining order issued by the court should be made
permanent.
Nonetheless, the replacement of petitioner Mayor by the Officer-in-Charge Fabian Gardones has
rendered the issues of removal and suspension from office, moot and academic.
PREMISES CONSIDERED, judgment is hereby rendered DISMISSING: (a) the administrative case filed
against the petitioner for lack of basis and (b) subject petition for having become moot and academic.
SO ORDERED.

LIBANAN VS. SANDIGANBAYAN

LIBANAN VS. SANDIGANBAYAN
233 SCRA 163
Petitioner: Marcelino Libanan
Respondents: SANDIGANBAYAN and Agustin B. Docena
Ponente: J. Vitug

FACTS:

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121

Petitioner Libanan is the incumbent vice-governor of Eastern Samar and was a former
member of the Sangguniang Panlalawigan prior to the 1992 elections.

He was charged in conspiring to other members to prevent and exclude Docena

(Respondent), a qualified replacement of a deceased member, from exercising his rights and
prerogatives as a member of the said body.

In effect, the SANDIGANBAYAN issued a resolution suspending their respective public

position and office for ninety (90) days.

Petitioner filed a motion for reconsideration, alleging three grounds: [1] Order of Suspension
if executed shall affront the petitioners right for due process; [2] the suspension would
assault his covenant to the people of Samar as their vice-governor; and [3] the reasons
sought to be prevented by the suspension no longer exist.

Petitioner contends that the order of suspension, being predicated on his acts supposedly
committed while still a member of the Sangguniang Bayan, can no longer attach to him now
that he is the duly elected and incumbent Vice-Governor of Eastern Samar.

ISSUES:

Whether or not the Order of Suspension given by the SANDIGANBAYAN is valid?

HELD:

Yes. The Court ruled that the term "office" used in the law could apply to any office which
the officer charged might currently be holding and not necessarily the particular office under
which he was charged.

The suspension order cannot amount to a deprivation of property without due process of
law. Public office is "a public agency or trust,"and it is not the property envisioned by the
Constitutional provision which petitioner invokes.

Hence, SC dismissed the petition. SANDIGANBAYANs decision is affirmed.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 195649

July 2, 2013

CASAN MACODE MACQUILING, PETITIONER,

vs.

122

COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG G.

BALUA. RESPONDENTS.

SERENO, J.:

Page

RESOLUTION

This Resolution resolves the Motion for Reconsideration filed by respondent on May 10, 2013 and the
Supplemental Motion for Reconsideration filed on May 20, 2013.
We are not unaware that the term of office of the local officials elected in the May 2010 elections has
already ended on June 30, 2010. Arnado, therefore, has successfully finished his term of office. While the
relief sought can no longer be granted, ruling on the motion for reconsideration is important as it will either
affirm the validity of Arnados election or affirm that Arnado never qualified to run for public office.
Respondent failed to advance any argument to support his plea for the reversal of this Courts Decision
dated April 16, 2013. Instead, he presented his accomplishments as the Mayor of Kauswagan, Lanao del
Norte and reiterated that he has taken the Oath of Allegiance not only twice but six times. It must be
stressed, however, that the relevant question is the efficacy of his renunciation of his foreign citizenship
and not the taking of the Oath of Allegiance to the Republic of the Philippines. Neither do his
accomplishments as mayor affect the question before this Court.
Respondent cites Section 349 of the Immigration and Naturalization Act of the United States as having
the effect of expatriation when he executed his Affidavit of Renunciation of American Citizenship on April
3, 2009 and thus claims that he was divested of his American citizenship. If indeed, respondent was
divested of all the rights of an American citizen, the fact that he was still able to use his US passport after
executing his Affidavit of Renunciation repudiates this claim.
The Court cannot take judicial notice of foreign laws, 1 which must be presented as public documents2 of a
foreign country and must be "evidenced by an official publication thereof." 3 Mere reference to a foreign
law in a pleading does not suffice for it to be considered in deciding a case.
Respondent likewise contends that this Court failed to cite any law of the United States "providing that a
person who is divested of American citizenship thru an Affidavit of Renunciation will re-acquire such
American citizenship by using a US Passport issued prior to expatriation." 4
American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local Government Code
calls for application in the case before us, given the fact that at the time Arnado filed his certificate of
candidacy, he was not only a Filipino citizen but, by his own declaration, also an American citizen. It is the
application of this law and not of any foreign law that serves as the basis for Arnados disqualification to
run for any local elective position.
With all due respect to the dissent, the declared policy of Republic Act No. (RA) 9225 is that "all Philippine
citizens who become citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act."5 This policy pertains to the reacquisition of Philippine
citizenship. Section 5(2)6 requires those who have re-acquired Philippine citizenship and who seek
elective public office, to renounce any and all foreign citizenship.
This requirement of renunciation of any and all foreign citizenship, when read together with Section 40(d)
of the Local Government Code7 which disqualifies those with dual citizenship from running for any elective
local position, indicates a policy that anyone who seeks to run for public office must be solely and
exclusively a Filipino citizen. To allow a former Filipino who reacquires Philippine citizenship to continue
using a foreign passport which indicates the recognition of a foreign state of the individual as its national
even after the Filipino has renounced his foreign citizenship, is to allow a complete disregard of this
policy.
Further, we respectfully disagree that the majority decision rules on a situation of doubt.
Indeed, there is no doubt that Section 40(d) of the Local Government Code disqualifies those with dual
citizenship from running for local elective positions.
There is likewise no doubt that the use of a passport is a positive declaration that one is a citizen of the
country which issued the passport, or that a passport proves that the country which issued it recognizes
the person named therein as its national.
It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired American citizenship
by naturalization. There is no doubt that he reacquired his Filipino citizenship by taking his Oath of
Allegiance to the Philippines and that he renounced his American citizenship. It is also indubitable that
after renouncing his American citizenship, Arnado used his U.S. passport at least six times.

Page

123

If there is any remaining doubt, it is regarding the efficacy of Arnados renunciation of his American
citizenship when he subsequently used his U.S. passport. The renunciation of foreign citizenship must be
complete and unequivocal. The requirement that the renunciation must be made through an oath
emphasizes the solemn duty of the one making the oath of renunciation to remain true to what he has
sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do
so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere
ceremonial formality.
The dissent states that the Court has effectively left Arnado "a man without a country".1wphi1 On the
contrary, this Court has, in fact, found Arnado to have more than one. Nowhere in the decision does it say
that Arnado is not a Filipino citizen. What the decision merely points out is that he also possessed another
citizenship at the time he filed his certificate of candidacy.
Well-settled is the rule that findings of fact of administrative bodies will not be interfered with by the courts
in the absence of grave abuse of discretion on the part of said agencies, or unless the aforementioned
findings are not supported by substantial evidence. 8 They are accorded not only great respect but even
finality, and are binding upon this Court, unless it is shown that the administrative body had arbitrarily
disregarded or misapprehended evidence before it to such an extent as to compel a contrary conclusion
had such evidence been properly appreciated.9
Nevertheless, it must be emphasized that COMELEC First Division found that Arnado used his U.S.
Passport at least six times after he renounced his American citizenship. This was debunked by the
COMELEC En Banc, which found that Arnado only used his U.S. passport four times, and which agreed
with Arnados claim that he only used his U.S. passport on those occasions because his Philippine
passport was not yet issued. The COMELEC En Banc argued that Arnado was able to prove that he used
his Philippine passport for his travels on the following dates: 12 January 2010, 31 January 2010, 31
March 2010, 16 April 2010, 20 May 2010, and 4 June 2010.
None of these dates coincide with the two other dates indicated in the certification issued by the Bureau
of Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado arrived in the Philippines
using his U.S. Passport No. 057782700 which also indicated therein that his nationality is USA-American.
Adding these two travel dates to the travel record provided by the Bureau of Immigration showing that
Arnado also presented his U.S. passport four times (upon departure on 14 April 2009, upon arrival on 25
June 2009, upon departure on 29 July 2009 and upon arrival on 24 November 2009), these incidents sum
up to six.
The COMELEC En Banc concluded that "the use of the US passport was because to his knowledge, his
Philippine passport was not yet issued to him for his use." 10 This conclusion, however, is not supported by
the facts. Arnado claims that his Philippine passport was issued on 18 June 2009. The records show that
he continued to use his U.S. passport even after he already received his Philippine passport. Arnados
travel records show that he presented his U.S. passport on 24 November 2009, on 21 January 2010, and
on 23 March 2010. These facts were never refuted by Arnado.
Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that the use of the
U.S. passport was discontinued when Arnado obtained his Philippine passport. Arnados continued use of
his U.S. passport cannot be considered as isolated acts contrary to what the dissent wants us to believe.
It must be stressed that what is at stake here is the principle that only those who are exclusively Filipinos
are qualified to run for public office. If we allow dual citizens who wish to run for public office to renounce
their foreign citizenship and afterwards continue using their foreign passports, we are creating a special
privilege for these dual citizens, thereby effectively junking the prohibition in Section 40(d) of the Local
Government Code.
WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for Reconsideration are
hereby DENIED with finality.
SO ORDERED.
Carpio, Velasco, Jr., Peralta, Bersamin, Abad, Villarama, Jr., Perez, Reyes, and Perlas-Bernabe, JJ.,
concur.
Leonardo-De Castro, Del Castillo, Mendoza, and Leonen, JJ., joins the dissent of J. Brion.
Brion, J., I dissent.

Footnotes
1

Benedicto v. CA, G.R. No. 125359, 4 September 2001, citing Vda. de Perez v. Tolete, 232 SCRA
722, 735 (1994), which in turn cited Philippine Commercial and Industrial Bank v. Escolin, 58
SCRA 266 (1974).

See Sec. 19, Rule 132 of the Rules of Court:

124

Page

SEC. 19. Classes of Documents. For the purpose of their presentation in evidence,
documents are either public or private.
Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines, or of a foreign
country.
3

Sec. 24, Rule 132 of the Rules of Court

SEC. 24. Proof of official record. The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the office in which the record is kept
is in a foreign country, the certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.

Motion for Reconsideration, p. 2

Sec. 2, RA 9225.

Sec. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:
(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a personal and sworn renunciation
of any and all foreign citizenship before any public officer authorized to administer an
oath;
7

SECTION 40. Disqualifications. The following persons are disqualified from running for any
elective local position:
[]
(d) Those with dual citizenship;

Republic of the Philippines

Supreme Court
Baguio City

EN BANC

ATTY. VICENTE E.
and GLENDA ARAA,

SALUMBIDES,

JR.,

G.R. No. 180917

Present:

Petitioners,
PUNO, C.J.,
CARPIO,

125
Page

- versus -

CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,

OFFICE OF THE OMBUDSMAN, RICARDO

AGON,
RAMON
VILLASANTA,
ELMER
DIZON,SALVADOR ADUL,
and
AGNES
FABIAN,
Respondents,

BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:

April 23, 2010

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa (Glenda) challenge
the October 11, 2007 Decision and the December 13, 2007 Resolution of the Court of
Appeals[1] in CA-G.R. SP No. 96889 affirming the Office of the Ombudsmans decision finding
them guilty of Simple Neglect of Duty.

Salumbides

and

Glenda

were

appointed

in

July

2001

as

Municipal

Legal

Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent
need to construct a two-classroom building with fence (the projects) for the Tagkawayan
Municipal High School[2] (TMHS) since the public school in the poblacion area would no longer
admit high school freshmen starting school year 2002-2003. On how to solve the classroom
shortage, the mayor consulted Salumbides who suggested that the construction of the twoclassroom building be charged to the account of the Maintenance and Other Operating
Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented by

126

administration, as had been done in a previous classroom building project of the former

Page

mayor.

Upon consultation, Glenda advised Salumbides in December 2001, that there were no
more available funds that could be taken from the MOOE/RMF, but the savings of the
municipal government were adequate to fund the projects. She added, however, that the
approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.

The members of the Sangguniang Bayan having already gone on recess for the
Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from
the P1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002. [3]

The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino)
to proceed with the construction of the projects based on the program of work and bill of
materials he (Aquino) prepared with a total cost estimate of P222,000.

Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the
mayor included the projects in the list of local government projects scheduled for bidding
on January 25, 2002which, together with the January 31, 2002 public bidding, failed.

The mayor was to admit later his expectation or assumption of risk on

reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2

projects which were at the time on-going (although it was also my thinking
then that no bidder would possibly bid for these 2 projects as these were costestimated very low-P150,000 for the 2-room school building P72,000 for the
fencing) he (bidder) would be reasonable enough to reimburse what I had so
far spen[t] for the project. I said I because up to the time of the failed 2
biddings I have shouldered the vale of the laborers and I requisitioned some
materials on credit on my own personal account, and not a single centavo was
at the time disbursed by our municipal treasury until all requirements for
negotiated purchase of the materials for the project had been
accomplished. As a matter of fact,payments for the expenses on these 2
projects have been made only starting 19 March 2002. x x x[4](underscoring
supplied)

The construction of the projects commenced without any approved appropriation and
ahead of the public bidding. Salumbides was of the opinion that the projects were regular
and legal, based on an earlier project that was implemented in the same manner, using the
same source of fund and for the same reason of urgency which was allowed because the

127

building was considered merely temporary as the TMHS is set to be transferred to an 8-

Page

hectare lot which the municipal government is presently negotiating to buy. [5]
Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of model
guidelines in the implementation of infrastructure projects to be executed by administration,
while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to
authorize the mayor to enter into a negotiated procurement. Both actions did not merit the
approval of the Sangguniang Bayan.

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon,
Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan,
filed with the Office of the Ombudsman a complaint[6] against Salumbides and Glenda
(hereafter petitioners), the mayor, Coleta, Jason and Aquino.

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E,

charged petitionerset al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct
Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit
(COA) Rules and the Local Government Code.

By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place
petitioners et

al.

under

preventive

suspension

pending

investigation. By

Order

dated February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration
but dropped the mayor and Coleta, both elective officials, as respondents in the
administrative case, the 2004 elections having mooted the case. The parties were thereupon
directed to submit their respective verified position papers to which petitioners, Jason and
Aquino complied by submitting a consolidated position paper on May 19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by the Office of the
Ombudsman on February 18, 2005 requiring the regional officer of the COA to submit the
post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of
May 23, 2005 that the required documents were among those razed by fire on April 14, 2004
that hit the Office of the Municipal Accountant where they were temporarily stored due to
lack of space at the Provincial Auditors Office.

On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005
Memorandumabsolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of
Duty, for which they weremeted the penalty of suspension from office for a maximum period
of six months with a stern warning against a similar repetition. It also approved
on November 2, 2006 the March 27, 2006 Order[7] denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before this Court
via Rule 45 of the Rules of Court.

128
Page

For non-compliance with the rule on certification against forum shopping, the petition
merits outright dismissal. The verification portion of the petition does not carry a
certification against forum shopping.[8]

The Court has distinguished the effects of non-compliance with the requirement of
verification and that of certification against forum shopping. A defective verification shall be
treated as an unsigned pleading and thus produces no legal effect, subject to the discretion
of the court to allow the deficiency to be remedied, while the failure to certify against forum
shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is
not curable by amendment of the initiatory pleading.[9]
Petitioners disregard of the rules was not the first. Their motion for extension of time
to file petition was previously denied by Resolution of January 15, 2008[10] for noncompliance with the required showing of competent proof of identity in the Affidavit of
Service. The Court, by Resolution of March 4, 2008,[11]later granted their motion for
reconsideration with motion to admit appeal (Motion with Appeal) that was filed on February
18, 2008 or the last day of filing within the extended period.

Moreover, in their Manifestation/Motion[12] filed a day later, petitioners prayed only for the
admission of nine additional copies of the Motion with Appeal due to honest inadvertence in
earlier filing an insufficient number of copies. Petitioners were less than candid when they
surreptitiously submitted a Motion with Appeal which is different from the first set they had
submitted. The second set of Appeal includes specific Assignment of Errors [13] and already
contains a certification against forum shopping [14] embedded in the Verification. The two
different Verifications were notarized by the same notary public and bear the same date and
document number.[15] The rectified verification with certification, however, was filed beyond
the reglementary period.

Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation [16] to cover
coterminous appointive officials who were administratively charged along with the reelected
official/appointing authority with infractions allegedly committed during their preceding
term.

The Court rejects petitioners thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva
Ecija[17] issued the landmark ruling that prohibits the disciplining of an elective official for a
wrongful act committed during his immediately preceding term of office. The Court

129

explained that [t]he underlying theory is that each term is separate from other terms, and
that the reelection to office operates as a condonation of the officers previous misconduct to

Page

the extent of cutting off the right to remove him therefor.[18]

The Court should never remove a public officer for acts done prior to his
present term of office. To do otherwise would be to deprive the people of their
right to elect their officers. When the people elect[e]d a man to office, it must
be assumed that they did this with knowledge of his life and character, and
that they disregarded or forgave his faults or misconduct, if he had been guilty
of any. It is not for the court, by reason of such faults or misconduct[,] to
practically overrule the will of the people.[19] (underscoring supplied)

Lizares v. Hechanova, et al.[20] replicated the doctrine. The Court dismissed the
petition in that case for being moot, the therein petitioner having been duly reelected, is no
longer amenable to administrative sanctions.[21]

Ingco v. Sanchez, et al.[22] clarified that the condonation doctrine does not apply to
a criminal case.[23] Luciano v. The Provincial Governor, et al., [24] Olivarez v. Judge Villaluz,
[25]

and Aguinaldo v. Santos[26] echoed the qualified rule that reelection of a public official

does not bar prosecution for crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence
including two cases involving a Senator and a Member of the House of Representatives. [27]

Salalima v. Guingona, Jr.[28] and Mayor Garcia v. Hon. Mojica[29] reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct occurred four days before
the elections, respectively.Salalima did not distinguish as to the date of filing of the
administrative complaint, as long as the alleged misconduct was committed during the prior
term, the precise timing or period of which Garcia did not further distinguish, as long as the
wrongdoing that gave rise to the public officials culpability was committed prior to the date
of reelection.

Petitioners theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor [30] where the Court
found no basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondents contention that his

appointment to the position of president of NORSU, despite the pending
administrative cases against him, served as a condonation by the BOR of the
alleged acts imputed to him. The doctrine this Court laid down in Salalima v.

Page

130

Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present

circumstances. Respondents in the mentioned cases are elective officials,
unlike respondent here who is an appointed official. Indeed, election expresses
the sovereign will of the people.Under the principle of vox populi est suprema
lex, the re-election of a public official may, indeed, supersede a
pending administrative case. The same cannot be said of a reappointment to a non-career position. There is no sovereign will of the
people to speak of when the BOR re-appointed respondent Sojor to the post of
university president.[31] (emphasis and underscoring supplied)

Contrary to petitioners asseveration, the non-application of the condonation doctrine

to appointive officials does not violate the right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections,[32] the Court applied the four-fold
test in an equal protection challenge [33] against the resign-to-run provision, wherein it
discussed the material and substantive distinctions between elective and appointive officials
that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation which is limited either in the object to which it is directed or by territory within which it
is to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exist for making a distinction between those who fall within
such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to an office
for a definite term and may be removed therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a permanent capacity and are entitled to
security of tenure while others serve at the pleasure of the appointing authority.

xxxx
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people. It involves the choice or selection of candidates to public office by popular
vote. Considering that elected officials are put in office by their constituents for a definite term, x x
x complete deference is accorded to the will of the electorate that they be served by such officials
until the end of the term for which they were elected. In contrast, there is no such expectation
insofar as appointed officials are concerned. (emphasis and underscoring supplied)

The electorates condonation of the previous administrative infractions of the reelected

official cannot be extended to that of the reappointed coterminous employees, the

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underlying basis of the rule being to uphold the will of the people expressed through the
ballot. In

other

words,

there

is

neither

subversion

of

the

sovereign

will

nor

employees.

Page

disenfranchisement of the electorate to speak of, in the case of reappointed coterminous

It is the will of the populace, not the whim of one person who happens to be the appointing
authority, that could extinguish an administrative liability. Since petitioners hold appointive
positions, they cannot claim the mandate of the electorate. The people cannot be charged
with the presumption of full knowledge of the life and character of each and every probable
appointee of the elective official ahead of the latters actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous
precedent as it would, as respondents posit, provide civil servants, particularly local
government employees, with blanket immunity from administrative liability that would
spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and
re-assess the factual findings. This the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is
not a trier of facts.[34] As a rule, the Court is not to review evidence on record and assess the
probative weight thereof. In the present case, the appellate court affirmed the factual
findings of the Office of the Ombudsman, which rendered the factual questions beyond the
province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be

appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if
they conspired to act negligently, their infraction becomes intentional. [35] There can hardly
be conspiracy to commit negligence.[36]
Simple neglect of duty is defined as the failure to give proper attention to a task expected
from an employee resulting from either carelessness or indifference. [37] In the present case,
petitioners fell short of the reasonable diligence required of them, for failing to exercise due
care and prudence in ascertaining the legal requirements and fiscal soundness of the
projects before stamping their imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides
failed to uphold the law and provide a sound legal assistance and support to the mayor in
carrying out the delivery of basic services and provisions of adequate facilities when he
advised [the mayor] to proceed with the construction of the subject projects without prior
competitive bidding.[38] As pointed out by the Office of the Solicitor General, to absolve

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Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice,
when by law he is precisely tasked to advise the mayor on matters related to upholding the

Page

rule of law.[39] Indeed, a legal officer who renders a legal opinion on a course of action
without any legal basis becomes no different from a lay person who may approve the same
because it appears justified.

As regards petitioner Glenda, the appellate court held that the improper use of government
funds upon the direction of the mayor and prior advice by the municipal legal officer did not
relieve her of liability for willingly cooperating rather than registering her written
objection[40] as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper
itemization of the expense, held that the funding for the projects should have been taken
from the capital outlays that refer to the appropriations for the purchase of goods and
services, the benefits of which extend beyond the fiscal year and which add to the assets of
the local government unit. It added that current operating expenditures like MOOE/RMF refer
to appropriations for the purchase of goods and services for the conduct of normal local
government operations within the fiscal year.[41]

In Office of the Ombudsman v. Tongson,[42] the Court reminded the therein respondents, who
were guilty of simple neglect of duty, that government funds must be disbursed only upon
compliance with the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without
pay for one month and one day to six months. Finding no alleged or established
circumstance to warrant the imposition of the maximum penalty of six months, the Court
finds the imposition of suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully
perform the duties of the office and use reasonable skill and diligence, and to act primarily
for the benefit of the public.Thus, in the discharge of duties, a public officer is to use that
prudence, caution, and attention which careful persons use in the management of their
affairs.[43]

Public service requires integrity and discipline. For this reason, public servants must exhibit
at all times the highest sense of honesty and dedication to duty. By the very nature of their
duties and responsibilities, public officers and employees must faithfully adhere to hold
sacred and render inviolate the constitutional principle that a public office is a public
trust; and must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency.[44]

133
Page

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CAG.R. SP No. 96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente
Salumbides, Jr. and Glenda Araa, are suspended from office for three (3) months without pay.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 202202

March 19, 2013

SILVERIO R. TAGOLINO, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY MARIE TORRESGOMEZ, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court is the March 22,
2012 Decision1 of the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 10-031
(QW) which declared the validity of private respondent Lucy Marie Torres-Gomezs substitution as the
Liberal Partys replacement candidate for the position of Leyte Representative (Fourth Legislative District)
in lieu of Richard Gomez.
The Facts
On November 30, 2009, Richard Gomez (Richard) filed his certificate of candidacy 2 (CoC) with the
Commission on Elections (COMELEC), seeking congressional office as Representative for the Fourth
Legislative District of Leyte under the ticket of the Liberal Party. Subsequently, on December 6, 2009, one
of the opposing candidates, Buenaventura Juntilla (Juntilla), filed a Verified Petition, 3 alleging that
Richard, who was actually a resident of College Street, East Greenhills, San Juan City, Metro Manila,
misrepresented in his CoC that he resided in 910 Carlota Hills, Can-adieng, Ormoc City. In this regard,
Juntilla asserted that Richard failed to meet the one (1) year residency requirement under Section 6,
Article VI4 of the 1987 Philippine Constitution (Constitution) and thus should be declared
disqualified/ineligible to run for the said office. In addition, Juntilla prayed that Richards CoC be denied
due course and/or cancelled.5
On February 17, 2010, the COMELEC First Division rendered a Resolution 6 granting Juntillas petition
without any qualification. The dispositive portion of which reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVE, to GRANT
the Petition to Disqualify Candidate for Lack of Qualification filed by BUENAVENTURA O. JUNTILLA
against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the
Office of Congressman, Fourth District of Leyte, for lack of residency requirement.
SO ORDERED.
Aggrieved, Richard moved for reconsideration but the same was denied by the COMELEC En Banc
through a Resolution dated May 4, 2010.7 Thereafter, in a Manifestation of even date, Richard accepted
the said resolution with finality "in order to enable his substitute to facilitate the filing of the necessary
documents for substitution."8
On May 5, 2010, Lucy Marie Torres-Gomez (private respondent) filed her CoC 9 together with a Certificate
of Nomination and Acceptance10 from the Liberal Party endorsing her as the partys official substitute
candidate vice her husband, Richard, for the same congressional post. In response to various letterrequests submitted to the COMELECs Law Department (Law Department), the COMELEC En Banc, in
the exercise of its administrative functions, issued Resolution No. 8890 11 on May 8, 2010, approving,
among others, the recommendation of the said department to allow the substitution of private respondent.
The recommendation reads:

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STUDY AND OBSERVATION

Page

On the same date, this Department received an Opposition from Mr. Buenaventura O. Juntilla, thru his
counsel, opposing the candidacy of Ms. Lucy Marie Torres Gomez, as a substitute candidate for Mr.
Richard I. Gomez.
The crux of the opposition stemmed from the issue that there should be no substitution because there is
no candidate to substitute for.
It must be stressed that the resolution of the First Division, this Commission, in SPA No. 09-059 speaks
for disqualification of candidate Richard I. Gomez and not of cancellation of his Certificate of Candidacy:
Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
Petition to Disqualify Candidate for Lack of Qualification filed x x x against RICHARD I. GOMEZ.
Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman,
Fourth District of Leyte, for lack of residency requirement.
The said resolution was affirmed by the Commission En Banc on May 04, 2010.
The disqualification of a candidate does not automatically cancel ones certificate of candidacy, especially
when it is nominated by a political party. In effect, the political party is still allowed to substitute the
candidate whose candidacy was declared disqualified. After all, the right to substitute is a privilege given
to a political party to exercise and not dependent totally to a candidate.
Nonetheless, in case of doubt, the same must always be resolved to the qualification of a candidate to run
in the public office.
The substitution complied with the requirements provided under Section 12 in relation to Section 13 of
Comelec Resolution No. 8678 dated October 6, 2009.
xxxx
In view of the foregoing, the Law Department RECOMMENDS the following:
xxxx
2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE FOR
RICHARD GOMEZ: (Emphasis and underscoring supplied)
xxxx
The following day, or on May 9, 2010, Juntilla filed an Extremely Urgent Motion for
Reconsideration12 (May 9, 2010 Motion) of the above-mentioned COMELEC En Banc resolution
Pending resolution of Juntillas May 9, 2010 Motion, the national and local elections were conducted as
scheduled on May 10, 2010. During the elections, Richards, whose name remained on the ballots,
garnered 101, 250 votes while his opponents, namely, Eufrocino Codilla, Jr. and herein petitioner Silverio
Tagolino, obtained 76,549 and 493 votes, respectively.13 In view of the aforementioned substitution,
Richards votes were credited in favor of private respondent and as a result, she was proclaimed the dulyelected Representative of the Fourth District of Leyte.
On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9, 2010 Motion
relative to Resolution No. 8890.14 The said motion, however, remained unacted.
On May 24, 2010, petitioner filed a Petition15 for quo warranto before the HRET in order to oust private
respondent from her congressional seat, claiming that: (1) she failed to comply with the one (1) year
residency requirement under Section 6, Article VI of the Constitution considering that the transfer of her
voter registration from San Rafael Bulacan16 to the Fourth District of Leyte was only applied for on July
23, 2009; (2) she did not validly substitute Richard as his CoC was void ab initio; and (3) private
respondents CoC was void due to her non-compliance with the prescribed notarial requirements i.e., she
failed to present valid and competent proof of her identity before the notarizing officer. 17
In her Verified Answer,18 private respondent denied petitioners allegations and claimed that she validly
substituted her husband in the electoral process. She also averred that she personally known to the
notary public who notarized her CoC, one Atty. Edgardo Cordeno, and thus, she was not required to have
presented any competent proof of identity during the notarization of the said document. Lastly, she
asserted that despite her marriage to Richard and exercise of profession in Metro Manila, she continued
to maintain her residency in Ormoc City which was the place where she was born and raised.
During the preliminary conference, and as shown in the Preliminary Conference Order dated September
2, 2010, the parties agreed on the following issues for resolution:

135

1. Whether or not the instant petition for quo warranto is meritorious;

Page

2. Whether or not the substitution of respondent is valid;

3. Whether or not a petition for quo warranto can be used as a substitute for failure to file the
necessary petition for disqualification with the COMELEC;
4. Whether or not respondents COC was duly subscribed; and
5. Whether or not respondent is ineligible for the position of Representative of the Fourth District of
Leyte for lack of residency requirement.19
Ruling of the HRET
After due proceedings, the HRET issued the assailed March 22, 2012 Decision 20 which dismissed the quo
warranto petition and declared that private respondent was a qualified candidate for the position of Leyte
Representative (Fourth Legislative District). It observed that the resolution denying Richards candidacy
i.e., the COMELEC First Divisions February 17, 2010 Resolution, spoke of disqualification and not of
CoC cancellation. Hence, it held that the substitution of private respondent in lieu of Richard was legal
and valid.21 Also, it upheld the validity of private respondents CoC due to petitioners failure to controvert
her claim that she was personally known to the notary public who notarized her CoC. 22 Finally, the HRET
ruled that while it had been admitted that private respondent resides in Colgate Street, San Juan City and
lived in San Rafael, Bulacan, the fact was she continued to retain her domicile in Ormoc City given that
her absence therefrom was only temporary.
Hence, the instant petition.
Issues Before the Court
The crux of the present controversy is whatever or not the HRET gravely abused its discretion in finding
that Richard was validly substituted by private respondent as candidate for Leyte Representative (Fourth
Legislative District) in view of the formers failure to meet the one (1) year residency requirement provided
under Section 6, Article VI of the Constitution.
It is petitioners submission that the HRET gravely abused its discretion when it upheld the validity of
private respondents substitution despite contrary jurisprudence holding that substitution is impermissible
where the substituted candidates CoC was denied due course to and/or cancelled, as in the case of
Richard. On the other hand, respondents maintain that Richards CoC was not denied due course to
and/or cancelled by the COMELEC as he was only "disqualified" and therefore, was properly substituted
by private respondent.
Ruling of the Court
The petition is meritorious.
A. Distinction between a petition for disqualification and a petition to deny due course to/cancel a
certificate of candidacy
The Omnibus Election Code23 (OEC) provides for certain remedies to assail a candidates bid for public
office. Among these which obtain particular significance to this case are: (1) a petition for disqualification
under Section 68; and (2) a petition to deny due course to and/or cancel a certificate of candidacy under
Section 78. The distinctions between the two are well-perceived.
Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a candidates
possession of a permanent resident status in a foreign country; 24 or (b) his or her commission of certain
acts of disqualification. Anent the latter, the prohibited acts under Section 68 refer to election offenses
under the OEC, and not to violations of other penal laws. 25 In particular, these are: (1) giving money or
other material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions; (2) committing acts of terrorism to enhance ones candidacy; (3) spending in ones
election campaign an amount in excess of that allowed by the OEC; (4) soliciting, receiving or making any
contribution prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections
80,26 83,27 85,28 8629 and 261, paragraphs d,30 e,31 k,32 v,33and cc, sub-paragraph 634 of the OEC.
Accordingly, the same provision (Section 68) states that any candidate who, in an action or protest in
which he or she is a party, is declared by final decision of a competent court guilty of, or found by the
COMELEC to have committed any of the foregoing acts shall be disqualified from continuing as a
candidate for public office, or disallowed from holding the same, if he or she had already been elected. 35
It must be stressed that one who is disqualified under Section 68 is still technically considered to have
been a candidate, albeit proscribed to continue as such only because of supervening infractions which do
not, however, deny his or her statutory eligibility. In other words, while the candidates compliance with the
eligibility requirements as prescribed by law, such as age, residency, and citizenship, is not in question,

136

he or she is, however, ordered to discontinue such candidacy as a form of penal sanction brought by the
commission of the above-mentioned election offenses.

Page

On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78 of
the OEC36 is premised on a persons misrepresentation of any of the material qualifications required for
the elective office aspired for. It is not enough that a person lacks the relevant qualification; he or she
must have also made a false representation of the same in the CoC. 37 The nature of a Section 78 petition
was discussed in the case of Fermin v. COMELEC,38 where the Court illumined:
Let it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the
lack of qualifications but on a finding that the candidate made a material representation that is false,
which may relate to the qualifications required of the public office he/she is running for. It is noted that the
candidates states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC,
therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently states a material representation in the CoC that is
false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate.
Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under
Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the
distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for
quo warranto is filed after proclamation of the winning candidate. (Emphasis supplied)
Corollary thereto, it must be noted that the deliberateness of the misrepresentation, much less ones
intent to defraud, is of bare significance in a Section 78 petition as it is enough that the persons
declaration of a material qualification in the CoC be false. In this relation, jurisprudence holds that an
express finding that the person committed any deliberate misrepresentation is of little consequence in the
determination of whether ones CoC should be deemed cancelled or not. 39 What remains material is that
the petition essentially seeks to deny due course to and/or cancel the CoC on the basis of ones
ineligibility and that the same be granted without any qualification. 40
Pertinently, while a disqualified candidate under Section 68 is still considered to have been a candidate
for all intents and purposes, on the other hand, a person whose CoC had been denied due course to
and/or cancelled under Section 78 is deemed to have not been a candidate at all. The reason being is
that a cancelled CoC is considered void ab initio and thus, cannot give rise to a valid candidacy and
necessarily, to valid votes.41 In Talaga v. COMELEC42 (Talaga), the Court ruled that:
x x x x While a person who is disqualified under Section 68 is merely prohibited to continue as a
candidate, a person who certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.
The foregoing variance gains utmost importance to the present case considering its implications on
candidate substitution.
B. Valid CoC as a condition sine qua non for candidate substitution
Section 77 of the OEC provides that if an official candidate of a registered or accredited political party
dies, withdraws or is disqualified for any cause, a person belonging to and certified by the same political
party may file a CoC to replace the candidate who died, withdrew or was disqualified. It states that:
Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for
the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies,
withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political
party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified.
(Emphasis supplied)
Evidently, Section 77 requires that there be an "official candidate" before candidate substitution proceeds.
Thus, whether the ground for substitution is death, withdrawal or disqualification of a candidate, the said
section unequivocally states that only an official candidate of a registered or accredited party may be
substituted.43
As defined under Section 79(a) of the OEC, the term "candidate" refers to any person aspiring for or
seeking an elective public office who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of parties. Clearly, the law requires that one must
have validly filed a CoC in order to be considered a candidate. The requirement of having a CoC obtains
even greater importance if one considers its nature. In particular, a CoC formalizes not only a persons
public declaration to run for office but evidences as well his or her statutory eligibility to be elected for the
said post. In Sinaca v. Mula,44 the Court has illumined:
A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidates
political creed or lack of political creed. It is a statement of a person seeking to run for a public office
certifying that he announces his candidacy for the office mentioned and the be is eligible for the office, the
name of the political party to which he belongs, if he belongs to any, and his post-office address for all
election purposes being as well stated. (Emphasis and underscoring supplied).

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137

In this regard, the CoC is the document which formally accords upon a person the status of a candidate.
In other words, absent a valid CoC one is not considered a candidate under legal contemplation. As held
in Talaga:45
x x x a persons declaration of his intention to run for public office and his affirmation that he possesses
the eligibility for the position he seeks to assume, followed by the timely filing of such declaration,
constitute a valid CoC that render the person making the declaration a valid or official candidate.
(Emphasis supplied)
Considering that Section 77 requires that there be a candidate in order for substitution to take place, as
well as the precept that a person without a valid CoC is not considered as a candidate at all, it necessarily
follows that if a persons CoC had been denied due course to and/or cancelled, he or she cannot be
validly substituted in the electoral process. The existence of a valid CoC is therefore a condition sine qua
non for a disqualified candidate to be validly substituted. 46
C. Divergent effects of disqualification and denial of due course to and/or cancellation of CoC cases vis-vis candidate substitution
Proceeding, from the foregoing discourse, it is evident that there lies a clear-cut distinction between a
disqualification case under Section 68 and denial of due course to and/or cancellation of COC case under
Section 78 vis--vis their respective effects on candidate substitution under Section 77.1wphi1
As explained in the case of Miranda v. Abaya47 (Miranda), a candidate who is disqualified under Section
68 can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified;
but a person whose CoC has been denied due course to and/or cancelled under Section 78 cannot be
substituted because he is not considered a candidate. 48 Stated differently, since there would be no
candidate to speak of under a denial of due course to and/or cancellation of a CoC case, then there would
be no candidate to be substituted; the same does not obtain, however, in a disqualification case since
there remains to be a candidate to be substituted, although his or her candidacy is discontinued.
On this note, it is equally revelatory that Section 77 expressly enumerates the instances where
substitution is permissible, that is when an official candidate of a registered or accredited political party
"dies, withdraws or is disqualified for any cause." Noticeably, material misrepresentation cases are not
included in the said section and therefore, cannot be a valid basis to proceed with candidate substitution.
D. Application to the case at bar
In this case, it is undisputed that Richard was disqualified to run in the May 10, 2010 elections due to his
failure to comply with the one year residency requirement. 49 The confusion, however, stemmed from the
use of the word "disqualified" in the February 17, 2010 Resolution of the COMELEC First Division, which
was adopted by the COMELEC En Banc in granting the substitution of private respondent, and even
further perpetuated by the HRET in denying the quo warranto petition. In short, a finding that Richard was
merely disqualified and not that his CoC was denied due course to and/or cancelled would mean that
he could have been validly substitute by private respondent, thereby legitimizing her candidacy.
Yet the fact that the COMELEC First Divisions February 17, 2010 Resolution did not explicitly decree the
denial of due course to and/or cancellation of Richards CoC should not have obviated the COMELEC En
Banc from declaring the invalidity of private respondents substitution. It should be stressed that the clear
and unequivocal basis for Richards "disqualification" is his failure to comply with the residency
requirement under Section 6, Article VI of the Constitution which is a ground for the denial of due course
to and/or cancellation a CoC under Section 78 of the OEC, misrepresentation contemplated under a
Section 78 petition refers to statements affecting ones qualifications for elective office such as age,
residence and citizenship or non-possession of natural-born Filipino status. 51 There is therefore no legal
basis to support a finding of disqualification within the ambit of election laws. Accordingly, given Richards
non-compliance with the one year residency requirement, it cannot be mistaken that the COMELEC First
Divisions unqualified grant of Juntillas "Verified Petition to Disqualify Candidate for Lack of
Qualification"52 which prayed that the COMELEC declare Richard "DISQUALIFIED and INELIGIBLE
from seeking the office of Member of the House of Representatives" and "x x x that his Certificate of
Candidacy x x x be DENIED DUE COURSE and/or CANCELLED" 53 carried with it the denial of due
course to and/or cancellation of Richards CoC pursuant to Section 78.
Case law dictates that if a petition prays for the denial of due course to and/or cancellation of CoC and the
same is granted by the COMELEC without any qualification, the cancellation of the candidates CoC in in
order. This is precisely the crux of the Miranda ruling wherein the Court, in upholding the COMELEC En
Bancs nullification of the substitution in that case, decreed that the COMELEC Divisions unqualified
grant of the petition necessarily included the denial of due course to and/or cancellation of the candidates
CoC, notwithstanding the use of the term "disqualified" in the COMELEC Divisions resolution, as the
foregoing was prayed for in the said petition:
The question to settle next is whether or not aside from Joiel "Pempe" Miranda being disqualified by the
COMELEC in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course
and cancelled.

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The Court rules that it was.

Page

Private respondents petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the
position of Mayor for the City of Snatiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
In resolving the petition filed by private respondent specifying a very particular relief, the COMELEC ruled
favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition.
Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of mayor
of Santiago City, Isabela, in the May 11, 1998 national and local elections.
SO ORDERED.
From a plain reading of the dispositive portion of the COMELEC resolution of May 5, 1998 in SPA No. 98019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was
GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled
over and above the granting of the specific prayer for denial of due course and cancellation of the
certificate of candidacy.
xxxx
There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to
deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda. There is likewise no
question that the said petition was GRANTED without any qualification whatsoever. It is rather clear,
therefore, that whether or not the COMELEC granted any further relief in SPA No. 98-019 by disqualifying
the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of
Jose "Pempe" Miranda was denied due course and cancelled. (Emphasis and underscoring supplied)
The same rule was later discussed in the case of Talaga, viz:
3. Granting without any qualification or petition in SPA No. 09-029(DC) manifested COMELECs intention
to declare Ramon disqualified and to cancel his CoC
xxxx
In Miranda v. Abaya, the specific relief that the petition prayed for was that the CoC "be not given due
course and/or cancelled". The COMELEC categorically granted "the petition" and then pronounced in
apparent contradiction that Joel Pempe Miranda was "disqualified." The Court held that the COMELEC,
by granting the petition without any qualification, disqualified Joel Pempe Miranda and at the same time
cancelled Jose Pempe Mirandas CoC.
xxxx
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of
cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to any
qualification. (Emphasis and underscoring supplied)
In view of the foregoing rulings, the COMELEC En Banc direly misconstrued the COMELEC First
Divisions February 17, 2010 Resolution when it adopted the Law Departments finding that Richard was
only "disqualified" and that his CoC was not denied due course to and/or cancelled, paving the way for
the approval of private respondents substitution. It overlooked the fact that the COMELEC First Divisions
ruling encompassed the cancellation of Richards CoC and in consequence, disallowed the substitution of
private respondent. It was therefore grave and serious error on the part of the COMELEC En Banc to
have approved private respondents substitution.
Consequently, in perpetuating the COMELEC En Bancs error as above-discussed, the HRET committed
a grave abuse of discretion, warranting the grant of the instant petition.
Fundamental is the rule that grave abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence. 54 While it is well-recognized that the HRET has
been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns,
and qualifications of the members of the House, the Court maintains jurisdiction over it to check "whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part
of the latter.55 In other words, when the HRET utterly disregards the law and settled precedents on the
matter before it, it commits a grave abuse of discretion.

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Records clearly show that: (1) Richard was held ineligible as a congressional candidate for the Fourth
District of Leyte due to his failure to comply with the one year residency requirement; (2) Juntillas petition
prayed for the denial of due course to and/or cancellation of his CoC; and (3) the COMELEC First Division
granted the foregoing petition without any qualification. By these undisputed and essential facts alone, the
HRET should not have adopted the COMELEC En Bancs erroneous finding that the COMELEC First
Divisions February 17, 2010 Resolution "speaks only of "disqualification and not of cancellation of
Richards CoC"36 and thereby, sanctioned the substitution of private respondent.
Lest it be misunderstood, the HRET is not bound by previous COMELEC pronouncements relative to the
qualifications of the Members of the House. Being the sole judge 57 of all contests relating to the election,
returns, and qualifications of its respective members, the HRET cannot be tied down by COMELEC
resolutions, else its constitutional mandate58 be circumvented and rendered nugatory. Instructive on this
point is the Courts disquisition in Fernandez v. HRET,59 to wit:
Private respondent concludes from the above that petitioner had no legal basis to claim that the HRET,
when reference to the qualification/s of Members of the House of Representatives is concerned, is "coequal", to the COMELEC respecting the matter of eligibility and qualification of a member of the House of
Representatives. The truth is the other way around, because the COMELEC is subservient to the HRET
when the dispute or contest at issue refers to the eligibility and/or qualification of a Member of the House
of Representatives. A petition for quo warranto is within the exclusive jurisdiction of the HRET as sole
judge, and cannot be considered forum shopping even if another body may have passed upon in
administrative or quasi-judicial proceedings the issue of the Members qualification while the Member was
still a candidate. There is forum-shopping only where two cases involve the same parties and the same
cause of action. The two cases here are distinct and dissimilar in their nature and character. (Emphasis
and underscoring supplied)
Notably, the phrase "election, returns, and qualifications" should be interpreted in its totality as referring to
all matters affecting the validity of the contestees title. More particularly, the term "qualifications" refers to
matters that could be raised in a quo warranto proceeding against the pro-claimed winner, such as his
disloyalty or ineligibility, or the inadequacy of his certificate of candidacy.60 As used in Section 74 of the
OEC, the word "eligible" means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for the public office. 61 In this relation, private
respondents own qualification to run for public office which was inextricably linked to her husbands
own qualifications due to her substitution was the proper subject of quo warranto proceedings falling
within the exclusive jurisdiction of the HRET and independent from any previous proceedings before the
COMELEC, lest the jurisdiction divide between the two be blurred.
Nonetheless, it must be pointed out that the HRETs independence is not without limitation. As earlier
mentioned, the Court retains certiorari jurisdiction over the HRET if only to check whether or not it has
gravely abused its discretion. In this regard, the Court does not endeavor to denigrate nor undermine the
HRETs independence; rather, it merely fulfills its duty to ensure that the Constitution and the laws are
upheld through the exercise of its power of judicial review.
In fine, the Court observes that the HRET wantonly disregarded the law by deliberately adopting the
COMELEC En Bancs flawed findings regarding private respondents eligibility to run for public office
which essentially stemmed from her substitution. In this light, it cannot be gainsaid that the HRET gravely
abused its discretion.
Owing to the lack of proper substitution in its case, private respondent was therefore not a bona fide
candidate for the position of Representative for the Fourth District of Leyte when she ran for office, which
means that she could not have been elected. Considering this pronouncement, there exists no cogent
reason to further dwell on the other issues respecting private respondents own qualification to office.
WHEREFORE, the petition is GRANTED. Accordingly, the March 22, 2012 Decision rendered by the
House of Representatives Electoral Tribunal in HRET Case No. 10-031 (QW) is hereby REVERSED and
SET ASIDE.
SO ORDERED.